408

FITZ-OSBERT'S CAPTURE AND DEATH.

The king was always ready to receive charges that might be a source of profit, and took some measures which emboldened the malcontents, and provoked the wrath of archbishop Hubert, the justiciary. He dared not proceed to open war against the Londoners. More than fifty thousand of them, it is said, probably all the unprivileged, were enrolled by name as Fitz-Osbert's adherents or followers. There was a panic like that which precedes a revolution. The justiciary ordered all the commonalty to keep within the walls, no doubt fearing that a general revolt would be organized. Some who violated these orders, and ventured to Stamford fair, were seized. The city aristocracy were compelled to be day and night under arms for fear of an outbreak. But when the justiciary demanded hostages from the citizens, no one dared to refuse him. FitzOsbert's fate was now sealed; he harangued his party in St. Paul's church-yard; but texts from Scripture1 and democratic invective alike failed to secure co-operation from men, who would have risked the lives of their children by a revolt. Nevertheless, the council thought it unsafe to proceed against Fitz-Osbert in the common course of law. He was watched, and attacked suddenly by a party of soldiers and citizens. After a short fight, in which he slew one of his assailants, the demagogue fled, with his mistress and a few friends, to the church of St. Mary-le-Bow, and mounted the tower. Neither the sanctity nor the strength of the edifice availed him. Fire was set to the doors, and Fitz-Osbert, as he tried to rush out, was ripped up by the son of the man he had slain. He had still life left to undergo a short sentence from the justiciary before a court of the civic aristocracy. Their fear had been great, and their revenge was savage. Naked, and tied to a horse's tail, he was dragged along the road to Tyburn, and hanged with nine of his companions. The people honoured him as a saint, flocked in spite of sentries to his tomb, and scraped away the earth as a relic. Yet Fitz-Osbert was neither pa

1 Once he took the text, "With joy shall ye drink water out of the wells of salvation" (Isaiah xii. 3), and applied it to himself.

CHARACTER OF RICHARD I.

409

triot nor saint. He was a worthless man, who was ready to kindle a civil war for the sake of money or revenge. The chief interest of his life lies in the fact that, with the instinct of an agitator, he had discovered a real grievance the subordination of the citizens to a few families. Thersites, Cleon, and Gracchus are his prototypes; not Tyrtæus or Pelopidas.1

Scarcely any king has left so little mark on our history as Richard. The strength and ferocity of a savage, the strategy of a general of division, the accomplishments of a troubadour, and some skill as a linguist, redeem him from contempt as a man, but do not entitle him to honour as a king. His arrogance almost amounted to insanity, and his greed of money was unparalleled in English history. Less sensual than William Rufus, he was in no other respect morally his superior. The different reputation of the two men is explained by the single fact, that Rufus declined a crusade and Richard joined it. To have yielded to the spirit of the age, and fought in Palestine instead of Europe, has made the difference with posterity of six hundred years of reputation instead of undying infamy. The world is wise in thus judging the acts by which it benefits, without regard to the thought. Moreover, it was Richard's great good fortune to be the brother of John and the uncle of Henry III. In several respects, his reign, through no merit of his own, promoted the well-being of his country. Several cities bought charters or an increase of their privileges, on the model of the municipal constitutions of London, Bristol, and Winchester. The lord mayor and aldermen of London are said to date from this reign; probably their offices were remodelled and their powers increased. An assize for the regulation of buildings in towns, and another to enforce uniformity of measures and weights, show that the work of government went on in the king's despite. The royal justiciaries after Longchamp were men of principle and ability. The surrender of the right to ships wrecked on the coast in favour

The incidents of Fitz-Osbert's revolt have been admirably treated by Sir F. Palgrave. Rot. Cur., vol. i., pp. viii.-xviii.

2 Palgrave's Eng. Com., pp. clxxiv., clxxv.; Hoveden, Savile, p. 441.

410

INDICATIONS OF COMING CHANGE.

of the natural heirs, indicates an advance in international law to which the influence of the crusades may perhaps have contributed. Above all, Norman and Englishman, who had fought together in Palestine, were beginning to lose the last feeling of a divided nationality. Both were coming to regard Normandy and other French dominions with dislike, as possessions which kept their king out of the country, and which entailed a yearly loss of money and men. In fact, the country was ripe for severance from the continent, and no longer in danger of relapsing into barbarism. The crusades, the church, and Oxford, were European influences, which could not easily be set aside. The problem of the next century was to create an individual nationality, and inform the mingled races with common ideas of liberty and law.

1 Giraldus Cambrensis says that the practice of wrecking went on, in defiance of law, everywhere, even on the estates of great lords and bishops.— De Inst. Princ., p. 190.

XXXIII.

THE ANGLO-NORMAN LAW-COURTS.

COMMON, CIVIL, AND CANON LAW.-RIGID POLICE OF THE COUNTRY.-NATURE OF THE CROWN'S INTERFERENCE IN SUITS. THE CURIA.-JUSTICES IN EYRE ON CIRCUIT.THE DUEL AND THE GRAND ASSIZE. AN ACTION FOR LAND.-AN ACTION TURNING ON THE PRINCIPLES OF THE CANON LAW.-LEGAL EXPENSES. -DISADVANTAGES OF THE DOUBLE SYSTEM.

THREE systems of legislation influenced the administration of English justice during the twelfth century. The common law of the country had remained in full force from Saxon times. Formed originally by a mixture of Germanic customs and traditions of Roman law, modified by the church canonists, and latterly by Norman lawyers, it further varied in different places, as these had retained or lost their privileges under successive conquerors. The feeling of the times was against the codifying of customs; it was felt that what had grown up loosely, had better be left vague and indeterminate.1 English law was accordingly, from the earliest times, "case-law;" and although codes more or less official existed, they only contained general principles, which might influence, but could not determine, the decisions of the courts. Side by side with the common law was the canon law of the church, based originally upon Roman law and the Bible, but modified in England by decrees of national synods and the practice of the clergy. Within the last fifty years, there had been a great revival of the study of Roman civil law on the continent; and under Stephen, Vacarius had lectured upon the institutes at Oxford. The contrast of a highly philosophical code with the barbarous English

1 Thus the empress Matilda disapproved of the constitutions of Clarendon being reduced to writing: "hoc enim a prioribus factum non est."-Becket, Epist. 346.

? Maine's Ancient Law, pp. 31-33.

412

DIFFERENT SYSTEMS OF LAW.

common law, could not fail to impress the thoughtful minds of our lawyers, who accordingly drew largely from the labours of their more civilized predecessors. But the nation, tenacious of its old customs, and the barons, inflamed by repeated feuds with the church, were jealous of any open infringement on the common law. Hence it is often difficult to distinguish whether traces of Roman influence in our legislation are due to the conquest by Cæsar, to Augustine's mission, or to the movement initiated by Vacarius. But the great prominence given by Norman lawyers to the theory of royalty and its powers, was certainly not derived from the aristocratic Saxon times, or from any disposition of the church to exalt kings. In a general sense, it may therefore be said that the crown and its lawyers favoured civil law, the barons and the people common law, while the church abode by the canons.

with a third

A people divided between two systems, and struggling to intrude, was ill-situated for justice. The multiplicity of the laws hindered their execution; rival courts clashed; and the intellect of the middle ages, from its very subtlety, favoured the growth of legal subterfuges. In the midst of all this, the people, vaguely conscious of oppression which they could not trace to its source, clamoured for strong justice and more law. It is difficult to conceive a more rigid police and judicial system than existed in the twelfth and thirteenth centuries. Every town and village was bail for its inhabitants, every lord for his vassals; every guild was interested in the fortunes of its members. A strange comer in a village, who was neither armed nor rich, nor a clerk, must enter and leave his host's house at day-light; even then he could not be harboured for more than a night out of his own tithing. Twice a year the county court held a visitation to ascertain whether any fugitive serfs were within its jurisdiction.1 The best chance for the runaway was to take refuge in

The enactments about strangers are found in Edward the Confessor's Laws, and though the date of their compilation is probably later than Edward's reign, the fact need not be doubted, as it is in harmony with the tenour of the later Anglo-Saxon government.-Leges Edw. Conf., 23; Leges