William the Conqueror and the Rule of the Normans

by F. M. Stenton

“In the time of William the Great, king of the English, father of William, also king of that nation, there arose a dispute between Gundulf, bishop of Rochester, and Picot, sheriff of Cambridge, about certain land, situated in Freckenham, but belonging to Isleham, which one of the king’s sergeants, called Olchete, had presumed to occupy in virtue of the sheriff’s grant. For the sheriff said that the land in question was the king’s, but the bishop declared that it belonged to the church of St. Andrew. And so they came before the king who ordered that all the men of that shire should be brought together, that by their verdict [judicio], it might be determined to whom the land should rightly belong. Now they, when assembled, through fear of the sheriff, declared the land to belong to the king, rather than to Blessed Andrew, but the bishop of Bayeux, who was presiding over the plea, did not believe them, and directed that if they were sure that their verdict was true, they should choose twelve out of their number to confirm with an oath what all had said. But when the twelve had withdrawn to consider the matter, they were struck with terror by a message from the sheriff and so, on returning, they swore that to be true which had been declared before. Now, these men were Edward of Chippenham, Heruld and Leofwine ‘saca’ of Exning, Eadric of Isleham, Wulfwine of Landwade, Ordmer of Bellingham, and six others of the better men of the county. After all this, the land remained in the king’s hand. But in that same year a certain monk, called Grim came to the bishop like a messenger from God, for when he heard what the Cambridge men had sworn, he was amazed, and in his wrath called them all liars. For this monk had formerly been the reeve of Freckenham, and had received services and customary payments from the land in question as from the other lands belonging there, while he had had under him in that manor one of the very men who had made the sworn confirmation. When the bishop of Rochester had heard this, he went to the bishop of Bayeux and told him the monk’s story in order. Then the bishop of Bayeux summoned the monk before himself and heard the same tale from him, after which he summoned one of those who had sworn, who instantly fell down before his feet and acknowledged himself to be a liar. Then again he summoned the man who had sworn first of all, and on being questioned he likewise confessed his perjury. Lastly, he ordered the sheriff to send the remaining jurors to London to appear before him together with twelve others of the better men of the county to confirm the oath of the former twelve. To the same place also, he summoned many of the greater barons of England, and when all were assembled in London, judgment was given both by French and English that all the jurors were perjured since the man after whom all had sworn had owned himself to be a liar. After a condemnation of this kind the bishop of Rochester kept the land, as was just, but since the second twelve jurors wished to assert that they did not agree with those who had first sworn, the bishop of Bayeux said that they should prove this by the ordeal of iron. They promised to do so, but failed, and by the judgment of the other men of their county they paid three hundred pounds to the king.”[^[314]]

In this extract we get a vivid picture of the way in which the two systems of government, Norman and English, worked in conjunction. In the above transactions the matter in dispute is referred for settlement to the ancient shire court of Cambridgeshire, and determined by the oaths of English jurors, but the procedure is a Norman innovation, and it is the Conqueror’s brother who presides over the plea. The terror inspired by the sheriff is an eloquent commentary on the vague complaints of the chroniclers concerning the oppression of the king’s officers, and we may welcome this casual glimpse into the relations between the English folk of the county and the formidable president of their court. But the remaining details of the story may well be left to explain themselves.

But a suit of this kind must not be taken as typical of the ordinary work of the shire court; it was not every day that it had to discuss the affairs of a king and a bishop. It was the exceptional rank of the parties concerned in this instance which enabled them to traverse the original judgment of the shire court and to employ a procedure quite alien to the methods of the Old English local moots. So far as we can see, the practice of settling disputes by the verdict of a small body of sworn jurors was entirely a Norman innovation, and we may be sure that it would not have been employed in this case if the veracity of the men of the shire had not been called in question. Within ten years of the date of our story the king’s fiscal rights all over England were to be ascertained by the inquisition of sworn juries in the Domesday Inquest, but the employment of this method in ordinary judicial cases continued to be highly exceptional down to the beginning of the Angevin period, and our instance may perhaps claim to be the first recorded example of its use. The duty of the shire court in all pleas of the kind, to which it would have been confined in all probability in the above case if the king had not been attracted within the dispute, was simply to declare the customary law which related to the matter in hand. In principle, a judgment of this kind is entirely different from the verdict on oath given by men selected for their local knowledge as were the jurors in our story: if carried out honestly the result would be the same in either case—the land would be assigned to the proper person; but whereas this would only follow incidentally if inevitably from the unsworn judgment of the court as a whole, the sworn verdict would consist of an actual award. The latter principle produced the Angevin juries of presentment; the former principle continued to underlie the action of the shire and hundred courts so long as they exercised judicial functions. The interest of the Isleham case above lies in its transitional character: it shows us the sworn jury used as a secondary resort after the accustomed practice of the shire court had failed to give satisfaction; already in 1077 it is available for the amendment of wrongs arising “pro defectu recti,” on the part of the domesmen of the local assemblies.

But just as the introduction of the jury was bringing a new procedure into competition with the antiquated methods of the local courts, so a quite different set of causes was cutting at the root of their influence. Centuries before the Conquest considerable powers of jurisdiction had been placed in private, generally ecclesiastical, hands, but the gradual extension of the sphere of private justice, until it became an integral part of the whole manorial organisation, was due to the feudal principles which triumphed in 1066. Private jurisdiction, as it existed in the Conqueror’s day, represents the blending of at least three distinct principles. In the first place, the king can confer jurisdictional rights on whomsoever he pleases; from this point of view a private court will represent a portion of royal power in the hands of a subject. But in the second place, the king himself is only the first of a number of men who possess these rights in virtue of their rank; it is probable that the political theory of the eleventh century would allow that a great man was naturally possessed of such powers of justice as were appropriate to his personal status, though it would be unable to give a rational explanation of the fact. And then even in the Conqueror’s time there can be traced the idea, the prevalence of which was destined to cover England with manorial courts, that the tenurial relation between a lord and his tenant gave the former jurisdictional powers over the latter; that, independently of a royal grant, or of his personal rank, a lord was entitled to hold a court for his “men”; that the economic relation between landlord and tenant produced a corresponding tie in the sphere of jurisdiction. It is the first two of these principles which produced the “sake and soke” of Anglo-Saxon law, it is the last which explains the extension of manorial justice in the century following the Conquest.[^[315]] It is worth while making this classification, for it reveals one of the main lines of divergence between English and French law in the Middle Ages. That which in England was the least persistent of our three principles, the element of personal rank, became in France the basis of the famous classification of jurisdictional powers into “haut, moyen, et bas justice,” which endured until the Revolution, and the main reason for this difference lies in the circumstances of the Norman Conquest. By that event, whatever the explanation of private justice which may have passed current among those who troubled themselves about such matters, all such powers proceeded directly or indirectly from the king; directly when the Conqueror made an explicit grant of “sake and soke” to a baron, indirectly if the latter claimed his court as proceeding from his tenure of his land, for the land itself was held of the king who had granted it to him. Here then, in the Sphere of local justice, we see the union of Norman and English ideas; the judicial power which results from the facts of tenure is added to the judicial power which is exercised in virtue of the king’s grant.

PLAN OF GREAT CANFIELD CASTLE, ESSEX

It should not be thought that the Norman barons, in their seats across the Channel, had exercised jurisdictional powers in advance of those possessed by the English nobles and thegns whom they were destined to displace. The fact that the grants of private justice which the Conqueror made to his followers in England were set forth in the same conventional phrases as Edward the Confessor would have employed in like case, may be set down to William’s desire to preserve the forms of Old English law; but there is no doubt that the Norman barons were quite content to accept the Anglo-Saxon formulas as a satisfactory expression of the jurisdictional powers which they were to enjoy. In fact, the latter were ample enough. Thus, when the Conqueror confirmed his “customs” to the abbot of Ely, these included “sake and soke, toll and team and infangenethef, hamsocne and grithbrice, fihtwite and fyrdwite within boroughs and without, and the penalties for all other crimes which are emendable on his land and over his men, as he held them on the day when King Edward was alive and dead.”[^[316]] Terms like these cover nearly the whole field of “civil and criminal justice.” Sake and soke may be construed as the right to hold a court; toll explains itself; “team” implies that persons might be “vouched to warranty” in the court, a process which is too technical to be explained here, but the grant of which made a court capable of entertaining suits arising out of the transfer of land; “infangenethef”[“infangenethef”] is the right of trying and executing thieves taken on one’s land; “hamsocne” (or rather “hamfare”) is the breach of a man’s house; “grithbrice” is the violation of the grantees’ special peace; “fihtwite” is the fine for a general breach of the peace; “fyrdwite” is the fine for failure to appear in the national militia, the fyrd. Privileges like these, within the area to which they are applicable, empower the grantees’ court to take cognisance of all crimes and misdemeanours which might be expected to occur in the ordinary course of events; the Isle of Ely and some dozens of external manors were practically withdrawn altogether from the national system of justice. We have no reason to suppose that the average baron in Normandy was endowed with anything like these powers, nor need we suppose that grants of such wide application were very frequently made to the conquerors of England; but when, two years after the date of Domesday Book, we find Roger de Busli—a great baron certainly[certainly], but not belonging absolutely to the first rank—granting to his monks of Blyth “sac and soke, tol and team and infangenethef, iron and ditch and gallows with all other privileges [libertates] which I formerly held of the king,”[^[317]] we can see that the feudalisation of justice had gone far by the time of King William’s death.

We may then fairly inquire what was the relation which these new manorial courts bore to the old national courts which they were destined to supplant. With reference to the hundred and shire assemblies, the answer is fairly simple: the two systems of jurisdiction were concurrent. The hundred court, we must remember, was in no sense inferior to the shire court, and in the same way the manorial court was in no sense inferior to either of these bodies; it rested with the individual litigant before which of them he should bring his plea, with this most important exception—that the lord of the party impleaded could if he wished “claim his court,” and so appropriate the profits of the trial. Here was a most powerful force steadily drawing business away from the shires and hundreds, and attracting it within the purview of the manor. But then the wishes of the peasantry told in the same direction: the manorial court was close at hand; it was composed of neighbours who knew each others’ concerns, and were constantly associated in the common agricultural work of the vill; it gratified the tendencies towards local isolation, which were pre-eminently strong in the early Middle Ages. The manorial court supplied justice at home, and we should remember how many hindrances beset recourse to the hundreds and shires. In all Staffordshire there were only five hundreds; in all Leicestershire only four wapentakes; the prosecution of a suit in any of these courts must have meant grievous weariness and loss, the establishment of a manorial court must have meant an immediate alleviation of the law’s delay. He would have been an exceptionally far-sighted villein who in 1086 could foresee that the convenient local court would eventually be the agent by which his descendants would be thrown into dependence on the will of the lord, with no other protection than the traditional and unwritten “custom of the manor”; that the establishment of the lord’s justice would ultimately exclude all reference to the more independent if more antiquated justice of the men of the hundred of the shire, on the part of the lesser folk of his vill.

One question connected with the rise of manorial courts deserves attention here—did they displace any court proper to the vill as a whole, independently of its manorial aspect? It is clear that every now and again the men of the vill must have met, if only to regulate the details of its open-field husbandry. But whether such a meeting had any formal constitution or judicial functions—whether, that is, it was a “township-moot,” in the accepted sense of the words[^[318]]—is excessively doubtful. The fact that we hear nothing definitely about it in the documents of the Anglo-Saxon period is not quite conclusive against its existence; it is more to the point that the hundred moot seems to be the lowest stage reached by the descending series of national courts. It is probable, therefore, that the ordinary township never possessed any court other than that which belonged to it in its manorial aspect.

We have seen enough to know that the jurisdictional and economic aspects of feudalism were intimately connected: the manorial court was the normal complement of the average manor. No less closely associated in practice were the military and tenurial elements of the feudal system, and upon a superficial view of this system it is these latter elements which rise into greatest prominence. Nor is this altogether unjust, for, although it is not probable that any change induced by the Norman Conquest so profoundly affected English social life as did the universal establishment of private jurisdiction, yet the introduction of military tenures, and the creation of a feudal army rooted in the soil of England, are phenomena of the first importance, and the form which they assumed in the course of the next century was due in essence to the personal action of the Conqueror himself, and to the political necessities of his position.