Legal Lore: Curiosities of Law and Lawyers

by Unknown

The ideal of feudalism, never realised in England, was that the king and his tenants-in-chief should hold law-courts, which the tenant or the sub-tenants should be bound to attend to have their cases tried according to statute rules. But the system was only imperfectly carried out, and the fact that the tenant-in-chief, or feudal lord, had the right to levy taxes (called “tallage” or “tailles”) on his vassels, speedily led to all sorts of tyranny and abuse. Still, the feudal courts could not engross the legislation for the excellent reason that the quick-witted Conqueror had preserved the Witanagenot and the courts of the shire and the hundred to check the barons. The latter made a big effort to introduce the Continental system of feudalism, by which each of them would have been supreme in his domain; but the plans were defeated as we have seen. William’s successors were men of a different stamp, and the system proved unworkable in the hands of weaker men. “The prince,” says Hume, “finding that greater opposition was often made to him when he enforced the laws than when he violated them, was apt to render his own will and pleasure the sole rule of government, and on every emergency to consider the power of the persons whom he might offend rather than the rights of those whom he might injure.” The mischievous course pleased none, and the royal prerogative was at last systematically assailed by the barons in the time of John, and the Magna Charta wrestled from him. The concessions then made were of benefit to the barons rather than to the landless and dependent classes, and it remained for the third Edward to diminish their power and increase the liberties of the populace.

Law in England during all this period was chiefly a system of oppression, proceeding stage by stage from the highest to the lowest. The revenues of the crown were obtained by extravagant rents, forfeits, taxes, reliefs, fines, aids, and other devices which show the amazing ingenuity of the extortioners. The result was that most tyrannical exactions were made in turn by the feudal lords, and the dependents groaned for six centuries under these lawless yet legalised oppressions. Personal property was at the mercy of the lords, who adopted the most cruel means to enforce their “rights.” They, in turn, could be the victim of extortions, as was proved in the case of Roger of Dudley, who was summoned to receive the honour of knighthood in 1233. He found the honour so expensive that he declined to appear, whereupon a writ was issued—“Because Roger de Someri, at the feast of Pentecost last past, has not appeared before the King to be girded with the military girdle, the Sheriff of Worcestershire is hereby commanded to seize on the house of Dudley and all other lands of the said Roger within his jurisdiction, for the King’s use; and to keep them with all the cattle found upon them, so that nothing may be moved off without the King’s permission.” The same Roger had a twelve years’ dispute with William de Birmingham touching the service due for the manor of Birmingham, for which the latter was required to perform the service of eight knights’ fees, a half and a fourth part, and also to do suit to the court at Dudley once every three weeks. In such wise did these cheftains rule. Another curious piece of law relating to the Dudley lands is told by Leland:—“The lorde Powis, grauntfather that is now, being in a controversy for asawte made upon hym goying to London by the lord Dudeley, Dudeley castelle condesended by entreaty, that his son and heir should mary the olde lorde of Dudleis’ daughter.” A very amiable method of atoning for personal violence.

The feudal lord had absolute power over his own family, as well as over his dependents, the laws of household government being entirely of his own devising and prompted by his passion, his ignorance, and his wickedness. Robert de Belesme, Earl of Shropshire and of Arundel and Shrewsbury, one of the most powerful and defiant barons of Norman times, tore out the eyes of his own children when they had, in sport, hidden their faces beneath his cloak. He cast his wife in a dungeon, heavily fettered; but every night he sent his servants to drag her to his bed, and in the morning sent her back to her prison. This torture he inflicted upon her to gain money from her family. He disdained to allow his captives in war to be ransomed, but impaled them, men and women, upon stakes. His friends were terrified to approach him, for by way of pleasantry he would engage them in merry chat and suddenly plunge his sword into their sides with a loud laugh. No law could touch this man, and no avenger arose to overcome him. The Warden of the Welsh and English Marches made also his own laws, which were conceived in a spirit of the utmost cruelty. Border foragers, for example, were cast into a dungeon, and subjected to the punishment of having their right hands chopped off with the axe. This prescribed penalty was often aggravated by additional torture or death.

Feudalism was deep-rooted, so deep-rooted that not the enactments of all the Normans and Plantagenets could do more than check its growth and gradually ameliorate its severities. But while some of the old customs were abolished, the bulk of the laws remained based upon the Anglo-Saxon customs, so that as one writer has tersely explained, “the Land Laws and Game Laws are derived from the Normans, the Common Law from the Anglo-Saxons, and almost all our Statute Laws breathe the spirit of pre-Norman England.” To this Macaulay refers with ill-disguised scorn in his History: “Our laws and customs have never been lost in general irreparable ruin. With us the proceedings of the Middle Ages are still valid precedents, and are still cited on the gravest occasions by the most eminent statesmen.... Thus in our country the dearest interests of parties have been staked on the results of the researches of antiquaries.” The historian, however, does admit that there is compensation for the anomalies which result from this polity. “Other societies possess written constitutions more symmetrical. But no other society has yet succeeded in uniting revolution with prescription, progress with stability, the energy of youth with the majesty of immemorial antiquity.” That the spirit of olden feudalism should sometimes be found surviving in modern laws is inevitable. Villenage is extinguished, and yet in the very character of certain classes, as well as in the operation of certain laws affecting lands and personal privileges, we see a direct connection between the submission of the bondman in the past to his hereditary master and the readiness of the poor in the present to yield to one in higher station. What struck the philosophic Emerson most, on his visit to England, was that Englishmen should maintain their old customs, repeat the ceremonies of the eleventh century, and consider in so many things that “antiquity of usage is sanction enough.” “The Middle Ages,” he said, “still lurk in the streets of London.”

The stocks and the whipping-post, which stood in front of every castle, were the commonest instruments in use for the punishment of the ceorl and villein who displeased their masters. For the ceorl, who could not quit the land on which he was born, or free himself from slavery, life was particularly hard. He could not absolve himself by money payments, like the rest of his fellow-men, if once he gave offence; while the majority could rob and murder and escape with a fine, the ceorl’s slightest defect, real or imagined, was punished with merciless rigour. Tithings and the process of compurgation came to the assistance of other criminals, but the ceorl could appeal to none, and expect neither pity nor aid. Such facts give point to Emerson’s dictum that “Castles are proud things, but ’tis safest to be outside them.” The villein was in a much happier state than the ceorl. He was free against everybody except his lord, and the criminal code accorded him the same privileges as a free man. The lord was even liable to punishment for killing or mutilating his villein, and the Mirror of Justice in the thirteenth century laid down the fact that “the villein is no serf in any sense of the word; he is a free man; his land is a free tenure.” But all this is largely comparative, and our estimate of the advantages enjoyed by the villein must depend upon whether we view it by the standards of the time, or by modern standards. At all events, while the ceorl tasted all the bitterness of his serfdom, the adjudged felon in other stations was able to obtain much leniency. The common form of oath or abjuration in King Edward’s time was this: “This heare, thou Sir Coroner, that I am a robber and a murderer, and a fellow of our Lord the King of England; and because I have done many such evils in his lande I do abjure the lande of our Lord Edward, and I shall haste me towards the port of ——, which thou hast given me, and that I shall not goe out of the highway, and if I doe, I will that I be taken as a robber and a felon. And that at such a place I will diligentlie seeke for passage, and I will tarrie there but one ebbe and flood, if I can have passage; and unlesse I can have it in such a place I will goe every day into the sea up to my knees, assaying to pass over; and unlesse I can do this within fortie days I will put myselfe again into the Church as a robber and a felon, so God me helpe and his holy judgment.” But King Richard showed no disposition to put so much trust in the honour of these gentry, and when setting out for Palestine, he made a law against peculating sailors, which was calculated to dismay them: “Whosoever is convicted of theft shall have his head shaved, melted pitch poured upon it, and the feathers from a pillow shaken over it, that he may be known; and shall be put on shore on the first land which the ship touches.” This punishment reminds us of a modern American institution.

The law of “Englishry” deserves a passing note. It dates back to the time of Canute, and was continued by the Normans. When Canute sent away the greater portion of his Danish troops, “the Witan pledged themselves that the rest should be safe in life and limb, and that any Englishman who killed any of them should suffer punishment. If the murderer could not be discovered, the township or hundred was fined.” The proud and tyrannical Normans used this law to their own advantage. A mere Englishman being a vassal, and of no importance, could be killed with impunity, but it was ordained that when a man was found killed, and evidence was not brought to prove that he was English, he should be held to be a Frenchman, so that a penalty could be imposed upon the township. This law of “Englishry” is often illustrated in old chronicles. Men were found murdered by the roadside, on heaths, and in woods; the chronicles state that “no Englishry was proved,” and the towns were accordingly amerced. The “Frankpledge” was not so feudal in character, though it was based upon the principle that “every landless man shall have a lord who shall answer for his appearance in the courts of law.” The custom prevailed before the Conquest, ten men forming a “tithing,” the members of which were answerable each for others. The present Court Leet is a survival of the system, though in a very modified form.

The feudalism which the Norman barons imposed upon Scotland, and which was unchecked by King William, so that it reproduced all the evils of the ferocious Continental system, was marked by terrible excesses. No institution was more shameful and abhorrent, or so vividly reveals the baseness to which unrestricted feudalism sank, than the horrible depravity of maiden-rights, or droits de seigneur. Beaumont and Fletcher founded upon the historic incidents their drama of “The Custom of the Country,” and though a few mild attempts have been made to throw doubt upon the facts, there is no question that these domestic tyrannies spread rapidly from Scotland to France and Germany, and took numerous odious forms. Isaac Disraeli, in his “Curiosities,” devotes a chapter to the subject, which can scarcely be dealt with in detail in a work appealing to the general reader. The shameful institution was abolished by Malcolm III., who, however, put the matter upon a business basis by ordering that it should be redeemed by a quit-rent. But the lord still considered himself privileged to manifest his authority over his vassals by thrusting his booted leg into the bed of a newly-married couple, or by sousing the bridegroom in a river. The wardships enjoyed by the feudal lords were equally absurd, one of their favourite methods of raising money being to arrange an unsuitable marriage, and on the refusal of the persons to carry out the contract, to claim the revenue of the wards’ estate as “forfeit.” The feudal lord could sell his vassals as he did his animals, and they were often bartered away with fields and houses. The value of a serf was roughly apprised as four times that of an ox, and he could also be used as “live money.”

Mr. Ruskin, in his third letter in “Fors Clavigera,” gives an account of the laws promulgated by King Richard, Cœur de Lion, whom he declared to be the truest representative of the British “Squire,” under all the significances of that name. The ideal lord was an admixture of the patriarch and the tyrant, and if we examine Richard’s legislation, and endeavour to recognise the objects he had in view, we see that with a considerable amount of selfishness he also possessed a real wish to add to the welfare of his people. He simplified and adjusted the weights and measures of the country to put an end to cheating, and he took severe measures “to prevent the extortions of the Jews.” If the people would be honest, he was quite willing to do the fighting for them; if they made good cloth, he was ready to see that they got good pay; and when they bought and sold, he was determined that each should give the other good measure. But with much power comes caprice, and the feudal lords too soon forgot the interests of their dependents in serving their own ends. The English barons never made the formal claim of the German barons to rob on the highways in their own territories, though, without asserting the right, they frequently performed the act. A case in point is that of William de Birmingham, who so late as the sixteenth century went out with a hundred men to molest and rob travellers on foot. The ordinary laws were unequal to calling them to account for these misdeeds; nothing but conquest by battle could have checked them. Besides, there were Lord Palatines whose rule in their own domains was equal to that of the sovereigns, and they could make or abrogate laws at will. These kings in petto appointed their own judges and courts, could reverse sentences, pardon at will for any crime, and indict at pleasure. Offences committed in the County Palatine were said to be “against the peace” of the lord, and not against the peace of the king, and it was with a rod of iron that these despots governed the territory allotted to them. Still there was a show of legality in this. It differed from the wanton caprice of Geoffrey of Coventry, who oppressed the inhabitants, was amenable to no law for so doing, but consented to remit the burdensome taxes if his wife would ride naked through the streets. As a specimen of the barbarous humour of these lords, the Godiva story is instructive.

At the end of King Stephen’s troublous reign, there were eleven hundred and fifteen castles in England, each of them a centre of power, at that particular time almost absolute. The wise provisions of the Conqueror had to some extent been overcome, and the feudal lords had become so unmanageable that Henry II. found himself compelled to stipulate for the destruction of a number of the strongholds. At the same time he prevented the erection of others except by royal licence, and so began to limit the oppression which had prevailed. We find, too, that in consequence of the frequent over-riding of the common law by men in authority, the monarch reserved to himself more and more of sovereign power, “by which,” says Sir Robert Filmer in his famous “Patriarcha”—answered by John Locke in the still more famous treatises on Civil Government—“he did supply the want or correct the rigour of the common law, because the positive law, being grounded upon that which happens for the most part, cannot forsee every particular which time and experience bring forth. Already sundry things do fall out,” he continues later, “both in war and peace, that require extraordinary help ... so that rare matters do grow up meet to be referred to the absolute authority of the prince.” We find such a case in the time of Richard II., when, on a question of freehold, the appeal went direct to the king because “of maintenance, oppression, or other outrages the common law cannot have duly her course.”

How the lords could avoid and defy the common law is proved by two curious instances in the history of the Dudleys, the family previously referred to. Lord Edward Dudley, in 1592, had a dispute with the neighbouring Lyttelton family, and raising some 150 persons, he went one night and stole all the cattle on the latter’s estate. Lyttelton obtained judgment against Dudley, who was ordered to return the cattle, but he posted his servants at the gates, and bade them cut the bailiffs to pieces. Lyttelton then armed sixty men and took the cattle back by force; Dudley armed 700 men to fetch them back and kill them. For this offence the nobleman and eighty followers were indicted, but by one means and another the proceedings were made to last four years, and then an agreement was entered into by the parties. Lord Edward’s son, Ferdinando, was the hero of the next exploit. He purchased the property of an oppressed widow, named Martha Grovenor, for £1200, but only paid £100. She sued him in the Exchequer for the remainder, and obtained judgment for the balance. No notice was taken of this. The following year the widow obtained a second decree, and this again was ignored. His lordship was next called upon for costs, and this led him to make an effort to compromise the matter. He entered into an agreement to pay all arrears and costs, but, having done so much, refused to fulfil his obligations. An execution of ejectment was then levied against his lordship. This he avoided for nine years, and it was only twelve years after negotiations had begun that the widow was able to obtain her dues.