THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD i

T H E H I S T O RY O F E N G L I S H L AW BEFORE THE TIME O F E D WA R D I L4728.indb i 3/5/10 10:15:24 AM Sir Frederick Pollock L4728.indb ii Frederic William Maitland 3/5/10 10:15:25 AM T H E H I S TO RY O F E N G L I S H L AW BEFORE THE TIME O F E DWA R D I Volume I By Sir Frederick Pollock and Frederic William Maitland Liberty Fund Indianapolis L4728.indb iii 3/5/10 10:15:25 AM This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 b.c in the Sumerian city-state of Lagash This is the second edition of The History of English Law before the Time of Edward I, which was first published in 1898 by Cambridge University Press The first edition was published in 1895 by Cambridge University Press Select bibliography and notes by Professor S F C Milsom, published here as an appendix, was originally published in Cambridge University Press’s 1968 reissue of The History of English Law before the Time of Edward I Reprinted by permission of Cambridge University Press Portrait of Sir Frederick Pollock, by Reginald Grenville Eves, National Portrait Gallery, London Portrait of Frederic William Maitland, by Beatrice Lock, National Portrait Gallery, London Printed in the United States of America All rights reserved c 10 p 10 Library of Congress Cataloging-in-Publication Data Pollock, Frederick, Sir, 1845–1937 The history of English law before the time of Edward I/by Sir Frederick Pollock and Frederic William Maitland.—2nd ed p cm Originally published: 2nd ed Cambridge: Cambridge University Press, 1898 Includes bibliographical references and index isbn 978-0-86597-749-5 (hardcover: alk paper) isbn 978-0-86597-752-5 (pbk.: alk paper) Law—England—History I Maitland, Frederic William, 1850–1906 II Title kd532.p64 2010 349.42—dc22 2008046535 Liberty Fund, Inc 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684 L4728.indb iv 3/5/10 10:15:27 AM Contents Preface to the Second Edition, xix Preface to the First Edition, xxi List of Abbreviations, xxiii List of Texts Used, xxv Additions and Corrections, xxxi Introduction, xxxiii Book I Sketch of Early English Legal History C h a p t e r I The Dark Age in Legal History, pp 3–28 The difficulty of beginning, of Roman law, Proposed retrospect, The classical age The beginnings of ecclesiastical law, Decline of Roman law, Third century Fourth century Church and State, century The Theodosian Code, The century of Justinian, Laws of Euric, The Lex Salica, Fifth Sixth century The Lex Ribuaria, and Lex Burgundionum, 10 The Lex Romana Burgundionum, 10 The Lex Romana Visigothorum, 10 eric, 11 Importance of The Breviary, 11 The Dionysian collection of canons, 11 Justinian and Italy, 13 L4728.indb v Laws of Æthelbert, 14 The Edict of TheodJustinian’s books, 12 Seventh and eighth 3/5/10 10:15:27 AM vi C ON T E N T S centuries Germanic laws, 15 System of personal laws, 16 The vulgar Roman law, 17 canon law, 19 The latent Digest, 18 The capitularies, 18 Growth of Ninth and tenth centuries The false Isidore, 20 The forged capitularies, 20 Church and State, 21 The darkest age, 22 Legislation in England, 23 England and the Continent, 24 Eleventh century The Pavian law-school, 24 The new birth of Roman law, 25 The recovered Digest, 27 The influence of Bolognese jurisprudence, 27 C h a p t e r I I Anglo-Saxon Law, pp 29–69 Imperfection of written records of early Germanic law, 29 Anglo-Saxon dooms and custumals, 31 Anglo-Saxon land-books, 32 Anglo-Saxon institutions, 33 family, 35 Ranks: ceorl, eorl, gesíð, 37 39 Privileges of the clergy, 39 sion, 40 Survey of Personal conditions: lordship, 34 Courts and justice, 42 Thegn, 37 The Other distinctions, Slavery and slave trade, 39 ManumisProcedure, 43 Temporal and spiritual jurisdiction, 45 The king’s jurisdiction, 45 The Witan, 46 and hundred courts, 47 Private jurisdiction, 48 County Subject-matter of Anglo-Saxon justice, 48 The king’s peace, 49 Feud and atonement, 51 Wer, wíte and bót, 53 Difficulties in compelling submission to the courts, 55 Maintenance of offenders by great men, 55 by battle, 56 Treason, 56 misadventure, 59 Homicide, 58 Personal injuries: Archaic responsibility, 60 62 Sale and other contracts, 63 65 Land tenure, 66 Why no trial Theft, 61 Property, Claims for stolen goods: warranty, Book-land, 66 Læ ´ n-land, 67 Folk-land, 67 Transition to feudalism, 69 C h a p t e r I I I Norman Law, pp 70–85 Obscurity of early Norman legal history, 70 French, 72 Norman law was feudal, 72 Norman law was Feudalism in Normandy, 73 Dependent land tenure, 75 Seignorial justice, 78 79 Legal procedure, 80 Criminal law, 80 Limits of ducal power, Ecclesiastical law, 81 The truce of God, 82 Condition of the peasantry, 82 Jurisprudence, 83 L4728.indb vi Lanfranc of Pavia, 84 3/5/10 10:15:27 AM C ON T E N T S vii C h a p t e r I V England under the Norman Kings, pp 86–118 Effects of the Norman Conquest, 86 86 No mere mixture of national laws, History of our legal language, 87 Struggle between Latin, French and English, 89 English, 90 The place of Latin, 90 Struggle between French and Victory of French, 91 law-books, 94 French documents, 93 French Language and law, 94 Preservation of Old English law, 95 Character of William’s laws, 96 nance of English land law, 99 The Conqueror’s legislation, 95 Personal or territorial laws, 98 The English in court, 100 and institutions, 101 Legislation: Rufus and Henry I., 102 104 The law-books or Leges, 105 The Quadripartitus, 106 Instituta Cnuti, 109 Confessoris, 111 Stephen, Genuine laws of William I., 106 Leges Henrici, 107 Consiliatio Cnuti, 109 French Leis of William I., 110 Leges Edwardi Character of the law disclosed by the Leges, 113 Practical problems in the Leges, 114 116 Mainte- Norman ideas Practice of the king’s court, Royal justice, 117 C h a p t e r V Roman and Canon Law, pp 119–144 Contact of English with Roman and Canon law, 119 claims of Roman law, 120 Decretales Gregorii, 121 Cosmopolitan Growth of Canon law, 120 The Canonical system, 122 Gratian, 120 Relation of Canon to Roman law, 124 Roman and Canon law in England, 125 Vacarius, 126 129 English legists and canonists, 128 Scientific work in England, The civilian in England, 130 Province of ecclesiastical law, 133 Matters of ecclesiastical economy, 134 Church property, 135 Ecclesiastical dues, 135 causes, 136 sinners, 138 Matrimonial Testamentary causes, 136 Fidei laesio, 137 Jurisdiction over clerks, 139 Correction of Miserabiles personae, 139 The sphere of Canon law, 140 Influence of Canon upon English law, 140 English law administered by ecclesiastics, 142 Nature of canonical influence, 143 L4728.indb vii 3/5/10 10:15:28 AM viii C ON T E N T S C h a p t e r V I The Age of Glanvill, pp 145–184 The work of Henry II., 145 Constitutions of Clarendon, 146 Assize of Clarendon, 146 Inquest of Sheriffs, 147 Assize of Northampton, 147 Henry’s innovations The jury and the original writ, 147 of the jury, 147 The jury a royal institution, 149 The Frankish inquest, 149 publica, 151 inquest, 153 Origin of the jury: The jury in England, 151 The inquest in the Norman age, 152 The assize utrum, 154 157 Assize and jury, 158 The jury and fama Henry’s use of the The assize of novel disseisin, 155 Import of the novel disseisin, 155 The assize of mort d’ancestor, 157 Essence The grand assize, 156 The assize of darrein presentment, The system of original writs, 159 The accusing jury, 161 Structure of the king’s courts, 162 The central court, 164 Itinerant justices, 165 Cases in the king’s court, 166 Law and letters, 170 Richard Fitz Neal, 171 Dialogue on the Exchequer, 172 Ranulf Glanvill: his life, 172 Tractatus de Legibus, 173 Roman and Canon law in Glanvill, 175 English and continental law-books, 177 The limit of legal memory, 179 Reigns of Richard and John, 179 The central court, 179 Itinerant justices, 181 Legislation, 181 The Great Charter, 181 Character of the Charter, 183 C h a p t e r V I I The Age of Bracton, pp 185–239 Law under Henry III., 185 General idea of law, 185 Common law, 187 Statute law The Charters, 189 Provisions of Merton, Westminster and Marlborough, 190 law, 193 Ordinance and Statute, 192 customs, 197 Englishry of English law, 200 The king’s courts, 202 203 The king and the Unenacted law and custom, 194 Local customs, 196 Kentish Equity, 201 The exchequer, 202 The chancery, 205 The original writs, 207 tribunal, 209 Work of the exchequer, The chancery not a The two benches and the council, 210 parliament, 211 Itinerant justices, 212 Council and Triumph of royal justice, 215 The judges, 216 Clerical justices, 217 Bracton, 218 219 L4728.indb viii His book, 219 English substance, 221 Character of his work: Italian form, Later law books, 222 Legal literature, 223 3/5/10 10:15:28 AM C ON T E N T S The legal profession, 224 ix Pleaders, 224 Attorneys, 225 Non- professional attorneys, 226 Professional pleaders, 226 Regulation of pleaders and attorneys, 228 Professional opinion, 230 Decline of Romanism, 230 Notaries and conveyancers, 231 Knowledge of the law, 233 English law in Wales, 234 English law in Ireland, 234 English and Scottish law, 235 Characteristics of English law, 238 Book II The Doctrines of English Law in the Early Middle Ages C h a p t e r I Tenure, pp 243–429 Arrangement of this book, 243 The medieval scheme of law, 243 The modern scheme, 244 Our own course, 245 § Tenure in General, pp 246–254 Derivative and dependent tenure, 246 Universality of dependent tenure, 248 Feudal tenure, 249 Analysis of dependent tenure, 250 Obligations of tenant and tenement, 252 Intrinsec and forinsec service, 252 Classification of tenures, 254 § Frankalmoin, pp 254–266 Free alms, 254 Meaning of “alms,” 256 Spiritual service, 257 Gifts to God and the saints, 258 Free alms and forinsec service, 259 Pure alms, 260 Frankalmoin and ecclesiastical jurisdiction, 260 The assize Utrum, 262 Defeat of ecclesiastical claims, 262 Frankalmoin in the thirteenth century, 265 § Knight’s Service, pp 266–298 Military tenure, 266 Growth and decay of military tenure, 267 Units of military service, 268 The forty days, 269 Knight’s fees, 271 Size of knight’s fees, 271 Apportionment of service, 272 Apportionment between king and tenant in chief, 273 L4728.indb ix Honours and baronies, 3/5/10 10:15:28 AM x C ON T E N T S 274 The barony and the knight’s fee, 275 Relativity of the knight’s fee, 276 Duty of the military tenant in chief, 278 tenants, 278 282 Position of military sub- Knight’s service due to lords who owe none, 280 Scutage, Scutage between king and tenant in chief, 283 Scutage and fines for default of service, 285 Scutage and the military sub-tenants, 287 Tenure by escuage, 288 The lord’s right to scutage, 290 Reduction in the number of knight’s fees, 291 Meaning of this reduction, 292 Military combined with other services, 293 Castle-guard, 294 Thegnage and drengage, 295 296 Tenure by barony, 295 The baronage, Escheated honours, 297 § Serjeanty, pp 299–307 Definition of serjeanty, 299 Serjeanty and service, 299 Types of serjeanty owed by the king’s tenants in chief, 299 Serjeanties due to mesne lords, 302 Military serjeanties due to mesne lords, 303 Essence of serjeanty, 304 The serjeants in the army, 304 Serjeanty in Domesday Book, 305 Serjeanty and other tenures, 306 § Socage, pp 308–313 Socage, 308 Types of socage, 308 Extension of socage, 310 Fee farm, 310 Meaning of “socage,” 311 Socage in contrast to military tenure, 311 Socage as the residuary tenure, 312 Burgage, 312 Burgage and borough customs, 312 One man and many tenures, 313 § Homage and Fealty, pp 314–324 Homage and fealty, 314 Legal and extra-legal effects of homage, 314 The ceremony of homage, 314 The oath of fealty, 315 Liegeance, 315 Vassalism in the Norman age, 317 Bracton on homage, 318 Homage and private war, 319 Sanctity of homage, 320 Feudal felony, 322 Homage and felony, 321 Homage, by whom done and received, 323 The lord’s obligation, 323 § Relief and Primer Seisin, pp 324–336 The incidents of tenure, 324 Heritable rights in land, 325 Reliefs, 326 Rights of the lord on the tenant’s death, 327 Prerogative rights of the king, 329 Relief and heriot, 330 Earlier history of reliefs, 330 Heritability of fees in the Norman age, 332 Mesne lords and heritable fees, 334 History of the heriot, 334 Relief on the lord’s death, 336 L4728.indb x 3/5/10 10:15:28 AM 774 i n de x royal conveyances, ii.94 royal justice, i.117–18; under Henry II, i.169–70; system of original writs and, i.160–61; triumph of, i.215–16; See also king’s court royal land-book, ii.332n238; post obit gift and, ii.333–34 royal privilege: influence on forma doni, ii.12; right to appoint an attorney as, i.225–26 royalties, i.560 Rufinus, i.480n189 Rufus See William II (William Rufus) saint: administrators of, i.527; as owner of church, i.525–27 St Albans, Abbot of, i.288n129, 289; suit between Bishop of Lincoln and (1163), i.167–68 sake and soke, i.79n22, 85, 92, 100, 101, 361; practical problem of, i.114, 115; in thirteenth century, i.609–10 sakeber (prosecutor of thief), ii.167 Saladin tithe of 1188, i.590n109, 637–38 sale: contract of See contract; debts arising from, ii.216–19; honest purchase, ii.171–72; promises made by oath, i.63–64; and purchases of stolen goods, ii.165–66; warranty, i.65–66 sale-marriage, ii.382 Salisbury, Bishop Roger of, i.476–77 Salisbury, John of, i.477 sanctuary, ii.619–20 Sawtre, William, ii.578 Scaccarium Iudaeorum, i.497 Scandinavian law, outlawry in, ii.472 scientific work in England, i.129–30 Scotland, suit for crown of, ii.299–300, 312, 312, 313, 315 Scottish law, i.235–37; alienation by husband of his land, ii.445n192; community of goods between husband and wife in, ii.421; consanguineous and uterine half-blood distinction in, ii.320; death of wife intestate, L4729.indb 774 ii.452; inheritance of ascendants in, ii.309; inheritance of collaterals, ii.312; inquest procedure, i.154n20; of intestate succession, ii.379n399; law of aliens and, i.486, 488; law of the marches, i.235; merchet paid in, i.394; Regiam Maiestatem in, i.177; restraints on testamentary power in case of wife and children in, ii.365; Roman law and, i.236–37; similarity between English law and, i.235–37; tenancy by curtesy of England in, ii.437 scutage, i.267, 268, 282–94, 376, 377; between king and tenant in chief, i.283–86; lord’s right to, i.290; military service combined with other services, i.293–94; military subtenure and, i.281, 287–88; nature of, i.282–83; service instead of, i.290–91; tenure by escuage, i.288–90; of undertenants, i.285–87 seal: common, of borough, i.719–21; counterfeiting the king’s, i.470–71; deep-seated reverence for, i.535–36; forgery of, ii.528; fraud as defence in use of, ii.561; origins of use of, ii.232; privy, language of, i.90; as valuable piece of evidence, ii.233 sealed document, ii.232–33; covenant as, ii.228–29 second jury, ii.679–80 Second Statute of Westminster (1285), i.264, ii.20, 24n59, 515; extension of rights of common, ii.147; on liability of hundred, i.588; system of assize of arms and of watch and ward consolidated by, i.595 secta, demand for, ii.223n121 Segrave, Nicholas, ii.532 Segrave, Stephen, i.216, 217 seignorial courts, i.559; jurisdiction, i.559, 601–25; under Norman law, i.78–80; powers of, i.559; presentments in, ii.545; proceedings in lord’s own court against defaulting 3/5/10 10:37:06 AM i n de x tenant, i.374–75; roots of, i.601–2; See also feudal jurisdiction; franchises seignory: alienation of, i.366–69; contract between lord and tenant, ii.132; conveyance of, ii.134; rights of lord against tenant, ii.131–32; rights of lord against world, ii.133–34; seignorial rights in boroughs, i.680; seisin of services, ii.134; as a thing, ii.130–34 seisin, ii.30–83; active transmission of, ii.73–74; of advowson, ii.35, 143–44, 146; attorneys appointed to deliver and to receive, ii.238; attribution to whom, ii.36–41; casus Regis and, ii.298–300; of chattels, ii.33–34; in deed, ii.63; disseisin, as offence, ii.46; disseisin, as tort, ii.46–47; distress and, ii.606–7; dual, ii.38; enjoyment and, ii.35–36; estates and, ii.82–83; etymology of word, ii.31; “as of fee,” ii.60–62; fines and, ii.108–9; of free tenement, i.156–57; of gagee, ii.126–27; general doctrine, ii.41–42; generative vs evidentiary effects of, ii.150; of guardian, ii.154–55; guardian of infant, case of, ii.38–39, 41; heritability of, ii.64; hierarchy of, ii.78–79; infants in, ii.461–62; influence in law of husband and wife, ii.457; inheritance of half-blood and, ii.317, 318; king’s demand for suit as matter of, i.571; of land in service, as thing, ii.40–41; in law, ii.63–64; of liberty, ii.153–54; limits on, ii.85; livery of, ii.87–94, 189, 333; lord’s, case of, ii.39–41; lord’s right to simple, i.328, 329; medieval land law and, ii.37; modern theories of, ii.42–43; mort d’ancestor, assize of, ii.59–65; novel disseisin See novel disseisin, assize of (1166); plea of continuous, ii.110n302; possession and, ii.31, 33; possession protected by the writ of trespass vs., ii.115; possessory L4729.indb 775 775 action against third hand, ii.47, 58; possessory actions, introduction of, ii.48–50; primer, king’s right to, i.329; prohibition of self-help and stringent protection of, ii.603; proof of, ii.47–48; proprietary rights and, ii.34–35, 79, 83; protection of possession, ii.42–46; remedies and, ii.32–33; required for preclusive effect of fine, ii.105–6, 108; reversioner, case of, ii.41; “as of right,” ii.60; “seisin in deed” of rent, ii.138; of services, protection of, ii.134; sitting on land, ii.31–32; technicalities of, ii.32; of tenant for life, ii.10, 39, 115; tenant in villeinage, case of, ii.37–38; termor, case of, ii.38; title and, ii.48, 82–83; transfer of (traditio rei), ii.93, 108–9, 110n302; vacant, ii.63–64; “vested and seised,” ii.34; of wife, ii.154; of wife’s land, ii.428; See also writ of right; writs of entry self-defence, ii.602; homicide in, ii.502–3; homicide in, limits of, ii.507–8 self-government of borough, powers of, i.694–97 self-help, i.453, ii.602–7; in case of fugitive serf, i.440–41; in case of theft, ii.176–77; distress, ii.603–7; distress, and seisin, ii.606–7; distress, for rent, ii.604–5; in medieval law, ii.602; prohibition of, ii.43, 55, 602–3; protection against, ii.149; recourse for short period after de facto ejectment, ii.52, 57–58, 62, 64; replevin, ii.605–6 self-taxing powers of borough, i.697–99 “separate examination,” fine levied by husband and wife after, ii.433, 445 separation of goods, ii.454–55 serfs, serfage: absence of, in Normandy, i.83; on ancient demesne, i.411; Anglo-Saxon, i.41–42; covenant between lord and serf, i.441–42; enfranchisement, modes of, i.451–53; in feudal court, i.624; freedom of, 3/5/10 10:37:06 AM 776 i n de x serfs, serfage (continued) in borough, i.682–83; fusion of villeins and slaves, i.454–55; general idea of, i.436–38; how men become serfs, i.446–50; number of serfs, i.455–56; praedial, i.437–38; in relation to his lord, i.439–42; in relation to the state, i.444–46; in relation to third persons, i.442–44; relativity of, i.438–39, 453–54; rightlessness, i.439–42, 454–55; rise of villeins, i.456; serfdom de iure and de facto, i.440–41, 450; slavery as distinct from, i.438, 453n94; as thing, ii.153–54; See also villeinage serjeanty(ies), i.299–307, 350, 376; alienation of, i.353–54; defi ning, i.299; in Domesday Book, i.305–6; essence of, i.304, 305; grand, i.299–303, 341–42; hereditary, i.300, 302–3; as impartible, ii.282; of mesne lord, i.302–3; military, i.304–5; military, held of mesne lords, i.303; military, owed by king’s tenants in chief, i.301–2; military obligation, i.270; other tenures and, i.306–7; petty, i.341–42, 376; relief for, i.326; serjeants in the army, i.304–5; service and, i.299; types of, owed by king’s tenants in chief, i.299–302; wardships and marriages and, i.307, 341–42 servantship, as essence of serjeanty, i.304, 305 service, land held in, i.247 services: increased, writ of Monstraverunt against, i.410–11; uncertain, i.392–93, 395, 397; villein, i.386–88, 391–93, 396, 397, 399–401 servile birth, i.446–47 sexual intercourse, marriage and, ii.387 sexual morality: as province of church, i.138; sexual sins, ii.569–70 shame, claim for compensation for, ii.562–63 L4729.indb 776 sheriff(s): arrest by, ii.611; as county officer, i.562; Inquest of Sheriffs, i.147; as presiding officer in county court, i.577, 578–79, 580, 581 sheriff’s aid, i.605 sheriff’s turn, i.558–59, 588–89; attendance of township at, i.593; attendance of women at, i.510; inspections of frankpledge, i.599–600; presentments in, ii.544–45; presentments in, of minor offences, ii.683; view of frankpledge and right to hold court coordinate with, i.610–11 shetar (document of transaction between Jews), i.500 shire, borough and, i.669–70 simony, i.139 single bond, ii.234–35 sinners, correction of, i.138–39 “six-hynd” men, class of, i.39 slander, ii.563 slavery: absence of, in Normandy, i.83; under Anglo-Saxon law, i.39–42; fusion of villeins and slaves, i.454–55; liability for acts of slaves, ii.495–96; liability of slave-owner, ii.554–55; as penalty for theft, i.62; punishment of slaves, ii.475; selling children into, ii.458; serfdom as distinct from, i.438, 453n94 slave-trade, Anglo-Saxon, i.39–40 socage, i.308–13, 376; burgage, i.312–13; in contrast to military tenure, i.311; as dominant tenure, i.377; fee farm, i.310, 420; free, i.427; gradual extension of term, i.310; lord’s right to wardship or marriage in, i.339–40, 341; maximum dower and, ii.442; meaning of, i.311; military tenure becoming, i.376–77; primogeniture and, ii.282–83; relief for, i.326, 327n285; as residuary tenure, i.312; tenure on ancient demesne, i.412, 413, 417–19; types of, i.308–10; villein, i.413–14 3/5/10 10:37:06 AM i n de x soke See sake and soke sokemen/sokemanry, i.311, 312; on ancient demesne, i.414–15, 417–19, 421–23; of base tenure, i.419n576; free, i.309–10, ii.281–83; of free tenure, i.419n576; full age for, ii.460; holding in “privileged villeinage”, i.411–12, 413, 419n576, 421–23; no place for tenure between freehold and villeinage, i.427; as privileged race, i.428 sorcery, ii.579–82; cases of, in England, ii.580–81; in English law-books, ii.580; history of, ii.579–80; in later times, ii.581–82 sorts and conditions of men: aliens, i.483–93; clergy, i.463–83; corporations and churches, i.512–38; earls and barons, i.37, 431–34; excommunicates, i.504–6; Jews, i.493–501; king and the crown, i.538–54; knights, i.434–35; law of personal condition, i.430–31; lepers, lunatics and idiots, i.506–8; levelling process used to simplify, i.455; outlaws and convicted felons, i.501–3; religious, the, i.457–63; status and estate, i.431; unfree, the, i.435–56; women, i.508–12 soul-scot (mortuary), ii.338, 452n217 sovereign: abbatial monarchy and, i.461–62; of religious house, return of monk to civil life as, i.462 Spanish suit between kings of Castile and Navarre, i.170 spear-kin, ii.254, 255, 256, 257 special pleading, ii.640 specialty, action of covenant and demand for, ii.229, 230n142 special verdicts, ii.660, 661 specific relief, ii.624–25; damages and, ii.547–48 spindle-kin, ii.254, 255, 256, 257 spiritual/divine service, tenure by, i.255, 257–58 L4729.indb 777 777 Star Chamber, i.90 state, the: church and, i.5–7, 21–22; serf in relation to, i.444–46 status, i.430–31; villein, i.379, 404–5, 451; See also sorts and conditions of men statute-books, i.7–8; Breviary of Alaric or Lex Romana Visigothorum, i.10–11 Statute de Finibus Levatis, ii.110n302 statute law: under Henry III, i.189–93; language of, under Norman kings, i.93–94 statute merchant, ii.213, 626 Statute of Carlisle (1307), i.536 Statute of Gloucester (1278), i.582–83, ii.114–15, 504 Statute of Leap Year (1256), i.191 Statute of Marlborough (1267), i.191, 329, 353; on feudal jurisdiction, i.615; on guardian in socage, i.341; on writ of entry, ii.74; on writ of entry sur disseisin in the post, ii.69 Statute of Merton (1236), i.338, 342; on right of common, i.655; on suit by attorney, privilege of doing, i.575 Statute of Rhuddlan, i.205n87 Statute of Westminster (1275), i.466n132; on rape, ii.515 Statute of Westminster (1285), second, i.264, ii.20, 24n59, 515; extension of rights of common, ii.147; on liability of hundred, i.588; system of assize of arms and of watch and ward consolidated by, i.595 statute rolls, language of, i.90, 93–94 Statutes of the Realm, Anglo-Saxon custumals in, i.32 statutory duties of township, i.594–95 Statutum Hiberniae de Coheredibus, ii.290 Statutum Walliae (1284), i.234, ii.227–28 Stephanus Tornacensis, i.480n189 Stephen, J F., ii.489n66 Stephen, King, i.104, 125, 126, 127; proceedings against Bishop Roger of Salisbury, i.476–77; renunciation 3/5/10 10:37:07 AM 778 i n de x Stephen, King (continued) of right to profitable guardianship of temporalities of vacant see, i.546; time of war and of “unlaw” under, i.474; torture under, ii.690–91; treatment of criminous clerks under, i.477, 479 steward: of manorial court, i.579–80; as president of feudal court, i.622–23 stipulatio, ii.201, 202, 229 subinfeudation, i.289, 292, 357, 359, 363, 616–17, ii.15n30; in Anglo-Norman charters, i.362; Bracton on, i.351–52; creation of new manors by, i.639; end of, ii.307; manor court for tenants in case of, i.633–34; reversion and, ii.23; substitution vs., i.348–49, 350; by tenants in chief, i.358; as usual form of alienation, i.364–65 sub-lessee, ii.117 sub-manors, i.640–42 subsidiary liability, ii.558n382 substitution, i.359; Bracton on, i.352; fines levied before king’s court regarding, i.364–65; Quia Emptores Terrarum conceding liberty of alienation by, i.357; subinfeudation vs., i.348–49, 350 sub-tenants, military, i.278–82; duty of, i.287–88; knight’s service to lord who owes none, i.280–82; scutage of, i.287–88 subtracted service, apportionment of financial burden and, i.644 succession, i.137; of burgesses, i.712–13; intestate, ii.261–62, 263, 377–79, 425, 453; See also primogeniture suicide, ii.511 suit(s), ii.635, 636; by attorney, i.575–76; in county court, as “real” burden, i.569–71, 572; in county court, inconsistent theories of, i.572–73; examination of plaintiff’s, ii.638–39; excipient’s, ii.667–68; of hundred court, i.586; rival, ii.668; “subtracted L4729.indb 778 the suit,” i.566, 570–71; tender of, ii.224, 229, 230n142 suitors, ii.635; in county court, i.569, 576–80; of feudal court, i.623–25; function of, ii.636; of hundred court, i.586; number of, ii.636–37 Summa Aurea (William of Drogheda), i.130 summary action: assize of mort d’ancestor as, ii.59; assize of novel disseisin as, ii.50–51 summary justice, ii.607–9; in king’s court, ii.608–9; outlawry and, ii.609 supplementary relief, damages as, ii.548–49 Supreme Court of Judicature, i.202 surety, action against, ii.220 suretyship, ii.193n3; mainprise and bail, ii.618–19 surrender, ii.96 sworn inquest See inquest symbolic livery, ii.89–90 synodal jury, i.161, 162n36 tallage, i.389–90, 395n519; imposed on borough, i.697–98 tally, ii.224 tariff: of compositions, i.52–53; criminal, problem of, i.114–16; system of pecuniary compositions, ii.473 tax(es): assessment of, rights given to community by, i.665; immunities from taxation, financial affairs of township disordered by, i.644; royal nature of power to tax, i.697; selftaxing powers of borough, i.697–99; tallage, i.389–90, 395n519, 697–98; upon movable goods, i.647–48 team, i.609 Templars, ii.576–77, 581 temporal courts See county court; hundred court; king’s court; manorial court tenancy: in common, ii.258; by curtesy, ii.39, 423, 434–35; by entireties, 3/5/10 10:37:07 AM i n de x ii.258, 455–56; joint, ii.21, 258; by “law of England,” ii.435, 436–39 tenant, obligations of, i.252–53 tenant at will, i.377, 391 tenant for life, ii.7–11; as freeholder, ii.111; law of waste and, ii.9; in litigation, ii.10; position of, ii.8–9; public law and, ii.9–10; remainders after, ii.22–23; seisin of, ii.10, 39, 115; services owed by, ii.8; tenant in fee of same land, ii.7–8 tenant for years See term of years, termor tenant in demesne, proprietas and dominium rei ascribed to, ii.4, tenant in fee, ii.2, 7, 11; defined, ii.7; form of gift and, ii.7; reversion to donor upon failure of heirs, ii.23; of same land as tenant for life, ii.7–8; services owed by, ii.5; wife as, ii.423 tenant in villeinage, i.249, 632–33; remedies of, i.380–83; rights given by manorial custom to, i.662; seisin in case of, ii.37–38; transfer of lordship of, ii.97; See also villein tenure tenant pur autre vie, ii.84, 85 tenants in chief, king’s, i.247, 248n6; barons as distinct from, i.297; military, duty of, i.268n64, 278; prerogative rights of king on death of, i.329; prerogative wardship and, i.340; relation between king and, i.273–74; restraints on alienation and, i.354–55, 357–58; scutage between king and, i.283–86; serjeanty owed by, types of, i.299–302; service not discharged by scutage, i.285; stewards of, at county court, i.571 tenement, i.251n13; alienation of See alienation, restraints on; incorporeal things as, ii.155; obligation of, i.251–53; service due tenant also due from, i.276 tenure, i.243–429; aids, i.336, 369–71; ancient demesne, i.405–29, 545–46; L4729.indb 779 779 under Anglo-Saxon law, i.66–69; book-land, i.66–67, 69; church property, i.135; derivative and dependent, i.75–78, 246–49, 455; by divine/spiritual service, i.255, 257–58; escheat and forfeiture, i.371–77; by escuage, i.288–90; folkland, i.67–69; frankalmoin, i.254–66, 350, 375–76; free, i.254–313; freehold, i.377–79, 628; gavelkind, i.198–99, 425, ii.284–85, 439–40; in general, i.246–54; homage and fealty, i.314–24; incidents of, i.324–25; land acquired by serf from some third person, rightlessness in relation to his lord regarding, i.440; lœn-land, i.67; maintenance of English land law under Norman kings, i.99–100; military (knight’s service), i.266–98; one man holding by many, i.313; in parage, ii.277, 290; privileged, of boroughs, i.678–83; relief and primer seisin, i.324–36; restraints on alienation, i.348–69, ii.266; serjeanty, i.299–307, 350, 376; socage, i.308–13, 376; transfer of lordship, position of tenants unaffected by, i.420–21; unfree, i.377–405, 628; villeinage as, i.379; wardship and marriage, i.337–48, 376–77 tenurial rent (redditus), ii.135 term of years, termor, i.377, 378–79, ii.110–22; in case of gifts when donor nor donee in occupation of land, ii.97–98; deferred, ii.112; explanation of termor’s history, ii.115–19; felony by termor, ii.121; gage for years, ii.127–28; influence of Roman theory, ii.119–20; insecurity of termor, ii.112–13; as investment of capital, ii.122; lack of freehold, reasons for, ii.118–20; not freeholder, ii.111; as personal right, attempt to treat, ii.111–12; protection of, ii.113–15; reform concerning 3/5/10 10:37:07 AM 780 i n de x term of years (continued) ejectment, ii.112–13; seisin in case of, ii.38; Statute of Gloucester and, ii.114–15; term as chattel, ii.120–22; writ of covenant protecting, ii.226, 229; writ of trespass and termor, ii.113–14, 115 testament, ii.332; church and, ii.347–49; See also last will testamentary causes, as province of church, i.136–37 testamentary power, form of gift and, ii.27–28 testator, representation of, ii.360–65 theft, ii.156, 164–77; action of trespass de bonis asportatis, ii.173–75; ancient action for recovery of stolen goods, ii.164–66; under Anglo-Saxon law, i.61–62; Bracton’s actio furti, ii.166–73, 694; defences to action of, ii.170–72; from honest purchasers, ii.172; larceny, ii.518–23; manifest (hand-having), ii.164, 167, 519–21, 607–8, 609; procedure in action of, ii.167–68; procedure in court, ii.165–67; “property” of, ii.164–77; robbery, ii.517–18; scope of action of, ii.168–70; self-help and, ii.176–77; transformation of action of, ii.172–73; warranty against claims for stolen things, i.65–66 thegn, i.37–38, 39; heriot of, i.330–31; jury of twelve, i.152 thegnage, i.295, 309n215 Theobald, Archbishop, i.126 Theodore, Archbishop, i.12 Theodoric, i.11 Theodosian Code, i.7–8, 10, 108, 125 Theodosius, i.6 Theodosius II, i.7 thief See theft third heir rules, ii.290, 291, 305 Thornton, Gilbert, i.222; on franchises, i.602, 603 thrall-right, i.40 Thurkelby, Roger, i.218 L4729.indb 780 thwert-ut-nay (downright No), ii.638, 640, 645 tithing, i.558, 597–601; borough, i.692; constitution of, i.600–601; representatives of, in sheriff’s turn, i.588–89; system of representation of, i.600; township and, i.598–99 title: to burgherhood, i.706–7; no title by occupation, ii.84–85; seisin and, ii.48, 82–83 Todsatzung (German gage), ii.124n361 toll and team, i.608–9, 610 tolls: actions based on infringement of freedom of, i.710–11; borough’s freedom from, i.683–84; borough’s freedom from, admission of burgesses and, i.706; borough’s property in, i.721–22; borough’s revenue derived from, i.698–99; gild merchant and maintenance of mercantile privileges regarding, i.701; seisin of freedom from, ii.35 tort(s), ii.535–36; disseisin as, ii.46–47; master’s liability and, ii.555–56; possession and law of, ii.43–44; See also criminal law; trespass(es) torture, and law of evidence, ii.690–91 town-moot or township-moot, i.638 township, i.557, 593–97; actions against the hundred, i.648–49; allotment of financial burdens, i.643–44; apportionment of taxes on movables, i.647–48; borough community as, i.670; church-rate, i.644–46; as communitas, i.593; contribution to fines, i.595, 643–44; co-ownership vs corporate property in, i.662–64; duties of, i.593–95; economic affairs of non-manorial vill and, i.649–51; freeholder and village, i.659–60; freeholder in but not of, i.657, 659–60; manor and, i.637–67; miscellaneous offences of, i.596; officers of, i.597; organization of, i.597; permanent apportionment of duties, i.642–43; rights of, i.662, 3/5/10 10:37:07 AM i n de x 664–66; rights of common, i.652–53; at sheriff’s turn, i.558; tithing and, i.598–99; unjust exactions from, i.595–96; victory of parish over, i.590; village (villein) community of, i.652, 657–60 township-moot, i.642 Tractatus de Legibus (Glanvill), i.173–77, 178; Roman and canon law in, i.175–77 trading debts, collective liability for, i.718–19 traditio brevi manu (release), ii.94–95, 110 traditio rei (transfer of seisin), ii.93, 108, 110n302; fines and, ii.108–9 transaction witnesses, ii.216, 223n121 transgressio, outlawry and, i.502 transgressiones of clergy, i.471, 472n163 treason, ii.489n66, 523–32; under Anglo-Saxon law, i.56–58; compass of, in thirteenth century, ii.530–32; contrasted with felony, ii.523–26; early history of, ii.526–28; elements of, ii.528–29; escheat and forfeiture caused by, i.372, 486; high, i.470, ii.527–29; high, as exception to replevin, ii.614; judgment of peers in case of, i.433; by levying war, ii.529–30; petty, ii.509, 528; Roman law on, i.57, ii.527; statute of 1352 and, ii.526, 532 treasurer, i.203, 690 treaty intercommoning vills, i.651–52 treaty of peace, betrothal of young children in, ii.410–11 Trent, Council of, ii.392 très ancien Coutumier, Le, i.71 trespass(es), ii.535–68; amercements for, ii.537–39; as breach of king’s peace, ii.487; classification of offences, ii.535–36; damage and injury, ii.559; damages, in days before, ii.550–51; damages and specific relief, ii.547–48; damages as supplementary relief, ii.548–49; deceit, ii.560; defamation, ii.561–64; disseisin and, L4729.indb 781 781 ii.55–56; forgery, ii.104, 565–66; fraud as defence, ii.560–61; imprisonment for, ii.540–42; limits of, ii.552–53; master’s liability, ii.553–59; minor punishments for, ii.537–43; misdemeanours, ii.536, 546; penal damages, ii.547; perjury, i.139, ii.566–68; presentment before king’s justices, ii.545–46; presentments in local courts, ii.544–45; procedure against minor offences, ii.543–46; in wide sense, ii.536–37; writ of, ii.113–14, 115, 173–75; wrongful prosecution, ii.564–65 trespass, action of, ii.550, 551–53, 601; civil actions, ii.543–44; for damages, ii.547, 549–50; trial by jury and, ii.650; wager of law in, ii.666n376 trespass de bonis asportatis, action of, ii.173–75; not allowed against third hand, ii.174–75; scope of, ii.174–75 “trespass quare clausum fregit,” action of, ii.113–14 trial, ii.627; refusal of, ii.680–81; See also proof trial by battle, i.44, 159, ii.617, 629; absence from Anglo- Saxon procedure, i.56; champions for hire, ii.663; fate of, ii.662–64; under Norman kings, i.99; rules of duel, ii.664; William’s legislation regarding, i.97 trial by jury, i.147–59, ii.617, 633n236, 646; ancient elements present in, ii.652–55; difficulties of, ii.685–86; as distinct from trial by an assize, i.159; germ of, in Frankish inquest, i.101; in manorial courts, i.624–25; nature of, ii.683–85; in Norman period, i.152–53; trial by witnesses as rival to, ii.669–70; victory of, ii.671–72; See also jury trial by witnesses, ii.667–70; excipient’s suit, ii.667–68; fate of, ii.669–70; rival suits, ii.668 truce of God, i.82 true punishments, ii.473–74 3/5/10 10:37:08 AM 782 i n de x trust of lands, temporary, ii.240–41 tún, i.670 turn, sheriff’s See sheriff’s turn tutelage of women, ii.458–59 “twelf-hynd” and “twy-hynd” men, class of, i.39 ultimogeniture, i.681, ii.293–97; causes of, ii.296–97; impartible peasant holdings, ii.294–96; origin of, ii.294 umpire, judge as, ii.701–2 unanimity of jury, ii.655–57, 685 undertenants, scutage of, i.285–87 unemendable homicide, ii.508, 509 unenacted law, i.194–96 unfree, the, i.435–56; jurisdiction of seignorial court over, i.559; large numbers of, i.455–56; in tithings, i.600–601; unfree class, under Anglo-Saxon law, i.39–42; See also serfs, serfage unfree tenure, i.377–405, 628; freehold tenure, i.377–79, 628; villeinage as tenure and as status, i.379; See also villein tenure uniformity of English law, i.238 “unit” of ancient law, family as, ii.252–53 unity of villein tenements, i.403–4 universal church, common law of, i.123–24 universitas, i.520–23; Bracton on, i.522– 23; church as, i.528–30; criminal liability of, i.715n464; at king’s hands approbation required by, i.705n442; will expressed by majority, i.536 universitas civium vel burgensium, i.537–38 unnatural crime, ii.582–83 use (ad opus): agency and, ii.238–39; chattels held to use of another, ii.239–40; early history of, ii.238–39, 243–51; lands held to use of another, ii.240–41; “use” of lands, ii.241–42 usufruct, ii.119, 249–50 L4729.indb 782 usury and usurers, i.139, 492; damages as distinct from usury, ii.225; Jews and, i.494n230, 495, 496–97, 501, ii.125; of mortgage, ii.124–25; prohibition of, i.496–97 utfangenethef, i.607, 610 utfangthief, i.678, ii.151 Utrum (action), ii.597; See also assize utrum vacant seisin, ii.63–64 Vacarius, i.126–28 vadium See gage of land; gage (vadium) vassalism, i.74; force of, i.317; in Leges Henrici, i.317–18; limitation to force of, i.321–22 vee de naam (de vetito namii), action for, ii.549; replevin as action based upon, ii.606 verba novissima, death-bed distribution by, ii.334–35 verdict(s): of country, ii.653–57; of country, as proof of exception, ii.647–49; and evidence, ii.657–58; judgment vs., i.148; in modo assisae as distinct from in modo iuratae, ii.51n117; reversal of, by process of Attaint, ii.695–96; special, ii.660, 661; of sworn inquest of neighbours, ii.633; unanimous, ii.655–57, 685; See also trial by jury vestries, money-voting, i.645–46 vicinage-right, i.654n281 view of frankpledge, i.600, 608n171, 610–12, 623, 624; for borough, i.692 vifgage, distinction between mortgage and, ii.124–25 Vigilius, Pope, i.14 vill(s), i.557, 589–93; allotment of financial burdens to, i.643–44; apportionment of taxes on movables in, i.647–48; borough as, i.670; borough courts of, i.560; coincidence of manor and, i.627, 637–40, 652; 3/5/10 10:37:08 AM i n de x co-ownership vs corporate property in, i.662–64; court of authority for, i.638, 641–42; creation of new, i.639; discrete, i.590–91; distinction between borough and, i.667–68; division of England into, i.589; farm of and soil of, i.686–87; hamlets and, i.591–92; in hundred, number of, i.586; intercommoning, i.651–52; nonmanorial, i.640–42; nonmanorial, economic affairs of, i.649–51; parish and, i.590, 591; regulation of internal affairs of, i.642; representatives of, in sheriff’s turn, i.588–89; as suit-owing unit, i.571–72, 576; township and, i.593–97; as unit of public law, i.639; view of frankpledge for, i.611–12; village and, i.592–93 village, i.592–93; open fields of, i.649–50; typical, i.592 village community, i.652, 657–60; freeholders and, i.659–60 villata See township villein(s): communalism among, i.656–57; jurisdiction of seignorial court over, i.559; lord’s liability for, ii.554, 555; rise of, i.456; seisin of liberty, ii.153–54; widow of, i.403n536, ii.292, 448 villeinage: absolute, i.413, 419n576; privileged (sokemanry), i.411–12, 413, 419n576, 421–23; as tenure and status, i.379; See also serfs, serfage villeinage, tenant in, i.249, 632–33; remedies of, i.380–83; rights given by manorial custom to, i.662; seisin in case of, ii.37–38; transfer of lordship of, ii.97; See also villein tenure villein in gross, i.437 villein regardant, i.437 villein socage, i.413–14 villein tenure, i.379–405, 427–28; actions in feudal court relating to, i.619; alienation of villein tenements, L4729.indb 783 783 i.404; attempt to define, i.383; binding force of manorial custom, i.398; enforcement of contract against villein, i.444; essence of, i.390–91, 397n521; field system, i.384–85; inheritance of, i.401–3, ii.292; inheritance of, ultimogeniture and, ii.293–97; manorial arrangement and, i.383–86; merchet and tallage, i.389–90, 393–94, 395n519, 400, 450; ownership of chattels, i.440; protection by manorial courts, i.381–83; protection by manorial customs, i.424–25; tests of, i.393–97; transfer of lordship of, ii.97; treatment of, in practice, i.398–401; unity of tenement, i.403–4; unprotected by king’s courts, i.380–81, 391; villeinage and labour, i.391–93; villein services, i.386–88, 391–93, 396, 397, 399–401; villein status and, i.379, 404–5, 451; virgates, i.385–89; week work and boon days, i.388–89, 392 villein (village) community, i.652, 657–60; economic interdependence in, i.657–58; lord as constitutional king of, i.658–59 Vinogradoff, Paul, i.68 violence done to person of clerk, temporal and ecclesiastical laws applied to, i.464–65; See also felony(ies) virgates/virgaters, i.385–89 voluntary association, borough community and idea of, i.705–6 voucher of warrantors, voucher to warranty, ii.165, 693–95; defence by, ii.170–71; degrees of, ii.74n186; limit to, ii.219 wager of law, ii.224, 632, 648, 664–67; fate of, ii.672; See also oath(s) Walerand, Robert, i.507 Wales: English law in, i.234; merchet paid in, i.394; See also Welsh law 3/5/10 10:37:08 AM 784 i n de x Walter, Hubert, i.164–65, 179–80, 468, ii.101, 286; as chief justiciar, i.142, 175; constitution on marriage, ii.389 wapentake See hundred war, warfare: private, homage and, i.319–20; serjeanties connected with, i.301, 303; treason by levying, ii.529–30; units of military service during, i.270 Warantia Cartae, action of, ii.695 warantia cartae, writ of, ii.102 ward See hundred wardship and marriage, rights of lord of, i.74, 77–78, 337–48, 376–77; Bracton’s rules, i.337–42; earlier law on, i.343–46; Glanvill’s rules, i.342–43, 344; guardianship of infants and, ii.465–67; inheritance by co-heiresses and, ii.290–91, 292; marriage of infants, ii.408–9; Norman law on, i.344–45; origin of rights, i.346–48; precarious beneficium, i.346–48; prerogative wardship, i.340, 341, 342, 344–45; priority among lords, i.339; seisin in case of guardian, ii.38–39; serjeanties and, i.307, 341–42; in socage, i.339–40, 341; speculative investments in, ii.122; tenures giving wardship, i.339–40; value under substitution vs subinfeudation, i.349–50; as vendible, i.340–41, 343; as vendible, similarity to term of years, ii.121–22; wardship of female heirs, i.338–39, 343, 344; wardships as things, ii.154–55; women and, i.508–9 wardship of lunatics and idiots, i.507–8 warranty: under Anglo-Saxon law, i.65– 66; assignment of debt and, ii.236; “assigns” in clause of, ii.15n30; in charge of theft, ii.165, 166; counterpleading, ii.693; homage and, i.318, 323–24; rebutting effect of, ii.327–28; termor’s benefit of, ii.111; voucher to, ii.165, 170–71, 693–95; voucher L4729.indb 784 to, degrees of, ii.74n186; voucher to, limit to, ii.219 waste, action of: specific relief in, ii.625; tenant for life and, ii.9; trial by jury and, ii.649 waste land, i.687–89; as borough’s property, i.721; community and, i.688–89; freeholder’s rights and freehold tenant of, i.653–54; intramural, i.687–88; in nonmanorial vill, i.650, 651; rights of common to, i.652–54, 655 watch and ward, system of, i.595 waylaying, crime of, ii.492n75 wed, ii.198, 199, 211 week work, i.388–89, 392 Welsh law, i.234; partible inheritance in, ii.287n88; redistributions of physically divided shares of land in, ii.259n18 wer, i.53–54, ii.481; in Anglo-Saxon law, i.53–54; blood-feud group and, ii.254–55; disappearance of, ii.506; Leges Henrici on, ii.254; liability for effects of acts and, ii.494; oppressiveness of, ii.482; paid/received by paternal and maternal kinsfolk, ii.254 wergild, i.53–54, ii.257; blood-feuds and, ii.472, 473; for clergy, i.39; as earliest form of civil obligation in German law, i.64; inheritance and, ii.271–72; of thegn, i.38; of “twelf-hynd” and “twy-hynd” men, i.39; woman’s life protected by, ii.459 Wessex law, i.15, 109 Westminster: bench at, i.210, 213, 215; writ of false judgment against county taken to, i.565; See also king’s court whipping as punishment, ii.543 widows, i.140; dower and, ii.443, 447; husband’s land and, ii.424; legitim and, ii.365–72; life-tenancies of widow/widower, ii.8; quarantine 3/5/10 10:37:08 AM i n de x of, ii.443; recovery of land alienated by her husband, ii.72–74, 76–77, 78n194; trial by witnesses of wouldbe, ii.669; of villein, ii.448; of villein, inheritance of, ii.292; of villein, right to hold tenement, i.403n536; widow/widower’s free bench, ii.439–40, 443, 447 wife, position in family, ii.254, 255; See also husband and wife, law of William I: alodium granted to Abbey of Caen, i.76n13; apportionment of knight’s fees between tenants in chief and, i.273–74; charters of, i.75n10, 76n13, 83; as duke/count of Normans and king of English, i.99n36; ecclesiastical jurisprudence and, i.81; on excommunicates, i.504; heritability of fees in reign of, i.332–34; leases for years under, ii.116–17; legislation of, i.95–96, 106; legislation of, character of, i.96–97; oath of fealty and act of homage exacted by, i.316–17; ordinance on secular and spiritual jurisdiction, i.474–75, 479; partitioning of estates among sons, i.548; personal vs national law applied to rebels against, i.98–99; primogeniture under, ii.279–80; restraint on alienation under, i.363; rights of wardship and marriage under, i.347; treatment of rape under, ii.514; trial of halfbrother Odo, i.475–76 William II (William Rufus), i.102–3, 118n82; leases for years under, ii.117; reliefs under, i.330, 334, 336; rights of wardship and marriage under, i.347; trial of Bishop William of Durham for rebellion against, i.476 William of Malmesbury, i.125 William of St Calais, Bishop of Durham, i.118n83, 126 William the Conqueror See William I L4729.indb 785 785 will of lord, tenure based on, i.377, 391, 393, 398 wills See last will witan: jurisdiction of, i.46–47; peace of, i.51 witchcraft, ii.579, 580, 581, 582 wíte, i.54, ii.473, 481–83; arbitrary, ii.538; disappearance of, ii.481–82; liability for effects of acts and, ii.494; oppressiveness of, ii.482–83 witnesses, i.149, ii.658–59; bilateral production of, ii.668; examination of plaintiff’s suit of, ii.638–39; to honest purchase in open market, ii.171–72; jurors as, ii.651–52; oaths of, ii.630–31; rational examination of, ii.670; transaction, ii.216, 223n121; trial by, ii.667–70; women as, i.510–11 women, i.508–12; in court, i.510–11; homage done by, i.323; inability to be outlawed, ii.459; inheritance by, i.325; inheritance by, representation in, ii.297; inheritance by co-heiresses, i.289, 296, 307, 325, ii.288–91, 292; inheritance of, co-parcenery and, ii.321–22; inheritance of collaterals, ii.314–16; inheritance of feoda by, i.78n18; inheritance of land, preference for males over females in, ii.274; legal position of, i.508; marriage portions of (maritagium), ii.15–16; married, i.509, 512, ii.107; mixed (free and serf) marriages and, i.447–48; in private law, i.508–9; in public law, i.508, 509; tutelage of, ii.458–59; ultimogeniture and, ii.293n110, 294–95; wardship of female heirs, i.338–39, 343, 344 wounding, ii.512–13 writ(s): for burning heretics, ii.578; classification of, i.160; great writ of right patent, i.407–8; issued by exchequer or benches, i.205–6; little writ of right close, i.407–10, 411n553, 412; 3/5/10 10:37:09 AM 786 i n de x writ(s) (continued) original, i.158, 159–61, 206, 207–9, 223, ii.620; of prohibition, ii.208–9, 210; return of, i.613, 678, 712 writ de homine replegiando, ii.614 writ de odio et atia (spite and hate), ii.616–18; effect of, ii.617; later history of, ii.617–18; origin of, ii.616–17 writ de scutagio habendo, i.290 writ of course, ii.586 writ of covenant (breve de conventione), ii.225–32; to begin fi ne to be levied, ii.102 writ of customs and services, ii.131 writ of debt, ii.180–81, 185; against executors, ii.363; for executors, ii.363 writ of false judgment against county, i.565 writ of Monstraverunt, i.410–11, 415, 416 writ of peace, ii.697 writ of right, ii.65–66, 74, 79–80, 81, 600; actions for recovery of freehold land begun by, i.618; of advowson, i.158, ii.143; assize of novel disseisin procedure compared to procedure in, ii.48, 50–51; in hierarchy of actions, ii.78; between kinsmen, ii.65; for land (Praecipe in capite), ii.180, 213; offer of proof in, ii.635; proprietary action for burgage begun by, i.677; for services of freehold tenant, ii.133; special pleas in, ii.66; suitor’s function in, ii.636 writ of trespass, ii.173–75; termor and, ii.113–14, 115 writ of warantia cartae, ii.102 L4729.indb 786 writ patent, i.407–8 writs of entry, ii.57n139, 66–78, 600; active transmission of, ii.73–74; ad communem legem, ii.73; ad terminum qui praeteriit, ii.72n180, 73; cui in vita, ii.72n180, 73–74, 78n194; doctrine of degrees, ii.74; dum fuit infra aetatem, ii.73; English possessorium and canon law, ii.69–71; in hierarchy of actions, ii.78; historical evolution of, ii.72–73; invention of, ii.66–67; passive transmission of, ii.74; as possessory vs proprietary, ii.75–80; principle of, ii.73–74; relation to possessory assizes, ii.83n210; scope of action, ii.67–69; sine assensu capituli, ii.73; against the third hand or against the fourth hand, ii.68–69; trial by jury and, ii.649–50; writs of entry sur disseisin, ii.67–71 writs of formedon, ii.23n57, 29–30 writs of Quo warranto, ii.546 written cwiðe, ii.335–38; lord and, ii.332 written document: covenant as, ii.228–29; as form of contract, ii.200–201; growth of, ii.233–35; sealed, ii.232–33 wrongful prosecution, ii.564–65 Wulfstan, Archbishop of York, i.40 Wulfstan, Bishop of Worcester, i.40 Year Books, i.94, 218; first (1292), i.229– 30; on moveable goods, ii.163–64 yeomen, at county court, i.572 York, William of, i.217, 218n145 3/5/10 10:37:09 AM This book is set in three typefaces, all designed by the doyen of typographers, Hermann Zapf, in the mid-twentieth century The text is Palatino, designed in 1948 and one of the most widely used faces ever since The display is Michelangelo, designed in 1950 to accompany Palatino The marginal notes are set in Optima, designed in 1958, Zapf’s most popular sans-serif typeface This book is printed on paper that is acid-free and meets the requirements of the American National Standard for performance of paper for Printed Library Materials, z39.48–1992 Book design by Mark McGarry, Texas Type & Book Works, Inc., Dallas, Texas Typography by G&S Typesetters, Inc., Austin, Texas Printed and bound by Worzalla Publishing Company, Stevens Point, Wisconsin L4729.indb 787 3/5/10 10:37:09 AM L4729.indb 788 3/5/10 10:37:09 AM [...]... philosophical discussion of the nature of laws in general, and definition of the most general notions of jurisprudence We purposely refrain from any such undertaking The philosophical analysis and definition of law belongs, in our judgment, neither to the historical nor to the dogmatic science of law, but to the theoretical part of politics A philosopher who is duly willing to learn from lawyers the. .. shire, The borough’s heterogeneity, 670 The borough and the king, 671 The borough and the gilds, 672 Transition to the thirteenth century, 673 Inferior limit of burgality, 673 674 Representation in parliament, The typical boroughs and their franchises, 676 Jurisdictional privileges, 676 Civil jurisdiction, 677 Return of writs, 678 Criminal jurisdiction, 678 Privileged tenure, 678 Mesne tenure in the. .. rights, 712 Inheritance, succession and organization, 712 Criminal liability of the borough, 713 715 The communities in litigation, 716 717 The common seal, 719 The borough’s property, 721 borough’s property in its tolls, 721 722 Civil liability, Debts owed to the community, The The ideal will of the borough, The borough corporation, 722 The communities and the nation, 724 i L4728.indb xviii 3/5/10 10:15:30... and the Canon law, 479 The murderers of clerks, 481 § 6 Aliens, pp 483–493 The classical common law, 483 alien, 484 the law disabling aliens, 486 aliens, 489 490 Who are aliens? 483 Disabilities of the Naturalization, 485 Law of earlier times, 485 Growth of The king and the alien, 488 The kinds of The alien merchants, 490 The alien and the common law, Has the merchant a peculiar status? 492 The law. .. AM xvi C ON T E N T S § 4 The Tithing, pp 597–601 Frankpledge, 597 The system in the thirteenth century, 597 and tithing, 598 The view of frankpledge, 599 600 Township Attendance at the view, Constitution of tithings, 600 § 5 Seignorial Jurisdiction, pp 601–625 Regalities and feudal rights, 601 Theories of royal lawyers, 602 immunities, 604 Acquisition of regalities, 602 Various kinds of franchises,... draw a slight sketch, which becomes somewhat fuller as time goes on, of the general outlines of that part of English legal history which lies on the other side of the accession of Edward I In the Second Book we have tried to set forth at some length the doctrines and rules of English law which prevailed in the days of Glanvill and the days of Bracton, or, in other words, under Henry II., his sons and... Personality of the corporation, 514 The anthropomorphic picture of a corporation, 515 Is the personality fictitious? 516 middle ages, 516 The corporation at the end of the The corporation and its head, 517 The corporation in earlier times, 519 Gradual appearance of the group-person, 520 The law of Bracton’s time, 521 The universitas and the communitas, 521 Bracton and the universitas, 522 No law as... groups of secular clerks, 534 Internal affairs of clerical groups, 535 The power of majorities, 536 The ecclesiastical and the temporal communities, 537 The boroughs and other land communities, 537 § 13 The King and the Crown, pp 538–554 Is there a crown? 538 Theories as to the king’s two bodies, 538 Personification of the kingship not necessary, 539 as intensified private rights, 539 The king’s rights The. .. William of, in Chronicles of Stephen etc vol i (R) Parisiensis, Matthaei, Chronica Majora (R) Parisiensis, Matthaei, Historia Anglorum (R) Ramsey, Chronicle of the Abbey of (R) Rishanger, Willelmi, Chronica et Annales (R) Tewkesbury, Annals of, in Annales Monastici, vol i (R) Torigneio, Roberti de, Chronica, in Chronicles of Stephen etc vol iv (R) Triveti, Nicholai, Annales (Eng Hist Soc.) Waverleia,... things of their own art is full as likely to handle the topic with good effect as a lawyer, even if that lawyer is acquainted with philosophy, and has used all due diligence in consulting philosophers The matter of legal science is not an ideal result of ethical or political analysis; it is the actual result of facts of human nature and L4728.indb xxxiii 3/5/10 10:15:32 AM xxxiv I N T RODUC T ION history ... xliii tially similar one, to attribute English law to a Celtic origin This inroad of the Roman ecclesiastical tradition, in other words, of the system which in course of time was organized as the. .. published here as an appendix, was originally published in Cambridge University Press’s 1968 reissue of The History of English Law before the Time of Edward I Reprinted by permission of Cambridge... (amagi), or “liberty.” It is taken from a clay document written about 2300 b.c in the Sumerian city-state of Lagash This is the second edition of The History of English Law before the Time of Edward