William Rufus-English Population—Henry I. and Stephen. *104 *CHAPTER II. LAWS AND INSTITUTIONS OF ENGLAND DURING THE REIGNS OF WILLIAM II., HENRY I., AND STEPHEN. William Rufus-he also claimed Hereditario Jure-English Population begin to emerge from their state of Depression-English Barons-Laws of Edward the Confessor renewed in part-Charters of Incorporation to Towns-Doctrine of Tenure-Judicial Institutions -Increase of business in the King's Court-Number of Justices increased-Curia de More Greater and Lesser Barons-Witan-Grants from Royal Domains-Judicial Business of the Curia Regis-Appeal-Records of Court-Prerogative of defending the Poor and Helpless-Injunction. Henry I. prepares to be a Legislator-Materials collected for a Code-References to Roman WILLIAM RUFUS, as before observed, claimed the throne under his father the Conqueror as the successor of the Confessor by hereditary right (a). During the interval which elapsed from the accession of William Rufus to the end of that of Stephen, the English population, favored by the circumstances of the times, gradually grew into consequence. In the reign of the former monarch, in consequence of the intrigues of Odo, Bishop of Baieux, and the Normans, to place Robert Duke of Normandy on the throne, William was thrown upon his English subjects; and in order to engage their affections, he bound himself to them by the strongest assurances to give or secure to them better laws than had ever before been established in England (b): his ends being accomplished, his promises were forgotten; excepting that when he was sick they were constantly repeated, and as regularly broken when he recovered (c). *In the reign of Hen. I. English barons re-appear (d), particu- [*105] (a) V. supra, p. 88, n. (f). According to Gervas, William II. owed the crown to Lanfranc, "Convocatis Episc. et primoribus, Ang. Lanfrancus elegit, Will. fil. Regis, sacravit et coronavit," Gervase, apud Dec. Scrip. p. 1655, 40; but William I. had written to him in his last illness to do so, Runnington's Notes to Hale, C. L. p. 132. (6) Tunc accersivit Anglos, et iis exposuit suas angustias, rogavit que eos auxilium, pollicitus eis meliores leges, quam unquam fuerant in hac terra; omnia item injusta tributa abrogavit et concessit subditis [manna]. Verum hoc haud diu mansit -Angli nihil ominus auxilio adfuerunt Regi ipsorum Domino (hlaforde)," Sax. Chron. ed. Gibs. p. 194. William, in order to reduce Earls Eustace and Roger to subjection, ordered every one, French and English, from cities and vills, to come to him, and having collected a great force, he went to Rochester, &c. ib. p. 195; and see Lord Lytt. Hen. II. i. p. 84; the authorities are set out, p. 412 to 417. William II. on one occasion raised 30,000, on another 20,000, English foot-soldiers, ib. (c) Hoveden, 461; Sim. Dunelm, 215; Knyghton, p. 2359; Bromt. 984, 30, &c. From the expressions commonly used (sup. note (b), p. 104, &c.) it would seem that the amendment of the laws was recognized as belonging to the royal prerogative, and as depending on the will and pleasure of the king. (d) Text. Roffens. 169; ibid. 170, 1. 224. The address of the Laws of Hen. I., in the Red Book of the Exchequer, is, Baronibus et fidelibus suis tam francigenis quam Anglicis de Wirecestrecire, Anc. L. i. 497. No doubt it was intended to be sent to each county. 105 Laws of Edward renewed-Charters-Doctrine of Tenure. larly in Kent (a). The Normans, especially the clergy (b), now united with the English in calling for a renewal of the laws of Edward; and accordingly, in the reigns of Hen. I. and Stephen, repeated charters confirming those laws, that is, the laws that had been in use in the time of the Confessor, with such emendations as had been since introduced,-were granted (c). The condition of the inhabitants of the towns became greatly improved; and from the reign of Henry I. downwards many charters of incorporation were granted to cities and towns, conferring upon them peculiar jurisdiction and other franchises, and exemption from the jurisdiction of the county court (d). A distinct charter was granted by Hen. I. to the citizens of London, confirming to them their ancient customs (e). But as regards the great principles of the laws of property in land, as established at the Conquest, no substantial alterations were effected or even called for, so far as can be discovered from the historians of the times. The doctrine of tenure, particularly, continued to be the universal law, without being the subject of complaint (f); though the *abuses of the incidents of tenure were loudly complained of, [*106] and many of them were redressed. The judicial institutions also. remained nearly in the same state. The ordinary courts were still the county courts and hundred courts, at which it would seem all freeholders were bound to attend (g), burgmotes, and hall motes or manor courts. A certain number of the members were now, it would seem, selected as judges in each case (h), and the Roman right of challenge was introduced (a) We learn from the historian Thorn, p. 1787, that the Kentish people procured better terms for themselves than the rest of the English; so that possibly some of the ancient thanes retained throughout the title of barons; though in that age the term baro was sometimes applied to simple freeholders, Leg. Hen. I. c. 29; Anc. L. i. 618: in truth every possessor of land, high and low, was the baro or man of some superior. (b) V. sup. p. 98. (c) Henry 1.-A. D. 1100, Matt. Paris, 47, 16, " Lagam Regis Edwardi vobis reddo, cum illis emendationibus quibus pater meus eam emendavit, consilio baronum suorum." A copy of a similar charter of Hen. I., dated A. D. 1101, is in the Text. Roff. p. 51; and see Lord Lytt. i. 476. It was this charter that the bishops and barons of the realm, A. D. 1213, swore to defend, M. Par. p. 202; et. v. M. Paris, 52, 14; et Rich. Hagulstad, 309. 311. One of Stephen's charters is in these words:-"Bonas leges et antiquas et justas consuetudines in hundris [murdris is the term adopted, Stat. of the R. i. p. 4, and Malmesbury, p. 179] et placitis et aliis causis observabo, et observari præcipio et constituo," Charta Reg. Steph. Hagulstad, 314. It was principally the refusal of the Empress Matilda to confirm these laws that induced the Londoners to drive her out of their city, Gervase, p. 1355, 40; but what specific laws and customs were so much desired to be renewed no one has been able to discover. The laws of Edward are cited by Bracton, fo. 124 b, in reference to the institution of mutual suretyship by francpledge, but not, I believe, in reference to any other subject. The privileges of the clergy secured by the laws of Edward were mentioned in the coronation oath down to the time of Charles I., Clarendon, Hist. of the Rebell. i. p. 484, fol. ed.; ii. p. 624, ed. 1720; so that possibly it was the clergy who, for some purposes of their own, raised the clamor for the laws of Edward. V. int. al. Matt. Paris, cited by Lord Lyttelton, vol. i. p. 425. (d) Hallam, Mid. Ag. iii. 33, 34, 35; (et v. ib. i. 298, as to the charters granted to continental towns Brady on B. 100, and Bract. 56 b. The term " community," as applied to the inhabitants of towns, now came into use, Mad. Firm. Burg. 35. It was familiar, temp. Edw. I. Parl. Writs, i. 8. and 10, &c. (e) Leg. Hen. 1., Anc. L. i. 502, 3; Rymer, i. p. 11; Brady on B. 28. (f) See Lord Lytt. i. 426. In § 21 of the Laws of Hen. I. bocland is mentioned; but this and the preceding section, as well as many others, particularly that relating to matters of ecclesiastical jurisdiction, are mere compilations from the old Saxon laws or those of Edward the Confessor, (see note on c. 3, Anc. L. p. 611,) without any regard to their being obsolete. (g)" Barones, Vavassores-et ceteri terrarum Domini," Leg. Hen. I. c. 7, § 2, p. 512. (h) Ib. c. v. § 1, "Judicum electie.” “ si Judicial Institutions-Curia Regis-Its Members. 106 or confirmed, and the decision was by the majority (a). The ancient penalty for giving unjust judgments, by the process of attaint, is recognized (b). It would appear from the compilation called the Laws of Hen. I. that a power to remove causes from the lower of these tribunals to the higher had been introduced at the time that compilation was made (c). All causes in which the king was concerned appear to have been tried before his own justices (d). A great increase took place in the business transacted in the king's court, so much so, that between the end of the reign of William I. and that of Hen. I. the number of justices was increased to eighteen; however the latter monarch reduced them to five (e). The King's Court (Curia Regis), in the reign of William Rufus and Henry I. was still held de more at the great festivals (ƒ), and this custom was continued down to the latter part of that of Stephen (g); it was also held at other times as occasion required, according to the ancient usage. The Curia Regis appears still to have been composed of the same members-the bishops, "comites," and "barones" of the realm (h). The lesser barons who attended would probably still *comprehend the more considerable [*107] of those who, after the Conquest, were called cnits (i). The acts of these assemblies were usually described as done consilio baronum, sometimes communi consilio (k). We have direct notice of the presence of alii viri periti (corresponding with the Anglo-Saxon witan) in the reign of Edw. I. (1). The same expressions are used in subsequent documents (m). No doubt the practice of summoning to the king's councils, at least for the occasion, those who were best competent to advise as to the matter in hand, prevailed at the period we are now contemplating, in continuation from the AngloSaxon era that the justices attended we learn from Brompton (n). Royal Grants of lands were no longer expressed to be consilio optimatum, though some of the bishops or other dignitaries often signed, or put their seals to them, as witnesses (o). jadicibus consential, advocet," &c.; et v. c. (6) Ib. c. 34, § 5, p. 536. (e) Leg. Hen. I. c. 58, cited infra. (d) Leg. Hen. I. c. 52, p. 550. (e) Benedict Abbas, cited Hardy's Introd. to Close Rolls, p. xxv. (f) "Inter hæc, cum gratia dominicæ nativitatis, omnes primores ad Curiam Regis pro more venissent," &c., Eadm. lib. i. p. 15. Peractis igitur festivioribus diebus, diversorum negociorum causæ in medium duci ex more cœperunt," Eadm., lib. i. p. 37. temp. Will. Il. et v. p. 39. To same effect, ibid. lib. iv. p. 102, temp. Hen. I. (g) Huntingdon, 390, 5. (h) "Postmodum iii. kal. Augusti clero et populo ad concil. London. convocato, adstantibus Archiepisc. Episc. cetera que multitudine maxima procerum et magnatum, statuit Rex et concessit," Bromt. ad A. D. 1103, temp. Hen. I. p. 1000, 39. "Rex, comites, et barones, totius Angliæ apud Salisberiam congregavit," Hoveden, A. D. 1116, p. 473. Stephanus Rex episcopos et proceres regni sui regali edicto in unum conveniri præcepit, cum quibus generale concilium celebravit," Hagulstad, ap. Dec. Script. p. 314, 14. (i) Sax. Chron. ad a. D. 1086, sup. p. 102. (m) 23 Edw. III. c. i.; note (1) to Co. Litt. 42 b. (n) Ad. a. n. 1088, p. 983, 37. (0) In the Text. Roff. c. 128, p. 170, is a grant to the church of Rochester, addressed, Anselmo Episcopo, et Haimoni Dapifero, et 107 Judicial Business-Appeal-Prerogative-Laws of Henry I. The judicial business of the Curia Regis, as it is generally considered, was not separated from the legislative until the reign of Henry II., when the Curia Regis for the dispatch of judicial business was created or finally established, as will be hereafter more particularly mentioned (a). This court appears to have become, in the reign of Hen. I., the regular court of ultimate appeal from all the courts of ordinary jurisdiction (b). Records were kept in the King's Court, and they were conclusive (c). The Norman sovereigns appear to have still retained to themselves the ancient Saxon prerogative, or rather duty, of protecting and assisting the poor, the impotent, and defenceless, who were unable [*108] to obtain redress in the ordinary tribunals (d). *Besides which the king appears to have exercised, and sometimes, as it would appear, by the advice of the chancellor alone, a prerogative jurisdiction to protect the enjoyment of rights in cases where the ordinary modes of proceeding would not afford effectual relief (e). Henry I., who was surnamed Beauclerk, intended, it would seem, to have distinguished himself as a legislator. In his reign a compilation, which has been quoted above under the title it bears of the Laws of Hen. I., was commenced by some individual (f), though evidently by authority (g), which no doubt was intended as the basis of a code to be issued after the Anglo-Saxon fashion. The compiler, besides the Saxon codes, appears to have had the Theodosian Code or the Breviarium (h), perhaps both, before him. He has attempted, something after the Roman omnibus Baronibus Francis et Anglis, de Chent;-testibus Rotbert. Episc. Linc., et Willielmo Gifardo, Cancellario, et Eudone Dapifero, et Haimone Dapifero, and two others without designation; apud Rovre cestram. Similar grant, c. 127, p. 169, and c. 211. In p. 224, letters patent, dated A. D. 1103, are set out, addressed to all archbishops, bishops, and barons, French and English, of the entire kingdom, confirming all prior grants to the church of Rochester, "potestate regiæ dignitatis mihi a Deo collata." Anselm Archbishop, and the Pope's legate, add their confirmation, and besides the King's seal ("signum") those of the Archbishop, the Queen, the Chancellor, and others, are appended. There was now no public domain. (a) See on this subject a very learned treatise in the Edinburgh Review, No. Ixix. p. 14. Even after this separation, legisla tive acts were described as done "in curia nostra;" but the style of such acts was "nobis et concilio nostro, provisum et concessum," or the like: see Bracton, fo. 227 b, Stat. of Merton. (b) See Leg. Hen. I. c. 57, § 8, p. 555, "Omnes enim causæ suos habent pertractationum modos, sive in statu quo cepere permaneant, sive de eo in alium transeant," c. 57, § 8, p. 555. It is added, "Defectus justitia ac violenta recti detentio-commune regis placitum est super omnes," p. 558, et v. c. 34, § 4, § 7, p. 538. (c) "Recordationem Curiæ Regis nulli negare licet," Leg. Hen. I. c. 31, p. 534; c. 49, § 4, p. 548. (d) "Hæc sunt jura quæ Rex Angliæ solus et super omnes homines habet in terra sua. Injustum judicium, defectus judiciæ, prevaricatio legis regiæ; et omnibus ordinatis, (v. Leg. Edw. et Gunt. § 12; Leg. Ethelred, ix. 33; Leg. Canut. § 40; Ancient Laws, &c., p. 616) et pauperibus et abjectis debet esse rex pro cognato et advocato, si penitus alium non habent. Hæc sunt dominica placita Regis, nec pertinent vice comitibus vel apparitoribus vel ministris ejus, sine definitis prælocutionibus, in firma sua," Leg. Hen. I. c. 10 and 19; Wilkins, p. 242; Anc. Laws, p. 518. (e) Henricus Rex Anglorum, Haimoni Dapifero, et Hugoni de Bock, (probably then acting as his justices in Kent, see Spelman voce Dapifer, p. 163 b,) salutem. Prohibeo ne piscatores pescant in Tamesia, ante piscaturam de Rovecestra de Nivvera, et si ulterius invenientur piscantes, sint mihi forisfacti." This writ is witnessed by the Chancellor only, Text. Roffens. p. 171. This is the first instance of an injunction that I have met with. (f) See Anc. L. i. p. 611. (g) See c. i. pr. A copy is preserved in the Red Book of the Exchequer; it was added to in the subsequent reign, Anc. Laws, i. p. 510, and the notes. (h) See Savigny, tom. ii. p. 102. Study of Roman Law revived—Vacarius-School of Oxford. 108 * fashion, to define jus or right, and to describe actions (a). The Theodosian Code, as before noticed, is expressly cited in one passage (b) in a manner that would lead to the supposition that it was at that time referred to as authority in the Curia Regis, in cases not expressly provided for by the law (c). In the reign of Stephen, whether from the discovery of a perfect copy of the Pandects at Amalphi, or from whatever cause, the study of the Roman law was prosecuted at Bologna with great ardor (d). In the same reign, A. D. 1143, Archbishop Theobald, the predecessor and instructor of the celebrated Chancellor and Archbishop, Thomas à Becket, who himself studied the civil law at Bologna (e), brought Vacarius, a distinguished Italian jurist, to England. Vacarius shortly afterwards, A. D. 1149, established a school of civil law at Oxford, where he taught with great success (f). Stephen, instigated, as it is supposed, by the Bishop of Winchester, Theobald's de[*109] clared enemy, issued an ordinance prohibiting Vacarius from teaching; but this, instead of putting a stop to the study of the Roman law, had, it seems, the opposite effect (g). Vacarius composed a summary of the Roman law, which comprises extracts from the Pandects and the Code of Justinian, to which he added a commentary and explanatory notes (h). It seems that he continued in England down to 1170, at which time he had entered into holy orders, but without renouncing his office of teacher (i). Peter of Blois, Archdeacon of London A. D. 1200, and other eminent persons, studied under Vacarius, and the Roman law became well known to, and as we shall see, the subject of study with, the judges and professors of the law of England (k): it was even occasionally had recourse to, directly, in the civil tribunals down to the time of Richard II. (1); and professors of the civil law were frequently advanced to be judges of the supreme courts of law (m). The work of Vacarius is the only express monument of his school that has been pre (a) In the four parts of an action, c. 4, p. 504, we may discern some obscure reference to the four parts of the Roman formula, Gaii Inst. lib. iv. § 39, et seq., (the Breviarium was in part compiled from Gaius, Terasson, 271; Savigny, ii. 26.) The chapter as to the duties of judges, c. xxviii., follows pretty nearly an edict of Constantine in the Theodosian Code. (b) C. 31, § 4, § 5, p. 536. (c) Archbishop Lanfranc, it is to be remembered, was well versed in the Roman law, of which indeed he was a celebrated teacher, Savigny, ii. 185. 188, et v. p. 100; Gervas. ap. Dec. Script. p. 1665, 30. (d) Savigny, iii. 65, § 32, p. 71. The date given to this discovery is 1135, the year of Stephen's accession. (e) Duck. xix. (f) Gervas. Dorobern apud Decem Scriptores, p. 1665, 30, "Oriuntur hinc inde discordiæ graves, lites et appellationes antea inaudita. Tunc leges et causidici in Angliam primo vocati sunt, quorum primus erat Magister Vacarius: hic in Oxonefordia VOL. I.-11 legem docuit. Et apud Romam Gracianus -Canones compilavit, &c." And see Savigny, iii. p. 336; Duck. xviii. xix. (g) Savigny, iv. p. 92. John of Salisbury, who studied under Vacarius (ib. 95), says, -"Sed Deo favente eo magis virtus legis invaluit," Selden's Notes on Fortescue De Laud. c. xxxiii. n. 21; and Dissert. in Fletam, Duck. xviii. xix. (h) Savigny, iii. p. 336; it was "pauperibus præsertim destinatus," ib. iv. p. 93. (i) Savigny, ubi sup. (k) How busily and efficiently Peter of Blois and his ecclesiastical brethren employed themselves in matters of English civil jurisprudence, may be seen in the remarkable passage in the Epistles of this learned person, which is noticed by Selden in his Dissertation on Fleta, and by Lord Lyttelton, iii. p. 200. (1) See Selden, Dissert. in Fletam, and Notes on Fortescue, c. xxxiii. &c.; but see the Protest of the Lords, Notes on Fortescue, p. 38, ed. 1660. (m) Duck. p. xxviii. ix. |