Legal Lore Part 2

BY GEORGE NEILSON.

The wayward fancies of mankind are well ill.u.s.trated in the diversity of symbolic observances, some never losing their meaning, some absolutely unintelligible in their historic form, and some as much characterised by a befitting dignity, as others are by the want of it. All once were self-explanatory and possessed a measure of propriety proportioned to the state of the people amidst whom they originated. But tradition is long, centuries elapse, each modifying a ceremony, and when the procedure emerges within the knowledge of record, it has often so lost touch with its surroundings, that it is hopeless to speculate how it arose.

Symbols are drawn from and applied to every field of human activity. Of course in a general sense man expresses himself only so, and a regular alphabet is but a comparatively trifling advance on the language of signs.

What we call civilization, is at bottom little more than a clear recognition of certain symbols of government. The Queen's crown, the Judge's ermine, the Mayor's mace, what are they else? The sceptre is only a glorified stick, of which the policeman's baton is a humbler shape. Each embodies the great thought that behind it stands a nation's determination to be ruled by law.

In the history of law, symbol and the traces of symbol meet us at every turn. The middle ages teemed with them. Roman law had bequeathed not a few. Perhaps the most wondrous of them all is one that has long ceased to have any legal connection, although its mark is all-powerful over civilisation. How daring was the imagination which prompted the choice, for the heraldic badge of Christianity, of the dread emblem of capital punishment by crucifixion! In the pure domain of the law of the early and middle ages, a perfect wilderness of symbols presents itself to eyes which strive to explore the origins of inst.i.tutions.

Law is ever beset by a tendency towards formalism, and in early times a severe insistence upon ceremony, no doubt, gave prominence and prescriptive sanction to symbolic acts. Law and custom after all only mean that the way things were done yesterday is the safest way of doing them to-day. The acceptance of a common form implies a very large public consent, which is equally necessary to its abrogation, once it is accepted. No small part of its value lies in its certainty, "certainty which," c.o.ke well says, "is the mother of quiet and repose."

Hence the fixity and longevity of many emblematic methods of performing acts affecting status or property rights. The const.i.tution or discharge of slavery, or the transfer of a slave from one master to another, had a variety of set forms. A freeman might deliver himself to serf.a.ge by putting a leathern thong upon his neck. When a church was the donee, the ceremony might take place at the altar, and the man present himself there with cords round his throat. "Thus he offered himself," says an old record, "to the Almighty Lord." A coin or two on the head was also a customary part of the process. In the manumission or liberation of the slave, these coins struck off the head served the purpose of declaring him free, as did the companion symbol of open doors, or the placing him at four cross roads, and bidding him go whither he would. Another common symbol of enfranchis.e.m.e.nt was the delivery of an arrow, thought to denote the right confined to freemen of bearing arms.

Even a short account of legal symbols would make a very large treatise.

Single instances such as the ring, the staff, the glove, and the horn would each furnish material for an elaborate monograph. The theme would call for a discussion of the great war of invest.i.tures, and would touch very many points of ecclesiastical, civil, and criminal law and history.

The scope of the present unambitious article is only directed to a few ill.u.s.trations in relation to the transfer of land, the act of divesting the old proprietor and clothing the new with his rights. Although such symbols usually had a connexion with the subject conveyed, there are many types in which that connexion is not readily traceable. Why for example amongst the Saxons should a resignation of all interest in an estate have been made by a gesture with curved fingers? One can understand why a sod should be so often a token, but why does the glove play so large a part in Merovingian and Carolingian conveyancing? Was it, indeed, as German scholars speculate, because the donor metaphorically took it off and the donee put it on, making his the covered hand, the _vest.i.ta ma.n.u.s_, that would defend the land conveyed? How came an eleventh century magnate to attest his renunciation of justiciary rights to a monastery "by cutting off the top of the silk band by which his fur robes were fastened to his breast, and with that segment re-investing three monks therein?" In this case a portion of that silken band was carefully sewn up, as an adminicle of evidence, in the writ recording the transaction. How again came it that a claim of feudal service might be departed from by the delivery and placing of a wand (_virgula_) upon the altar? All these are much more personal symbols than real. They are mainly guarantees of the grantor's good faith. They do not seem to be primarily emblems of possession. The contrast between these two cla.s.ses will be best appreciated by considering types of the latter.

When a purchaser proceeded to set up fresh boundary marks, or to take a spade and dig, or when he received delivery of a sod with gra.s.s or shrubbery upon it, or lifted from the ground the charter granted by the seller with amongst other things a sod laid thereon, the act of seisin, the formal occupation is visibly completed. Of this cla.s.s of symbol, the sod (_cespes_) is probably the best and most typical for a few words of ill.u.s.tration. We read of litigants laying judicial claim to land in the mall or public court by putting their spears into a sod, representative of the subject in dispute. We hear of the sods being cut in the shape of bricks, and of their being preserved as memorials, with the twigs growing in and incorporated with them. We hear of sods offered on the altar when the grant of land was being made to a church. We hear of transfer from one va.s.sal to another being accomplished by the grantor delivering the sod to the over-lord, and the latter pa.s.sing it on to the grantee.

Of all the symbols employed in connection with feoffments, however, the rod (_festuca_) had the widest vogue on the continent. Not that it was restricted to transactions in land; it was a more or less lineal descendant of the Roman stipulation, a contract visibly expressed by the parties breaking a straw between them. Under Charlemagne a renunciation by certain priests was made by them "holding straws in their hands and casting them from them before G.o.d and his angels." Later this appears as a recognised method of renunciation, but with a rod subst.i.tuted for the straw. In some cases the fact of renunciation is emphasised by the rod being not only thrown to the ground by the resigner, but trodden under foot when there. The role of the _festuca_ was peculiarly important amongst the Frankish peoples.[3] Galbert of Bruges, a Flemish twelfth century historian, states that the counts of Flanders gave invest.i.tures to their va.s.sals, after receiving their fealty and homage, by a wand (_virgula_) held in hand, and he has a dramatic pa.s.sage describing how the people of Bruges, in token of their renunciation of their feudal bond to Hacket the castellan, "picking up bits of stick exfestucated their homage and fealty," _i.e._ cast the rods from them, and so doing severed all connexion with their former chief.

In England and in Scotland, this rod symbol (_fustis et baculus_) also played a large part. Bracton referred it specially to land without houses.

Tenure by the verge, a species of copyhold, had its name, we learn from Littleton, from _un pet.i.te verge_, delivered by the old tenant to the steward or bailiff of the manor, who re-delivered it to the new holder.

Jordan Fantosme tells us that when Brien, messenger of Ranulf Glanvil, in 1174, announced in Westminster the capture of the Scottish King at Alnwick, Henry II. rewarded him for his good news by handing him a stick (_bastuncel_), which vested him in ten librates of land. In Scotland the feudal resignation by a va.s.sal to his overlord for the re-investure of a fresh owner was effected by "staff and baton" (_fustis et baculus_), and references to those symbols occurred in every day conveyancing until far into the present century. Indeed this picturesque ritual was, strictly speaking, not abrogated, although made unnecessary, by the Act 8 and 9 Victoria ch. 35.

The commonest conveyancing symbol for land in England was the formal delivery of turf or twig of the ground conveyed, made by a representative of the grantor, to a representative of the grantee. The most familiar in Scotland was the handing over of "earth and stone." This latter was the normal form of seisin, and its history goes far back, not only in Scotland, but on the continent as well. A curious Saxon legend attests this. Widukind narrates that some Saxons, having landed from their s.h.i.+ps in Thuringia, one of them, wearing a golden torque and bracelets, met a Thuringian, who asked if he would sell his ornaments. The sly Saxon entered into an odd transaction; the Thuringian gave him in exchange for his gold, a lapful of soil. The Thuringians rejoiced exceedingly over the smart bargain their countryman had made, but changed their tune when soon afterwards the Saxons claimed the land as theirs, purchased with their own gold, and by force of arms made good the demand.

Our chronicles have a good many stories about symbols. In the Norman _Brevis Relatio_, a sketch of the origin of William the Conqueror, is told of his grandfather, Duke Richard the Good, that once when staying at a monastery, after prayer in the morning he laid a spindle on the altar.

Upon being asked what it meant, he named the manor which he had by so homely a symbol bestowed for the good of his soul. When the infant William came into the world, it was said,--and afterwards noted as prophetic--that when they laid him down upon some straw, the little hands each clutched a handful. Acquisitive tendencies were foreshadowed! The _Roman de Rou_ tells that in 1066, when William landed in England, he stumbled and fell, an omen which for the moment disconcerted his followers, but rising with a shout, he swore by the splendour of G.o.d that with his two hands he had taken possession of the land. Prompt to catch the occasion, one of his men ran forward to a cottage, tore a handful of thatch from the roof, and pa.s.sed it to his chief, with the cry, "Receive this seisin,"--quasi-ceremonial words which with William's pious, "G.o.d be with me," the curious may compare with the formalities of English livery in deed, as described (sec. 59), in c.o.ke upon Littleton.

The normal symbol of seisin for a house in England, was (before the Act 7 and 8 Victoria ch., 76, superseded these archaic ceremonies), was the ring or hasp of the door, known in Scotland for houses in burghs as "hasp and staple." In the latter country also, there were a good many special types of symbol characteristically appropriate to seisin in special kinds of property. Thus for mills "clap and hopper," for fis.h.i.+ngs "net and coble,"

for teinds (Anglice t.i.thes) a sheaf of corn, for the patronage or advowson of a church a psalm-book and keys, attained the figurative purpose requisite. There were many others less familiar amongst them, one, a hat, worthy of a few words all to itself. Our own generation may not regard this as a particularly dignified symbol, but there is a cloud of witnesses to shew its very various applicability. The priest's cap or biretta was sometimes employed to instal him in a chaplainry or benefice.

And apart from the place of the hat in the regulations of the tilting ring, it was occasionally used in Scotland as a symbol in connection with what were known as heirs.h.i.+p goods. But it had in the twelfth century been accorded the very loftiest use to which secular symbolism could be turned.

In 1175, King William the Lion, taken prisoner the year before, relinquished the independence of Scotland, and did homage to the English King at York, as a condition of his liberation. The contemporary records are silent regarding symbolic details, but in 1301 Edward I. stated in his letter to the Pope that "in token of his fealty, William the King of Scotland, had, on the altar of St. Peter's, at York, offered his cap (_chappelus_), lance, and saddle, which until this day remain and are preserved in said church." Any incredulity which a fair-minded Scot can entertain, regarding this allegation that the freedom of his country was once symbolically surrendered in King William's cap, will be materially lessened, and Scottish patriotism so far consoled, by the recollection that under very similar circ.u.mstances the realm of England was in 1193 given away with the bonnet (_pilleus_) of the captive Richard I., who, thus (as Hoveden tells us), gave invest.i.ture of his kingdom to his arch-enemy, the Emperor Henry VI. This was, however, only formal: the Emperor at once re-invested King Richard in his realm with a double crown of gold, though subject to an annual tribute of 15,000--a business transaction painfully ill.u.s.trative of the Christian chivalry of the Crusades.

The annals of Scotland boast one instance of a royal symbol much more regal than either of these two. About the beginning of the year 1124, King Alexander I., restoring by charter to the Bishopric of St. Andrews an extensive tract of land, completed the grant according to Andrew of Wyntoun (vii., 5), in a truly stately fas.h.i.+on. He--

Gert than to the awtare bryng Hys c.u.mly sted off Araby Sadelyd and brydelyd costlykly Coveryd with a fayre mantlete Off precyous and fyne welvet Wyth his armwris off Turky That pryncys than oysid generaly And chesyd mast for thare delyte Wyth scheld and spere off sylvyr qwhyt.

It was a special occasion, for Bishop Robert's appointment, which had led to the grant, was a Scottish victory over the pretensions of the See of York. There is an appeal to the imagination so strong in the scene, that, in spite of the interval of 300 years betwixt the event and this oldest record of it, one is slow to offer any criticism on the charger; more especially as the entire verity of the silver spear is corroborated by Walter Bower's enshrining in his Scotichronicon the fact that in the fifteenth century it was doing duty as the shaft of the cross in the Cathedral. Yet the unexampled symbol, coupled with the a.n.a.logy from York in 1175, compels the suggestion, that perhaps during these 300 years an original _capellus_ have been mis-read as _caballus_, or mistaken for Scottish _capul_, and thus by the magic of mistranslation, a king's cap _may_ have been trans.m.u.ted into an Arab steed.

Whilst of course a crown was the standard symbol of invest.i.ture for a kingdom, inferior rights of princ.i.p.ality were often typified by other things, such as a sword, a spear, or a banner. And as feudal forms were observed in the bestowal, so were they sometimes in the taking away.

England dispensed with several of her monarchs, but apparently in no case was a deposition attended by the feudal solemnities. In Scotland when, in 1296, King John Balliol was pulled out of the throne by the same hands as had placed him in it, Edward I. spared his va.s.sal little of the indignity of the situation. Balliol, deprived of his royal ornaments, with the ermine stripped from his tabard, resigned his realm by the symbol of a white wand.

Than this Jhon tuk a quhyt wand And gave wp in till Edwardis hand Off this Kynryk all the rycht.

No Scottish historian has noticed the absolute legal propriety of this, and it is worth noticing. By contemporary law (_Britton_, ii., 22), _une blaunche verge_ was the recognised symbol of disseisin by consent. The thirteenth century was very particular, even in small things, about its law. _Disseisin_, provided for by statute of 1429, in disputed successions to real property, and known to Scotland as the breaking of seisin, was symbolically affected--_frangendo disc.u.m_--by the curiously expressive act of breaking a dish or dishes, with fire underneath.

Law under the Feudal System.

BY c.u.mING WALTERS.

To the historian proper feudalism presents a wide subject with diverse points of interest, but its legal aspect is comparatively a small matter, and it can be considered without detailed reference to the whole vast scheme which existed from early German and Gothic times, and overspread the greater part of Europe. It is a common error to suppose that it was introduced into England by the Normans. William the Conqueror only superimposed a French form of feudalism upon that which already existed; and all historians agree that the measures he adopted, the restrictions he made, and the original conditions he established, were evidence of his fa.r.s.eeing genius, and a masterpiece of statecraft. His was a feudalism which, while giving the lords great personal power and influence, retained them still as the servants of the king, and totally prevented them from using their strength against the throne. In this respect the feudal system in England never resembled that of Germany and France, or even that which the Norman barons established in Scotland. The Conqueror had no intention of allowing the owners of territory to supersede his own authority, and to be beyond the sovereign's control. While, therefore, he allowed them all liberty in dealing with their dependents, he made it impossible for them to defy his own authority, first by distributing their possessions so that they could not have a great army of followers at command, and, secondly, by insisting upon a formal declaration of allegiance from both the barons and their va.s.sals. The former, therefore, were not beyond the law, and the latter had nominally, if not actually, some right of appeal to the monarch. These points it is necessary to bear in mind for a full understanding of legal procedure during the long period feudalism prevailed.

The feudal lord's claims upon his va.s.sals were numerous. First came his claim to their military service. He could demand from them service as a.s.sessors in his courts of various fines and payments and confiscations of land. He could dispose of females in marriage; not infrequently he consigned them to a debased existence. When the tenant was invested with possession of his feud or fief, he paid homage to his lord, that is, he proclaimed himself the "man" to help and to serve his master. Kneeling humbly before the baron, he took oath of fealty, and practically enslaved himself. It was here that King William showed his wisdom by ordaining that the oath of allegiance should be not only to the feudal superior, but to the monarch as the head of all, and thus he secured the ultimate service of all va.s.sals to the crown, and deprived the barons of autocratic power.

The Saxon feudalism had been of the most tyrannical character, the owners of slaves making their own laws, and carrying them out with the utmost barbarism. Records exist which prove that for slight offences mistresses were accustomed to order their servants to be scourged to death, or subjected to fearful tortures. For breaking a dish, or spilling wine from a cup, for example, a servant might have his ears cut off, his nose slit, or suffer the loss of his hand, according to the caprice or fancy of his lord or lady. While murderers and robbers could find sanctuary in the Church, servants had no such refuge. They were torn away from the altar to which they clung in their terror, and none could or would intervene to protect them. According to the decree of King Ethelred, public punishments were to be mild, and death sentences were seldom to be pa.s.sed; but the sovereign's wishes had no effect upon the treatment of bondmen. High-born women were as cruel as their husbands, and King Ethelred's own mother is said to have beaten him so severely when he was a child that he regarded whipping instruments with horror to the end of his life. Flagellation was not recognised as a legal punishment by the Saxons, though a husband might beat his wife and incur no penalty, while the whipping of slaves was accounted no more than the whipping of animals, and perhaps less. For all other cla.s.ses money-fines were almost the only authorised penalty, a fixed price being set upon persons of different degrees. But the slave had no real value, and hence could be mutilated or killed at the pleasure of his lord.

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 va.s.sels, 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 s.h.i.+re 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 a.s.sailed 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 cla.s.ses, 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 Worcesters.h.i.+re 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 pa.s.sion, his ignorance, and his wickedness. Robert de Belesme, Earl of Shrops.h.i.+re 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 const.i.tutions 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 cla.s.ses, 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. t.i.things and the process of compurgation came to the a.s.sistance 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 pa.s.sage, and I will tarrie there but one ebbe and flood, if I can have pa.s.sage; and unlesse I can have it in such a place I will goe every day into the sea up to my knees, a.s.saying to pa.s.s 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 G.o.d 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 sh.o.r.e on the first land which the s.h.i.+p touches." This punishment reminds us of a modern American inst.i.tution.

The law of "Englishry" deserves a pa.s.sing 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 towns.h.i.+p or hundred was fined." The proud and tyrannical Normans used this law to their own advantage. A mere Englishman being a va.s.sal, 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 towns.h.i.+p. This law of "Englishry" is often ill.u.s.trated 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 "t.i.thing," 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 inst.i.tution 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 inst.i.tution 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 va.s.sals by thrusting his booted leg into the bed of a newly-married couple, or by sousing the bridegroom in a river. The wards.h.i.+ps 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 va.s.sals 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, Coeur 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 a.s.serting 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 G.o.diva 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 n.o.bleman 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 lords.h.i.+p 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 lords.h.i.+p. 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.

A very brief glance at Continental feudalism and its influence upon statute law may now be given. It enables us to mark some of the differences between the English and the foreign systems, the one with its restrictions and the other all-powerful. In the eleventh century, all France and the German Empire were one vast feudal possession. The powers of the lords have been cla.s.sed by the historian Hallam as follows--First, the right of coining money; second, that of waging private war; third, exemption from all public tributes except the feudal aids; fourth, freedom from legislative control; and fifth, the exclusive exercise of original judicature in their dominions. It is easy to perceive how, with these initial powers conceded, the seigneurs were enabled to make themselves the veritable masters of the kingdom. In Germany the lawlessness of the barons became as proverbial as did their cruelty towards their slaves. The whole country was divided up into territories over which the feudal chiefs reigned as absolute and despotic kings. Nor is the spirit of feudalism in that country yet extinct, for, unlike France, it has not had its b.l.o.o.d.y revolt against "aristocrats." No one can have travelled in Germany and seen the castle towering high on crag or rock, and the diminutive houses scattered about its base, without realising at a glance how the chieftains and their serfs lived in the old days. In Germany the feudal system was seen at its strongest and its worst, and law was paralysed while the men of l.u.s.t and blood were supreme in their own dominions. Austria has a similar story to tell of barbarity towards serfs, and the abrogation of law by powerful chieftains. But it is remarkable that in Russia, where the feudal spirit still most strongly survives, and is marked by many excesses utterly repugnant to the feeling and customs of the times, the earliest attempts to establish a feudal system were quelled by the princes. In this land, where a mistress might, until recently, have her maid whipped to death for dropping a teacup, or for any other trivial offence, real or imagined, where again it was taken for granted that

"A Count carbonadoes His ignorant serfs with the knout,"

feudalism, once inst.i.tuted, deepened its hold with the progress of years.

While there was no law for the lower cla.s.ses, save that dictated by the caprice of their masters, there were special exemptions and priveleges for the n.o.ble and wealthy. The Russian lords pay no taxes, and they retain, in almost undiminished force, that power to abuse, insult, and destroy the peasantry which was possessed by the _ancienne n.o.blesse_ of France before the Revolution. Mr. Morley Roberts, in one of his Russian historical sketches, relates that not long ago a n.o.ble threw a Hebrew into a dungeon for an offence, and a week later asked his jager what had become of him.

"Oh," said the fellow with a laugh, "he made so much noise that I shot him."

The state of Bohemia from the ninth to the fourteenth century shows to what deplorable depths a race may sink under an unrestrained and licentious feudalism. The Bohemian n.o.bles practically abolished the marriage laws, and in addition to oppressing their dependents, frequently sold them into slavery. When St. Adalbert endeavoured to effect a reformation, he found every impediment put in his way, and his wishes openly defied. He had a horror of bloodshed, and preached the hatefulness of murder. By way of response, a man, whose wife had been put in a nunnery to save her from his brutality, was dragged out and butchered in the streets. Adalbert had to wait long before he could influence these men who, secure in their castles, could indulge their rapacity without fear of punishment. Reforms, effected in the tenth century, however, were not permanent, and in the twelfth century the n.o.bles had succeeded in converting the local a.s.sembly, with its power of appointing judges, to their own uses. Mr. Edmund Maurice, in his history of Bohemia, relates that the n.o.bles began to secure the judges.h.i.+ps for themselves, and then sold or bequeathed the offices to heirs. They thus made the appointments a means of tyranny and a source of profit, and with the money acquired purchased the lands of freemen. Others, owing to the unpopularity of the local tribunals, strengthened the power of their own feudal courts, and again reduced their dependents to abject slavery.

"The coolness," says Mr. Maurice, "with which many of the grants of land transferred workmen of various kinds as mere appendages of fields and fishponds, is in itself a proof of the degraded position to which the peasant cla.s.s had been reduced; and the fact that military service seemed one of the few means of escaping from serfdom, led the peasants to favour those wars which in the end increased their misery." Eventually King Wenceslas, famed in ballad, and still more famed in Bohemian history, came to the rescue, and ordained "that no baron or n.o.ble of the land shall have power in the city of Brunn, or shall do any violence in it, or shall detain anyone, without the license and proclamation of the judge of the city."