under the name of Edward the Confessor, as they have been rejected for spurious, upon the fullest consideration of antiquarians (a). They are in Latin, and bear evident internal marks of a later period. They are supposed to have been written, or collected, about the end of the reign of William Rufus; and are to be found in the collections of Lambard and Wilkins.

(a) This is a mistake, unless all that the author meant was that this collection of laws was not actually made by or under the Confessor; and that it by no means contained the whole of the laws in force in his time; and, indeed, as he cites this collec tion himself, this is probably his real meaning, which is hardly expressed correctly by the word "spurious." The collection, upon the face of it (as already has been seen), purports to have been made in the fourth year of the Conqueror (vide ante, p. 44), and would hardly be less authentic on that account. But there is no doubt that it was extremely imperfect, and indeed omitted the most important portions of the laws in existence under the Confessor, because those laws were for the most part customary, and unwritten, and there would be great difficulty in collecting and embodying unwritten customs. That this was the real reason of the imperfect character of this collection, has been already shewn, and will be seen from a subsequent collection of the laws of the Conqueror, in which he embodies many of the customary laws in force under the Confessor. "Istæ sunt leges et consuetudines quas Willielmus rex, post adquisicionem Angliæ, omni populo Anglorum concessit tenendas; eadem quas predecessor suus Edwardus, servavit." These laws were conceded in consequence of the clamour of the people for the customs of the Confessor, and in the meantime those customs had been better ascertained. Thus, therefore, it is rather in the laws of the Conqueror, than in this collection of the laws of the Confessor, that the most important portions of the law in force under the Confessor are to be found; those portions hav ing previously been unwritten (vide ante, p. 45). And this is only an illustration of an observation which has already been made more than once, that the most important portions of the law in existence under the Saxons were customary and unwritten, and embodied in usages and institutions, in existence at the time of the invasion, and undoubtedly of Roman origin. The Conqueror in his laws preserved all the customs and institutions previously existing (save so far as consistent with any of his own newly-enacted laws), and this was very much what the Saxons had done before.

1 Spelman voce Ballivus.

CHAPTER II.

WILLIAM THE CONQUEROR TO HENRY II. (a)

The Conquest-Saxon Laws confirmed―The Laws of William the ConquerorTrial by Duel in Criminal Questions-Establishment of Tenures-Nature of Tenures-Different Kinds of Tenures-Villenage Of Escuage-Consequences of Tenure Of Primogeniture Of Alienation-Of JudicatureThe Curia Regis-Justices Itinerant-The Bench-The Chancery-Judicature of the Council Of the Spiritual Court-Of the Civil and Canon Law -Doctrines of the Canon Law-Probate of Wills-Constitutions of Clarendon-Of Trial by Duel in Civil Questions-Of Trial by Jury-By the Assize-Of Deeds-A Feoffment-A Fine-Of Writs-Of Records.

THE accession of William of Normandy to the English throne makes a memorable epoch in the history of our municipal law. Some Saxon customs may be traced by the observing antiquary, even in our present body of law; but in the establishment made in this country by the Normans, are to be seen, as in their infancy, the very form and features of the English law (b). It is to the

(a) The author heads this and the next two chapters alike "William' the Conqueror to John;" thus treating the whole period as one, and mixing up the events of it without distinguishing the important era in the history of our law which is marked by the reign of Henry II. The second of these two chapters, however, is entirely devoted to the law as it was in the reign of Henry II., and therefore it appeared better to so entitle the chapter of that reign, and to entitle the present, William I. to Henry II. (b) This and what follows must be taken with great qualification, and is true only to a limited extent; for, as already has been shewn in the Introduction, it would be far more true to state, as Lord Hale does, that "in the establishment made in this country by Edward I. are to be seen, as at their infancy, the very form and features of English law." And this, indeed, at a future page the author himself will be found to indicate. The Conquest, by itself, effected far less direct alteration in our laws and institutions than the author appeared to suppose, and the change was infinitely more gradual and progressive than he here represents. The Normans brought the trial by battle and the feudal system; and this was all that was distinctive in their system. All the rest-all that has remained to us-was of Roman origin. Although it may have been developed in the Norman period, it was not characteristically Norman, and would have been, no doubt, in due time developed by any nation as it attained civilisation, and advanced in intelligence. The laws of the Conqueror and his successors preserved the laws and customs of the Saxons, save so far as inconsistent with any laws and institutions which he introduced. The principal change he introduced was a development of the feudal system, which was military in its character, and therefore did not interfere with civil institutions, and not necessarily with civil rights, except within the limits of its own operation. The customary rights of the agricultural tenants, who formed the main body of the people, were confirmed. There is a remarkable passage in Bracton which very well explains what occurred at the Conquest, and is the account given in the Mirror, which says, that at the Conquest many freeholders were forced to hold their lands in villenage; which implies that it was not a universal revolution :-"Fuerunt etiam in conquestu liberi homines qui liberè tenuerunt tenementa suaper libera servitia vel per liberas consuetudinas, et cum per potentiores ejecti essent, postmodum reversi receperunt eadam tenementa sua tenenda in villenagio, faciendo inde opera servilia: sed certa et no

Conquest and to the consequences of that revolution that the juridical historian is to direct his particular attention. A new order of things then commenced. The nature of landed property was

minata et nihilominus liberi quia licet faciat opera servilia cum non faciunt ea ratione personarum sed ratione tenementorum."-(Bracton, lib. 1, c. 11, fol. 7). That is, they were not villeins, though they held their land in villeinage, subject to the invaders who had ejected them. It is manifest that this was not a universal, or legal, or political change, but the result of individual acts of spoliation, and probably only against the tenants of those who had forfeited their lands in war. And there is a remarkable passage in the Mirror, which affords an apt commentary upon the above, and a striking illustration of what occurred at the Norman, and probably at the Saxon conquest. It says that the first conquerors (and, as the work was originally written in the Saxon times, this no doubt included the Saxons, though, of course, it also applied to the Normans) "enfeoffed the earls, barons, knights, and villeins, some to hold by tenure for the defence of the realm, and some without obligation of service, and some to hold by villein customs, as to plough the lord's lands, to reap, cut, and carry his corn or hay. And it is said villeins are tillers of land, and of villeins, there are tillages called villenages, and that villeins became freemen if their lords granted or gave to them any free estate of inheritance to descend to their heirs, or if the lord took homage from them." So that the land might be made freehold without deed. And then it is said, "And although the people have no charters, deeds, or muniments of their lands, (i.e., they who so held), nevertheless, if they are put out of their possessions wrongfully, they might be restored to their estates as before, because they could shew that they knew the certainty of their services and works by the year, as those whose ancestors before them were astraeis (.e., serfs), for a long time." (b.) From which it plainly appears, that some villeins became, by custom or implied grant, tenants in socage, or by certain plough-service, which was a freehold tenure, and so made them freemen; for it was a maxim in law that freeholders must be freemen; and, therefore, to have a freehold was to be free. This power of custom must have been of inconceivable value and importance to the great body of the people, who were thus becoming gradually emancipated, and raised from slavery to villenage or serfdom, from villenage or serfdom to freedom; and this may explain the attachment of the people to what they called the "customs of the Confessor," i.e., the customs known and remembered as of his time, by the generation of men living at and after the time of the Conquest. And it is remarkable, that in the Mirror, immediately after the passage just quoted, follows this: "And thereupon (ie. upon the customary enfranchisement of villeins by their lands becoming freehold) St Edward, in his time, caused inquiry to be made of all such who held and did to him such services as ploughing his land, besides their lawful customs,"-i.e. those who became emancipated through holding any of their land by certain socage or ploughservice, which made it freehold, and so made them free, irrespective of other services. And it is added, "that many of them were wrongfully forced to do other services, to bring them into servitude again" (1b.), which, no doubt, was after the Conquest, and caused that great cry among the people for the restoration of the customs of the Confessor-i.e., of the Confessor's time. These customs and tenures were expressly confirmed by the Conqueror. No sudden or sweeping change in our institutions was effected, and all the municipal institutions, as well as the manorial, were maintained. So the tenure of land, except so far as regarded those who held under military tenure -that is, by knight-service, which applied only to the nobles and knights-the common freehold tenures, also the tenure in villenage, were left unaffected. The charter of the Conqueror, indeed, imposed an oath of allegiance upon all freemen ; but allegiance implies protection, and the charter went on to guarantee their possessions; and though it also imposed, as a condition, readiness for military service for the defence of the realm, there is nothing to carry it further than that obligation, which already existed, and is indicated in the laws of Canute as to military reliefs (vide ante). The Conqueror expressly confirmed the customs of the country as to the rural tenantry, villeins, or freemen. No doubt, as Lord Hale says, the Conqueror, like all previous conquerors, took into his hands all the demesne lands of the crown (Hist. Eng. Law, p. 97), and no doubt, also, he seized the lands of all who had been in battle or rose in rebellion against him (1b. 97), and in re-granting these lands, imposed military service as the condition of tenure. But that great authority cites Spelman, and an ancient record which he quotes, and maintains that all others were

entirely changed; the rules by which personal property was directed, were modified; a new system of judicature was erected; new modes of redress conceived; new forms of proceeding were devised ; allowed to retain their lands upon the ancient tenure (98); and he cites the great case of the recovery of a large number of manors, after the Conquest, according to the ancient laws and customs of England, the record of which is set out at length by Lord Coke in his Reports, and also by Spelman, in his Life of Eadmerus (Hist. Com. Law, 98.) Lord Hale shews that it was only partially the possession or the tenure of land was altered, and so as to the rule of descent; it was, he says, altered "little by little," an expression which accurately expresses the historic truth. Thus, then, the changes in the tenure of land were, in the words of Hale, introduced not at once, but by "little and little," and were not general, but, for a time, only partial and gradual. And this was the real character of all the changes introduced at the time of the Conquest, and so it has been on all similar occasions in our history; and therefore the statements which follow can only be taken as true, subject to this important qualification. The changes that were effected, indeed, were rather by judicial than legislative authority, and were mainly the result of alterations in the system of judicature. But the statement that a new system of judicature was created, for example, is not correct, and is calculated to mislead; for, as already pointed out in the Introduction, nothing is so remarkable in our legal history at this era as the absence of any apparent change in our legal system, and the skill with which it was modified without being changed: which will be seen in the history of this and the next reigns.

It is to be observed, with regard to the estates of the church, it is clear that their tenures were not altered; for Glanville, who was chief justiciary under Henry II., distinctly states in his celebrated Treatise that the baronies of the bishoprics are held in frankalmogne" (lib. vii. c. 1). Littleton quite confirms this, and Lord Hale, as already has been seen, strongly contests the notion that there had been any general alteration in the tenure of the land of the kingdom at the Conquest. If, therefore, Blackstone stated "that the Conqueror thought fit to change the spiritual tenure of frankalinogne, under which the bishops had their lands during the Saxon government, into the feudal tenure by barony" (2 Bla. Comm. 156), all that is important is his distinct admission that the tenure was so before the Conquest; the testimony of Glanville, of Bracton, of Littleton, and of Hale is overwhelming to show that the tenure had not been legally changed. The changes produced in the laws after the Conquest being the result rather of judicial than legislative changes, it would have been better to have first given some account of those improvements in the judicature which led to these results. Instead of this, however, the author has given, without any authority, a theory of sudden change, including the sudden institution of a curia regis, to which he seems to ascribe great importance; whereas, the ordinary justice of the country, court and criminal, being local, and remaining so for a long time, it was in the local judicature the most important changes took place, and those very gradually and by degrees. Towards the end of the chapter the author gives some account of a change instituted in the proceedings of the county court, which led to a result not less important than the establishment of trial by jury in all cases; but he failed to notice the not less important fact that it was before the king's justiciary the court was held, and that he directed the jury to be sworn, and thus effected this important change. That was one instance of the important changes effected, not by legislation, but by judicial decision, and therefore gradually and by degrees. And in the order of time and events these changes in the judicature which produced these results, and then those changes which they produced, should have been recorded. Moreover, these changes for the most part did not take place in the reign of the Conqueror, nor of his successor; and though the beginnings of some of them took place in this reign, they were for the most part commenced in the reign of Henry I., and carried out in that of Henry II. Both of these reigns constitute eras or epochs in our legal history far more important than that of the Conqueror, whose conquest was rather a political than a legal event, and made no sudden or immediate general change in the laws or institutions of the country; and though the Conquest led to these changes, it was indirectly and almost accidentally, and chiefly by the gradual development of legal principles in judicial decisions. It was not, therefore, the direct effect of the Conquest so much as its indirect and accidental consequences which produced these changes, and thus it is they were so gradual and progressive. This would have been seen more clearly had the author separated the reigns of the Conqueror and his successor from those of Henry

the rank and condition of individuals became entirely new; the whole constitution was altered; and after fluctuating on a singular policy, pregnant with the most opposite consequences of freedom and slavery, by degrees settled into peace and orderly government. In short, a state of things then took place, from which, after innumerable alterations, arose the present frame of English jurisprudence.

It has long been a debated question, in what manner William was the conqueror of this island; nor has the discussion been confined to historians and antiquaries: the adherents of modern parties did, at one time, warmly interest themselves in the decision of a point, which they considered as involving consequences very material to the political opinions they avowed. The lovers of high monarchical authority thought they derived a very ancient and rightful title to all kinds of prerogative in the king, by maintaining that William made the people of this country subThe Conquest. mit, as a conquered nation, to his absolute will. The friends of liberty, admitting as it should seem, in some measure, the consequences of such a claim, contended as firmly that William never assumed such powers, and was in truth no conqueror. Attempts have been made to explain the term conquest in such a manner as to get rid of any unfavourable conclusions from the word. It is said to have been a conquest over Harold, and not over the kingdom; that conquest signifies acquest, or new acquired feudal rights; 1 with other explications of the like design and import; so important a matter was it esteemed to ascertain the true nature of this event in our history; as if the tyranny of a prince who lived seven hundred years ago, could be a precedent for the oppressions of his successors; or any length of time could establish a prescription against the inalienable rights of mankind. The preI. and Henry II. The course of progression would then have been displayed, which it is the great object of legal history to exhibit. Instead, however, of that course, he has treated those three important reigns all together, and has thus produced great confusion, lost the chronological order of events, and missed the progression they illustrate. For example, he does not deal distinctly and separately with the reign of Henry I., and that elaborate body of laws of his reign, of which we have a most valuable collection, which is noticed and cited by Lord Hale, and is once or twice cited by our author, but of which he offers no account. Yet it is most important, as the middle stage between the state of our laws and institutions at the time of the Conquest and for some time after it, and that period of development which they had reached in the reign of Henry II., under the auspices of Glanville.

It is not easy to supply in notes deficiencies so extensive, still less easy is it to supply the lack of proper order and arrangement. All that can be done is to introduce, wherever an occasion occurs, any omitted matter which tends to supply these deficiencies, and fill up the gaps and missing steps in the course of the legal history. In order, also, to draw some distinction between the reigns, and especially to mark the important era of the reign of Henry II., the titles of this and the two following chapters have been altered. The author had entitled them all "William the Conqueror to John;" but as the most important portions of the first relate to the reign of Henry II., and the other two entirely so, it has been thought better to entitle the first "William I. to Henry II.," and the other two, "Henry II." and "Henry II. to John." 1 In the law of Scotland, at this day, feuda nova, or, as we call it, lands taken by purchase, are termed feus of CONQUEST.-Ersk. Prin. b. 3, tit. 8, s. 6.