Our Legal Heritage Part 13

The integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. Also a perjurer lost his oath-worthiness.

Swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. A lord denying justice, as by upholding an evildoing thegn of his, had to pay 120s. to the king for his disobedience. Furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses.

There was a bot for anyone harboring a convicted offender. If anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. If he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. If he did not know of a person who would be his surety, he was to be imprisoned. Failing that, he was to be killed.

But if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. Anyone who avenged a thief without wounding anyone, had to pay the king 120s. as wite for the a.s.sault.

"And if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the King chooses, be he n.o.ble or commoner, whoever he may be - with the provision that he shall never return to his native district. And henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act."

This lawsuit between a son and his mother over land was heard at a shire meeting: "Here it is declared in this doc.u.ment that a shire meeting sat at Aylton in King c.n.u.t's time. There were present Bishop AEthelstan and Earl Ranig and Edwin, the Earl's son, and Leofwine, Wulfsige's son, and Thurkil the White; and Tofi the Proud came there on the King's business, and Bryning the sheriff was present, and AEthelweard of Frome and Leofwine of Frome and G.o.dric of Stoke and all the thegns of Herefordshire. Then Edwin, Enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely Wellington and Cradley. Then the bishop asked whose business it was to answer for his mother, and Thurkil the White replied that it was his business to do so, if he knew the claim. As he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at Fawley, and these were Leofwine of Frome and AEthelsige the Red and Winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. Then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, Leofflaed, Thurkil's wife, and in front of them said to her as follows: 'Here sits Leofflaed, my kinswoman, to whom, after my death, I grant my land and my gold, my clothing and my raiment and all that I possess.' And then she said to the thegns: 'Act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom I have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' And they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. Then Thurkil the White stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. Then Thurkil rode to St. AEthelbert's minister, with the consent and cognizance of the whole a.s.sembly, and had it recorded in a gospel book."

Courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the King: sac and soke [possession of legal powers of execution and profits of justice held by a n.o.ble or inst.i.tution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge and to hand and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. Some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. Often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had pa.s.sed under the jurisdiction of an abbot, bishop, or earl.

A lord and his n.o.ble lady, or his steward, presided at this court. The law was administered here on the same principles as at the hundred court. Judges of the leet of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town.

The vill [similar to village] was the smallest community for judicial purposes. There were several vills in a hundred.

Before a dispute went to the hundred court, it might be taken care of by the head t.i.thing man, e.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors.

In London, the Hustings Court met weekly and decided such issues as wills and bequests and commerce matters. The folkmote of all citizens met three times a year. Each ward had a leet court [for minor criminal matters].

The king and his witan decided the complaints and issues of the n.o.bility and those cases which had not received justice in the hundred or shire court. The witan had a criminal jurisdiction and could imprison or outlaw a person. The witan could even compel the king to return any land he might have unjustly taken. Specially punishable by the king was "oferhyrnesse": contempt of the king's law. It covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's officers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay Peter's pence.

The forests were peculiarly subject to the absolute will of the king.

They were outside the common law. Their unique customs and laws protected the peace of the animals rather than the king's subjects. Only special officials on special commissions heard their cases.

The form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. The defendant denied the accusation by sweating that "By the Lord, I am guiltless, both in deed and counsel, and of the charge of which ... accuses me." A compurgator swore that "By the Lord, the oath is clean and unperjured which ... has sworn.". A witness swore that "In the name of Almighty G.o.d, as I here for ... in true witness stand, unbidden and unbought, so I with my eyes oversaw, and with my ears overheard, that which I with him say."

If a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld be given; and be the wite of half value for theows.

- - - Chapter 4 - - -

- The Times: 1066-1100 -

William came from Normandy to conquer England. He claimed that the former King, Edward, the Confessor, had promised the throne to him when they were growing up together in Normandy, if Edward became King of England and had no children. The Conquerer's men and horses came in boats powered by oars and sails. The conquest did not take long because of the superiority of his military expertise to that of the English. He organized his army into three groups: archers with bows and arrows, hors.e.m.e.n with swords and stirrups, and footmen with hand weapons. Each group played a specific role in a strategy planned in advance. The English army was only composed of footmen with hand weapons such as spears and shields. They fought in a line holding up their shields to overlap each other and form a shieldwall. The defeat of the English was thought to have been presaged by a comet.

At Westminster, he made an oath to defend G.o.d's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. This was in keeping with the traditional oath of a new king.

Declaring the English who fought against him to be traitors, the Conquerer declared their land confiscated. But he allowed those who were willing to acknowledge him to redeem their land by a payment of money.

As William conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an Anglo-Saxon predecessor, scattered though they were. The barons again made oaths of personal loyalty to him [fealty]. They agreed to hold the land as his va.s.sals with future military services to him and receipt of his protection. They gave him homage by placing their hands within his and saying "I become your man for the tenement I hold of you, and I will bear you faith in life and member [limb] and earthly honor against all men". They held their land "of their lord", the King, by knight's service. The king had "enfeoffed" them [given them a fief: a source of income] with land. The theory that by right all land was the King's and that land was held by others only at his gift and in return for specified service was new to English thought. The original duration of a knight's fee until about 1100 was for his life; thereafter it was heritable. The word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the King. The exact obligation of knight's service was to furnish a fully armed horseman to serve at his own expense for forty days in the year. This service was not limited to defense of the country, but included fighting abroad. The baron led his own knights under his banner. The foot soldiers were from the fyrd or were mercenaries. Every free man was sworn to join in the defense of the king, his lands and his honor, within England and without.

The Saxon governing cla.s.s was destroyed. The independent power of earls, who had been drawn from three great family houses, was curtailed.

Most died or fled the country. Some men were allowed to redeem their land by money payment if they showed loyalty to the Conquerer. Well-born women crowded into nunneries to escape Norman violence. The people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. The earldoms became fiefs instead of magistracies.

The Conquerer was a stern and fierce man and ruled as an autocrat by terror. Whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. This example pacified others. His rule was strong, resolute, wise, and wary. He was not arbitrary or oppressive.

The Conquerer had a strict system of policing the nation. Instead of the Anglo-Saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at subst.i.tuting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the Crown. He used secret police and spies and the terrorism this system involved. This especially curbed the minor barons and preserved the public peace.

The English people, who outnumbered the Normans by 300 to 1, were disarmed. Curfew bells were rung at 7:00 PM when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. This prevented any nightly gatherings, a.s.sa.s.sinations, or seditions. Order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. The Conquerer extended the King's peace on the highways, i.e. roads on high ground, to include the whole nation. Any individual of any rank could travel from end to end of the land unharmed. Before, prudent travelers would travel only in groups of twenty.

The barons subjugated the English who were on their newly acquired land. There began a hierarchy of seisin [rightful occupation] of land so that there could be no land without its lord. Also, every lord had a superior lord with the king as the overlord or supreme landlord. One piece of land may be held by several tenures. For instance, A, holding by barons' service of the King, may enfeoff B, a church, to hold of him on the terms of praying for the souls of his ancestors, and B may enfeoff a freeman C to hold of the church by giving it a certain percentage of his crops every year. There were about 200 barons who held land directly of the King. Other fighting men were the knights, who were tenants or subtenants of a baron. Knighthood began as a reward for valor on the field of battle by the king or a n.o.ble. The value of a knight's fee was 400s. [20 pounds] per year. Altogether there were about 5000 fighting men holding land.