[242] Bracton and Fleta perfectly concur with our author, except that they use the word children instead of Heir, adding, that if the deceased had no children, then, the one half was at his own disposal, the other belongs to the wife; and, if he had neither wife nor child, the whole was at his own disposal. (Bracton 60. b. Fleta L. 2. c. 57. s. 10.) Before we quit the present chapter, it may not be amiss to observe, that Glanville has been thought grossly to contradict himself in the course of it. But this has been inconsiderately imputed to him by those, who have not attended to the context. He states, that according to certain customs, which prevailed in particular places, a man was bound to remember his Lord, and the Church, previously to his making his will. But, says he, whatever those customs inculcate, yet, according to the Law of the realm, no man is bound to leave any thing to any particular person, unless it be his inclination, for every man’s will is free, over that part of his property which the Law permits him to dispose of, namely, a third, or, eventually, a half—When our author laid it down, that a man’s will was to be free, he did not mean to assert, that he was at liberty to dispose of all his property. Should it in the present day be laid down, that a Testator’s will was free, and that he was not bound to give any thing to any particular individual, would it be a fair inference, that a man could devise his entailed Lands? It we apply this to Glanville, he is consistent, and will be understood to speak, with reference to persons, what he has been considered to speak, with respect to things. That the division of the property, mentioned in the text, did not long survive the time of Glanville, is most probable. (See Somner on Gavelk. p. 98.) Swinburne seems strangely to have blundered in thinking, that our author took part of his text from Magna Carta, (Swinburne on Wills, part 3. section 16.) The passing of which was an event clearly posterior in time to Glanville.
[243] Vide F.N.B. 270.
[244] “If the goods of the defunct are not sufficient for payment of his Debts, by the Law, his Heir should pay the same of his own proper goods.” (Reg. Maj. L. 2. c. 39.) This Rule was soon altered. Quatenus, says Bracton, ad ipsum pervenerit, scilicet, de hereditate defuncti et non ultra, nisi velit de gratia, et si nihil multo fortius. (See Bracton 61. a. Fleta L. 2. c. 57. s. 10.) Notandum est, quod nullus de antecessoris debito tenetur respondere ultra valorem quod de ejus hereditate dignoscitur possidere. (Le Grand Cust. de Norm. c. 88.)
[245] Hereon generally, see Bracton 86. b.
[246] Vide Statute of Marlebridge, chap. 16. and Lord Coke’s Comment thereon. (2 Inst. 133.)
[247] Of the Custody and Marriage of the Minor, we may form a general notion, when we understand, that they were considered as chattels and moveables, which the Lord might dispose of in extremis. See Fleta and Bracton, Sparsim.
[248] Vide Craig Jus feud. L. 2. D. 17. s. 17. and L. 2. D. 20. s. 17.—Bracton 86. b.
[249] Vide Craig Jus feud. L. 2. D. 17. s. 37.—LL. Hen. 1. c. 70.—Bracton 86. b. This, it seems, is still the age by the custom of Gavelkynd. (Robins. on Gavelk. 185.)
[250] At fourteen, or when he can attend to his Parent’s concerns, according to Reg. Maj. L. 2. c. 41. See Bracton 86. b.
[251] The doctrine of the text is corroborated by the Reg. Maj. L. 2. c. 42. “Every Guardian,” says the Mirror, “is answerable for three things. 1. That he maintain the Infant sufficiently. 2. That he maintain his rights and Inheritance, without waste. 3. That he answer and give satisfaction of the Trespasses done by the Infant.” (Mirror c. 5. s. 1. See also Bracton 87. a. and le Grand Cust. de Norm. c. 33.)
[252] The Translator renders the passage as restored by the Harl., Cotton. and Dr. Milles’s MSS.
[253] Appeletur de Felonia. “Appellum,” says Sir Edward Coke, “signifies an accusation, and, therefore, to appeal a man is as much as to accuse him.” The word appellum is derived of appeller to call: because, appellans vocat reum in judicium, he calleth the Defendant to judgment. (Co. Litt. 287. b. See also 391. a. and Cowell ad voc.) Appeals were known to the Normans. (Grand Custum. c. 68.)
[254] This, though a part of the common Law, had been so frequently violated, that it was felt necessary to make it part of the Great Charter. (2 Inst. 14.)
[255] Bracton L. 1. c. 8. (Al. MS.)
[256] Bracton fo. 5. b.
[257] Or socage, says Bracton, fo. 87. a. See Co. Litt. 77. a.
[258] Vide 2. Inst. 12. 13. With respect to the Practice, alluded to in the text, Lord Littleton observes, that undoubtedly inferior Lords did the same. It likewise, adds his Lordship, appears by the Great Rolls, that the wardships of the crown were sold by King Henry the second, and mention is made of that practice, without any blame, in the charters of King John and Henry the third. (Hist. Hen. 2. Vol. 3. 109.) The above citation from Lord Coke confirms the doctrine of the noble Historian.
[259] If, says a Law of Ina, the Husband and Wife have any children, and the Husband dies, the mother shall retain and nourish her Child. Six shillings shall be given her to enable her to do it; a Cow, in summer, and an Ox, in winter. (LL. Inæ c. 38.)
[260] Nullus Heredipeta sui propinqui, vel extranei periculosæ sane custodiæ committatur. (LL. Hen. 1. c. 70.) Lord Chancellor Macclesfield condemned this Rule, as not grounded upon reason, but as prevailing in barbarous times, before the Nation was civilized.—(2 P. Wms. 262.) On the other hand, Fortescue, (c. 44.) Lord Coke, (Co. Litt. 88. b.) Judge Blackstone, (1 Comm. 461.) Mr. Hargrave, (note to above), and Mr. Christian (ubi supra) approve of this Rule of our Law, so opposite to that prevailing in the Roman Code. Nor has the Great Feudist Craig withheld the testimony of his approbation to it.—(Craig Jus feud. L. 2. D. 20. s. 6.) Dr. Sullivan, however, approves both of our Rule and the civil law Rule, conceiving each adapted to the peculiar state of the people—the one, a barbarous—the other, a civilized people,—(Lect. on Laws of England p. 127.) but this of course is applicable to the origin rather than the continuance of the Rules.
It was in conformity to the rule laid down in the text, that the Eldest Sister was excluded from having the custody of her Younger Sisters. (Bracton fo. 78. a. Fleta L. 3. c. 16. s. 71.)
[261] We are informed by the Regiam Maj. that they were of full age at fourteen complete. (L. 2. c. 48.) At which time, they might, it was supposed, have Husbands, capable of performing the services due for their Fiefs. See Bracton 86. b.
[262] “By Land in this passage, he means, Land that was held by military service.” (3 Litt. Hist. Hen. 2. 103.) If we may judge from a law of Canute, (LL. Canuti 72.) the marriage of Wards was unknown in his time.—Vide Spelm. Reliq. p. 29.
[263] “This,” observes Lord Littleton, “appears to extend equally to all kinds of fiefs for which Homage was done, as to those that were held by Knight’s Service.” (3. Hist. Hen. 2. 104. Vide also Craig Jus feud. L. 2. Dieg. 21. s. 8. Bracton 88. a.)
[264] Henry the 1st expressly promises, in his Charter, that he will take nothing for his consent, nor will he withhold it, unless it be proposed to unite the female to his enemy. (Anglo-Sax. LL. Ed. Wilkins p. 233.) He promises, also, on the death of his Barons, to marry their Daughters with the advice of the other Barons, and that he will not compel widows to marry again; and he enjoins his Barons, to act in a similar manner towards their Tenants. These regulations were but ill observed. From the text, it is perfectly clear, that the right of marriage extended to females only; but Lords subsequently enlarged their claim, and exercised it also over Male Heirs. This is supposed to have grown up in Henry the 3d’s time from a forced construction of those words of Mag. Car. Heredes maritentur sine disparagatione. (Sullivan’s Lectures, p. 130.)
[265] The Heir of her Husband, who must, therefore, have frequently been not only her own Son, but an Infant. This may be considered as one of the absurdities of the Feudal system.
[266] Under the Assises of Jerusalem, the Widow, generally speaking, was not to be compelled to marry again; but if she did, she was to ask the consent of her Lord. (c. 187.) See also the Mirror c. 1. s. 3. and Bracton 88. a.
[267] De corporibus suis forisfecerunt. Forisfacio is, according to Spelman, derived from the French forfaire. (Gloss. ad voc.)
In a proper signification, therefore, and as indicating forfeiture, it rather describes the punishment than the offence. The transition is by no means difficult; and, in its application to the crime, it assumes a new meaning, by a gradation in language not unfrequent. The term frequently occurs in the translations of the Saxon and Norman Laws. (Vide LL. Ed. Conf. c. 32. 10. 36. 12. and Gul. 1. c. 1. Hen. 1. c. 23. Vide also Craig L. 3. D. 3. s. 2. Co. Litt. 58. a. and 2 Inst. 227.) Lord Littleton observes, “this was a severe punishment for the frailty of a single woman, and without example in other Laws: but it undoubtedly arose, not so much from a rigorous sense of the heinousness of the fault, as from the notion of an advantage due to the Lord from the marriage of his ward, which he probably might be deprived of by her being dishonored.” (3 Hist. Hen. 2. p. 119.)
[268] Vide Mag. Car. Cap. 7, and Lord Coke’s comment thereon. (2 Inst. 16.) See also Robinson on Gavelk. 160 and Bracton 313. a.
[269] Lord Littleton thinks, the reason for exempting Widows from the penalty was, that they, not being under the custody of their Lords, their incontinence was no breach of the Duty and reverence due from a Vassal. (3. Hist. Hen. 2. p. 119.) The Mirror coincides with the text. (c. 1. s. 3.) The custom of Gavelkynd is less liberal to the frailty of the widow. (Robins. on Gavelkynd 195.)
[270] Putagium; quasi, says Spelman, puttam agere a Gall. putte, Ital. putta, meretrix. Petrarch. PUTTA SFACCIATA. (Spelm. Gloss. ad voc.)
[271] For the Common Law, says the Mirror, only taketh him to be a Son, whom the marriage proveth to be so. (Mirror p. 70. See also Bracton 63. a. b.)
[272] The Norman Code enumerates four Impediments to Succession.—Bastardy, profession of Religion, forfeiture, and incurable Leprosy. (Le Grand Custum. de Norm. 27.) Bastardy seems to have been a legal objection to a witness under the Assises of Jerusalem. (56.)
[273] A different Law prevailed amongst the ancient Welch people, as Lord Hale deduces, from considering the Statutum Walliæ 12. Ed. 1. and, he thinks, that the Ancient British admitted Bastards to inherit. (1. Hist. Com. Law 219.)
[274] “In the time of Pope Alexander the 3rd, (A.D. 1160—Anno 6. Hen. 2.) this Constitution was made, that children born before solemnization of Matrimony where Matrimony followed, should be as legitimate to inherit unto their ancestors, as those that were born after Matrimony.” (2 Inst. 96.) To this Constitution our Author alludes. The doctrine of the Norman Code is in conformity with the Canon of Alexander. (Grand Custum. c. 27.) The modern French Code allows, under certain restrictions, of the subsequent legitimation of children—even of deceased children, who have left issue. (Code Napoleon s. 331. 332.)
[275] “This decision of Glanville,” observes Lord Littleton, “is very remarkable: as it shews the entire independence of the Law of England on the Canon and Civil Laws in his time.” (3 Litt. Hist. Hen. 2. p. 125.) When this doctrine was, in a subsequent period of our History, attempted to be overturned, it gave rise to the celebrated answer of the Barons recorded in our Statute Book.—Et omnes Comites et Barones unâ voce responderunt, quod nolunt leges Angliæ mutare, quæ hucusque usitatæ sunt et approbatæ. (Stat. of Merton. c. 9. See also 2 Inst. 96.) The Rule, thus memorably defended, has descended untouched to the present day.
[276] “It is answered,” says the Regiam Majestatem, “that no Man may succeed to him, but only the King by the reason aforesaid.” (L. 2. c. 52.) But Bracton resolves the question by informing us, that in such a case, the Land would escheat to the Lord; nor, would the circumstance of Homage having been received, alter the case, quia homagium evanescit heredibus deficientibus ubique; (Bracton 20. b.) a doctrine which has been strangely misinterpreted, and that by a highly respectable writer, who considers the position laid down by Glanville, that the Lord was precluded by receiving Homage of his claim to the Escheat, as not to be relied upon; because, in the very next Reign, the Lord was ultimus heres to a Bastard. In support of this conjecture, the Author in question appeals to Bracton. (Ubi supra.) See Dalrymple on Feuds p. 64. Bracton wrote the Law of the times as it stood when he composed his treatise, which was not in the very next Reign, but towards the latter end of the Reign of Henry the third, the better part of a century later than when Glanville wrote. Had the fact, however, been as assumed, the conclusion drawn from it would by no means be warranted: since, to argue from what is Law at one period in order to refute what was so at another anterior period is the purest sophistry.
[277] The Ancient Romans punished Usury with more severity, than they did Theft. (Cato de re Rusticâ Proem.) The Norman code imposes a forfeiture of all the offender’s property, provided he had been guilty of Usury, within a year and a day before his death. (Grand Custum. de Norm. c. 20.)
By a Law of Edward the Confessor, Usurers were banished the kingdom, and a person convicted of the crime forfeited all his substance, and was to be treated as an outlaw. If the Reader feel any desire to penetrate into the motives that dictated this Law, these are the concluding words of it. Hoc autem asserebat ipse Rex se audiisse in Curia Regis Francorum, dum ibidem moraretur, quod Usura radix omnium vitiorum esset. (LL. Ed. Conf. c. 37.) The doctrine, as laid down by the Mirror, is, that the goods and Chattels of Usurers should remain, as Escheats to the Lords of the Fee. (Mirror c. 1. s. 3.) The Reader will find some curious disquisitions on the subject of Usury in the Ancient Dialog. de Scaccario. (L. 2. s. 10.)
[278] Our Author alludes to the Inquisitions made under the Justices Itinerant, an institution generally ascribed to Henry the 2nd, and, as generally, imagined to have been first ordained in the Great Council at Northampton in the 22nd year of the Reign of that Monarch. Lord Coke, however, ascribes to them a much earlier origin; and from the Records in the Exchequer, it should seem, that there had been Justices Itinerant to hear and determine Civil and Criminal causes, so early as the 18th of Henry the first. Lord Littleton thinks, the first appointment of Justices Itinerant was made by Henry the first, in imitation of a similar Institution in France established by Louis le Gros. Justices Itinerant ad communia placita were continued until the 10th of Edw. the 3rd, when they seem to have given way to Justices of Assise, Nisi prius, Oyer and terminer, and Gaol delivery. (Vide Madox’s Excheq. 96. Litt. Hist. Hen. 2. Vol. 4. 271. Hale’s Hist. Com. Law 140. 168—2 Inst. 497.)
[279] The Mirror confines the punishment to those attainted of Usury after their decease, “but not, if they be attainted thereof in their lifetime, for then they lose but only their moveables; because, by penance and repentance, they may amend and have Heirs.” (Mirror c. 4. s. 12. See also Fleta L. 1. c. 20. s. 28. and Dial. de Scacc. L. 2. s. 10.)
[281] Sir Wm. Blackstone, when speaking of the Law of Escheat, informs us, that it is adopted in almost every country, to prevent the robust title of occupancy from again taking place. (2 Bl. Comm. 10.) See Fleta L. 6. c. 1. s. 11. “By common custom and use only,” says Skene, commenting on the Regiam Majestatem, “the King is the last Heir.” (L. 2. c. 55.)
[282] The Translator follows the Reading sanctioned by all the MSS.
[283] See Co. Litt. 13. a. b.
[284] See Bracton 71. b.
[285] How similar the Norman Code was in this respect, the Reader will perceive, on turning to Le Grand Cust. de Norm. c. 24.
[286] Utlagatus, the outlaw, or, in the expressive term of a far distant day, the frendlesman, or, as we should now write it, the friendless man. (Bracton 128. b. See Dial. de scacc. L. 2. s. 10.)
[287] “The reason of this,” says Lord Littleton, “was a supposition, that the Lord, of whom the felon held, was in some degree culpable, for want of a proper care in the choice of his Tenant.” (2 Hist. Hen. 2. p. 118.) It is difficult to feel the force of this reasoning, from the moment fiefs ceased to be given for the life of the feudatory—for what choice, it may be asked, was left to the Lord, when fiefs were hereditary, as they clearly appear to have been when Glanville wrote, and for some time previously. Lord Coke ascribes the rule to another source, laying it down, that originally the King was to have no benefit from the attainder, but was to commit destruction to the property of the offender in detestation of the crime, ut pœna ad paucos, metus ad omnes perveniat. (2 Inst. 36.) But this is as far from being satisfactory, as the reason given by Lord Littleton. Because, as the property had ceased to belong to the offender, any waste committed on it redounded in the first place to the injury of the Lord, and through him to the public, who were both, laying all technical fictions aside, innocent. The punishment to the Tenant was the forfeiture, and not the waste subsequently committed. This cruel policy, or rather impolicy, was abrogated by the 22nd Chapter of Magna Carta. The Reader will consult Lord Coke’s comment on that Chapter, and then judge for himself, whether the year and a day came in lieu of the waste. That they were co-existent seems strongly corroborated by the Custumal of Kent—“The King shall have the year and the waste.” (Robinson on Gavelk. 284. See also Ibid c. 4.) The Mirror is here, as in many other instances, at variance with itself. But Britton appears to consider them as co-existent. (c. 18. s. 6.) and so does the Regiam Majestatem. (L. 2. c. 55.)
Lord Coke has with his usual industry, collected the authorities in favor of his position. Dr. Sullivan may be added to them. (Lectures p. 348.)
[288] The Reader will recollect, that when Glanville wrote, Theft was not an offence against the King’s crown. Chap. 2. L. 1.
[289] Vide Note 1. c. 1. of this Book.—Bracton 21. a. b. and Fleta L. 3. c. 11.
[290] In enumerating these degrees, say Bracton and Fleta, Donatarius primum faciat gradum, heres ejus secundum gradum &c. (Bracton fo. 22. b. Fleta L. 3. c. 11. s. 1.)
[291] Nor, during the interval, are the Heirs bound to do any Homage for it, but, after the third Heir,—omitted by the Harl. and Bodl. MSS.
[292] All the MSS. concur in omitting the word chief.
[293] “And the third Heir shall make Homage, therefore, Ward and Relief, and all his Heirs after him.” (Regiam Majest. L. 2. c. 57.)
[294] “And another fealty, by making of an oath and faith, shall be given and made by the Woman and her Heirs, in the same form and words as Homage should be made.” (Reg. Maj. L. 2. c. 57.)
[295] What our Author treats of, as a consequence of a Man’s receiving lands in marriage-hood, has received considerable extension in succeeding times, and has become known by the Title of the Curtesy of England. But, as Lord Coke observes, it was known to the Scotch and Irish, and, he might have added, to the Normans. Craig cites a passage to shew that it was not unknown to the Roman Code, and Sir Wm. Blackstone quotes an authority to prove that it was in use amongst the ancient Almains or Germans. Like Dower, it is not a provision arising from the compact of the parties, but emanating from the liberality of the Law. As to the evidence of the existence of the offspring, the Regiam Majestatem expressly coincides with our Author, (L. 2. c. 58.) and in this, is followed by Bracton, Fleta, and Britton. Lord Coke, however, asserts, that if born alive, it is sufficient, though not heard to cry, which, indeed, is consistent with reason—for the crying of the child is merely evidence of life—which may as well be furnished by a thousand other circumstances. It is not improbable, that as an adherence to the strict Letter of the ancient Law, as laid down by Glanville, had been found extremely inconvenient, it had, therefore, been silently abrogated, previous to the time of Lord Coke. (See Craig L. 2. D. 22. s. 40. Le Grand Custum. de Norm. c. 120. 2 Bl. Comm. 125. and Co. Litt. 29. b.)
[296] He forfeited it under the Norman Code by a subsequent marriage, with another woman. (Le Grand Custum. de Norm. c. 121.)
[297] All the MSS. concur in introducing not into the text.
[298] In communem scripturam, a chirograph. (Madox’s Exch. c. 19.)
[299] Justiciis domini regis in Banco residentibus—Vide ante page 41. Note 2.
[300] This and a similar passage, in the following chapter, afford strong data, from whence to ascertain the year, when the present work was written. Admitted as it is, on all hands, that it was composed in the Reign of Henry the Second, and it being a strong presumption from the passages in question, that it could not have been written antecedent to the 33d year of such Reign, it merely remains for us to chuse between the 33d, 34th, and 35th years; for on the latter year the Reign terminated. If we follow Sir Henry Spelman’s plan, and divide the intermediate period, we should infer that the present work was written in the 34th year of Henry the Second, in other words, in 1187. Dr. Robertson, though without alleging any reason, says, it was composed about the year 1181. (Hist. Charles. V. vol. 1. p. 296.) Blair’s chronology uses precisely the same assertion.
[301] It seems by no means to be agreed of what quantity an Oxland consisted. (Co. Litt. 69. a. and Mr. Hargrave’s note.)
[302] Toftis. A Toft is said to be the scite where a House formerly stood; and is a word much used in Fines. (Vide Spelm. Gloss. and Cowell’s Interp. ad voc.)
[303] And inrolled omitted by the Bodln. and Dr. Milles’s MSS.
[304] G. Bishop of Ely, I. Bishop of Norwich, and Ranulph de Glanville, &c. Justices in Eyre, in the year 1179, 25 Hen. 2. &c. according to Bodl. MS.
[306] Frusseto, or, as Lord Coke writes it, frasseto, signifies a wood or ground that is woody. (Co. Litt. 4. b.)
[307] Croftis. A croft is said to be synonymous with what farmers call a close. The term is used by Ingulphus, and derived from the Saxon croft or cruft.
[308] Turbariis. This word is of Saxon origin, and seems to have been used in two senses; first, for the right of taking turf; secondly, for the ground from which the turf itself was taken or dug. (Spelm. Gloss.) The reader will no doubt admire ecclesiastical ingenuity, when he understands, that turbary was comprised under the term lignum, and Tithe consequently claimed in respect of it. (Lyndw. Provinc. p. 100. Annot. ad turvarum.)
[309] Forinseca—So termed, Bracton tells us, quia fit et capitur foris, sive extra servitium quod fit domino capitali. (Bracton fo. 36. a.) This part of the text is rather obscure; and, though I have taken some pains to get at the sense of all the terms Glanville makes use of in this Concord, I cannot flatter myself I have perfectly succeeded.
[310] Faldas. Falda is frequently used, as Spelman informs us, pro libertate faldagii—faldagium being a privilege, which Lords anciently, not unfrequently, reserved to themselves, of setting up folds for sheep in any fields within their manors, the better to feed their flocks, and this, not merely with their own but their Tenants’ sheep, although, in the latter case, the privilege was more usually called secta faldæ.
It should rather seem, that the Tenants sometimes enjoyed such a privilege as against their Lords. Falda i.e. homines villæ debent ponere oves suas in faldam Domini, are the words of an ancient MS. relating to the Monastery of St. Edmund. When the term forinsecas is attached to faldas, a difficulty occurs, which perhaps may be got over by recurring to the doctrine of subinfeudation, so common when Glanville wrote. The privilege in question might have been within the boundaries of the ancient or original manor, whilst it might have been external or without the circuit of a less manor, forming merely a part of the original manor and created in a course of posterior subinfeudation.—This is submitted merely as a conjecture.
[311] Precarias. “Vide Somn. Tract. de Gavelkynd in voc. Benerth, p. 18.” (Al. MS.) “Benerth,” says Lord Coke, “signifieth the service of the plough and cart.” Co. Litt. 86. a. Precariæ are said to be day-works, which the Tenants of some manors are bound, by reason of their tenures, to do for their Lords in Harvest-time; and they are in some places called bind-days for bidden-days, since, as it has been remarked, bidden est precari. This custom is said to be plainly set forth in the Great Book of the Customs of the Monastery of Battel tit. Appelderham fo. 60. an extract from which the reader will find in Spelm. Gloss. ad voc. precariæ. Somner, indeed, considers it a species of Tillage service, performed precario. (Ubi Supra.)
[312] Consuetudines, meaning, perhaps, customary renders, or payments, as Rents. It is well known, that a period of our History has existed, when most of the Rents of the kingdom were paid in this manner.
[313] A similar description occurs in the Reg. Maj. (L. 1. c. 27.) and in Bracton. (L. 2. tr. 5. c. 28.) Lord Coke quotes the latter, as well as the passage in the text, as correct. “This,” observes Mr. Hargrave, “though a just description of fines, according to their original and still apparent import, yet gives a very inadequate idea of them in their modern application. In Glanville’s time, they were really amicable compositions of actual Suits. But for several centuries past fines have been only so in name.” (Co. Litt. 121. a. and note 1.) “For the antiquity of Fines,” says Lord Coke, “it is certain, they were frequent before the Conquest.” (2 Inst. 511.)
[314] V. LL. Gul. 1. Norman. cap. 28. (Al. MS.) The Law alluded to is in these words. Qui placitat in Curia cujuscunque Curia sit, excepto ubi persona Regis est et quis eum sistat super eo quod dixerit, rem quam nolit confiteri, si non potest disrationari per intelligentes homines qui interfuerunt placito et videntes quod non dixerit, recuperit juxta verbum suum. (LL. Anglo-Sax. Ed. Wilkins, p. 224.)
[315] Recordationem Curiæ Regis nulli negare licet alias licebit per intelligibiles homines Placiti. (LL. Hen. 1. c. 31. See also LL. Hen. 1. c. 49 and Co. Litt. 117. b.)
[316] “By the Duel,” omitted by Harl., Bodl. and Dr. Milles’s MSS. although from the context, it must be understood.
[317] The liberty of falsifying a Judgment was allowed by the Assises of Jerusalem. But the person, availing himself of this dangerous privilege, seems to have been obliged to fight all the persons composing the Court, not merely the Judges, but the Suitors, one after the other. Under these circumstances, the privilege would, probably, not often be claimed. (Assis. de Jerusalem, c. 111.)
[318] See Mirror, c. 3. s. 23. A Judge, who had given a false Judgment, is heavily fined to the King by the Laws of Edgar, unless he dared confirm upon his oath, that he knew not how to pass a better sentence. (LL. Edg. c. 3.) By the Laws of the Conqueror, such Judge lost his were, unless he could excuse himself by the same means. (LL. Gul. Conq. c. 15.) By the Laws of Alfred, he was, after having made satisfaction to those he had injured, to forfeit the remainder of his goods to the King, &c. &c. (Mirror, c. 4. s. 18.)
[319] Terminum—Vide ante, p. 22. not. 2.
[320] The Record—Bodl. and Dr. Milles’s MSS.
[321] Baro—hoc est robur beli, says Bracton. The term was formerly used in a variety of senses.—I shall mention some of them—a Man, a hired Soldier, an Officer, a Tenant, a lesser Tenant in chief, a greater Tenant in chief, a Noble, an Ecclesiastical Dignitary, a greater Vassal of an Earl or Prelate, a Knight, a Husband, an Eldest Son, a Burgess, a Citizen, a Robber, &c. (Vide Spelm. Gloss. ad voc. Cowell’s Interp. Craig Jus feud. L. 1. Dieg. 12. s. 15. 16. 2 Inst. 5.—Madox’s Excheq. c. 5. s. 1. Index to Anglo-Sax. LL. Ed. Wilkins, voc. Baro—and authorities referred to by such authors.)
[322] Suit, instead of Court, according to Harl. and Bodl. MSS.
[323] Lords, at first, had but a domestic Jurisdiction, in order to compel their Tenants’ Services, and to maintain peace and order amongst them. Afterwards, in imitation of the Sovereign’s Court, Lords caused Records to be made before their own officers of the transactions which had taken place in their Courts. But, as these Records derived their chief or rather only strength, from the parties voluntarily submitting to them, the authority of the Lords was gradually weakened; and, as murmurs began to increase against the decisions of their Courts, a reference to the King’s Court became the only resort of the Lords. (Traités sur les Coutumes Anglo-Normandes par M. Houard, p. 507. Tom. 1.)
[324] Homage, the result of the Feudal System, was unknown to the Romans; and Spelman thinks, it was unknown to the Anglo-Saxons. (Reliq. p. 34.) However that may be, William the Conqueror is stated to have received it from the Nobles, immediately after the Battle of Hastings. (M. Paris.) It is generally derived from the word homo, which, as well as our synonymous term man, Spelman asserts, to have been used for many ages by the German and Western Nations, for a servant or vassal. (Spelm. ubi supra—sed vide Co. Litt. 64. b.) Homage is divided into liege and feudal: the former was due to the King, the latter to the Lord, of whom the Tenant held his Fee. “The reason of Homage,” says Spelman, “was to preserve the memory of the tenure, and of the duty of the Tenant, by making every new Tenant at his entry to recognise the Interest of his Lord, lest that the feud, being now hereditary, and new Heirs continually succeeding to it, they might by little and little forget their duty and subtracting their services deny at last the tenure itself.” (Spelm. Reliq. 34.) On Homage in general see Bracton 78. b. et seq. Fleta l. 3. c. 16. Littleton’s Tenures and Lord Coke’s Comment. Craig, Spelman, Sullivan, Assises de Jerusalem c. 205. &c. &c. &c.