OUR LEGAL HERITAGE

S >> S. A. Reilly, Attorney >> OUR LEGAL HERITAGE

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"No woman or maiden shall be forced to marry a man she dislikes
or given for money."

"Violence to a widow or maiden is punishable by payment of one's
wergeld."

No man shall have more wives than one.

No man may marry among his own kin within six degrees of
relationship or with the widow of a man as nearly related to him
as that, or with a near relative of his first wife's, or his
god-mother, or a divorced woman. Incest is punishable by payment
of one's wergeld or a fine or forfeiture of all his possessions.

Grounds for divorce were mutual consent or adultery or desertion.

Adultery was prohibited for men as well as for women.

Prostitutes shall be driven out of the land or destroyed in the
land, unless they cease from their wickedness and make amends to
the utmost of their ability.

Neither husband nor wife could sell family property without the
consent of the other.

If there was a marriage agreement, it determined the wife's
"dower", which would be hers upon his death. Otherwise, if a man
who held his land in socage [owned it freely and not subject to
a larger landholder] died before his wife, she got half this
property. If there were minor children, she got all this
property.

Inheritance of land to adult children was by the custom of the
land held. In some places, the custom was for the oldest son to
take it and in other places, the custom was for the youngest son
to take it. Usually, the sons each took an equal portion by
partition, but the eldest son had the right to buy out the
others as to the chief messuage [dwelling and supporting land and
buildings] as long as he compensated them with property of equal
value. If there were no legitimate sons, then each daughter took
an equal share when she married.

In London, one-third of the personal property of a decedent went
to his wife, one-third went to his children in equal shares, and
one-third he could bequeath as he wished.

"If a man dies intestate [without a will], his lord shall have
heriot [horses, weapons, shields, and helmets] of his property
according to the deceased's rank and [the rest of] the property
shall be divided among his wife, children, and near kinsmen."

A man could justifiably kill an adulterer in the act with the
man's wife, daughter, sister, or mother. In Kent, a lord could
fine any bondswoman of his who had become pregnant without his
permission [childwyte].

A man could kill in defense of his own life, the life of his
kinsmen, his lord, or a man whose lord he was. The offender was
"caught red-handed" if the blood of his victim was still on him.
He could also kill a thief in the act of carrying off his
property, e.g. the thief hand-habbende [a thief found with the
stolen goods in his hand] or the thief back-berend [a thief
found carrying stolen goods on his back]. Self-help was
available for hamsocne [breaking into a man's house to assault
him].

Cattle theft could be dealt with only by speedy pursuit. The law
required that a person who had involuntarily lost possession of
cattle should at once raise the hue and cry. All his neighbors
were then under a legal duty to follow the trail of the cow to
its taker.

Murder is punished by death as follows: "If any man break the
King's peace given by hand or seal, so that he slay the man to
whom the peace was given, both his life and lands shall be in the
King's power if he be taken, and if he cannot be taken he shall
be held an outlaw by all, and if anyone shall be able to slay
him he shall have his spoils by law."

"If anyone by force break or enter any man's court or house to
slay or wound or assault a man, he shall pay 100 shillings to
the King as fine."

"If anyone slay a man within his court or his house, himself and
all his substance are at the King's will, save the dower of his
wife if he have endowed her."

No clergy may gamble or participate in games of chance.

Measures and weights of goods for sale shall be correct.

Every man shall have a warrantor to his market transactions and
no one shall buy and sell except in a market town; but he shall
have the witness of the portreeve or of other men of credit, who
can be trusted.

No marketing, business, or hunting may be done on Sundays.

No one may bind a free man, shave his head in derision, or shave
off his beard. Shaving was a sign of enslavement, which could be
incurred by not paying one's fines for offenses committed.

"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 noble 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."

The Laws for London were:

"1. The gates called Aldersgate and Cripplegate were in charge of
guards.

2. If a small ship came to Billingsgate, one half-penny was paid
as toll; if a larger ship with sails, one penny was paid.

1) If a hulk or merchantman arrives and lies there, four pence
is paid as toll.

2) From a ship with a cargo of planks, one plank is given as
toll.

3) On three days of the week toll for cloth [is paid] on
Sunday and Tuesday and Thursday.

4) A merchant who came to the bridge with a boat containing
fish paid one half- penny as toll, and for a larger ship one
penny."

5 - 8) Foreigners with wine or blubber fish or other goods and
their tolls.

Foreigners were allowed to buy wool, melted fat [tallow], and
three live pigs for their ships.

"3. If the town-reeve or the village reeve or any other official
accuses anyone of having withheld toll, and the man replies that
he has kept back no toll which it was his legal duty to pay, he
shall swear to this with six others and shall be quit of the
charge.

1) If he declares that he has paid toll, he shall produce the
man to whom he paid it, and shall be quit of the charge.

2) If, however, he cannot produce the man to whom he paid it,
he shall pay the actual toll and as much again and five pounds
to the King.

3) If he vouches the tax-gatherer to warranty [asserting]
that he paid toll to him, and the latter denies it, he shall
clear himself by the ordeal and by no other means of proof.

4. And we [the King and his counselors] have decreed that a man
who, within the town, makes forcible entry into another man's
house without permission and commits a breach of the peace of
the worst kind ... and he who assaults an innocent person on the
King's highway, if he is slain, shall lie in an unhonored grave.

1) If, before demanding justice, he has recourse to violence,
but does not lose his life thereby, he shall pay five pounds for
breach of the King's peace.

2) If he values the good-will of the town itself, he shall
pay us thirty shillings as compensation, if the King will grant
us this concession."

5. No base coin or coin defective in quality or weight, foreign
or English, may be used by a foreigner or an Englishman.

Swearing a false oath or perjury is punishable by loss of one's
hand or half one's wergeld.

Judicial Procedure

There were courts for different geographical communities.

In London, the Hustings Court met weekly and the folkmoot of all
citizens met three times a year. Each ward had a leet court
[precursor to police court].

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

A King's reeve presided over local criminal and peace and order
issues [leet jurisdiction] at monthly meetings of the hundred
court. However, summary procedure was followed when a criminal
was caught in the act or seized after a hue and cry. Every free
man over age 12 had to be in a hundred. The hundred was a
division of the shire [county]. Usually, the shire reeve, or
"sheriff", held each hundred court in turn. In the hundred
court, representatives of the villages settled their disputes
and answered for breaches of the peace.

A shire [county] was a larger area of land, headed by an earl.
All persons residing in the shire met twice a year. They were
summoned together by the sheriff, who was appointed by the earl
and the King. The sheriff was responsible for the royal
administration in the shire. He was responsible for the royal
accounts and performed functions like tracking cattle thieves.
The shire court was primarily concerned with issues of the
larger landholders. Here the freemen interpreted the customary
law of the locality. The earl usually took a third of the
profits such as fines and forfeits, of the shire court.

A bishop sat on both the shire and the hundred court.

"No one shall make distraint of property until he has appealed
for justice in the hundred court and shire court".

This lawsuit between a son and his mother over land was heard at
a shire- meeting: "Here it is declared in this document that a
shire-meeting sat at Aylton in King Cnut'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 Godric 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 assembly, and had it
recorded in a gospel book."

Courts controlled by lords had various kinds of jurisdiction
recognized by the King. "Sac and soc" included the right to deal
with land disputes. "Toll and team" included the right to levy
tolls on cattle sales and to hold a hearing for men accused of
stealing cattle. "Infangenetheof" gave power to do justice to a
thief caught red-handed. Sometimes this jurisdiction overlapped
that of the hundred court.

The King decided the complaints and issues of the nobility.

Chapter 4

The Times: 1066-1100

William came from Normandy to conquer the nation. 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. William'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, horsemen 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 and shields and
was inexperienced.

Declaring the English who fought against him to be traitors,
William declared their land confiscated. As William conquered
this land, he parceled it out among the barons who fought with
him. They again made oaths of personal loyalty to him [fealty].
They agreed to hold the land as his vassals 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 Saxon governing class was destroyed. The independent power of
earls, who had been drawn from three great family houses, was
curtailed. Most died or fled the country. The people were
deprived of their most popular leaders, who were excluded from
all positions of trust and profit, especially the clergy of all
degrees.

William 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. He 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 substituting 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 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, assassinations, or seditions.
Order was brought to the kingdom so that no man dare kill
another, no matter how great the injury he had received. William
extended the King's peace on high roads 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's 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 noble. Altogether there were about 5000 fighting men
holding land.

The essence of Norman feudalism was that the land remained under
the lord, whatever the vassal might do. The lord had the duty to
defend the vassals on his land. The vassal owed military service
to the lord and also the service of attending the courts of the
hundred and the shire, which were courts of the King,
administering old customary law. They were the King's courts on
the principle that a crime anywhere was a breach of the King's
peace.

This feudal bond based on occupancy of land rather than on
personal ties was uniform throughout the realm. No longer could
a man choose his lord and transfer his land with him to a new
lord. He held his land at the will of his lord, to be terminated
anytime the lord decided to do so. In later eras, tenancies would
be held for the life of the tenant, and even later, for his life
and those of his heirs.

This uniformity of land organization plus the new requirement of
every freeman to take an oath of loyalty directly to the King
that would supersede any oath to any other man gave the nation a
new unity.

English villani, bordarii, cottarii, and servi on the land of the
barons were subjugated into a condition of "villeinage"
servitude and became "tied to the land" so that they could not
leave the land without their lord's permission. The villeins
formed a new bottom class as the population's percentage of
slaves declined dramatically. They held their land of their
lord, the baron. To guard against uprisings of the conquered
people, the barons used villein labor to build about a hundred
great stone castles, with moats and walls with towers around
them, at easily defensible positions such as hilltops all over
the nation.

A castle could be built only with permission of the King. A
typical castle had a stone building of about four floors on a
small, steep hill. Later it also had an open area surrounded by
a stone wall with towers at the corners. Around the wall were
ditches and banks and perhaps a moat. One traveled over these via
a drawbridge let down at the gatehouse of the enclosing wall. On
either side of the gatehouse were chambers for the guards.
Arrows could be shot through slits in the enclosing walls.
Inside the enclosed area might be stables, a granary, barracks
for the soldiers, and workshops.

The castle building was entered by an outer wood staircase to the
guard room on the second floor. The first floor had a well and
was used as a storehouse and/or dungeons for prisoners. The
second floor had a two-storied great hall, with small rooms and
aisles around it within the thick walls. There was also a chapel
area on the second floor. There were small areas of the third
floor which could be used for sleeping. The floors were wood and
were reached by a spiral stone staircase in one corner of the
building. Sometimes there was a reservoir of water on an upper
level with pipes carrying the water to floors below. Each floor
had a fireplace with a slanted flue going through the wall to the
outside. There were toilets in the walls with a pit or shaft
down the exterior of the wall. The first floor had only arrow
slits in the walls, but the higher floors had small windows.

The great hall was the main room of the castle. It was used for
meals and meetings at which the lord received homages, recovered
fees, and held the view of frankpledge. At the main table, the
lord and his lady sat on chairs. Everyone else sat on benches at
trestle tables, which could be folded up, e.g. at night.
Lighting was by oil lamps or candles on stands or on wall
fixtures. The residence of the lord's family and guests was at a
screened off area at the extreme end of the hall or on a higher
floor. Chests stored garments and jewels. Iron keys and locks
were used for chests and doors. The great bed had a wooden frame
and springs made of interlaced rope or strips of leather. It was
covered with a feather mattress, sheets, quilts, fur covers, and
pillows. Drapery around the bed kept out cold drafts and
provided privacy. There was a water bowl for washing in the
morning. A chamber pot was kept under the bed for nighttime use.
Hay was used as toilet paper. The lord's personal servants slept
nearby on benches or trundle beds. The floor of the hall was
strewn with straw, on which common folk could sleep at night.
There were stools on which to sit. Cup boards (boards on which
to store cups) and chests stored spices and plate. Cooking was
done outside on an open fire, roasting on spits and boiling in
post. One-piece iron shears were available to cut cloth. Hand
held spindles were used for weaving. On the roof there were
rampart walks for sentry patrols and parapets from which to
shoot arrows or throw things at besiegers. Each tenant of the
demesne of the King where he had a castle had to perform a
certain amount of castle-guard duty for its continuing defense.
These knights performing castle- guard duty slept at their posts.
Bathing was done in a wooden tub located in the garden in the
summer and indoors near the fire in winter. The great bed and tub
for bathing were taken on trips with the lord.

Markets grew up outside castle walls. Any trade on a lord's land
was subject to "passage", a payment on goods passing through,
"stallage", a payment for setting up a stall or booth in a
market, and "pontage", a payment for taking goods across a
bridge.

The Norman man was clean-shaven and wore his hair short. He wore
a long-sleeved under-tunic of linen or wool that reached to his
ankles. Over this the Norman noble wore a tunic without sleeves,
open at the sides, and fastened with a belt. Over one shoulder
was his cloak, which was fastened on the opposite shoulder by
being drawn through a ring brooch and knotted. He wore thick
cloth stockings and leather shoes. Common men wore tunics to the
knee so as not to impede them in their work. They could roll up
their stockings when working in the fields. A lady also wore a
long-sleeved linen or wool tunic fitted at the waist and laced
at the side, but full in the skirt. She wore a jeweled belt,
passed twice around her waist and knotted in front. Her hair was
often in two long braids, and her head covered with a white
round cloth held in place by a metal circlet like a small crown.
Over her tunic was a cloak fastened at the front with a cord. The
Norman knight wore an over-tunic of leather or heavy linen on
which were sewn flat rings or iron and a conical iron helmet
with nose cover. He wore a sword at his waist and a metal shield
on his back, or he wore his sword and his accompanying retainers
carried spear and shield.

Norman customs were adopted by the nation. As a whole,
Anglo-Saxon men shaved their beards and whiskers from their
faces, but they kept their custom of long hair flowing from
their heads. But a few kept their whiskers and beards in protest
of the Normans. Everyone had a permanent surname indicating
parentage, place of birth, or residence, such as Field, Pitt,
Lane, Bridge, Ford, Stone, Burn, Church, Hill, Brook, Green.
Other names came from occupations such as Shepherd, Carter,
Parker, Fowler, Hunter, Forester, Smith. Still other came from
personal characteristics such as Black, Brown, and White, Short,
Round, and Long. Some took their names from animals such as
Wolf, Fox, Lamb, Bull, Hogg, Sparrow, Crow, and Swan. Others
were called after the men they served, such as King, Bishop,
Abbot, Prior, Knight. A man's surname was passed on to his son.

The Normans washed their hands before and after meals and ate
with their fingers. Feasts were stately occasions with costly
tables and splendid apparel. There were practical jokes,
innocent frolics, and witty verbal debating with repartee.

Those few coerls whose land was not taken by a baron remained
free and held their land "in socage" and became known as
sokemen.

Great stone cathedrals were built in fortified towns for
William's Norman bishops, who replaced the English bishops. Most
of the existing and new monasteries functioned as training
grounds for scholars, bishops, and statesmen rather than as
retreats from the world's problems to the security of religious
observance. The number of monks grew as the best minds were
recruited into the monasteries.

William made the church subordinate to him. Bishops were elected
only subject to the King's consent. Homage was exacted from
them. William imposed knight's service on bishoprics, abbeys,
and monasteries, which was commuted to a monetary amount.
Bishops had to attend the King's court. Bishops could not leave
the realm without the King's consent. No royal tenant or royal
servant could be excommunicated, nor his lands be placed under
interdict, without the King's consent. Interdict could demand,
for instance, that the church be closed and the dead buried in
unconsecrated ground. No church rules could be made without his
agreement to their terms. No letters from the Pope could be
received without the King's permission.

Men continued to give land to the church for their souls, such as
this grant which started the town of Sandwich: "William, King of
the English, to Lanfranc the Archbishop and Hugoni de Montfort
and Richard son of Earl Gilbert and Haimo the sheriff and all the
thegns of Kent, French and English, greeting. Know ye that the
Bishop of Bayeux my brother for the love of God and for the
salvation of my soul and his own, has given to St. Trinity all
houses with their appurtances which he has at Sandwich and that
he has given what he has given by my license."

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