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cerning the marriage of the ward. In the failure of sons, the heiress remained under this profitable wardship until her majority, and when she had come of age was married by the feudal lord to a husband who now became the real feodary. In the spirit of the old wardship the marriage of the female ward was also regarded as a money business.

4. Aids, Auxilia. — The original design of the fief as a means of obtaining service for the lord binds the vassal to an extraordinary contribution in extraordinary cases of honor and necessity, notably to ransom. the lord who has been taken prisoner, to endow the lord's eldest daughter, and when his eldest son is made a knight. These three cases are mentioned in the Grand Coutumier and amongst the Normans in Naples and Sicily as the customary ones, but do not absolutely exclude other urgent cases, especially contributions made by the under vassals towards the reliefs and aids which their lord pays to his feudal overlord and for the payment of his debts.

5. The Escheat, Forfeiture of the Fief, is the last decisive point in which the conditional value of the grant appears. The former takes place when the feudatory dies without heirs capable of succeeding to the fief - a case that must frequently have occurred. Still more frequent was forfeiture on account of felony which includes almost all important crimes, regarding them from the point of view of disobedience towards the feudal lord. The especial harshness of the feudal law adds to the formal attainder on account of "treason and felony," a corruption of blood or disability of the descendants to succeed to the inheritance.

BIBLIOGRAPHICAL NOTE

Maitland, Domesday Book and Beyond, pp. 150 ff., on the feudal superstructure. Round, Feudal England, pp. 225-314, on the introduction of knight's service. Adams, A Political History of England, 1066–1216, pp. 10 ff.; Anglo-Saxon Feudalism, in the American Historical Review, October, 1901. Pollock and Maitland, History of English Law, Vol. I, Bk. II, especially for tenure and the conditions of service. Vinogradoff, The Growth of the Manor, Bk. III, on the feudal period. Stubbs, Constitutional History of England, Vol. I, chap. ix; Lectures on Early English History, chap. ii.

CHAPTER III

SORTS AND CONDITIONS OF MEN

ONE of the most important ways in which feudal society differed from modern society was the manner in which the privileges and responsibilities of various classes of persons were largely determined by birth and fixed in law. While it is an undeniable fact that the possession of wealth gives decided advantages at law to-day, yet so far as formal principles are concerned, neither birth nor riches has any special privileges. It is a grave error, however, to regard the public and private law of the Middle Ages as applying indifferently to all inhabitants of the country. It is just this confusion of class rights with supposedly "national" rights, this identification of the class with the nation, which has led to so many grave misconceptions about the "liberties of British freemen." The position of the various classes within and before the mediæval law is fully described in the section of Pollock and Maitland's History of English Law, from which the following extract on three important classes is taken.

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Our law hardly knows anything of a noble or of a gentle class; all free men are in the main equal before the law. For a moment this may seem strange. A conquered country is hardly the place in which we should look for an equality which, having regard to other lands, we must call exceptional. Yet in truth it is the result of the Conquest, though a result that was slowly evolved. The compiler of the Leges Henrici would willingly have given us a full law of ranks or estates of men; but the materials at his com

1 Pollock and Maitland, History of English Law, 2nd edition, Vol. I, pp. 408 ff. By permission of Professor Maitland and the Cambridge University

Press.

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mand were too heterogeneous: counts, barons, earls, thegns, Norman milites, English radknights, vidames, vavassors, sokemen, villeins, ceorls, serfs, two-hundred men, six-hundred men text writer can do little with this disorderly mass. But a strong king can do with it what he pleases: he can make his favor the measure of nobility; they are noble whom he treats as such. And he does not choose that there shall be much nobility. Gradually a small noble class is formed, an estate of temporal lords, of earls and barons. The principles which hold it together are far rather land tenure and the king's will than the transmission of noble blood. Its members have political privileges which are the counterpart of political duties; the king consults them, and is in some sort bound to consult them, and they are bound to attend his summons and give him counsel. They have hardly any other privileges. During the baron's life his children have no privileges; on his death only the new baron becomes noble.

The privileges of the earl or baron are, we say, extremely few. Doubtless from of old every free man was entitled to be judged by his peers that is to say, he was entitled to insist that those who were to sit as his judges should not be of a legal rank lower than his own. Under the dominance of the law of tenure this rule would take the form that a vassal is not to be judged by subvassals. So long as the king's court was a court of tenants in chief, any man would have found there those who were at least his equals, and even in a county court there would have been barons enough to judge any baron. As the administration of royal justice gradually became the function of professional lawyers, the cry for a judicium parium was raised by the nobles, and in words this was conceded to them. For a long time, however, the concession had no very marked effect, because the court held coram rege, though for everyday purposes; but a bench of professional justices might at any moment assume a shape to which no baron could have taken exception even a Parliament to which all the barons had been summoned might still be regarded as this same court taking for the nonce a specially solemn form. And the meaning of the rule was not very plain. On the one hand, we hear the assertion that even in civil suits the earl or baron should have the judgment of his peers; on the other hand Peter des Roches, the king's minister, can say that the king's justices are the peers of any man, and the very title of the "barons" of the exchequer forbids us to treat this as mere insolence. And so Bracton gives us no doctrine as to the privilege of the barons. He does recognize the distinction

between the king's court of "justices" and the king's court of "peers," but for the sake of a quite other doctrine, which left but few traces in later law. When there is a charge of treason, the king himself is the accuser, and life, limb, and inheritance are at stake; therefore it is not seemly that the king, either in person or by his justices who represent his person, should be judge; so Bracton throws out the suggestion that the cause should come before the "peers." We have here no privilege of peerage, but a special rule for all cases of high treason, based on the maxim that no one should be judge in his own cause. Under the Edwards the privilege of peerage was gradually ascertained, as the court of law held coram rege, which by this time was known as the King's Bench, became more utterly distinct from the assembly of the barons. But in the end the baron had gained very little. If charged with treason or felony, he was tried by his peers; if charged with a misdemeanor (transgressio), if sued in a civil suit by high or low, if the king challenged his choicest franchises, there was no special court for him; he had to abide the judgment of the king's justices. A certain freedom from arrest in civil causes we may perhaps allow him; but in Bracton's age arrest in civil causes was as yet no common event. That the tenant in chief could not be excommunicated without the king's leave, was a privilege of the king rather than of the baronage. One other privilege the baron had, but it was of questionable value. When he was adjudged to be in the king's mercy, the amount of the amercement was fixed, or "affeered," not by his merely "free and lawful" neighbors, but by his peers. For this purpose, however, his peers were found in the "barons" of the exchequer, and these experts in finance were not likely to spare him. There are a few little rules of procedure which distinguish the noble from the non-noble. Thus we are told that a summons to court should allow an earl one month, a baron three weeks, a free man a fortnight; and we may see some traces of a rule which exempts a baron from the necessity of swearing. Even the members of the king's family are under the ordinary law, though in their "personal" actions they have the same benefit of expeditious procedure that is enjoyed by merchants. Very different is the case of the king, who in all litigation "is prerogative."

§ 2. The Knights

Below the barons stand the knights; the law honors them by subjecting them to special burdens; but still knighthood can

hardly be accounted a legal status. In the administration of royal justice there is a great deal of work that can be done only by knights, at all events if there are knights to be had. Four knights, twelve knights, are constantly required as representatives of the county court or as recognitors. For some purposes mere free and lawful men will serve; for others, knights must be employed. On the whole, we may say that knights are required for the more solemn, the more ancient, the more decisive processes. To swear to a question of possession, free and lawful men are good enough; to give the final and conclusive verdict about a matter of right, knights are needed. They are treated as an able, trustworthy class; but we no longer find any such rule as that the oath of one thegn is equivalent to the oath of six ceorls. In administrative law, therefore, the knight is liable to some special burdens; in no other respect does he differ from the mere free man. Even military service and scutage have become matters of tenure rather than matters of rank, and, though the king may strive to force into knighthood all men of a certain degree of wealth, we have no such rule as that none but a knight can hold a knight's fee, Still less have we any such rule as that none but a knight or none but a baron can keep a seignorial court.

83. The Unfree

In the main, then, all free men are equal before the law. Just because this is so the line between the free and the unfree seems very sharp. And the line between freedom and unfreedom is the line between freedom and servitude. Bracton accepts to the full the Roman dilemma: Omnes homines aut liberi sunt aut servi. He will have no more unfreedom, no semi-servile class, no merely prædial serfage, nothing equivalent to the Roman colonatus. All men are either free or serfs, and every serf is as much a serf as any other serf. We use the word serf, not the word slave; but it is to be remembered that Bracton had not got the word slave. He used the worst word that he had got, the word which, as he well knew, had described the Roman slave whom his owner might kill. And the serf has a dominus; we may prefer to render this by lord and not by master or owner, and it is worthy of observation that mediæval Latin cannot express this distinction; if the serf has a dominus, the palatine earl, nay, the king of England, so long as he is duke of Aquitaine, has a dominus also, and this is somewhat in the serf's favor; but still

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