Political Liberty in the Middle Ages

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Political Liberty in the Middle AgesAuthor(s): Alan HardingSource: Speculum, Vol. 55, No. 3 (Jul., 1980), pp. 423-443Published by: Medieval Academy of AmericaStable URL: http://www.jstor.org/stable/2847234 .

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SPECULUM 55,3 (1980)

Political Liberty in the Middle Ages

By Alan Harding

In his opening lecture to the Anglo-American Conference of Historians in July 1977, Professor Bernard Crick dismissed the Middle Ages from a place in the history of political liberty.' Yet the word "liberty" is everywhere in medieval charters and legal records, and the argument of this paper is that in the great majority of cases it does refer to an essentially political freedom. Of course, there was no conception yet of the right to vote or to express political opinions, which are central to political liberty in modern circum- stances. The liberty which was understood and cherished was rather the necessary precondition of these contemporary freedoms: the power to act in the affairs of the community and to exert influence on one's fellows, free from the interference of the sovereign government.

Professor Crick may have been misled by the excessive concentration of medievalists, following medieval jurists, on free status. The early medieval economy required that the mass of the peasantry should be obliged by the conditions of their birth to provide labor services on their lords' demesne lands. To ensure the landlords a reliable supply of labor, the peasant labor- ers were regarded in law as nativi, "natives" born into a subject race of inferior blood.2 But mixed marriages between bond and free were common occurrences, and thirteenth-century jurists discuss liberty almost entirely in the context of the problems of status caused by such marriages. Does the worse blood prevail in the offspring (meaning that they are always serfs); or do the children take the status of the mother; or do they follow the father? According to Beaumanoir, servitude was inherited from the mother, chivalry (knightly status) from the father. Society was divided into the noble and the vile, and the merely free were, for the lawyers at least, a pale group who easily lost their identity. The free peasant was interesting only if he married a serf and begot serfs, a free peasant woman only if she married a gentleman and bore gentlemen.3

I The present article was also, in its original form, a paper given at the conference, of which "liberty" was the theme.

2 Marc Bloch, Feudal Society, trans. L. A. Manyon (London, 1961), pp. 161, 261; R. W. Southern, The Making of the Middle Ages (London, 1953), p. 106; Paul R. Hyams, "The Proof of Villein Status in the Common Law," English Historical Review 89 (1974), 723.

3Hyams, "Proof of Villein Status," pp. 731-33; Bracton, On the Laws and Customs of England, fol. 5, trans. Samuel E. Thorne, 2 (Cambridge, Massachusetts, 1968), pp. 30-31; Philippe de Beaumanoir, Les coutumes de Clermont en Beauvaisis 45.15, ed. le comte Beugnot (Paris, 1842), 2:222-23. According to P. Petot, "La preuve du servage au Champagne," Revue historique de droit francais et etranger, 4e. ser. 13 (1934), 464-98, everyone except nobles and clerks were reckoned

423



424 Political Liberty in the Middle Ages

No concept of political liberty could be based on the mere absence of certain conditions of service acquired by birth,4 and if one confines one's view to the ideas of medieval lawyers Professor Crick appears to be right. The medieval lawbooks have nothing useful to say on political liberty because a citizen, unlike a noble, is such by the exercise of positive freedoms and not by birth.5 But in Roman law, liberty was defined quite differently as "the natural power of every man to do what he pleases, unless forbidden by law or force," and Bracton complains that by this definition men of servile status actually seem to be free.6 As a matter of fact, men of unfree status did sometimes enjoy remarkable power in the thirteenth century: for instance, the great German serf-knights like Markward of Anweiler, enfranchised the day he became duke of Ravenna but obviously a powerful man before that.7 For the developing content of the idea of political liberty one must look not to the lawbooks but to the charters, where "liberty" normally appears in the sense of a privilege granted to a landowner. These privileges are central to the story of political liberty because they came to include rights of government within the lord's territory which may fairly be regarded as rights of independent political action. If political liberty is a matter of doing, not being, the exercise of power rather than the possession of status, the element of unequal power and privilege in its history needs to be traced as carefully as the ideal of equality before the law, which some historians of political ideas have taken to be the more important theme.8

Territorial immunity was the basic meaning of liberty throughout the early Middle Ages. The Romans, whose sense of individual political liberty seems to have been weak beside that of the corporate liberty of the whole Roman people, yet knew of the privileged liberty of the landed magnate from the normal public burdens. Cicero denounced Mark Anthony as one who "sold

serfs in medieval Champagne. Ingenuus meant both "freeman" and "gentleman" right up to the sixteenth century: see P. Michaud-Quantin, Etudes sur le vocabulaire philosophique du Moyen Age (Rome, 1970), p. 168; and the communication by D. Cressy in Past and Present 47 (May 1970), 113.

4 E. Benveniste, Indo-European Language and Society, trans. E. Palmer (London, 1973), book 3, chapter 4, points out that there is no term for liberty common to all Indo-European languages, though all have the opposition free and noble/servile.

5 Cf. Julius Kirshner, "Civitas sibi faciat civem: Bartolus of Sassoferrato's Doctrine on the Making of a Citizen," SPECULUM 48 (1973), 694-713.

6 Bracton, fol. 4b, trans. Thorne, 2:29. Azo was the first to see the contradiction: F. W. Maitland, ed., Select Passages from the Works of Bracton and Azo, Selden Society 8 (London, 1895), pp. 44-46. It is worth noticing that what the freed man acquires is not libertas but libertinitas (Bracton, fol. 5).

7 Bloch, Feudal Society, pp. 341-44. See F. Pollock and F. W. Maitland, The History of English Law before the time of Edward I, 2nd ed. (Cambridge, 1898), pp. 421, 432, for evidence of the civil liberty of serfs in England.

8 A. J. Carlyle, Political Liberty: A History of the Conception in the Middle Ages and Modern Times (London, 1963), attempts to rest the history of liberty on Stoic ideas of equality before the law. I am in agreement with Professor Crick that political liberty must be the product of politics, that is, the exercise of power.



Political Liberty in the Middle Ages 425

immunities, liberated cities, and removed provinces from the law of the Roman people," but it was individual great landowners who most commonly gained exemption from extraordinary taxation, official duties in the cities, and the sordida munera ("shameful burdens") such as making bread for the army, providing animals for the postal service, housing officials on their journeys, and maintaining public works.9 The later emperors struggled hard to keep these "liberties" within bounds and declared that no one was to be exempted from the maintenance of roads and bridges.10

Ecclesiastical magnates were the natural, and at first the exclusive, recipients of such privileges in the early Middle Ages. The church was the preserver of Roman traditions and for a long time the only beneficiary of formal grants of land. It also had the only semblance of organized government, from the attentions of which individual ecclesiastical lords might wish to be free. The very first style (or specimen document) in the Merovingian Formulary of Marcuif (compiled soon after A.D. 700) has a bishop granting an abbey a "privilege of liberty" (libertatis privilegium) such as other monasteries throughout the kingdom of the Franks enjoyed, promnising that no charge would be made for the installing of abbots, the supply of holy oil, or the conferment of orders on the monks (things which could come only from the bishop), and that the bishop's officers would not enter the bounds of the monastery uninvited. In the next styles, the king confirms the bishop's grant and adds his own concession of "full immunity" from the intervention of any "public judicial power" (publica judiciaria potestas) to hear legal cases on lands granted to the abbey by the king or by private benefactors." This exclusion of public judges from the immunist's lands was the essential element in the growth of the immunity. The potens, the powerful landlord of Roman and early Frankish Gaul, had been accustomed to keep the peace within his own territory (which might actually be called his potestas), but the wider use by the Merovingian kings of dukes and counts as regional governors was a threat to this "power." That was why in the seventh century bishops and monasteries began to seek royal grants of the same exemption from official interference as the king maintained for his own private lands: and the king was prepared to make them because this was a way of getting the potentes to enforce "peace and discipline" in the countryside in his name. It became the responsibility of the immunist to get the serious criminal from his lands into the count's public court, and to see that his agentes conducted the levies from his estates

9 C. Wirszubski, Libertas as a Political Idea at Rome during the Late Republic and the Early Principate (Cambridge, 1950); Cicero, Pro Fonteio 27 and Philippics 3.30; A. H. M. Jones, The Later Roman Empire, 284-602 (Oxford, 1964), 1:452, 2:535-43, 741, 814.

'0Digest 50.6: De iure immunitatis; Code 10.26.2. " Formulae Merowingici et Karolini Aevi, MGH LL 5:39-43. For examples of Frankish royal

grants of immunity, see MGH Diplomata regum Francorum e stirpe Merowingica, no. 72; and MGH Diplomata Karolinorum 3:221, 227 (from 845). E. Lesne, Histoire de la propriete ecclesias- tique en France, 2,2 (Lille, 1926), has a good account of the ecclesiastical immunity in Carolingian times.




to the muster of the royal army; but the opportunity was also given him to exercise power more formally within his territory.12

Anglo-Saxon kings likewise granted favored churches large estates and freedom of the land "from all servitude in secular affairs, from entertain- ment of king, bishop, ealdormen, or of reeves, tax-gatherers, keepers of dogs, or horses, or hawks"; and "from all labors, services, charges, or burdens . . . except these four causes which I will now name: military service against pagan enemies, and the construction of bridges and the fortification or destruction of fortresses among the same people."'13 (Like Roman emperors, English kings would not exempt landlords from the essential obligations of defence, even though these lords were now churchmen.)14 There is an ambiguity about the word liberty in these grants which was to be fruitful in new meanings of freedom: libertas could mean both the immune territory and the right of the immunist to exercise power within that territory, and it is not clear which is intended when we read that in 855 the king of the Mercians "wrote a liberty" for the church of Worcester in a number of "territories and places," and two years later added "a certain small portion of a liberty in the town of London" in which the bishop was to have scales and weights and measures "as is customary in the port."'15 According to Professor Searle, when William the Conqueror founded the abbey and liberty of Battle, he thought in terms of the immunity "of the district in which the monks were to settle, rather than in terms of placita it could claim" or of delegated royal jurisdiction, but what he inevitably did was create a little diocese and hundred of its own.16 Grants of territorial liberty were in effect grants of public powers of government, and that was why a secular lord who wanted to "liberate" a church he had founded from "all episcopal and secular obligations," as William of Belleme did sometime in the third decade of the eleventh century, had to bring together the king and as many bishops and counts as he could muster at the consecration.17

12 M. Kroell, L'immunite franque (Paris, 1910). 13 For examples, see Dorothy Whitelock, ed., English Historical Documents, 1 (London, 1955),

nos. 83, 85, 87, 90, 95, 120; and see pp. 440, 447, 472, 479, 482, 484, 499. for a special libertas which was often included in a grant, the power of free disposition of the land without royal interference.

14 E. John, Land Tenure in Early England (Leicester, 1960), chapter 4, where it is argued that these "common burdens" were imposed on the English church in the eighth century.

"5English Historical Documents, 1:485, 487. 16 Eleanor Searle, Lordship and Community: Battle Abbey and Its Banlieu, 1066-1538 (Toronto,

1974), pp. 198-99. 17 MGH Diplomata regum et imperatorum Germaniae 1:92, line 15, p. 461, line 20, pp. 589,

621: Otto I here grants to Fulda "liberty such as it is known to have received from [his] ancestors as kings of the Franks," forbids any "public judge, duke, marquess, count, or viscount" to prevent the men of Fulda from pleading their cases before the abbot, and orders townsmen to be "subject and obedient in everything" to a bishop. See also MGH Diplomata regum et imperatorum Germaniae 3:no. 29, by which Henry II grants to a nunnery "the best liberty which any royal monastery in our land enjoys" and forbids any royal or episcopal official to exercise "any power of public law" within its territory. F. E. Harmer, Anglo-Saxon Writs (Man-




Amongst the charters of Philip I, king of France from 1060 to 1108, there are some two dozen grants of territorial liberty, to just one of personal liberty or free status.18 But laymen did not normally get grants of immunity for their lands. The freedom which distinguished the lay aristocrat was of a second type: tenurialfranchise. From the Franks who conquered Gaul at the end of the Roman empire came a new vocabulary of freedom. Chieftains and vassals within the warrior aristocracy of Franks all possessed a quality of freedom, a franchisia, which the conquered population lacked. A military vassal was necessarily a liber homo because he was a franc homme, and he expected to hold the land given him by his lord on conditions which were worthy of a freeman, liberali potestate. So, by another route, we arrive at land held free from certain obligations, and once again the word for it,franchisia, can mean the freedom itself and the land in which it is exercised.19 The freedom here is of tenure, however, and from private obligations of a servile nature to the landlord, not from public obligations to the king. It is closest to free status. By granting franchisia in the sense of free tenure, a lord could make men personally free: that seems to be the logic of the costly charters of freedom which villagers all over France were clubbing together to buy in the twelfth century.20 The much-copied Carta Franchesie of Lorris near Orleans, granted by its lord (who happened also to be King Louis VI) in 1155, began by setting fixed quitrents for the holdings of the inhabitants of the parish of Lorris and exempting them from tolls and tallages and corvees. In England, according to Professor Tait, "the institution of a free borough meant no more than the substitution of free burgage tenure for the villein services and merchet of the rural manor."'21

chester, 1952), nos. 45, 61, 73, 75, 77, 105, 106, purport to show Edward the Confessor granting abbeys "fullfreodom in all matters," but the authenticity of these writs is doubtful. For William of Belleme's foundation, see M. Prou, ed., Recueil des actes de Philippe Ier 1059-1108 (Paris, 1908), pp. 328, 430; and J. F. Lemarignier, Le gouvernement royal aux premiers temps capetiens 987-1108 (Paris, 1965), pp. 89-90, n. 91. Cf. D. C. Douglas and G. W. Greenaway, eds., English Historical Documents, 2 (London, 1953), no. 80, for William the Conqueror's participation in William de Warenne's foundation grant to the Cluniac priory of Lewes.

18 Prou, Recueil des actes de Philippe ler, Table alphab&ique, s.v. libertas. 19 Bloch, Feudal Society, pp. 149, 286-88; M. K. J. Hollyman, Le developpement du vocabulaire

ftodal en France pendant le haut moyen dge: Etude semantique (Geneva, 1957), chapter 7; J. F. Niermeyer, Mediae Latinitatis lexicon minus (Leiden, 1954-1976), s.v. franchisia, francus, liberalis, liberalitas; for liberalitas as aristocratic status and franchise, see R. E. Latham, Revised Medieval Latin Word-List (London, 1965).

20 G. Duby, Rural Economy and Country Life in the Medieval West, trans. Cynthia Postan (London, 1968), pp. 242-243; F. Lot and R. Fawtier, Histoire des institutions francaises au Moyen Age, 1: Institutioms seigneuriales (Paris, 1957), pp. 66-67; there are numerous examples of the enfran- chisement of townships in H. F. Delaborde, C. Petit-Dutaillis, and J. Monicat, eds., Recueil des actes de Philippe Auguste (Paris, 1916-1943), e.g., 1:nos. 3, 21.

21 The Lorris charter is in M. Prou, Les coutumes de Lorris et leur propagation aux XIIe et XIIIe siecles (Paris, 1884), pp. 445-57, and translated in Bryce D. Lyon, The High Middle Ages (New York, 1964), pp. 58-61. For Tait's remark, see A. Ballard, ed., British Borough Charters, 1042- 1216 (Cambridge, 1913), p. xl, and pp. 40-41 for examples.




As we shall see, "franchise" developed further in England to signify the jurisdictional powers of the aristocracy and urban corporations. This development failed to occur in France: not because the Capetian monarchy was stronger than the Norman and Angevin and would not allow the nobles such powers, but because, in the tenth and eleventh centuries at least, it was much weaker, and the landlords of France regarded their jurisdiction as independent of royal grant - it was not freedomfrom anything, but a positive right to govern which stemmed from the breakup of the public authority of the Carolingian kings. This nevertheless constituted a third type of "liberty": juridicalfree customs. First the greater honors - the offices and powers of the count - became hereditary along with the public land with which the counts had been invested. Then at the end of the tenth century the comitatus and the episcopatus - the territorial jurisdiction of the bishop as well as of the count - disintegrated. Soon every considerable lord expected to exercise jurisdiction within his own lands in matters of theft, arson, and other serious crimes, and monasteries and even laymen came to exercise the jurisdiction of bishop and archdeacon within their own lands. Such originally public powers of jurisdiction did become an essential component of the medieval territorial liberty, but "customs," not "liberties," was the word which became established for them.22

Basically, "customs" meant all the powers and obligations of men in the customary law of their communities. In different contexts, customs could signify the heavy obligations of the serf, who could therefore be termed a consuetudinarius ("customer"); and a freedom from such obligations, so that Philip I and Louis VI of France, wishing all their servants to be equal, under a like law and uniform custom (lege consimili et consuetudine una coequentur), could grant the men of Etampes hanc consuetudinem that they should be exempt from tallage and riding service.23 By extension "customs" also, and very commonly, meant the rights of a landlord to exercise justice. Allodial land might be granted free from every "judicial custom" Ojudiciaria consuetudine); or an Anglo-Norman lord be said to have "his customs, that is to say, sake and soke" (the basic form of jurisdiction).24 In thirteenth-century England there were actions to recover seisin of the "customs" owed to a lord by his tenants.25 "Free customs" - and customs had to be qualified as free or servile, good or evil, to have political significance - was an important concept because it indicated individual freedom which was not a passive legal

22J. F. Lemarignier, "La dislocation du 'pagus,' et le probleme des 'consuetudines,'" in Melanges Louis Halphen (Paris, 1951), pp. 401-10; A. Fliche and V. Martin, Histoire de l'eglise, 7 (Paris, 1940), pp. 220-31; for territorial franchises within the English church, see F. Barlow, Durham Jurisdictional Peculiars (Oxford, 1950).

23 Niermeyer, Lexicon Minus; Latham, Word-List; Prou, Actes de Philippe Ie" no. 390. 24 Delaborde et al., Actes de Philippe Auguste, nos. 1, 5, 10, 15, 16, 17, 19, etc.; F. W. Maitland,

Domesday Book and Beyond (Cambridge, 1897), pp. 76-79; Harmer, Anglo-Saxon Writs, p. 451; English Historical Documents, 2:603.

25 For example, Curia Regis Rolls Preserved in the Public Record Office (hereafter CRR), 11 :no. 2045.




status but a man's active role, as court-holder, judge, or suitor, in the processes of law. These were real freedoms exercised by individuals, and that is why the word "customs" was normally used in the plural and did not, like liberty and franchise, take on the meaning of the territory to which the freedom was attached.26

In England, the history of territorial jurisdiction was different from that in France, and so in consequence was the relationship of liberty, franchise, and free customs. Although the jurisdiction of the Anglo-Saxon hundred court often came into the hands of landlords as "sake and soke" and these rights were naturally called by the familiar term, "customs," by the Norman con- querors, the sense was never quite lost that this was public jurisdiction exercised at the king's pleasure. Though it is difficult to believe that there had ever been royal grants of many of the parcels of jurisdiction recorded in Domesday Book, the fact remained that the king, and the king only, frequently granted sake and soke by charter. Thus the Conqueror granted Chertsey Abbey the manors of Chertsey, Egham, Thorp, and Chobham "quit from all geld and the customs which pertain to me, that is, sake and soke."27 The big step in ideas which was taken in England was from the territorial liberty of churches, carrying both immunity and the exercise of a measure of public justice, to such liberty in the hands of any great lord, ecclesiastical or lay. This happened because of the special political relationship of the Norman and Angevin kings with the church, which was marked by the granting of general charters of liberties to the clergy in which it was convenient to include concessions to the baronage as a whole. Amongst the many apparently spurious charters of Westminster Abbey is one of Henry I confirming freedom from all episcopal and secular exactions to the abbey in which he has just been annointed king, and adding to "this liberty" "all laws and customs which pertain to me."28 That day in 1100 was certainly the occasion of the first of the great coronation charters, which moved from a confirmation of the territorial liberties of churches (important monasteries received their own copies of the charter) to an abolition of "all the evil customs by which the kingdom of England has been unjustly oppressed," which turn out to be such things as the charging of excessive reliefs from feudal heirs.29

From the association of ecclesiastical liberties and concessions to laymen in the coronation charter it was a short step to the granting to individual

26 On good and evil customs, see J. C. Holt, Magna Carta (Cambridge, 1965), pp. 94-100, 125-29.

27 Helen Cam, Law-Finders and Law-Makers in Medieval England (London, 1962), p. 26; Mait- land, Domesday Book and Beyond, pp. 80-107; H. W. C. Davis, ed., Regesta Regum Anglo- Normannorum, 1: 1066-1100 (Oxford, 1913), no. 224 (Appx. 33).

28 Charles Johnson and H. A. Cronne, eds., Regesta Regum Anglo-Normannorum, 2: 1100-1135 (Oxford, 1956), no. 489 (p. 2) and appx. 1 (p. 305), and cf. H. A. Cronne and R. H. C. Davis, eds., Regesta Regum Anglo-Normannorum (hereafter RRAN), 3: 1135-1154 (Oxford, 1968), no. 928.

29RRAN, 2:no. 488.




laymen such as the king's liegeman Hardulf and the king's butler William de Albini of manors "with sake and soke and all liberties and free customs."30 Stephen's coronation charter shows how wide the concept of liberties had become in thirty-five years. As Henry I had purported to restore the law of Edward the Confessor, so Stephen confirmed all the liberties, good laws, and customs which Henry had granted, but this to all his barons and men, with no special mention of churches.31 Magna Carta itself can be viewed as an enormously extended version of Henry I's charter, beginning as it does with a confirmation that the church shall be free and have all its rights and liberties, and continuing with a concession of "all the following liberties" to the laity of the kingdom - not just to "my barons and other tenants" as in Henry I's charter, or to "my barons and vassals" as in Stephen's and Henry II's, but to "all free men of our realm."32

So the liberties of the great charters were first of all the ancient immunities of churches, and it was because of these charters that it became possible in England to conceive of the territorial liberties of the barons as a class. The ecclesiastical immunity gave to the sense of liberty the element of freedom from official interference within a defined territory. Added to this was the notion of freeholding, with which Magna Carta is notoriously much concerned. To be a freeholder was to have been granted lands which were in some degree "free and immune from exaction, custom, and service" and to be held bene et in pace et libere et quiete et honorifice. "Free" was a word most commonly used of a tenure - in free alms, or "in free barony with sake and soke," or in frankmarriage (that is, exempt from all services for three generations after the grant to the conjugal pair).33 Franchise was originally a matter of tenure, but amongst the French-speaking aristocracy in England it naturally tended to displace libertas over its whole range of meanings, including the barons' jurisdictional powers. It was title to all franchises in this sense for which Edward I demanded in 1278 that the barons show warrant by charter before the justices in eyre.34 In 1329, Chief Justice Scrope asserted that the king sent out eyres to see how the barons governed his people, since "franchise is to have jurisdiction and rule over the people of the king"

30RRAN, 2:nos. 793, 911 (appx. 43, 63). 31RRAN, 3:xxviii and nos. 270, 271. 32 English Historical Documents, 2:407; Holt, Magna Carta, pp. 132-33, 316-17. 33 For the formulae of grants to hold "freely," see Harmer, Anglo-Saxon W'rits, pp. 257 (no.

56), 260-261; RRAN, 2:appx. 31, 37, 43, 47; L. Delisle, ed., Recueil des actes de Henri II, Introduction (Paris, 1909), p. 152. For frankalmoign, see RRAN, 2:appx. 15; for tenure in free barony, A. A. M. Duncan, ed., Formulary E, Scottish Letters and Brieves, 1286-1424 (University of Glasgow Scottish History Department, 1976), no. 41; for frankmarriage, Pollock and Maitland, History of English Law, 2:15-17.

34 By the Statute of Gloucester, sheriffs were to summon before the king or his justices "tuz ceus, qi aucunes fraunchises cleiment aver, par les chartres les predecessurs le Rei" (Statutes of the Realm, 1:45). See also D. W. Sutherland, Quo Warranto Proceedings in the Reign of Edward I (Oxford, 1963), especially pp. 25-27.




(fraunchise est pur aver jurisdiction, et rule del people le roy).35 In England, franchise was political power, and as political power, franchise (or libertas in a clerical record or chronicle) could be attributed to the king himself: in February 1259, the barons promised to observe towards their men "the points of the charters of franchises" which they themselves had been granted by the king, and also to respect what pertained "to the king and his franchises."36

But for king as well as for barons, a franchise was exercised within a franchise: the document of 1259 moves backwards and forwards between the two meanings of the word. Whereas the Statute of Gloucester of 1278 was concerned with the jurisdictional franchises exercised by the barons, and this is the usual meaning of the term in the charter rolls, the Statute of Westminster of 1275 had been concerned with the franchises within which felons were received, and the territorial meaning is the usual one in inquisitions about property.37 When the king demanded to know by what warrant the barons enjoyed their franchises, the answer was often "by right of conquest," and the myth arose that Earl Warenne produced before the justices the rusty sword with which it had been done: to these men land and freedom were inseparable.38 At the level of kingdoms, it is surely not a mere echo of the traditional land grant which one finds in the agreement of Andrew Harclay, earl of Carlisle, in 1323, that Robert Bruce and his heirs might hold the kingdom of Scotland "franchement, entierement, e quite- ment."39 The franchise of the land charters may indeed have been one of

35 G. D. G. Hall, "The Frequency of General Eyres," English Historical Review 74 (1959), 91. 36 J. J. Sanders, ed., Documents of the Baronial Movement of Reform and Rebellion, 1258-1267,

selected by R. E. Treharne (Oxford, 1973), pp. 132-135. As political power, liberty could vary in strength, a freeman enjoying liberalis potestas, a royalfidelis possessing libertas notabilis, and the king or emperor exercising imperialis libertas or fraunchise roiale: see Niermeyer, Lexicon minus, s.v. liberalis; Capitularia Regum Francorum, MGH LL 2,2:225, line 6; MGH Diplomata regum et imperatorum Germaniae 1:610, line 25; H. G. Richardson and G. 0. Sayles, eds., Rotuli Parliamentorum hactenus inediti, 1279-1373, Camden Society 3rd ser. 51 (London, 1935), p. 111. The last reference is to a petition presented by the bishop of Durham to the Epiphany parliament of 1327, claimingfraunchise roiale between Tyne and Tees with the right to have his own chancellor, justices, sheriffs, coroners, and other ministers de servir au poeple et droitfaire. Cf. the earl of Gloucester's "castle, town and hundred" of Cardiff "with its royal liberty," described a few years earlier in PRO Calendar of Inquisitions Post Mortem. 5:332. The Carolingians and Ottonians commonly granted land to churches with libertas regia: for examples, see MGH Diplomata regum et imperatorum Germaniae 3:29, line 30, and p. 267, line 30.

37 Statutes of the Realm, 1:28-29, 45. 38 Sutherland, Quo Warranto proceedings, pp. 82n, 183-184; Helen Cam, Liberties and Com-

munities in Medieval England (London, 1963), p. 176, is surely wrong to charge the chronicler with "misrepresenting the character of the Quo Warranto proceedings" by this story, which effectively brings out the territorial basis of franchise.

39 E. L. G. Stones, ed., Anglo-Scottish Relations, 1174-1328, (Oxford, 1970), p. 310. The following year the Scots were reported to be demanding that Scotland should ab omni exactione regni Anglie esse immunem, and that by right of conquest the whole territory they had marched through to the gates of York should be "free" to them: N. Denholm-Young, ed., Vita Edwardi Secundi (Edinburgh, 1957), p. 132.




the elements out of which the Scots forged a new concept of national freedom.

Was a full conception of political liberty reached in the English charters of liberties, with their fusion of the three elements of territorial immunity, tenurial franchise, and free customs? Certainly the freeholding and liberties of Magna Carta have a place in the history of liberty which they have not usually been accorded,40 and real issues of freedom were at stake in the king's quo warranto campaign against franchises. Moreover, the prudence of getting land charters confirmed by each new king at his accession and the gradual integration of this process into the ceremonies of coronation had bred the sense that liberties were ancient, perpetual, and "constitutional."'41 Charters of liberties also conveyed individual freedoms to large numbers of people. This was most obviously the case with borough communities, to which lords granted not only free burgage tenure but also "liberties and free customs" of a more active sort. These were obtained as communal privileges but could often be enjoyed only as individual rights, like the right not to be sued in any but the municipal court, and the freedom from "tolls, passage- dues, and other customs" which might be invoked by individual burgesses far from the borough itself.42 Economic forces multiplied grants of liberties of this sort in the thirteenth century.43 The freemen of privileged towns were in a real sense the first free citizens, but Professor Holt has shown other types of community receiving grants of liberties in the years leading up to Magna Carta. Most significant for individual liberty was the type of grant the men of Devon obtained in 1204, empowering the shire court "to give bail for men arrested by the sheriff, so that none should remain in prison because of his malice."44

In fact, every grant of territorial liberty to a church or lay baron had always implied individual freedoms for the men of the lordship, who should

40 The Articles of the Barons (no. 25) demanded and Magna Carta (c. 52) conceded the restoration of anyone disseised without judgment of his peers de terris, libertatibus vel jure suo - a significant conjunction of lands, liberties and personal right.

41 In 996, King Ethelred made a gift to his mother which was to "remain immovable, and pleasant with eternal liberty": English Historical Documents, 1:531. See RRAN, 2:no. 531, for Henry I's confirmation of the men of Lincolnshire "in the laws and rights and customs which he granted at his coronation." Concerted opposition to King John began with a demand for confirmation of the "Laws of Edward the Confessor" and Henry I's coronation charter: Holt, Magna Carta, p. 135. See P. E. Schramm, A History of the English Coronation, trans. L. G. Wickham Legg (Oxford, 1937), especially pp. 38, 69, 182, for the new king's promises, gifts, and confirmations at his coronation. Edward II's coronation oath in 1308 still began with a confirmation of "the laws, customs and liberties granted to the clergy and people by the glorious king St Edward": Harry Rothwell, ed., English Historical Documents, 3 (London, 1975), p. 525.

42 Examples in English Historical Documents, 2:962-74; A. Ballard and James Tait, eds., British Borough Charters, 1216-1307 (Cambridge, 1923), pp. 40-43, 115, 180, 220.

43The importance of the liberties of merchants in the growth of the European economy in the thirteenth century is brought out by D. C, North and R. P. Thomas, The Rise of the Western World (Cambridge, 1973), pp. 57, 65. Commercial privilege is still the dominant meaning of "franchise" in modern America.

44 Holt, Magna Carta, pp. 52-60.




be seen as the original type of privileged community. From Merovingian times, abbeys played a central role in trade and obtained exemptions from the payment of tolls for servants travelling on their business.45 From the time of Louis the Pious in the first half of the ninth century, Carolingian grants of immunity to ecclesiastical lords had been regularly accompanied by special protections for the beneficiaries' lands and goods - and their men, wherever they went.46 Protections for merchants, giving them "all and singular" free power to buy and sell according to the laws and customs of the kingdom (liberam potestatem emendi et vendendi secundum leges et consuetudines regni),47 remained the most familiar of grants throughout the Middle Ages. Their origin in the territorial immunity is indicated by the definition in the twelfth-centuiry "Laws of Edward the Confessor" of the third element in the standard grant of "sake and soke, toll and team, and infangenetheof": toll is the beneficiary's freedom of buying and selling within his lands (libertatem vendendi et emendi in terra sua).48

The liberties granted by the king to his vassals, as in Magna Carta, were to be passed on to their men. Insofar as they governed by virtue of their franchises, lords would anyway have found themselves under pressure from their tenants to grant political liberties, and Professor Holt has shown us Peter Bruce granting a charter of liberties to the knights and free tenants of Cleveland regarding the conduct of pleas in a wapentake he had just pur- chased.49 Restrictions on the number and the activities of serjeants of the

45 Kroell, L'immunite franque, pp. 126-127. 46 M. G. Tessier, Recueil des actes de Charles II le Chauve (Paris, 1943-1955), 3:227; for

examples, see RRAN, 1:appx. 42, 66, 81; Delisle, Recueil des actes de Henri II, 1:26-27 (grant of "firm peace and perfect liberty" to the abbey of Savigny, its abbot, monks, conversi, lands, possessions, and servants, with quittance from "every custom, service, and exaction" throughout Henry's territory); A. Harding, "The Medieval Brieves of Protection and the Development of the Common Law,"Juridical Review (1966), pp. 116, 117, 138 (the last example is from 1535); Registrum Omnium Brevium tam Originalium quam Judicialium (London, 1531), fols. 24b-25. The German word for peace or protection (Friede) seems to have a common root with that for freedom (Freiheit).

47 For grants of protection to merchants, see Duncan, Formulary E, nos. 54, 61; Registrum Brevium, fol. 280.

48 F. Liebermann, ed., Die Gesetze der Angelsachsen (Halle, 1898-1916), 1:647 (22.2). Grants of protection of all the property and servants of a church fostered the development of the privilegiumfori of the clergy as well as of the immunities of merchants: see, for example, M. P. Lauer, ed., Recueil des actes de Charles III le Simple, 893-923 (Paris, 1949), p. 49, line 18, p. 50, line 13.

49 Holt, Magna Carta, pp. 58, 333 (c. 60); cf. the Ordinances of the Magnates in 1259 in Sanders, Documents of the Baronial Movement, p. 133; and A. Artonne, Le mouvement de 1314 et les chartes provinciales de 1315 (Paris, 1912), pp. 166-168, for Louis X's instructions to his barons to confirm their men in their "ancient and approved privileges, franchises, customs and usages." A. J. Otway-Ruthven, "The Constitutional Position of the Great Lordships of South Wales," Transactions of the Royal Historical Society, 5th ser. 8 (1958), p. 15, shows Edward I in 1303 compelling the bishop of Durham to grant a charter to the community of the liberty. For charters of liberty granted by the lords of the Welsh march to the Welsh and English communities of their lordships, themselves held "in royal liberty," see R. R. Davies, Lordship and Society in the March of Wales, 1282-1400 (Oxford, 1978), pp. 88, 94, and 102, and chapter 10.




peace, seigneurial police officers peculiar to the western and northern counties of England who were maintained at the cost of the inhabitants, was a common concession by lords to their men.50 Yet liberties granted by charter remained by definition privileges, even when the recipients were communities; they were not the rights of individual citizens. Even Magna Carta, that "charter of liberties of the realm of England," was the culmination of an old story, not the beginning of a new one, the greatest charter of territorial immunity and communal privilege rather than a bill of rights for individuals.51 To find a concept of liberty belonging to each citizen independent of any grant we have to move from charters to plea rolls.

What the plea rolls show is the effect of the replacement of feudal prin- cipalities by national monarchies in thirteenth-century France and England. The vast enlargement of royal jurisdiction made individual liberty a right which could be defended at law, at the same time that the growth of royal power extinguished lordship as the vehicle of chartered liberties. I have argued elsewhere that the crucial change from a society of lords and vassals to one of kings and subjects came in the thirteenth century with the acceptance as the proper concern of the king's courts of the whole field of torts - of all types of personal injury inflicted by force or fraud on the individual inhabitants of the realm, whoever their lords might be.52 These injuries became the concern of kings when their own rapidly growing bodies of officials were the chief wrongdoers, although the actions which were developed to give compensation for their violence were naturally used against private transgressors too. The injured parties sought redress not by Latin writs obtained from Chancery clerks but by bills of complaint couched in their own language, French; bills presented first to justices in eyre, or in France to special inquiries into official abuses sent to the provinces in 1247, but which found their ultimate expression in new central courts or parlia- ments. In the records of these courts, immunity from coercion appears as something every man can claim, and charters of privilege lose their importance to bills of right.53

Personal liberty in the most basic sense was at issue in many cases, for arbitrary imprisonment and extortion of money for release was one of the commonest wrongs perpetrated by royal and seigneurial officers.54 But the word "liberty" is not used in this context, because it was preempted by the chartered privilege which was often also at stake. Ironically, liberty to keep a prison was what the bailiffs of the king or another lord were frequently

50 R. Stewart-Brown, The Serjeants of the Peace in Medieval England and Wales (Manchester, 1936), appx. 3, especially no. 9.

51 Holt, Magna Carta, pp. 47-48, 113, 185-86. 52 A. Harding, "The Reflection of Thirteenih-Century Legal Growth in Saint Thomas's

Writings," in Aquinas and Problems of his Time, ed. G. Verbeke and D. Verhelst (Leuven, 1976). 53 A. Harding, "Plaints and Bills in the History of English Law, Mainly in the Period

1250-1350," in Legal History Studies 1972, ed. D. Jenkins (Cardiff, 1975). 54 Harding, "Plaints and Bills," pp. 68-69.




alleged to have infringed, by the abduction of a wretched criminal from the complainant's custody and perhaps summary hanging to the harm of the complainant's liberty of gallows.55 Rarely is there much concern for the rights of the prisoner, though there was in a Lincoln trailbaston case of 1305 about a man seized from the abbot of Peterborough's liberty, literally hurled into a deep dungeon in Stamford castle and starved until his screams alerted his friends.56 Eventually, however, some liberties did become sanctuaries for hunted men, and in the seventeenth century the Fleet prison was said to be a safe base for the criminal activities of its inmates, because the Fleet was "a privileged place."57

The powers of the great franchise-holders were often the subject of the new sort of legal action. The extent of the territorial liberties of churches like Westminster and Battle,58 of the powers of marcher lords like Richard de Clare in his "parliament' of Glamorgan,59 of the detailed jurisdictions of middling lords, all fell to be decided by the king's courts in the thirteenth century, simply because the franchises claimed very often conflicted with one another.60 But since disputes originated as often as not in conflicting grants, the terms of ancient charters could not settle them: a law of liberties based on the general interest of crown and community was needed. It was part of an agreement settling a dispute between the bishop of Carlisle and the abbot of Kirkstead in 1234 that if in the future the bishop received liberties from the king which conflicted with the abbot's liberties the abbot should be excluded from their effect "according to the law of the land."'61 The exercise of baronial franchises was carefully scrutinized to see that royal franchises were not infringed. The prior who hanged the corpse of a cattle thief who had stabbed himself on capture had his liberty seized because the man had been neither convicted nor outlawed.62 Another prior who exacted tolls from the king's officers when they went to his market to buy eggs was told that the liberty had not been granted to be used to the damage of the liberty

55 CRR (see note 25), 15:nos. 835, 1146, 1277; F. W. Maitland, ed., Bracton's Notebook (Lon- don, 1887), nos. 277, 1716; H. G. Richardson and G. 0. Sayles, eds., Select Cases of Procedure without Writ under Henry III, Selden Society 60 (London, 1941), no. 46; Rotuli Parliamentorum hactenus inediti (see note 36), p. 31; G. 0. Sayles, ed., Select Cases in the Court of King's Bench under Edward I, 3, Selden Society 58 (London, 1939), p. 1. For the king's vigilant control of this franchise, see Constance M. Fraser, Ancient Petitions Relating to Northumberland, Surtees Society 176 (Durham, 1966), pp. 124-25, and the frequent amercements for allowing escapes recorded in the eyre rolls.

56 R. F. Hunnisett and J. B. Post, eds., Medieval Legal Records Edited in Memory of C. A. F. Meekings (London, 1978), p. 159 (no. 28).

57 A. Jessopp, ed., The Oeconomy of the Fleete, Camden Society new ser. 25 (London, 1879), p. 65.

58Bracton's Notebook, nos. 1598, 1676, 1716; Rotuli Parliamentorum (hereafter RP), 1:4 1. 59J. B. Smith, "The Lordship of Glamorgan," Morgannwg 2 (1958), 32-33. 60 G. 0. Sayles, ed., Select Cases in the Court of King's Bench under Edward I, 2, Selden Society 57

(London, 1938), p. lvi; CRR, 15:no. 1277; Bracton's Notebook, no. 1720; Richardson and Sayles, Select Cases of Procedure without Writ, no. 46; Rotuli Parliamentorum hactenus inediti, pp. 31-44.

61 CRR, 15:no. 1074. 62 CRR, 15:nos. 1137, 1146; Bracton's Notebook, nos. 1050, 1107, 1154.




of the king and his heirs.63 A Scottish complaint to the English parliament of 1305 saw the liberty of the abbot of Arbroath as conflicting with the king's liberty in a more general sense, for it was alleged to be a place of refuge for malefactors on whom no justice could be done.64

Professor Milsom and Mr. Hall have shown how large infringements of liberties bulked amongst the subject matter of writs of trespass, when they began to be formulated for injuries which previously could be brought to court only by oral complaint.65 The earliest writs of trespass in a manuscript register (of c. 1272) include one which summons the mayor and bailiffs of Newcastle to show why they exacted tolls from the servants of the prior of Tynemouth contra libertates suas.66 The Register of Writs as printed in the sixteenth century contains writs of trespass concerning infringements of the abbot of Westminster's right, conferred "by the charters of our progenitors as kings of England and our own confirmation," to the chattels of felons and fugitives in a certain hundred;67 of a prior's chartered right to tolls;68 of a baron's liberty of return of writs;69 and of the archbishop of York's liberty of licensing men to exercise the office or mystery of dyer in the town of Ripon 70

There is no concealing, however, that the development of court actions to protect liberties represented an enormous reduction in the real power of franchise-holders. Professor Milsom has argued recently that the Angevin kings drained feudal lordship of its power without meaning to do so, by making feudal services enforceable in royal courts. "Lordship is not a right that can be claimed: it can only be exercised." I think that liberty, as an aspect of lordship, suffered the same decline from autonomous power to legal right.7' In fact, legal actions were predominantly concerned with those liberties which could be enjoyed only by the individual tenants of the immunist or the members of a privileged community, such as freedom from tolls for merchants of a particular town or the men of the prior of Tynemouth. Even the infringement of a jurisdictional franchise was likely to be raised in a complaint that the trespassor had distrained men individually

63Bracton's Notebook, no. 1250. 64 F. W. Maitland, ed., Memoranda de parliamento, Rolls Series (London, 1893), no. 388. 65 G. D. G. Hall, "Some Early Writs of 'Trespass,'" Law Quarterly Review 73 (1957), 72-73;

S. F. C. Milsom, "Trespass from Henry III to Edward III," Law Quarterly Review 74 (1958), 417-28.

66 Hall, "Some Early Writs," pp. 72-73 (B.9). For examples of early actions of trespass concerning liberties, see CRR, 3:nos. 98, 131, 238, 241, 433, 1625; CRR, 5:nos. 12, 35; CRR, 7:no. 82; CRR, Il:nos. 473, 666, 1076, 2279, 2834; CRR, 15:no. 1285; Milsom, "Trespass," p. 425.

67Registrum Brevium, fol. 107. 68Registrum Brevium, fol. 103. 69Registrum Brevium, fol. 103b. 70 Registrum Brevium, fols. 105b-106. Cf. fol. 1 17b for writs of trespass alleging rescues from

the bailiffs of liberties, which again show the paradoxical beginnings of "liberty" as a legal right. 71 S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge, 1976), p. 44. Cf. CRR,

15:no. 1070.




to attend his court instead of the complainant's.72 The whole "commons of the Franchise of Tyndale" or the community of the borough of Reading might claim freedom from tolls or from being taken to court outside their liberties.73 Or the bailiffs or lords of boroughs, the attorney of the chancellor and masters of the university of Oxford, or the warden of the stannary, might claim the franchise when individuals from their liberties were brought to foreign courts, a process which looks very like the claiming of ecclesiastical liberty for felonious clerks.74 Often, of course, it was the individual "of the liberty" of the lordship or borough who himself objected that he was not bound to answer outside it.75 In what Professor Milsom calls "picketing cases," lords brought writs of trespass contra libertates suas against those who impeded or exacted tolls from individual merchants coming to their mar- kets: the franchise was here expressed in the freedom of persons connected with the lord only by commercial ties.76 The fact that these liberties were enforced by actions of trespass and not real actions emphasizes their personal nature. The right to a private gallows could be matter for a grand assize.77 But the prior of Tynemouth objected in vain to being made to answer in the parliament of 1290 for the erection of a port at North Shields by a writ which did not mention his free tenement and the liberty attached to it. It was decided that the prior's acts had constituted personal injuries to the king and his burgesses of Newcastle: this centuries-long dispute turned on personal liberties, not property rights.78

The growth of exactly the same personal, largely bourgeois, freedom appears in the proceedings of the French parlements. In 1258, the bishops of Normandy complained in the parlement of Paris that the king's officers were ignoring the franchises of the bishops' men regarding passage dues, customs, and tallages.79 In the parlement of Alfonse of Poitiers individuals, and also the syndics of a corporation (universitas) of knights and goodmen, and the burgesses of Millau, are found complaining of bailiffs who infringe their franquesia seu libertas of free passage by land and water.80

72 Milsom, "Trespass," p. 425. 73 Fraser, Ancient Petitions relating to Northumberland, p. 128; Richardson and Sayles, Select Cases

of Procedure without Writ, no. 112. Cf. Select Cases, p. 94; CRR, 11:no. 2055; Bracton's Notebook, nos. 16, 145, 1720; H. Jenkinson and Beryl Fermoy, eds., Select Cases in the Exchequer of Pleas, Selden Society 48 (London, 1932), nos. 76, 114b; G. 0. Sayles, ed., Select Cases in the Court of King's Bench under Edward I, 1, Selden Society 55 (London, 1936), no. 114; RP, 1:20. For writs, see Elsa de Haas and G. D. G. Hall, eds., Early Registers of Writs, Selden Society 87 (London, 1970), pp. 13 (37a), 201-2.

74 CRR, 4:nos. 252, 1153; CRR, 15: no. 565; Select Cases in King's Bench, 2:no. 21; 3:nos. 85, 87. 75 Bracton's Notebook, no. 1551; Richardson and Sayles, Select Cases of Procedure without Writ, pp.

36, 41, 81; Sayles, Select Cases in King's Bench, 2:no. 29. Cf. CRR, 15:no. 1005, concerning tolls. 76 Milsom, "Trespass," pp. 422-24. 77CRR, 4:no. 318. 78 RP, 1:26-29. 79 A. Beugnot, ed., Les Olim (Paris, 1839-1848), 1:62(7), 77, 213. 80 P. F. Fournier and P. Guebin, eds., Enquetes administratives d'Alfonse de Poitiers (Paris, 1959),

pp. 33, 63, 130, 137, 214, 216, 299-300, 304, 312, 325.




The French cases bring into focus the other and decisive way in which the thirteenth-century monarchies changed territorial liberties into individual rights; that is, the extinction by forfeiture or conquest of the lordships through which liberties had flowed. With the removal of the intermediate lord whose ancestors had received the charters of liberty and bestowed franchise on their tenants, freedom ceased to be derived from a multitude of separate land charters and was seen as the sum of the customary rights of people subject to the king alone. In 1202, King John was declared to have forfeited all the lands he held of the French crown, and Normandy was soon conquered by Philip Augustus. In Louis IX's great inquiry into administra- tive abuses forty-three years later, Norman after Norman claimed customs they had lost by the conquest, when their lords had chosen England and forfeited their Norman lands. The inhabitants of three villages owing suit to a mill forfeited by Roger Mortimer complained, for instance, that the king's bailiff had doubled the payment for grinding the corn and changed the measure of flour. The burgesses of Verneuil complained of the imposition of hearthmoney, despite King Philip's confirmation in 1205 of all the liberties and customs which they had possessed in Normandy when the kings of England were its lords.8'

Languedoc had meanwhile fallen to a mixture of force and the diplomacy which arranged the marriage of Louis IX's brother Alfonse to the heiress of Count Raymond VII of Toulouse. To the court of Alfonse, invested also with the county of Poitou, came a complaint of Peter de Alemannia that the seneschal of Poitou had ignored a charter of liberty from all customs and services granted to Peter's ancestor by King Richard of England more than sixty years earlier, a charter which had itself merely confirmed a grant Richard had made when he was only count of Poitou;82 clearly this privilege was now regarded as a right independent of the lordship from which it had originally been derived. Other petitioners asserted franchises granted by Count Raymond of Toulouse dum vivebat or complained of new customs imposed by him to the prejudice of the petitioners' liberty: these Count Alfonse often took responsibility for restoring to their good and approved customs and liberties in order, the grants said, to free Count Raymond's soul.83 As the lordships within which they had grown disappeared, customs became the possession of the communities of tenants, almost a part of the soil they tilled. This was ancient custom; right and custom long approved (jus et consuetudo diutius approbata); the use of the land and the custom of its courts; the custom of the land; the customs of the country, just and reason- able, manifest and notorious (consuetudines patrie juste et rationabiles, manifeste vel notorie).84

81 L. Delisle, ed., Les enquetes administratives du regne de Saint Louis (Paris, 1904), pp. 1-73, nos. 49, 76, 92, 95, 124, 157, 163, 207, 219, 239, 253, 266, 274, 275, 317, 355, 384, 395; Delaborde, Actes de Philippe Auguste, 2:384-385.

82EnquRtes administratives d'Alfonse de Poitiers, p. 99b (nos. 29, 30). 83 Ibid, pp. 63 (no. 5), 115b (no. 58), 137 (no. 12), 139 (no. 22), 214 (no. 4). 84 Ibid., pp. 70 (no. 90), 304, 349 (no. 494), and the index; cf. Les Olim, 2:56.




Yet it seemed to Alfonse's council, considering a petition of the barons of Agen that justice should be done there according to the custom of Agen and not the jus scriptum of civil or canon law, that customs could often be doubtful and uncertain.85 They needed to be written down, and in the course of the thirteenth century they were written down, in the great coutumiers of Normandy first of all and then those of Vermandois, the Orleannais, Touraine, Anjou, and the Beauvaisis.86 In the latter half of the century, the nobility appeared in the new role of champions before the king of these provincial customs. The Norman bishops complained in 1258 of the infringement by royal bailiffs of the quittances and franchises of their men and demanded justice "according to the ancient general custom of Nor- mandy."87 In 1315, leagues of nobles in the various provinces of France extracted charters from Louis X confirming their own privileges in respect of jurisdiction (including the right to have prisons)88 and personal justice (they were not to be imprisoned on mere suspicion or condemned on confessions made under torture unless they afterwards persevered in them).89 But in Normandy, Amiens, and Vermandois, in particular, "all the common people" (tout le commun peuple) were included in the grants, and the king's "loyal subjects" generally were confirmed in the "good usages" and "ancient customs ' or "'general custom" of their pays, such as they had been governed by in the time of "Monseigneur Saint Loys."90

In England too, liberty and custom were being detached from, even opposed to, lordship. The tenth article of the inquest of 1274-1275, which produced the mass of returns known as the Hundred Rolls, concerned "liberties which obstruct common justice." The noble franchise was seen to conflict with the "custom of England," a concept which had appeared just before the end of the twelfth century.91 Lords were bound to do justice according to the customs of their manors;92 and the men of a town or a private hundred might complain to the king or parliament against the imposition of new customs.93

Once again, however, it was the extinction of lordships which compelled the recognition of franchises as customary rights inhering in the communities of tenants. The wars which began with Edward I's invasion of Scotland in 1296 forced some lords to choose between their English and Scottish lands, just as others had been forced early in the century to choose

85 Enqu0tes administratives dAllfonse de Poitiers, p. 349 (nos. 493, 494, 497). 86J. H. Shennan, The Parlement of Paris (London, 1968), p. 51. 87 Les Olim, 2:59-63. 88 Artonne, Le mouvement de 1314, p. 184 (articles 1 and 18 of Berri). 89 For other references to arbitrary imprisonment by officials, see ibid. pp. 165, 173, 182. 90 Ibid., pp. 167, 169, 173, 174, 175, 176, 179, 181, 182. 91 English Historical Documents, 3:393; Latham, Revised Medieval Latin Word-List, s.v. consuetudo. 92 CRR, 15:nos. 235, 908, 1098. Cf. c. 6 of the German Constitutio infavorem principum of 1231,

by which the princes were to exercise their liberties and jurisdiction secundum terrae sue consuetudinem approbatam: Constitutiones et acta publica imperatorum et regum, MGH LL 4,2:419.

93 CRR, 4:no. 61; RP, 1:4; Fraser, Ancient Petitions Relating to Northumberland, p. 109. The special customs of ancient demesne villeins are a frequent source of dispute.




between English and Norman lands. The Scottish kings' liberty of Tynedale and the Balliol family possessions in England were confiscated. Tynedale saw six different lords come and go in the next forty years. In such circum- stances it was "the commons of the Franchise of Tynedale . .. on the point of being destroyed for lack of right" who had to take thought for the execution of jurisdiction in the lordship.94

For a time, the lordship of the king of Scots was in abeyance in his own land, and Edward I adjudicated on the liberties and customs of the Scots. At his spring parliament of 1305, 136 petitions from Scotland were enrolled.95 The petitions from great abbeys like Sweetheart, Dundrennan, and Melrose, asking for confirmation of the feoffments and liberties they had received from the kings of Scots and special protections for their lands and men, were greeted with suspicion. As to the confirmations, the abbeys were told to submit their charters for examination first, and as to the protections, that the king "took all religious men under his protection" automatically.96 But where there was no possibility of prejudice to his own rights, the king conceded to the Scots "the customs used in those parts." Indeed, he maintained his powerlessne,ss to interfere with the common law of Scotland, when an abbot complained of the disadvantage he had been at in litigation through the burning of all his charters in the war.97 The warden of Scotland was ordered to take action "for the utility of the people" when the community of Gallo- way complained of a strange and hurtful law never used in the time of King Alexander but introduced since by the great lords of the land; the grievance seems to have been the use of baronial serjeants of the peace as in the western and northern counties of England.98 The English burgesses of Roxburgh did not get the confirmation they asked for of the charters granted them by Scottish kings, but a remedy was ordered for the burgesses of Scotland as a whole, when they asked to be preserved in the liberties and laws which they had used in the time of King David, in particular freedom from tallages and customs at Roxburgh and Berwick.99 From such claims to specific liberties grew the general ideal of that "liberty, which no good man gives up but with his life," which the Scots in 1320 maintained they were fighting for against the king of England.100

In the case of Wales there was the same appeal to the king for confirmation of the usages which had been enjoyed under, and by grant of, the Welsh princes before the conquest of 1282-1283. Even a group of

94 J. A. Tuck, "Northumbrian Society in the Fourteenth Century," Northern History 3 (1968); Fraser, Ancient Petitions, pp. 127-128.

95 Maitland, Memoranda de parliamento (see note 64). 96 Ibid., nos. 280, 282, 283, 285, 303, 346, 391, 394. 97 Ibid., nos. 307, 373, 384, 390. 98 Ibid., no. 276. 99 Ibid., nos. 319, 333, 383. 100 The Declaration of Arbroath, Engliss'l Historical Documents, 3:542. What is remarkable here

is the use of "liberty" in the singular, which suggests a new generality and abstraction in the concept.




bondmen are found petitioning for the restoration of a mill; for "in all Wales there have been no people of so free a condition as they were in the time of the Princes and all say thus."101 A petition from the commonalty of North Wales that they be allowed to buy and sell their lands according to the law and custom of England, since the gentlemen of the country were being reduced to beggary by partible inheritance, received a reply like that given to the Scottish abbot: the king did not feel himself advised to do away with the ancient custom of Wales.102 The lawyers of the Plantagenet princes of Wales took the line that since all franchises were delegations of royal power, they had all lapsed with the extinction of the Welsh princes. But many exceptions were made to this rule, because the new princes themselves wished to emphasize the continuity of regimes, and a variety of other arguments were used to whittle away the franchises claimed. Thus it was held that the boroughs of Snowdonia could not have the freedom to charge 4d. for the release of each prisoner from their gaols since this was against a natural "common right"; and that the bishop of Bangor and his free tenants could not have been granted the freedom to buy and sell cows, horses, and other goods anywhere within the episcopal domains, since (the lawyers mistakenly argued) such freedom was historically "common right" in Gwynedd.103 Cer- tain freedoms of every man were being derived from reason and history and explicitly opposed to the privileged liberty granted to a few. Willful lordship (volountrif seigneurie) such as it was alleged Hugh Despenser exercised in Glamorgan was now condemned as the destroyer of the rights, laws, and customs of a community "used from all time in antiquity."'104

Still, the main conclusion of this paper must be that, in England and France at least, political liberty was first of all a quality of lordship. Liberty was privilege for centuries before it became right, privilege attached to and exercised in the favored lord's land, so that "liberty" could refer to the land as well as to the freedom. This peculiarly medieval liberty contributed three essential qualities to the idea of political freedom.

Firstly, the territorial lord's power of independent action within his liberty gave the idea of freedom political force. This power was really Hobbes's "natural liberty," for him the only liberty properly so-called - a practical fact which medieval kings were simply recognizing in their charters.105

Secondly, the rights passed on to the communities of tenants in rural and

101 William Rees, ed., Calendar of Ancient Petitions Relating to Wales (Cardiff, 1975), p. 241 (no. 7145). Cf. p. 261 (no. 7785), and Maitland, Memoranda de Parliamento, no. 400, for a comparable petition of "the husbandmen of the king of Scotland." For other petitions for liberties held under the Welsh princes, see Rees, Calendar of Ancient Petitions, pp. 82-83, 114-15, 339-40, 452.

102 Rees, Calendar of Ancient Petitions, pp. 28 (no. 187), 99 (no. 3179), 282-85 (no. 8348). 103 G. A. Usher, "English Administration in Wales as Seen in the Black Prince's Quo Warranto

of 1348," Welsh History Review 7 (1974-75). 104 Rees, Calendar of Ancient Petitions, p. 279 (no. 8242). 105 Cam, Law-Finders and Law-Makers, pp. 26-27. This natural liberty was best exemplified by

the lords of the Welsh march: see Davies, Lordship and Society in the March of Wales, chapter 10.




(particularly) urban liberties gave content to the idea of individual liberty, which may be defined as the bundle of separate privileges appropriate to a man's sphere of life: for instance, a merchant's burgage tenure, freedom of passage, and freedom from impleading outside his borough. These liberties were more negative than the free action of territorial lords, but they were open to a far larger group of people. The idea of mere freedom for the man without noble blood, tenuous even in Beaumanoir's treatise, slowly acquired content. Freedom of passage granted to burgesses joined with protection from arbitrary imprisonment by officials conferred by thirteenth-century developments in law, to make up "individual civil liberty." Individual political liberty in a modern sense was added quite naturally as boroughs were given the right of sending representatives to parliament, for as Chief Justice Holt said in 1704, the "noble Franchise and Right" of voting in a borough election, which entitled "the subject in a Share of the Government and Legislature," was "a real Right, annexed to the Tenure in Burgage." 106

Thirdly, the curbing of the territorial power of the magnates by monarchy in the thirteenth century in the name of the liberty of communities gave the concept of freedom emotional force, and created the politics of freedom. Barons like John de Warenne with .his rusty sword were no less sincerely attached to their sort of liberty than the people of Bridport, who complained in 1283 that they could not maintain their franchises because of the wrongs done them by the rich men of the country, were attached to theirs.107 But the often violently asserted privileges of the magnates could not be accom- modated by the newly ambitious monarchies and urban communes, and their "willful lordship" (as the men of Glamorgan called it) was declared incompatible with the customary rights of the community at large. From the fall of the Roman republic till the thirteenth century there was nothing which could be described as a political ideology. The great political issue which was then discerned was not (and given the prestige which kingship derived from both Christian and pagan Germanic tradition, could not have been) the old Roman conflict between respublica and regnum (kingly rule). It was rather the opposition between the liberties of the whole community and the licence of the magnates, which has a claim to be regarded as a major element in the European political tradition from the Florentine legislation against the magnates in the 1290s to the French revolutionaries' attack on the clergy and nobility "qui ecrasent le peuple par leurs immunites, leurs franchises, leurs privileges."108

But it is the oldest factor of all in the history of liberty, territorial immu-

106 W. C. Costin and J. Steven Watson, eds., The Law and Working of the Constitution: Documents 1660-1914 (London, 1952), 1:278.

107 Richardson and Sayles, Rotuli Parliamentorum hactenus inediti, p. 19. 108 G. Pampaloni, "I magnati a Firenze alla fine del Dugento," Archivio Storico Italiano 129

(1971); Nicholas Ruault, Gazette d'un Parisien sous la Revolution, ed. A. Vassal et C. Rimbaud (Paris, 1976), p. 83.




nity, which provides the quality to hold together the various facets of freedom in a single abstract idea - inviolability; the inviolability not now of the great estate, but of the individual citizen in his proper sphere of life.

UNIVERSITY OF EDINBURGH



Political Liberty in the Middle Ages

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