number and activities of serjeants of the peace, seignorial peace-officers
peculiar to the western and northern counties of England who were
maintained at the cost of the inhabitants, was a common concession
wrung from magnates.^137 The lords or bailiffs of boroughs, the attorney
of the chancellor and masters of the university of Oxford, or the warden
of the stannary, might claim a franchise when individuals from their
liberties were brought into foreign courts, but often it was an individual
‘of the liberty’ who objected that he was not bound to answer.^138
A claim to the ‘franchise’ of having a private gallows to hang thieves
on one’s land might go to a grand assize,^139 but the lords’ growing use
of actions of trespass contra libertates suas(not ‘real’ but ‘personal’
actions) against those who impeded or took tolls from merchants
coming to their markets emphasizes that liberties were now being
attached to people rather than to land.^140 The prior of Tynemouth
objected to being made to answer in the Westminster parliament of
1290 for the creation of a port at North Shields by a writ which did not
mention his free tenement and the liberty attached to it, but it was
decided that the prior’s acts constituted injuries to the king and his
burgesses of Newcastle, this ancient dispute turning on personal
liberties, not property rights.^141 Nevertheless, Chief Justice Holt stated
in 1704 that the ‘noble Franchise and Right’ of voting in an election of
parliamentary burgesses, which entitled ‘the subject in a Share of the
Government and Legislature’ was a ‘real Right, annexed to the Tenure
in Burgage’. The origin of political liberty in property-holding was still
understood.^142
The growth of personal, largely bourgeois, freedom appears in the
proceedings of French parlements. In the court of Alphonse of Poitiers
the burgesses of Millau and the syndics of a corporation (universitas) of
knights and goodmen as well as individuals are found complaining of
bailiffs who infringe their franquesia seu libertasof free passage by land
218 Legal Ordering of ‘the State of the Realm’
1966), 128; RPi. 20–1; Early Registers of Writs, 13 (37a), 201–2; Milsom, ‘Trespass’, 422–5;
Curia Regis Rolls, xi. 415–16 (no. 2055); xv. 214–15 (no. 1005); Bracton’s Notebook, nos.
16, 145, 1720; Select Cases in the Exchequer of Pleas, ed. H. Jenkinson and B. Fermoy, Selden
Soc. 48 (London, 1932), nos. 76, 114b.
(^137) R. Stewart-Brown, The Serjeants of the Peace in Medieval England and Wales
(Manchester, 1936), appx. 3, esp. no. 9.
(^138) Curia Regis Rolls,xv. 119 (no. 565); Select Cases of Procedure without Writ, 36, 41,
81, 94, 116; Select Cases in the Court of King’s Bench, i. 169–72, ii. 35–6, iii. 156–7, 159 etc.
(^139) Curia Regis Rolls, iv. 318.
(^140) Milsom, ‘Trespass’, 422–4.
(^141) RP, i. 26–9.
(^142) Holt’s Reports, quoted in The Law and Working of the Constitution, i. 1660–1783, ed.
W. C. Costin and J. S. Watson (London, 1952), 278.