The ecclesiastical courts dealt, until the time of Henry VIII,

with family matters such as marriage, annulments, marriage

portions, legitimacy, undue wife-beating, child abuse, orphans,

bigamy, adultery, incest, fornication, personal possessions,

defamation, slander which did not cause material loss (and

therefore had no remedy in the temporal courts), libel, perjury,

usury, mortuaries, sacrilege, blasphemy, heresy, tithe payments,

church fees, certain offences on consecrated ground, and breaches

of promises under oath, e.g. to pay a debt, provide services, or

deliver goods. They decided inheritance and will issues which did

not concern land, but only personal property. This developed from

the practice of a priest usually hearing a dying person's will as

to the disposition of his goods and chattel when he made his last

confession. It provided guardianship of infants during probate of

their personal property. Trial was basically by compurgation, with

oath-helpers swearing to or against the veracity of the alleged

offender's oath. An alleged offender could be required to answer

questions under oath, thus giving evidence against himself. The

ecclesiastical court's penalties were intended to reform and

determined on a case-by-case basis. The canon law of Christendom

was followed, without much change by the English church or nation.

Penalties could include confession and public repentance of the

sin before the parish, making apologies and reparation to persons

affected, public embarrassment such as being dunked in water (e.g.

for women scolds), walking a route barefoot and clad only in one's

underwear, whippings, extra work, fines, and imprisonment in a

"penitentiary" to do penance. The ultimate punishment was

excommunication with social ostracism. Then no one could give the

person drink, food, or shelter and he could speak only to his

spouse and servants. Excommunication included denial of the

sacraments of baptism, penance, mass, and extreme unction [prayers

for spiritual healing] at death; which were necessary for

salvation of the soul; and the sacrament of confirmation of one's

belief in the tenets of Christianity. A person could also be

denied a Christian burial in consecrated ground. However, the

person could still marry and make a will. The king's court could

order a recalcitrant excommunicant imprisoned until he satisfied

the claims of the church. Excommunication was usually imposed for

failure to obey an order or showing contempt of the law or of the

courts. It required a hearing and a written reason. If this

measure failed, it was possible to turn the offender over to the

state for punishment, e.g. for blasphemy or heresy. Blasphemy

[speaking ill of God] was thought to cause God's wrath expressed

in famine, pestilence, and earthquake and was usually punished by

a fine or corporal punishment, e.g. perforation or amputation of

the tongue. It was tacitly understood that the punishment for

heresy was death by burning. There were no heresy cases up to 1400

and few after that. The state usually assured itself the sentence

was just before imposing it. The court of the rural dean was the

ecclesiastical parallel of the hundred court of secular

jurisdiction and usually had the same land boundaries. The

archdeacons, who had been ministers of the bishop in all parts of

his diocese alike, were now each assigned to one district, which

usually had the same boundaries as the county. Henry acknowledged

occasional appellate authority of the pope, but expected his

clergy to elect bishops of his choice.

There was a separate judicial system for the laws of the forest.

There were itinerant justices of the forests and four verderers of

each forest county, who were elected by the votes of the full

county court, twelve knights appointed to keep vert [everything

bearing green leaves] and venison, and foresters of the king and

of the lords who had lands within the limits of the forests. Every

three years, the officers visited the forests in preparation for

the courts of the forest held by the itinerant justices. The

inferior courts were the wood-mote, held every forty days, and the

swein [freeman or freeholder within the forest]-mote, held three

times yearly before the verderers as justices, in which all who

were obliged to attend as suitors of the county court to serve on

juries and inquests were to be present.

- - - Chapter 6 - - -

- The Times: 1154-1215 -

King Henry II and Queen Eleanor, who was twelve years older, were

both intelligent, educated, energetic, well-traveled, and

experienced in affairs of state. Henry was the first Norman king

to be fully literate and he learned Latin. He had many books and

maintained a school. Eleanor often served as regent during Henry's

reign and the reigns of their two sons: Richard I, the Lion-

Hearted, and John. She herself headed armies. Henry II was a

modest, courteous, and patient man with an astonishing memory and

strong personality. He was indifferent to rank and impatient of

pomp to the point of being careless about his appearance. He

usually dressed in riding clothes and was often unkempt. He was

thrifty, but generous to the poor. He was an outstanding

legislator and administrator.

Henry II took the same coronation oath as Edward the Confessor

regarding the church, laws, and justice. Not only did he confirm

the charter of his grandfather Henry I, but he revived and

augmented the laws and institutions of his grandfather and

developed them to a new perfection. Almost all legal and fiscal

institutions appear in their first effective form during his

reign. For instance, he institutionalized the assize for a

specific function in judicial proceedings, whereas before it had

been an ad hoc body used for various purposes. The term "assize"

here means the sitting of a court or council. It came to denote

the decisions, enactments, or instructions made at such.

Henry's government practiced a strict economy and he never

exploited the growing wealth of the nation. He abhorred bloodshed

and the sacrifice of men's lives. So he strove diligently to keep

the peace, when possible by gifts of money, but otherwise with

armed force. Robbers were hanged and any man who raped a woman was

castrated. Foreign merchants with precious goods could journey

safely through the land from fair to fair. These fairs were

usually held in the early fall, after sheep-shearing and

harvesting. Foreign merchants bought wool cloth and hides.

Frankpledge was revived, now applying to the unfree and villeins.

No stranger could stay overnight (except for one night in a

borough), unless sureties were given for his good behavior. A list

of such strangers was to be given to itinerant justices.

Henry had character and the foresight to build up a centralized

system of government that would survive him. He learned about the

counties' and villages' varying laws and customs. Then, using the

model of Roman law, he gave to English institutions that unity and

system which in their casual patch-work development had been

lacking. Henry's government and courts forged permanent direct

links between the king and his subjects which cut through the

feudal structure of lords and vassals.

He developed the methods and structure of government so that there

was a great increase in the scope of administrative activity

without a concurrent increase of personal power of the officials

who discharged it. The government was self-regulating, with

methods of accounting and control which meant that no official,

however exalted, could entirely escape the surveillance of his

colleagues and the King. At the same time, administrative and

judicial procedures were perfected so that much which had

previously required the King's personal attention was reduced to

routine.

The royal household translated the royal will into action. In the

early 1100s, there had been very little machinery of central

government that was not closely associated with the royal

household. There was a Chief Justiciar for legal matters and a

Treasurer. Royal government was largely built upon what had once

been purely domestic offices. Kings had called upon their

chaplains to pen letters for them. By Henry II's reign, the

Chancery was a highly efficient writing office through which the

King's will was expressed in a flow of writs, and the Chancellor

an important and highly rewarded official, but he was still

responsible for organizing the services in the royal chapel.

Similarly, the chamberlains ran the household's financial

departments. They arranged to have money brought in from a

convenient castle treasury, collected money from sheriffs or the

King's debtors, arranged loans with the usurers, and supervised

the spending of it. It was spent for daily domestic needs, the

King's alms-giving, and the mounting of a military campaign. But

they were still responsible for personal attendance upon the king

in his privy chamber, taking care of his valuable furs, jewels,

and documents, and changing his bedlinens. There were four other

departments of the household. The steward presided over the hall

and kitchens and was responsible for supplying the household and

guests with food supplies. The butler had duties in the hall and

cellars and was responsible for the supply of wine and ale. The

marshall arranged lodgings for the King's court as it moved about

from palaces to hunting lodges, arranged the pay of the household

servants, and supervised the work of ushers, watchmen, fire

tenders, messengers and huntsmen. The constable organized the

bodyguard and escorts, arranged for the supply of castles, and

mustered the royal army. The offices of steward, constable,

chamberlain, butler were becoming confined to the household and

hereditary. The Justiciar, Chancellor, and Treasurer are becoming

purely state offices and are simply sold or rented, until public

pressure resulted in a requirement of ability.

Henry's council included all his tenants-in-chief, which included

archbishops, bishops, abbots, priors, earls, barons, knights and

socage tenants of the crown, whether they made payments directly

to him or through a sheriff. The higher ones were served with a

writ addressed to them personally. Knights and below were summoned

by a general writ to the sheriff.

Henry brought order and unity by making the King's Royal Court the

common court of the land. Its purpose was to guard the King's

peace by protecting all people of free status throughout the

nation and correct the disparity in punishments given by local

courts. Heretofore, the scope of the King's peace had varied to

cover as little as the King's presence, his land, and his highway.

The royal demesne had shrunk to about 5% of the land. The Common

Law for all the nation was established by example of the King's

Royal Court. Henry erected a basic, rational framework for legal

processes which drew from tradition but lent itself to continuous

expansion and adaptation.

A system of writs originated well-defined actions in the royal

courts. Each court writ had to satisfy specific conditions for

this court to have jurisdiction over an action or event. This

system determined the Royal Court's jurisdiction over the church,

lords, and sheriffs. It limited the jurisdiction of all other

courts and subordinated them to the Royal Court. Inquests into any

misdeeds of sheriffs were held, which could result in their

dismissal.

Henry and Eleanor spoke many languages and liked discussing law,

philosophy, and history. So they gathered wise and learned men

about them, who became known as courtiers, rather than people of

social rank. They lived in the great and strong Tower of London,

which had been extended beyond the original White Tower, as had

other castles, so that the whole castle and grounds were defended

instead of just the main building. The Tower of London was in the

custody of one of the two justiciars. On the west were two

strongly fortified castles surrounded by a high and deeply

entrenched wall, which had seven double gates. Towers were spaced

along the north wall and the Thames River flowed below the south

wall. To the west was the city, where royal friends had residences

with adjoining gardens near the royal palace at Westminster. The

court was a center of culture as well as of government. The game

of backgammon was played. People wore belts with buckles, usually

brass, instead of knotting their belts.

London extended about a mile along the Thames and about half a

mile inland. It had narrow twisting lanes, some with a ditch down

the middle for water runoff. Most of its houses were two stories,

the ground floor having booths and workshops, and the upper floor

living space. Most of the houses were wooden structures. The

richer merchants' and knights' houses were built of stone. Walls

between houses had to be stone to a height of 16 feet and thatched

roofs were banned because there had been many fires. There was

poor compliance, but some roofs were tiled with red-brick tiles.

The population was about 40,000. There were over 126 churches for

public worship, thirteen monasteries (including nunneries), and

St. Paul's Cathedral. All were built of stone. The churches gave a

place of worship for every 300 inhabitants and celebrated feast

days, gave alms and hospitality to strangers, confirmed betrothals

or agreements of marriage, celebrated weddings, conducted

funerals, and buried the dead. The synod of Westminster of 1175

prescribed that all marriages were to be performed by the church.

Church law required a warning prior to suspension or

excommunication. Monastic, cathedral, and parish schools taught

young boys grammar so they could sing and read in church services.

Nuns taught girls. Fish but no meat was eaten on Fridays. There

was dark rye bread and expensive white wheat bread. Vegetables

included onions, leeks, and cabbage. Fruits included apples,

pears, plums, cherries, and strawberries. Water was obtained from

streams running through the town to the Thames and from springs.

Only the rich, palaces, and churches could afford beeswax candles;

others had home-made tallow [cow or sheep fat] candles which

smelled and gave off smoke. Most people washed their bodies. Even

the poor had beds and bed clothes. Few babies survived childhood.

If a man reached 30, he could expect to live until age 50.

Thousands of Londoners died during a hot summer from fevers,

plague and the like.

In London, bells heralded the start and finish of all organized

business. The sellers of merchandise and hirers of labor were

distributed every morning into their several localities according

to their trade. Vendors, craftsmen, and laborers had their

customary places. Some vendors walked the streets announcing their

wares for sale. There were craft guilds of bakers, butchers,

clothworkers, and saddlers, as well as of weavers. Vendors on the

Thames River bank sold cooked fish caught from the river and wine

from ships and wine cellars. Cook shops sold roasted meats covered

with hotly spiced sauces.

London Bridge was built of stone for the first time. It was

supported by a series of stone arches standing on small man-made

islands. It had such a width that a row of wood houses and a

chapel was built on top of it. In the spring it was impassable by

ships because the flow of water under it varied in height on

either side of the bridge by several feet at half tide. The bridge

had the effect of slowing down the flow upstream, which invited

wherries and rowboats and stately barges of the nobility. In

winters in which it froze over, there was ice skating, ice

boating, and fishing through holes in the ice.

Outside each city gate were clusters of ragged buildings, small

monasteries and hostelries, groups of huntsmen's kennels, and

fencing schools. Outside one of the gates, a horse market was held

every week. Horses wore horseshoes made of iron or of a crude

steel. From the southwest gate of the city along the north river

bank toward Westminster, there was a gradually extending line of

rich men's mansions and bishops' palaces. On the southern bank of

the Thames River was growing the disorderly suburb of Southwark,

with fishermen's and boatmens' hovels, and taverns and brothels

that were frequented by drunkards, rakes, and whores. On the north

side of the city was a great forest with fields and wells where

students and other young men from the city took walks in the fresh

evening air. In some fields, countryfolk sold pigs, cows, oxen and

sheep. Mill wheels turned at various streams. Near London in the

country was a glass factory. At sunset, the gates of London were

closed for the night. All taverns had to be closed, all lights put

out, and all fires banked or covered when the bell of the church

of St. Martin le Grand rang at 9:00 pm. Anyone found on the

streets after this curfew could be arrested. Gangs of young nobles

or gangs of thieves, cutpurses, and looters roamed the streets

after dark and sometimes rioted. Offenders were often beheaded and

their heads placed on spikes on London Bridge.

Men in London had begun weaving cloth, which formerly had been

done by women. Some of the cloth was exported. The weavers guild

of London received a charter by the King in 1155, the first

granted to any London craft: "Know that I have conceded to the

Weavers of London to hold their guild in London with all the

liberties and customs which they had in the time of King Henry

[I], my grandfather; and that none may intermeddle with the craft

within the city, nor in Southwark, nor in other places pertaining

to London except through them and except he be in their guild,

otherwise than was accustomed to be done in the time of King

Henry, my grandfather ...So that each year they render thence to

me two marks [26s.8d.] of gold at the feast of St. Michael. And I

forbid that any shall do injury or contumely to them on this

account under penalty of 10 pounds [200s.]. Witness T[homas],

Chancellor, and Warinus, son of Gerard, Chamberlain, at

Winchester." The liberties obtained were: 1) The weavers may elect

bailiffs to supervise the work of the craft, to punish defaulters,

and to collect the ferm [amount owed to the King]. The bailiffs

were chosen from year to year and swore before the mayor of London

to do and keep their office well and truly. 2) The bailiffs may

hold court from week to week on pleas of debt, agreements,

covenants [promises for certain performance], and minor

trespasses. 3) If any of the guild members are sued in any other

court on any of the above pleas, the guild may challenge that plea

to bring it to the guild court. 4) If any member is behind in his

share of the payment to the King, the bailiffs may distrain his

loom until he has paid this.

Paying an annual payment freed the weavers from liability to

inconsequent royal fines. Failure to make this payment promptly

might have led to loss of the right, hence the rigorous penalty of

distraint upon the looms of individual weavers who fell into

arrears.

The weavers' guild punished members who used bad thread in their

weaving or did defective weaving by showing the default to the

mayor, with opportunity for the workman to make entreaty, and the

mayor and twelve members of the guild then made a verdict of

amercement of 1/2 mark [6s.8d.] and the workman of the cloth was

also punished by the guild bailiffs according to guild custom.

The weavers' guild tradition of brotherliness among members meant

that injury to a fellow weaver incurred a severe penalty. If a

weaver stole or eloigned [removed them to a distance where they

were unreachable] any other weaver's goods falsely and

maliciously, then he was dismissed from the guild and his loom was

taken by the guild to fulfill his portion of the annual payment to

the King. The weavers were allowed to buy and to sell in London

freely and quietly. They had all the rights of other freemen of

the city.

Thus from the middle of the 1100s, the weavers enjoyed the

monopoly of their craft, rights of supervision which ensured a

high standard of workmanship, power to punish infractions of their

privileges, and full control of their members. In this they stand

as the prototype of English medieval guilds. These rights

represented the standard which all bodies of craftsmen desired to

attain. The right of independent jurisdiction was exceptional.

In Henry II's charter to London, London did not retain its right

to appoint its own sheriff and justice given by Henry I. London's

chief magistrate was the mayor, who was appointed by the King,

until 1191. Then the mayor was elected yearly by the aldermen of

the city wards and approved by the king. He was typically a rich

prince chosen by the barons and chief merchants of London. The

commoners had no voice in his selection, but they could still

approve or disapprove of the actions of the city government at

ward and folk motes. At certain periods, a king asserted royal

power over the selection of mayor and governance of the city.

There were three ways to become a citizen of London: being the son

of a citizen, apprenticeship in a craft for seven years, and

purchase of citizenship. London and Westminster growth led to

their replacing Winchester as the capital.

St. Barthomew infirmary was established in London for the care of

sick pilgrims traveling to the shrine of Becket in Canterbury. It

had been inspired by a monk who saw a vision of St. Barthomew

telling him to build a church and an infirmary.

Trading was facilitated by the stabilization of the amount of

silver metallic content of the English coinage, which was called

"sterling" [strong] silver. The compass, a magnetic lodestone

[leading stone] needle mounted on a cork and floated in a bowl of

water, assisted the navigation of ships. With it, one could tell

the general direction of a ship when the skies were cloudy as well

as clear. And one could generally track one's route by using the

direction and speed of travel to calculate one's new position.

London became a major trading center for foreign goods from many

lands.

About 5% of the knights were literate. Wealthy men sent their sons

to school in monasteries to prepare them for a livelihood in a

profession or in trade or to the town of Oxford, whose individual

scholars had migrated from Paris and had attracted disciples for a

long time. These schools grew up around St. Mary's Church, but had

not been started by the church as there was no cathedral school in

Oxford. Oxford had started as a burh and had a royal residence and

many tradesmen. It was given its basic charter in 1155 by the

King. This confirmed to it all the customs, laws and liberties

[rights] as those enjoyed by London. It became a model charter for

other towns.

Bachelors at Oxford studied the arts of grammar, rhetoric, and

logic, and then music, arithmetic, geometry, and astronomy, until

they mastered their discipline and therefore were authorized to

teach it. Teaching would then provide an income sufficient to

support a wife. The master of arts was analogous to the master

craftsman of a guild. From 1190, the civil law was studied, and

shortly thereafter, canon law. Later came the study of medicine.

The use of paper supplemented the use of parchment for writing.

Irregular edged paper was made from linen, cotton, straw, and/or

wood beaten to a pulp and then spread out over a wire mesh to dry.

Theologicians taught that the universe was made for the sake and

service of man, so man was placed at the center of the universe.

Man was made for the sake and service of God.

Every freeman holding land of a lord gave homage and fealty to

him, swearing to bear him faith of the tenement held and to

preserve his earthly honor in all things, saving the faith owed to

the king. Homage was done for lands, for free tenements, for

services, and for rents precisely fixed in money or in kind.

Homage could be done to any free person, male or female, adult or

minor, cleric or layman. A man could do several homages to

different lords for different fees, but there had to be a chief

homage to that lord of whom he held his chief tenement. Homage was

not due for dower, from the husband of a woman to whom a tenement

was given as a marriage portion, for a fee given in free alms, or

until the third heir, either for free mariatagium [a marriage

portion which is given with a daughter in marriage, that is not

bound to service] or for the fee of younger sisters holding of the

eldest. All fiefs to be inherited by the eldest son had to be

intact. Every lord could exact fealty from his servants.

In this era, the English national race and character was formed.

Only a few barons still had lands in Normandy. Stories of good

King Arthur were popular and set ideals for behavior and justice

in an otherwise barbaric age where force was supreme. His last

battle in which he lay wounded and told a kinsman to rule in his

place and uphold his laws was written in poem ("Layamon's Brut").

Romantic stories were written and read in English. The custom of

"bundling" was started by ladies with their knights, who would lie

together in bed without undressing and with one in a sack the top

of which was tied around his neck, as part of a romantic

courtship. Wealthy men often gave their daughters dowries in case

they were widowed. This might be matched by a marriage settlement

by a prospective husband.

Intermarriage had destroyed any distinction of Normans by look or

speech alone, except for the Anglo-Saxon manor villeins, who

worked the farm land and composed about two-thirds of the

population. Villeins were bound to the land and could, on flight,

be brought back to it. They could not give homage, but could give

fealty. A villein had the equipment to farm, fish, make cheese,

keep poultry, brew beer, hedge, and cut wood. Although the

villeins could not buy their freedom or be freed by their lord,

they became less numerous because of the preference of landholders

for tenants motivated to perform work by potential loss of tenure.

Also, the Crown's protection of all its subjects in criminal

matters blurred the distinction between free and unfree men.

Our Legal Heritage : 600-1776 King Aethelbert - King George III · 第 10 / 66 段