knights, esquires and gentlemen who were closely associated with
the magnates. There was no salary nor any requirement of knowledge
of the law. They were to pursue, restrain, arrest, imprison, try,
and duly punish felons, trespassers, and rioters according to the
law. They were expected to arrest vagrants who would not work and
imprison them until sureties for good behavior was found for them.
They also were empowered to inspect weights and measures. Trespass
included forcible offenses of breaking of a fence enclosing
private property, assault and battery, false imprisonment, and
taking away goods and chattels.
The action of trespass was replacing private suits for murder and
for personal injury.
Pardons may be given only for slaying another in one's own defense
or by misfortune [accident], and not for slaying by lying in wait,
assault, or malice aforethought.
Justices of Assize, sheriffs, and Justices of the Peace and mayors
shall have power to inquire of all vagabonds and compel them to
find surety of their good bearing or be imprisoned.
A reversioner shall be received in court to defend his right when
a tenant for a term of life, tenant in dower, or by the Law of
England, or in Tail after Possibility of Issue extinct are sued in
court for the land, so as to prevent collusion by the demandants.
A person in debt may not avoid his creditors by giving his
tenements or chattels to his friends in collusion to have the
profits at their will.
Where there was a garnishment given touching a plea of land, a
writ of deceit is also maintainable.
Actions of debt will be heard only in the county where the
contract was made. The action of debt includes enforcement of
contracts executed or under seal, e.g. rent due on a lease, hire
of an archer, contract of sale or repair of an item. Thus there is
a growing connection between the actions of debt and contract.
Executors have an action for trespass to their testators' goods
and chattels in like manner as did the testator when alive.
If a man dies intestate, his goods shall be administered by his
next and most lawful friends appointed. Such administrators shall
have the same powers and duties as executors and be accountable as
are executors to the ecclesiastical court.
Children born to English parents in parts beyond the sea may
inherit from their ancestors in the same manner as those born in
the nation.
A person grieved by a false oath in a town court proceeding may
appeal to the King's Bench or Common Pleas, regardless of any town
franchise.
The Court of the King's Bench worked independently of the King. It
was exceptional to find the king sitting on his bench. It became
confined to the established common law.
Decisions of the common law courts are appealable to the House of
Lords. The king's council members who are not peers, in particular
the justices and the Masters of the Chancery, are summoned by the
House of Lords only as mere assistants. Parliament can change the
common law by statute. The right of a peer to be tried for capital
crimes by a court composed of his peers was established. There is
a widespread belief that all the peers are by right the king's
councilors.
No attorney may practice law and also be a justice of assize. No
justice may take any gift except from the king nor give counsel to
any litigant before him.
In 1390, there was another statute against maintainers,
instigators, barretors, procurers, and embracers of quarrels and
inquests because of great and outrageous oppressions of parties in
court. Because this encouraged maintenance by the retinue of lords
with fees, robes, and other liveries, such maintainers were to be
put out of their lords' service, and could not be retained by
another lord. No one was to give livery to anyone else, except
household members and those retained for life for peace or for
war. Justices of the Peace were authorized to inquire about
yeomen, or other of lower estate than squire, bearing livery of
any lord.
Whereas it is contained in the Magna Carta that none shall be
imprisoned nor put out of his freehold, nor of his franchises nor
free custom, unless it be by the law of the land; it is
established that from henceforth none shall be taken by petition
or suggestion made to the king unless by indictment of good and
lawful people of the same neighborhood where such deeds be done,
in due manner, or by process made by writ original at the common
law; nor that none be out of his franchise, nor of his freeholds,
unless he be duly brought into answer and before judges of the
same by the course of law.
The Chancery came to have a separate and independent equitable
jurisdiction. It heard petitions of misconduct of government
officials or of powerful oppressors, fraud, accident, abuse of
trust, wardship of infants, dower, and rent charges. Because the
common law and its procedures had become technical and rigid, the
Chancery was given equity jurisdiction by statute in 1285. King
Edward III proclaimed that petitions for remedies that the common
law didn't cover be addressed to the Chancellor, who was not bound
by established law, but could do equity. In Chancery, if there is
a case that is similar to a case for which there is a writ, but is
not in technical conformity with the requirements of the common
law for a remedy, then a new writ may be made for that case by the
Chancellor. These were called "actions on the case". Also,
Parliament may create new remedies. There were so many cases that
were similar to a case with no remedy specified in the common law,
that litigants were flowing into the Chancery. The Chancellor gave
swift and equitable relief, which was summary. With the backing of
the council, the Chancellor made decisions implementing the policy
of the Statute of Laborers. Most of these concerned occupational
competency, for instance negligent activity of carriers, builders,
shepherds, doctors, clothworkers, smiths, innkeepers, and gaolers.
For instance, the common law action of detinue could force return
of cloth bailed for fulling or sheep bailed for pasturing, but
could not address damages due to faulty work. The Chancellor
addressed issues of loss of wool, dead lambs, and damaged sheep,
as well as dead sheep. He imposed a legal duty on innkeepers to
prevent injury or damage to a patron or his goods from third
parties. A dog bite or other damage by a dog known by its owner to
be vicious was made a more serious offense than general damage by
any dog. A person starting a fire was given a duty to prevent the
fire from damaging property of others.
The king will fine instead of seize the land of his tenants who
sell or alienate their land, such fine to be determined by the
Chancellor by due process.
Only barons who were peers of the House of Lords were entitled to
trial in the House of Lords. In practice, however, this pertained
only to major crimes.
Treason was tried by the lords in Parliament, by bill of
"attainder". It was often used for political purposes. Most
attainders were reversed as a term of peace made between competing
factions.
The King's coroner and a murderer who had taken sanctuary in a
church often agreed to the penalty of confession and perpetual
banishment from the nation as follows: "Memorandum that on July 6,
[1347], Henry de Roseye abjured the realm of England before John
Bernard, the King's coroner, at the church of Tendale in the
County of Kent in form following: 'Hear this, O lord the coroner,
that I, Henry de Roseye, have stolen an ox and a cow of the widow
of John Welsshe of Retherfeld; and I have stolen eighteen beasts
from divers men in the said county. And I acknowledge that I have
feloniously killed Roger le Swan in the town of Strete in the
hundred of Strete in the rape [a division of a county] of Lewes
and that I am a felon of the lord King of England. And because I
have committed many ill deeds and thefts in his land, I abjure the
land of the Lord Edward King of England, and [I acknowledge] that
I ought to hasten to the port of Hastings, which thou hast given
me, and that I ought not to depart from the way, and if I do so I
am willing to be taken as a thief and felon of the lord King, and
that at Hastings I will diligently seek passage, and that I will
not wait there save for the flood and one ebb if I can have
passage; and if I cannot have passage within that period, I will
go up to the knees into the sea every day, endeavoring to cross;
and unless I can do so within forty days, I will return at once to
the church, as a thief and a felon of the lord King, so help me
God."
Property damage by a tenant of a London building was assessed in a
1374 case: "John Parker, butcher, was summoned to answer Clement
Spray in a plea of trespass, wherein the latter complained that
the said John, who had hired a tavern at the corner of St. Martin-
le-Grand from him for fifteen months, had committed waste and
damage therein, although by the custom of the city no tenant for a
term of years was entitled to destroy any portion of the buildings
or fixtures let to him. He alleged that the defendant had taken
down the door post of the tavern and also of the shop, the boarded
door of a partition of the tavern, a seat in the tavern, a
plastered partition wall, the stone flooring in the chamber, the
hearth of the kitchen, and the mantelpiece above it, a partition
in the kitchen, two doors and other partitions, of a total value
of 21s. four pounds, 1s. 8d., and to his damage, 400s. [20
pounds]. The defendant denied the trespass and put himself on the
country. Afterwards a jury [panel]... found the defendant guilty
of the aforesaid trespass to the plaintiff's damage, 40d. Judgment
was given for that amount and a fine of 1s. to the King, which the
defendant paid immediately in court."
The innkeeper's duty to safeguard the person and property of his
lodgers was applied in this case:
"John Trentedeus of Southwark was summoned to answer William
Latymer touching a plea why, whereas according to the law and
custom of the realm of England, innkeepers who keep a common inn
are bound to keep safely by day and by night without reduction or
loss men who are passing through the parts where such inns are and
lodging their goods within those inns, so that, by default of the
innkeepers or their servants, no damage should in any way happen
to such their guests ...
On Monday after the Feast of the Purification of the Virgin Mary
in the fourth year of the now King by default of the said John,
certain malefactors took and carried away two small portable
chests with 533s. and also with charters and writings, to wit two
writings obligatory, in the one of which is contained that a
certain Robert Bour is bound to the said William in 2,000s. and in
the other that a certain John Pusele is bound to the same William
in 800s. 40 pounds ... and with other muniments [writings
defending claims or rights] of the same William, to wit his return
of all the writs of the lord King for the counties of Somerset and
Dorset, whereof the same William was then sheriff, for the morrow
of the Purification of the Blessed Mary the Virgin in the year
aforesaid, as well before the same lord the King in his Chancery
and in his Bench as before the justices of the King's Common Bench
and his barons of his Exchequer, returnable at Westminster on the
said morrow, and likewise the rolls of the court of Cranestock for
all the courts held there from the first year of the reign of the
said lord the King until the said Monday, contained in the same
chests being lodged within the inn of the same John at Southwark
And the said John ... says that on the said Monday about the
second hour after noon the said William entered his inn to be
lodged there, and at once when he entered, the same John assigned
to the said William a certain chamber being in that inn, fitting
for his rank, with a door and a lock affixed to the same door with
sufficient nails, so that he should lie there and put and keep his
things there, and delivered to the said William the key to the
door of the said chamber, which chamber the said William
accepted...
William says that ... when the said John had delivered to him the
said chamber and key as above, the same William, being occupied
about divers businesses to be done in the city of London, went out
from the said inn into the city to expedite the said businesses
and handed over the key of the door to a certain servant of the
said William to take care of in meantime, ordering the servant to
remain in the inn meanwhile and to take care of his horses there;
and afterwards, when night was falling, the same William being in
the city and the key still in the keeping of the said servant, the
wife of the said John called unto her into her hall the said
servant who had the key, giving him food and drink with a merry
countenance and asking him divers questions and occupying him thus
for a long time, until the staple of the lock of the door
aforesaid was thrust on one side out of its right place and the
door of the chamber was thereby opened and his goods, being in the
inn of the said John, were taken and carried off by the said
malefactors ... The said John says ...[that his wife did not call
the servant into the hall, but that] when the said servant came
into the said hall and asked his wife for bread and ale and other
necessaries to be brought to the said chamber of his master, his
wife immediately and without delay delivered to the same servant
the things for which he asked ... protesting that no goods of the
same William in the said inn were carried away by the said John
his servant or any strange malefactors other than the persons of
the household of the said William."
On the Coram Rege Roll of 1395 is a case on the issue of whether a
court-crier can be seized by officers of a staple:
"Edmund Hikelyng, 'criour', sues William Baddele and wife Maud,
John Olney, and William Knyghtbrugge for assault and imprisonment
at Westminster, attacking him with a stick and imprisoning him for
one hour on Wednesday before St. Martin, 19 Richard II.
Baddele says Mark Faire of Winchester was prosecuting a bill of
debt for 18s. against Edmund and John More before William
Brampton, mayor of the staple of Westminster, and Thomas Alby and
William Askham, constables of the said staple, and on that day the
Mayor and the constables issued a writ of capias against Edmund
and John to answer Mark and be before the Mayor and the constables
at the next court. This writ was delivered to Baddele as sergeant
of the staple, and by virtue of it he took and imprisoned Edmund
in the staple. Maud and the others say they aided Baddele by
virtue of the said writ.
Edmund does not acknowledge Baddele to be sergeant of the staple
or Mark a merchant of the staple or that he was taken in the
staple. He is minister of the King's Court of his Bench and is
crier under Thomas Thorne, the chief crier, his master. Every
servant of the court is under special protection while doing his
duty or on his way to do it. On the day in question, he was at
Westminster carrying his master's staff of office before Hugh
Huls, one of the King's justices, and William took him in the
presence of the said justice and imprisoned him.
The case is adjourned for consideration from Hilary to Easter."
A law of equity began to be developed from decisions by the
Chancellor in his court of conscience from around 1370. One such
case was that of Godwyne v. Profyt sometime after 1393. This
petition was made to the Chancellor: To the most reverend Father
in God, and most gracious Lord, the bishop of Exeter, Chancellor
of England. Thomas Godwyne and Joan his wife, late wife of Peter
at More of Southwerk, most humbly beseech that, whereas at
Michaelmas in the 17th year of our most excellent lord King
Richard who now is, the said Peter at More in his lifetime
enfeoffed Thomas Profyt parson of St. George's church Southwerk,
Richard Saundre, and John Denewey, in a tenement with the
appurtenances situated in Southwerk and 24 acres of land 6 acres
of meadow in the said parish of St. George and in the parish of our
Lady of Newington, on the conditions following, to wit, that the
said three feoffees should, immediately after the death of the
said Peter, enfeoff the said Joan in all the said lands and
tenements with all their appurtenances for the life of the said
Joan, with remainder after her decease to one Nicholas at More,
brother of the said Peter, to hold to him and the heirs of his
body begotten, and for default of issue, then to be sold by four
worthy people of the said parish, and the money to be received for
the same to be given to Holy Church for his soul; whereupon the
said Peter died. And after his death two of the said feoffees,
Richard and John, by the procurement of one John Solas, released
all their estate in the said lands and tenements to the said
Thomas Profyt, on the said conditions, out of the great trust that
they had in the said Thomas Profyt, who was their confessor, that
he would perform the will of the said Peter [at More] in the form
aforesaid; and this well and lawfully to do the said Thomas Profyt
swore on his Verbum Dei and to perform the said conditions on all
points. And since the release was so made, the said Thomas Profyt,
through the scheming and false covin of the said John Solas, has
sold all the lands and tenements aforesaid to the same John Solas
for ever. And the said John Solas is bound to the said Thomas
Profyt in 100 pounds by a bond to make defence of the said lands
and tenements by the bribery (?) and maintenance against every
one; and so by their false interpretation and conspiracy the said
Joan, Nicholas, and Holy Church are like to be disinherited and
put out of their estate and right, as is abovesaid, for ever,
tortiously, against the said conditions, and contrary to the will
of the said Peter [at More]. May it please your most righteous
Lordship to command the said Thomas Profyt, Richard Saundre, and
John Denewy to come before you, and to examine them to tell the
truth of all the said matter, so that the said Joan, who has not
the wherewithal to live, may have her right in the said lands and
tenements, as by the examination before you, most gracious Lord,
shall be found and proved; for God and in way of holy charity.
- - - Chapter 10 - - -
- The Times: 1399-1485 -
This period, which begins with the reign of the usurper King,
Henry IV, is dominated by war: the last half of the 100 year war
with France, which, with the help of Joan of Arc, took all English
land on the continent except the port of Calais, and the War of
the Roses over the throne in England. The ongoing border fights
with Wales and Scotland were fought by England's feudal army. But
for fighting in France, the king paid barons and earls to raise
their own fighting forces. When they returned to England, they
fought to put their candidate on its throne, which had been
unsteady since its usurpation by Henry IV. All the great houses
kept bands of armed retainers. These retainers were given land or
pay or both as well as liveries [uniforms or badges] bearing the
family crest. In the system of "livery and maintenance", if the
retainer was harassed by the law or by enemies, the lord protected
him. The liveries became the badges of the factions engaged in the
War of the Roses. And the white rose was worn by the supporters of
the house of York, and the red rose by supporters of the house of
Lancaster for the Crown. Great lords fought each other for
property and made forcible entries usurping private property.
Shakespeare's histories deal with this era.
In both wars, the musket was used as well as the longbow. To use
it, powder was put into the barrel, then a ball rammed down the
barrel with a rod, and then the powder lit by a hot rod held with
one hand while the other hand was used to aim the musket. Cannon
were used to besiege castles and destroy their walls, so many
castles were allowed to deteriorate. The existence of cannon also
limited the usefulness of town walls for defense. But townspeople
did not take part in the fighting.
Since the power of the throne changed from one faction to another,
political and personal vindictiveness gave rise to many bills of
attainder that resulted in lords being beheaded and losing their
lands to the King. However, these were done by the form of law;
there were no secret executions in England. Families engaged in
blood feuds. Roving bands ravaged the country, plundering the
people, holding the forests, and robbing collectors of Crown
revenue. Some men made a living by fighting for others in
quarrels. Individual life and property were insecure. Whole
districts were in a permanent alarm of riot and robbery. The roads
were not safe. Nobles employed men who had returned from fighting
in war to use their fighting skill in local defense. There was
fighting between lords and gangs of ruffians holding the roads,
breaking into and seizing manor houses, and openly committing
murders.
Peace was never well-kept nor was law ever well-executed, though
fighting was suspended by agreement during the harvest. Local
administration was paralyzed by party faction or lodged in some
great lord or some clique of courtiers. The elections of members
to Parliament was interfered with and Parliament was rarely held.
Barons and earls fought their disputes in the field rather than in
the royal courts. Litigation was expensive, so men relied
increasingly on the protection of the great men of their
neighborhood and less on the King's courts for the safety of their
lives and land. Local men involved in court functions usually owed
allegiance to a lord which compromised the exercise of justice.
Men serving in an assize often lied to please their lord instead
of telling the truth. Lords maintained, supported, or promoted
litigation with money or aid supplied to one party to the
detriment of justice. It was not unusual for lords to attend court
with a great force of retainers behind them. Many justices of the
peace wore liveries of magnates and accepted money from them.
Royal justices were flouted or bribed. The King's writ was denied
or perverted. For 6-8s., a lord could have the king instruct his
sheriff to impanel a jury which would find in his favor. A statute
against riots, forcible entries, and, excepting the King,
magnates' liveries of uniform, food, and badges to their
retainers, except in war outside the nation, was passed, but was
difficult to enforce because the offenders were lords, who
dominated the Parliament and the council.
With men so often gone to fight, their wives managed the household
alone. The typical wife had maidens of equal class to whom she
taught household management, spinning, weaving, carding wool with
iron wool-combs, heckling flax, embroidery, and making garments.
There were foot-treadles for spinning wheels. She taught the
children. Each day she scheduled the activities of the household
including music, conversation, dancing, chess, reading, playing
ball, and gathering flowers. She organized picnics, rode horseback
and went hunting, hawking to get birds, and hare-ferreting. She
was nurse to all around her. If her husband died, she usually
continued in this role because most men named their wife as
executor of their will with full power to act as she thought best.
The wives of barons shared their right of immunity from arrest by
the processes of common law and to be tried by their peers.