priest so that any impediment could be made known. If a marriage was
clandestine or both parties knew of an impediment, or it was within the
prohibited degrees of consanguinity, the children would be illegitimate.
According to church rules, a man could bequeath his personal property
subject to certain family rights. These were that if only the wife
survived, she received half the property. Similarly, if children
survived, but no wife, they received half the property. When the wife
and children survived, each party received one third. The church hoped
that the remaining fraction would go to the church as a reward for
praying for the deceased's soul. It taught that dying without a will was
sinful. Adults were to confess their sins at least yearly to their
parish priest, which confession would be confidential.
Henry de Bracton, a royal justice and the last great ecclesiastical
attorney, wrote an unfinished treatise: A Tract on the Laws and Customs
of England, systematizing and organizing the law of the court rolls with
definitions and general concepts and describing court practice and
procedure. It was influenced by his knowledge of Roman legal concepts,
such as res judicata, and by his own opinions, such as that the law
should go from precedent to precedent. He also argued that the will and
intent to injure was the essence of murder, so that neither an infant
nor a madman should be held liable for such and that degrees of
punishment should vary with the level of moral guilt in a killing. He
thought the deodand to be unreasonable.
Bracton defines the requirements of a valid and effective gift as: "It
must be complete and absolute, free and uncoerced, extorted neither by
fear nor through force. Let money or service play no part, lest it fall
into the category of purchase and sale, for if money is involved there
will then be a sale, and if service, the remuneration for it. If a gift
is to be valid the donor must be of full age, for if a minor makes a
gift it will be ineffective since (if he so wishes) it shall be returned
to him in its entirety when he reaches full age. Also let the donor hold
in his own name and not another's, otherwise his gift may be revoked.
And let him, at the least, be of sound mind and good memory, though an
invalid, ill and on his death bed, for a gift make under such conditions
will be good if all the other [requirements] of a valid gift are met.
For no one, provided he is of good memory, ought to be kept from the
administration or disposition of his own property when affected by
infirmity, since it is only then that he must make provision for his
family, his household and relations, given stipends and settle his
bequests; otherwise such persons might suffer damage without fault. But
since charters are sometimes fraudulently drawn and gifts falsely taken
to be made when they are not, recourse must therefore be had to the
country and the neighborhood so that the truth may be declared."
In Bracton's view, a villein could buy his own freedom and the child of
a mixed marriage was free unless he was born in the tenement of his
villein parent.
- Judicial Procedure -
The Royal Court split up into several courts with different specialties
and became more like departments of state than offices of the King's
household. The justices were career civil servants knowledgeable in the
civil and canon law. The Court of the King's Bench (a marble slab in
Westminster upon which the throne was placed) traveled with the king and
heard criminal cases and pleas of the Crown. Any use of force, however
trivial, was interpreted as breach of the royal peace and could be
brought before the king's bench. Its records were the coram rege rolls.
The title of the Chief Justiciar of England changed to the Chief Justice
of England. The Court of Common Pleas heard civil cases brought by one
subject against another. Pursuant to the Magna Carta, it sat only at one
place, the Great Hall in Westminster. It had concurrent jurisdiction
with the King's Bench over trespass cases. Its records were the de banco
rolls. The Court of the Exchequer with its subsidiary department of the
Treasury was in almost permanent session at Westminster, collecting the
Crown's revenue and enforcing the Crown's rights.
Appeals from these courts could be made to the king and/or his small
council, which was the curia regis and could hear any plea of the land.
In 1234, the justiciar as the principal royal executive officers and
chief presiding officer over the curia regis ended. In 1268, a chief
justiciar was appointed the hold pleas before the king. Henceforth, a
justiciar was a royal officer who dealt only with judicial work. About
the same time the presiding justice of the court of common pleas also
came to be styled justiciar or chief justice. Justices were no longer
statesmen or politicians, but simply men learned in the law.
Membership in or attendance at the great council or parliament no
longer rested upon feudal tenure, but upon a writ of summons which was,
to a degree, dependent on the royal will.
Crown pleas included issues of the King's property, fines due to him,
murder (a body found with no witnesses to a killing), homicide (a
killing for which there were witnesses), rape, wounding, mayhem,
consorting, larceny, robbery, burglary, arson, poaching, unjust
imprisonment, selling cloth by nonstandard widths, selling wine by
nonstandard weights. Crown causes were pled by the king's serjeants or
servants at law, who were not clerics. Apprentices at law learned
pleading from them.
Between the proprietary action and the possessory assizes there is
growing use in the king's courts of writs of entry, by which a tenant
may be ordered to give up land, e.g. by a recent flaw in a tenant's
title, for a term which has expired, by a widow for her late husband's
land, or by an heir who has become of full age from his guardian. For
instance: " ...Command Tertius that ... he render to Claimant, who is of
full age, as it is said, ten acres ...which he claims to be his right
and inheritance and into which the said Tertius has no entry save by
Secundus, to whom Primus demised [gaged] them, who had only the wardship
thereof while the aforesaid Claimant was under age, as he says...". But
most litigation about land is still through the writ of right for
proprietary issues and the assizes of novel disseisin and mort
d'ancestor for possessory issues.
Royal itinerant justices traveled to the counties every seven years.
There, they gave interrogatories to local assizes of twelve men to
determine what had happened there since the last eyre. All boroughs had
to send twelve burgesses who were to indict any burgesses suspected of
breaking the royal law. Every crime, every invasion of royal rights, and
every neglect of police duties was to be presented and tried. Suspects
were held in gaol until their cases could be heard and gaol breaks were
common. Punishment after trial was prison for serious crimes, expulsion
from the realm for less serious crimes, and pledges for good behavior
for lesser crimes. The visitation of these justices was anticipated with
trepidation. In 1237, the residents of Cornwall hid in the woods rather
than face the itinerant justices.
Royal coroners held inquests on all sudden deaths to determine whether
they were accidental or not. If not, royal justices held trial. They
also had duties in treasure trove and shipwreck cases.
Justices of assize, Justices of the Peace, and itinerant justices
operated at the county level. The traditional county courts had lost
much jurisdiction to the royal courts and were now limited to personal
actions in causes involving usually no more than 40s. There were pleas
of trespass and debt, unjust seizure and detention of beasts, rent
collection, claims of fugitive villeins and their goods, nuisances, and
encroachments. The sheriff still constitutes and conducts the court. The
county court met every three or four weeks, usually in the sheriff's
castle located in the chief borough of the county, but some met in the
open air.
Twice a year the sheriff visited each hundred in the county to hold a
turn [court for small offenses, such as encroachment of public land,
brewing and baking contrary to government regulations, and use of
dishonest weights and measures.]. Everyone who held freehold land in the
hundred except the greater magnates had to attend or be fined for
absence. The sheriff annually viewed frankpledge, in which every layman
without land that could be forfeited for felony, including villeins,
were checked for being in a tithing, a group of neighbors responsible
for each other's good conduct. This applied to every boy who had reached
the age of twelve. He had to swear on the Bible "I will be a lawful man
and bear loyalty to our lord the King and his heirs, and I will be
justiciable to my chief tithing man, so help me God and the saints."
Each tithing man paid a penny to the sheriff.
The hundred court decided cases of theft, viewing of boundaries of
land, claims for tenurial services, claims for homage, relief, and for
wardship; enfeoffments made, battery and brawls not amounting to felony,
wounding and maiming of beasts, collection of debts, trespass, detinue
[detention of personal property which originally was rightfully
acquired] and covenant, which now requires a sealed writing; defamation,
and inquiries and presentments arising from the assizes of bread and ale
and measures. A paid bailiff had responsibility for the hundred court,
which met every three weeks.
Still in existence is the old self-help law of hamsocne, the thief
hand-habbende, the thief back-berend, the old summary procedure where
the thief is caught in the act, AEthelstan's laws, Edward the
Confessor's laws, and Kent's childwyte [fine for begetting a bastard on
a lord's female bond slave]. Under the name of "actio furti" [appeal of
larceny] is the old process by which a thief can be pursued and goods
vindicated. As before and for centuries later, deodands were forfeited
to the king to appease God's wrath. These chattel which caused the death
of a person were usually carts, cart teams, horses, boats, or
millwheels. Then they were forfeited to the community, which paid the
king their worth. Sometimes the justices named the charitable purpose
for which the deodand was to be spent, such as the price of a boat to go
to the repair of a bridge.
Five cases are:
CASE: "John Croc was drowned from his horse and cart in the water of
Bickney. Judgment: misadventure. The price of the horse and cart is
4s.6d. deodand."
CASE: "Willam Ruffus was crushed to death by a certain trunk. The price
of the trunk is 4d., for which the sheriff is to answer. 4d. deodand."
CASE: "William le Hauck killed Edric le Poter and fled, so he is to be
exacted and outlawed. He was in the tithing of Reynold Horloc in Clandon
of the abbot of Chertsey (West Clandon), so it is in mercy. His chattels
were 4 s., for which the bailiff of the abbot of Chertsey is to answer."
CASE: "Richard de Bregsells, accused of larceny, comes and denies the
whole and puts himself on the country for good or ill. The twelve jurors
and four vills say that he is not guilty, so he is quit."
CASE: William le Wimpler and William Vintner sold wine contrary to the
statute, so they are in mercy.
Other cases dealt with issues of entry, e.g. whether land was conveyed
or just rented; issues of whether a man was free, for which his lineage
was examined; issues of to which lord a villein belonged; issues of
nuisance such as making or destroying a bank, ditch, or hedge; diverting
a watercourse or damming it to make a pool; obstructing a road, and
issues of what grazing rights were conveyed in pasture land, waste,
woods, or arable fields between harvest and sowing. Grazing right
disputes usually arose from the ambiguous language in the grant of land
"with appurtenances".
Courts awarded specific relief as well as money damages. If a landlord
broke his covenant to lease land for a term of years, the court restored
possession to the lessee. If a lord did not perform the services due to
his superior lord, the court ordered him to perform the services. The
courts also ordered repair by a lessee.
Debts of country knights and freeholders were heard in the local
courts; debts of merchants and burgesses were heard in the courts of the
fairs and boroughs; debts due under wills and testaments were heard in
the ecclesiastical courts. The ecclesiastical courts deemed marriage to
legitimize bastard children whose parents married, so they inherited
personal property and money of their parents. Proof was by compurgation.
Church law required excommunication to be in writing with the reasons
therefore, and a copy given to the excommunicant. A church judge was
required to employ a notary or two men to write down all acts of the
judge and to give a copy to the parties to protect against unjust
judges. No cleric was allowed to pronounce or execute a sentence of
death or to take part in judicial tests or ordeals. Anyone knowingly
accepting a stolen article was required to restore it to its owner.
Heretics were to be excommunicated.
Trial by combat is still available, although it is extremely rare for
it to take place.
The manor court imposed penalties on those who did not perform their
services to the manor and the lord wrote down the customs of the manor
for future use in other courts.
By statute, no fines could be taken of any man for fair pleading in the
Circuit of Justiciars, county, hundred, or manor courts.
Various statutes relaxed the requirements for attendance at court of
those who were not involved in a case as long as there were enough to
make the inquests fully. And "every freeman who owes suit to the county,
tything, hundred, and wapentake, or to the Court of his Lord, may freely
make his attorney attend for him." All above the rank of knight were
exempted from attendance on the sheriff's turn, unless specifically
summoned. Prelates and barons were generally excepted from the county
courts by the charters of their estates. Charters of boroughs often
excepted their representatives at the county court when there were no
justices. Some barons and knights paid the sheriff to be excused. The
king often relieved the simple knights by special license. There was
frequently a problem of not having enough knights to hold the assizes.
Henry III excused the attendance at hundred courts of all but those who
were bound to special service, or who were concerned in suits.
Trespass has become a writ of course in the common law. It still
involves violence, but its element of breach of the peace extends to
those breaches which do not amount to felony. It can include assault and
battery, physical force to land, and physical force to chattels, e.g.
assaulting and beating the plaintiff, breaking into his close, or
carrying off his goods. One found guilty is fined and imprisoned. As in
criminal matters, if a defendant does not appear at court, his body can
be seized and imprisoned, and if he cannot be found, he may be outlawed.
Trespass to goods results in damages, rather than the return of the
goods, for goods carried off from the plaintiff's possession and can be
brought by bailees.
In Chancery, the court of the Chancellor, if there is a case with no
remedy specified in the law, that is similar to a situation for which
there is a writ, then a new writ may be made for that case. (By this
will later be expanded the action of trespass called "trespass on the
case".)
Various cases from the manors of the abbey of Bec in 1248-1249 are:
1. Ragenilda of Bec gives 2s. for having married without licence.
Pledge, William of Pinner. The same Ragenilda demands against Roger Loft
and Juliana his wife a certain messuage which belonged to Robert le
Beck, and a jury of twelve lawful men is granted her in consideration
of the said fine, and if she recovers seisin she will give in all 5s.
And twelve jurors are elected, to wit, John of Hulle, William Maureward,
Robert Hale Walter But, Walter Sigar, William Brihtwin, Richard
Horseman, Richard Leofred, William John's son, Hugh Cross, Richard
Pontfret and Robert Croyser, John Bisuthe and Gilbert Bisuthe who are
sworn. And they say that the said Ragenilda has the greater right.
Therefore let her have seisin.
2. Richard Guest gives 12d. and if he recovers will give 2s. to have a
jury of twelve lawful men as to whether he has the greater right in a
certain headland at Eastcot which Ragenilda widow of William Andrews
holds, or the said Ragenilda. Pledges for the fine, John Brook and
Richard of Pinner. And the said Ragenilda comes and says that she has no
power to bring that land into judgment because she has no right in it
save by reason of the wardship of the son and heir of her husband, who
is under age. And Richard is not able to deny this. Therefore let him
await [the heir's] full age.
3. Walter Hulle gives 13s.4d. for licence to dwell on the land of the
Prior of Harmondsworth so long as he shall live and as a condition finds
pledges, to wit, William Slipper, John Bisuthe, Gilbert Bisuthe, Hugh
Tree, William John's son, John Hulle, who undertake that the said Walter
shall do to the lord all the services and customs which he would do if
he dwelt on the lord's land and that his heriot shall be secured to the
lord in case he dies there [i.e. at Harmondsworth].
4. Geoffrey Sweyn demands the moiety of one virgate of land which John
Crisp and Alina Hele hold, and he gives 2s. to have a jury, and if he
recovers will give 20s. And the said jurors come and say upon their oath
that the said Geoffrey has no right in the said land. Therefore let the
said tenants go thence without day and let the said Geoffrey pay 2s.
Pledges, Hugh Bussel and Godfrey Francis.
5. Juliana Saer's daughter demands as her right the moiety of one
messuage with a croft, which messuage William Snell and Goda his wife,
sister of the said Juliana hold. And they have made accord by leave [of
the court] to the effect that the said William and Goda give to the said
Juliana a barn and the curtilage nearest the Green and two selions [a
ridge of land between two furrows] in the western part of the said croft
[a small enclosed field]. And the said William put himself in mercy.
Fine, 12d.
6. Hugh of Stanbridge complains of Gilbert Vicar's son and William of
Stanbridge that the wife of the said Gilbert who is of [Gilbert's]
mainpast and the said William unjustly etc. beat and unlawfully struck
him and dragged him by his hair out of his own proper house, to his
damage 40s. and to his dishonor 20s., and [of this] he produces suit.
And Gilbert and William come and defend all of it fully. Therefore let
each of them go to his law six-handed. Afterwards they make accord to
this effect that in case the said Hugh shall hereafter in any manner
offend against [Gilbert and William] and thereof shall be convicted he
will give the lord 6s.8d. by way of penalty and will make amends to
[Gilbert and William] according to the judgment of six lawful men, and
the others on their part will do the like by him. And Hugh put himself
in mercy. Fine, 3s. Pledges, John Tailor and Walter Brother.
7. Breakers of the assize [of beer:] William Idle (fined 6d.), maud
carter's widow (6d.), Walter Carter.
8. John Witriche in mercy for carrying off thorns. Fine, 6d.
9. Robert Dochi in mercy (fine, 2d.) for divers trespasses. Pledges,
Gilbert Priest's son, Ralph Winbold and Walter Green.
10. Ailwin Crisp in mercy for his cow caught in the lord's pasture when
ward had been made. Fine, 12d.
11. John Bernard in mercy for his beasts caught by night in the lord's
meadow. Fine, 2s.
12. Richard Love gives 12d. to have a jury of twelve touching a rod of
land which Robert of Brockhole and Juliana his wife hold. This action is
respited to the next court [when the jurors are to come] without further
delay. Afterwards the jurors come and say upon their oath that the said
Richard has the greater right in the said land. Therefore let him have
seisin.
13. William Blackbeard in mercy for not coming with his law as he was
bound to do. Pledges, Geoffrey of Wick and Geoffrey Payn. Fine, 6d.
14. It was presented that Stephen Shepherd by night struck his sister
with a knife and grievously wounded her. Therefore let him be committed
to prison. Afterwards he made fine with 2s. Pledge, Geoffrey of wick.
15. It was presented that Robert Carter's son by night invaded the house
of Peter Burgess and in felony threw stones at his door so that the said
Peter raised the hue.Therefore let the said Robert be committed to
prison. Afterwards he made fine with 2s.
16. Nicholas Drye, Henry le Notte (fine, 12d.) and Thomas Hogue (fine,
12d.) were convicted for that they by night invaded the house of Sir
Thomas the Chaplain and forcibly expelled thence a man and woman who had
been taken in there as guests. Therefore they are in mercy. Pledges of
the said Thomas, richard of Lortemere and Jordan of Paris. Pledges of
the said Henry, Richard Pen...and Richard Butry.
17. Adam Moses gives half a sextary of wine to have an inquest as to
whether Henry Ayulf accused him of the crime of larceny and used
opprobrious and contumelious words of him. Afterwards they made accord
and Henry finds security for an amercement. Fine, 12d.
18. Isabella Sywards in mercy for having sold to Richard Bodenham land
that she could not warrant him.
19. All the ploughmen of great Ogbourne are convicted by the oath of
twelve men....because by reason of their default [the land] of the lord
was ill ploughed whereby the lord is damaged to the amount of 9s.... And
Walter Reaper is in mercy for concealing [i.e. not giving information as
to] the said bad ploughing. Afterwards he made fine with the lord with 1
mark.
20. From Ralph Joce 6s.8d. for his son, because he [the son] unlawfully
carried off grain from the lord's court. Pledge,Geoffrey Joce.
21. From Henry Pink 12d. for a trespass by waylaying.
22. From Eve Corner 6d. for a trespass of her pigs.
23. From Ralph Scales 6d. for timber carried off.
24. From William Cooper 12d. for ploughing his own land with the lord's
plough without licence.
25. From Hugh Newman 12d. for trespass in the wood.
26. From Richard Penant 12d. for the same.
27. From Helen widow of Little Ogbourne 6d. for the same.
28. From Nicholas Siward 6d. for a false complaint against William
Pafey.
29. From William Pafey 12d. for fighting with the said Nicholas.
30. From the widow of Ralph Shepherd 6d. for a trespass in Pencombe.
31. Richard Blund gives a half-mark and if he recovers will give two
marks and a half to have a jury of the whole court, to inquire whether
he has the greater right in a virgate of land which Hugh Frith holds in
wardship with Cristiana daughter of Simon White, or the said Cristiana.
Pledges for the fine, Richard Dene, William Hulle, John of Senholt, Hugh
Smith, and William Ketelburn. And the whole court say upon their oath
that the said Richard has greater right in the said land than anyone
else. Therefore let him recover his seisin.
32 ....Miller gives 2d. [the Latin translates as 4s.] for a trespass
against the assize of beer and because the lord's grain has been ill
kept at the mill. Pledges, John Orped and Joce Serjeant.
33. Noah gives 2s. in the same way for an inquest as to one acre.
Afterwards they submit themselves to arbitrators, who adjudge that the
said Robert shall pay 3s. to the said Roger and 6s. to the said Gilbert
and 7s. to the said Noah, and that he will do so [Robert] finds pledges.
34. Ralph Bar in mercy for having beaten one of the lord's men. Pledges,
Herbert Rede and Ralph Brunild.
35. For the common fine of the township, a half-mark.
36. John Boneffiant found pledges, to wit, William Smith and William of
Bledlow, that he will not eloign himself from the lord's land and that
he will be prompt to obey the lord's summons.
- - - Chapter 8 - - -
- The Times: 1272-1348 -