jurisdiction. Borough courts tended to deal with more laws than other
local courts because of the borough's denser populations, which were
composed of merchants, manufacturers, and traders, as well as those
engaged in agriculture. Only borough courts have jurisdiction over
fairs. In some boroughs the villein who resides for a year and a day
becomes free. There are special ordinances relating to apprentices.
There are sometimes ordinances against enticing away servants bound by
agreement to serve another. The wife who is a trader is regarded in many
places as a feme sole [single woman rather than a feme covert
[woman-covert], who was under the protection of a husband]. There may be
special ordinances as to the liability of masters for the acts of their
apprentices and agents, or as to brokers, debt, or earnest money binding
a bargain. The criminal and police jurisdiction in the borough was
organized upon the same model as in the country at large, and was
controlled by the King's courts upon similar principles, though there
are some survivals of old rules, such as mention of the bot and the wer.
The crimes committed are similar to those of the country, such as
violence, breaches of the assize of bread and beer, stirring up suits
before the ecclesiastical courts, digging up or obstructing the highway,
not being enrolled in a tithing, encroachments upon or obstructions of
rights of common. The most striking difference with the country at large
are the ordinances on the repair or demolition of buildings,
encroachments on another's building, fires, and nuisances. Specimens of
other characteristic urban disputes are: selling bad food, using bad
materials, unskillful or careless workmanship, fraudulent weights and
measures, fraud in buying and selling, forestalling or regrating [buying
in one market to resell in another market], acting in a way likely to
endanger the liberties of the borough, usury, trading without being a
citizen, assisting other unlicensed persons to trade, unlawfully forming
a guild, complaints against various guilds in which trade might be
organized. Since the ordinances were always liable to be called in
question before the King's courts, they tended to become uniform and in
harmony with the principles of the common law. Also, trading between
boroughs kept them knowledgeable about each other's customs and
conditions for trade, which then tended to standardize. Boroughs often
had seals to prove communal consent and tended to act as a corporate
body.
Borough ordinances often include arson such as this one: "And if a
street be set on fire by any one, his body shall be attached and cast
into the midst of the fire." Robbery by the miller was specially treated
by an ordinance that "And if the miller be attainted [found guilty] of
robbery of the grain or of the flour to the amount of 4d., he shall be
hanged from the beam in his mill."
In London, an ordinance prescribed for bakers for the first offense of
making false bread a forfeiture of that bread. For the second offense
was prescribed imprisonment, and for the third offense placement in the
pillory. A London ordinance for millers who caused bread to be false
prescribed for them to be carried in a tumbrel cart through certain
streets, exposed to the derision of the people.
By statute, no one may make a gift or alienation of land to the church.
An attempt to do so will cause the land to escheat to the lord, or in
his default, to the King. Religious houses may not alienate land given
to them by the king or other patrons because such gifts were for the
sake of someone's soul. An attempt to do so will cause the land to
revert to the donor or his heir. If the church did not say the prayers
or do the other actions for which land was given to it, the land will
revert to the donor or his heir. Land may not be alienated to religious
bodies in such a way that it would cease to render its due service to
the King. (The church never died, never married, and never had
children.) The church shall send no money out of the nation. (This
statute of mortmain was neutralized by collusive lawsuits in which the
intended grantor would sue the intended grantee claiming superior title
and then would default, surrendering the land to the intended grantee by
court judgment.)
"Concerning wrecks of the sea, where a man, a dog, or a cat escape
alive out of the ship, that such ship nor barge nor anything within them
shall be deemed wreck, but the goods shall be saved and kept by view of
the Sheriff, Coroner, or the King's Bailiff". If anyone proves the goods
were his within a year and a day, they shall be restored to him without
delay. Otherwise, they shall be kept by the King. "And where wreck
belongs to one other than the King, he shall have it in like manner". If
he does otherwise, he shall be imprisoned and pay damages and fine.
Some statutes applied only to Kent County, which had a unique position
between London and the continent. Money flowed between England and the
continent through Kent. So Kent never developed a manorial system of
land holding, but evolved from a system of clans and independent
villages directly into a commercial system.
In Kent, all men are free and may give or sell their lands without
permission of their lords, as before the Conquest.
One could sell or give away his land without the consent of one's lord.
The services of the land, however, could only be sold to the chief lord.
Inheritance of land was to all sons by equal portions, and if there were
no sons, then to all daughters in equal portions. The eldest brother has
his choice of portion, then the next oldest, etc. The goods of a
deceased person were divided into three parts after his funeral expenses
and debts were paid. One third went to the surviving spouse. One third
went to the deceased's sons and daughters. One third could be disposed
by will of the decedent. If there were no children, one half went to the
spouse and one half went according to will. If an heir was under 15
years old, his next of kin to whom inheritance could not descend was to
be his guardian. A wife who remarried or bore a child lost her dower
land. A husband lost his dower if he remarried. If a tenant withheld
rent or services, his lord could seek award of court to find distress on
his tenement and if he could find none, he could take the tenement for a
year and a day in his hands without manuring it. It the tenant paid up
in this time, he got the tenement back. If he didn't within a year and a
day, however, the lord could manure the land. A felon forfeited his life
and his goods, but not his lands or tenements. A wife of a felon had the
dower of one half or her husband's lands and tenements.
The common law recognized the tort of false imprisonment if a man
arrested as a felon, a person who was not a felon.
- Judicial Procedure -
The writ of Quo Warranto [by what right] is created, by which all
landholders exercising jurisdictions must bring their ancestors'
charters before a traveling justice for the Common Pleas for examination
and interpretation as to whether they were going beyond their charters
and infringing upon the jurisdiction of the Royal Court. As a result,
many manor courts were confined to manorial matters and could no longer
view frankpledge or hear criminal cases, which were reserved for the
royal courts. In the manor courts which retained criminal jurisdiction,
there was a reassertion of the obligation to have present a royal
coroner, whose duty it was to see that royal rights were not infringed
and that the goods of felons were given to the Crown and not kept by the
lords.
The supreme court was the king and his council in Parliament. It heard
the most important causes, important because they concern the king, or
because they concern very great men (e.g. treason), or because they
involve grave questions of public law, or because they are
unprecedented. It has large, indefinite powers and provides new remedies
for new wrongs. The office of great justiciar disappears and the
chancellor becomes the head of the council. After the council were the
royal courts of the King's Bench, Common Pleas, and the Exchequer, which
had become separate, each with its own justices and records. The Court
of Common Pleas had its own Chief Justice and usually met at
Westminster. This disadvantaged the small farmer, who would have to
travel to Westminster to present a case. The King's Council maintained a
close connection with the Court of the King's Bench, which heard
criminal cases and appeals from the Court of Common Pleas. It traveled
with the King. There were many trespass cases so heard by it in the
reign of Edward I. The King's Council did a great deal of justice, for
the more part criminal justice. It was supported by the populace because
it dealt promptly and summarily with rebellion or some scandalous
acquittal of a notorious criminal by bribed or partial jurors, and
thereby prevented anarchy. Its procedure was to send for the accused and
compel him to answer upon oath written interrogatories. Affidavits were
then sworn upon both sides. With written depositions before them, the
Lords of the council, without any jury, acquit or convict. Fines and
imprisonments were meted out to rioters, conspirators, bribers, and
perjured jurors. No loss of life or limb occurred because there had been
no jury.
In criminal cases, witnesses acquainted with particular facts were
added to the general assize of twelve men from each hundred and four men
from each town. The assize then bifurcated into the grand jury of twelve
to twenty-four men and the petty jury or jury of verdict of twelve men,
which replaced ordeal, compurgation, and trial by combat as the method
of finding the truth. The men of the petty jury as well as those of the
grand jury were expected to know or to acquaint themselves with the
facts of the cases. The men of the petty jury tended to be the same men
who were on the grand jury.
Felony included such crimes as homicide, arson, rape, robbery,
burglary, and larceny. Secret homicide was still murder. Burglary was an
offense committed in times of peace and consisted of breaking into
churches, houses, and into the walls and gates of villages and boroughs.
These six offenses could be prosecuted by indictment or private
accusation by an individual. The penalties involved loss of life or limb
or outlawry; a felon's goods were confiscated by the crown and his land
was forfeited to the crown for a year and a day, after which it
escheated to the felon's lord. The peace of the king now did not die
with the king, but renewed automatically without an interval before the
inauguration of a new king.
Notorious felons who would not consent or put themselves on inquests
for felonies with which they were charged at royal courts were put in
strong and hard imprisonment to persuade them to accept trial by assize.
This inducement progressed into being loaded with heavy chains and
placed on the ground in the worst part of the prison and being fed a
only little water one day and a little bread the next. Sometimes pieces
of iron or stones were placed one another onto their prone bodies to
persuade them to plead. This then developed into being loaded with as
much iron as could be borne, and finally into being pressed to death
["peine forte et dure"]. Many of these men chose to die by this pressing
so that their families could inherit their property, which would have
been forfeited if they had been convicted of serious crimes.
The most common cases in the Court of Common Pleas were "detinue"
[wrongful detention of a good or chattel which had been loaned, rented,
or left for safekeeping with a "bailee", but belonged to the plaintiff],
"debt" [for money due from a sale, for money loaned, for rent upon a
lease for years, from a surety, promised in a sealed document, or due to
arbitrators to whom a dispute had been submitted] and "account" [e.g.
against bailiffs of manors, a guardian in socage, and partners]. It also
heard estovers [right to use during a lease] of wood, profit by
gathering nuts, acorns, and other fruits in wood, corody [allowance of
food], yearly delivery of grain, toll, tunnage, passage, keeping of
parks, woods, forests, chases, warrens, gates, and other bailiwicks, and
offices in fee.
The itinerant justices gradually ceased to perform administrative
duties on their journeys because landed society had objected to their
intrusiveness. Edward I substituted regular visitations of justices of
assize for the irregular journeys of the itinerant justices. Each one of
four circuits had two justices of assize. From about 1299, these
justices of assize heard cases of gaol delivery. Their jurisdiction
expanded to include serious criminal cases and breach of the king's
peace.
Breaches of the forest charter laws were determined by justices of the
King's forest, parks, and chases, along with men of assize.
Coroners' inquest procedures were delineated by statute and included
describing in detail in the coroner's rolls every wound of a dead body,
how many may be culpable, and people claiming to have found treasure who
might be suspects.
The precedent for punishment for treason was established by the
conviction of a knight, David ab Gruffydd, who had turned traitor to the
Welsh enemy, after fighting with Edward and being rewarded with land,
during the conquest of Wales. He had plotted to kill the King. He was
found guilty of treason by Parliament and condemned to be dragged at the
heels of horses for being a traitor to his knightly vows, hanged by the
neck for his murders, cut down before consciousness left him to have his
entrails cut out for committing his crimes during the holy week of
Easter, and his head cut off and his body divided into four parts for
plotting against the King's life. The head was placed on the Tower of
London and his body sections were placed in public view at various other
locations in England. This came to be known as "hanging, drawing, and
quartering". Prior to this the penalty had been imprisonment, usually
followed by ransom.
Trial by combat is now limited to certain claims of enfeoffment of
large land holding and is barred for land held in socage, burgage, or by
marriage. Assize is the usual manner of trial, but compurgation remains
in the borough court long after it becomes obsolete in the royal courts.
It came to be that defendants no longer request assizes but are
automatically put to them.
Numerous statutes protect the integrity of the courts and King's
offices by double and treble damages and imprisonment for offenses such
as bribery, false informers, conspiracy to falsely move or maintain
pleas, champerty [covenant between a litigant and another for the other
to have a part or profit in the award in return for maintaining the
suit], conflict of interest by court officers taking part in a quarrel
pending in court or working any fraud whereby common right may be
delayed or disturbed. There had been many abuses, the most common of
which was extortion by sheriffs, who gaoled people without cause to make
them pay to be released. The 1275 prohibition of maintenance of a
quarrel of a party in court by a nonparty was extended in 1327 to all
persons, including the king's councilors and ministers, and great men,
e.g. by sending letters. In 1346, this prohibition specifically included
prelates, earls, barons taking in hand quarrels other than their own, or
maintaining them for gift, promise, amity, favor, doubt, or fear, in
disturbance of law and hindrance of right. The reason given was that
there had been persons disinherited, delayed or disturbed in their
rights, and not guilty persons convicted or otherwise oppressed. All
great men were required to put out of their service all maintainers who
had been retained, and void their fees and robes, without giving them
aid, favor, or comfort. This law was not obeyed.
The king reserved to himself and his council in its judicial capacity
the correction of all breaches of the law which the lower courts had
failed to remedy, whether from weakness, partiality, corruption, or jury
timidity, and especially when the powerful barons defied the courts. The
Chancery also sought to address causes which were impeded in their
regular course, which often involved assaults, batteries, and forcible
dispossessions.
Disputes within the royal household were administered by the King's
steward. He received and determined complaints about acts or breaches of
the peace within twelve miles around the King's person or "verge". He
was assisted by the marshall in the "court of the hall" and by the clerk
of the market when imposing fines for trading regulation violations in
the "court of the market".
Ecclesiastical courts were successful in their competition with the
secular courts for jurisdiction over testamentary matters [concerning
wills] and succession [no will] to chattels.
There were local courts of the vill, borough, manor, hundred, county,
sheriff, escheator, and royal bailiff, with overlapping jurisdictions.
The county court in its full session, that is, as it attended the
itinerant justices on their visitation, contained the archbishops,
bishops, priors, earls, barons, knights, and freeholders, and from each
township four men and the reeve, and from each borough twelve burgesses.
It was still the folkmote, the general assembly of the people. In 1293,
suitors who could not spend 40s. a year within their county were not
required to attend their county court.
The most common plea in the hundred court was trespass. It also heard
issues concerning services arising out of land, detention of chattels,
small debts, wounding or maiming of animals, and personal assaults and
brawls not amounting to felony. It met every three weeks. The sheriff
held his turn twice a year and viewed frankpledge once a year.
When Edward I came to the throne, over half of the approximately 600
hundred courts had gone under the jurisdiction of a private lord owing
to royal charter, prescriptive right, and usurpation. The sheriff's
powers in these hundreds varied. In some, the sheriff had no right of
entry.
In the manor courts, actions of debt, detinue, and covenant were
frequent. Sometimes there are questions of a breach of warranty of title
in agreements of sale of land. Accusations of defamation were frequent;
this offense could not be taken to the King's court, but it had been
recognized as an offense in the Anglo-Saxon laws. In some cases, the
damages caused are specifically stated. For instance, defamation of a
lord's grain would cause other purchasers to forbear buying it. There
are frequent cases of ordinary thefts, trespasses, and assaults. The
courts did rough but substantial justice without distinction between
concepts such as tort and contract. In fact, the action of covenant was
the only form of agreement enforceable at common law. It required a
writing under seal and awarded damages. Manor court law was not
technical, but elastic, and remedies could include injunctions, salary
attachment, and performance of acts. The steward holding the manor court
was often a lawyer.
Some pleas in the manors of the abbey of Bec were:
1. Hugh le Pee in mercy (fine, 12d.) for concealing a sheep for half a
year. Pledges, Simon of Newmere, John of Senholt
2. William Ketelburn in mercy (fine, 13s.4d.) for divers trespasses.
Pledge, Henry Ketelburn.
3. Hugh Derwin for pasture, 6d. Richard Hulle for divers trespasses,
12d. Henry Stanhard for pasture, 6d.
4. William Derwin for a trespass, 6d.; pledge, William Sperling.
5. Hugh Hall gives the lord 12d. that he may have the judgment of the
court as to a tenement and two acres of land, which he demands as of
right, so he says. And it being asserted that the said land is not
free[hold] let the court say its say. And the court says that the
tenement and one of the two acres are of servile condition and that the
other acre is of free condition. The case is reserved for the lord's
presence. Pledge, John Brian.
6. John Palmer is put in seisin of his father's tenement and gives the
lord 53s.4d. as entry money.
7. William Ketelburn gives the lord 6s.8d. that he may be removed from
the office of reeve. Pledge, Robert Serjeant.
8. William Frith for subtraction of work, 6d. John Reginald for the
same, 6d. John of Senholt, 12d. William Ketelburn, 12d.
9. For the common fine to be paid on S. Andrew's day, 100s.
10. It is presented by the chief pledges that Godfrey Serjeant has made
default; also that John le Pee has unlawfully thrown up a bank;
therefore let it be set to rights.
11. Robert Smith is put in seisin of his father's tenement and gives the
lord four pounds for entry money. Pledge, Robert Serjeant.
12. William Ketelburn for a trespass, 13s.4d.
13. William Fleming gives four pounds for leave to contract [marriage]
with widow Susan. Pledge, Richard Serjeant.
14. John Mabely gives the lord 3s. to have the judgment of twelve men as
to certain land whereof Noah deforces him; pledges, Richard Smith, Ralph
Bernard. The said jurors say that Noah the Fat has right; therefore
etc.
15. Agnes Stampelove gives the lord 2s. for leave to come and go in the
vill but to dwell outside the lord's land. Pledge, Richard Smith.
16. Godfrey Tailor the younger for a trespass, 2s.
17. Whereas Godfrey Tailor the younger has demanded against Noah a
farthing land, now the action is compromised in manner following:
Godfrey for himself and his heirs remises to the said Noah and his heirs
all right and claim which he has or can have in the said farthing land
by reason of the gift made by his grandfather John Tailor.
18. Agnes Mabely is put in seisin of a farthing land which her mother
held, and gives the lord 33s.4d. for entry money. Pledges, Noah, William
Askil.
19. The full court declares that in case any woman shall have altogether
quitted the lord's domain and shall marry a freeman, she may return and
recover whatever right and claim she has in any land; but if she shall
be joined to a serf, then she cannot do this during the serf's lifetime,
but after his death she may. t
20. William Alice's son is put in seisin of a bakehouse in the King's
Street, and shall keep up the house at his own cost and gives 12d. for
entry money, and 10s. annual rent payable at three terms, viz. 3s.4d. at
Martinmas, 3s.4d. at Lady Day, 3s.4d. at Christmas. Pledges, Adam Clerk,
John Deboneir.
20. John son of Alma demands a cottage which Henry Fleming holds and
gives the lord 12d. for the oath and recognition of 12 men; pledge,
Richard Jordan. The jurors say that Henry Fleming has the better right.
21. Baldwin Cobbler's son finds [as pledges] Walter Cobbler, Roger of
Broadwater, Robert Linene, William Frances, that notwithstanding his
stay in London he will always make suit with his tithing and will at no
time claim any liberty contrary to the lord's will and will come to the
lord whenever the lord wills.
22. Simon Patrick gives the lord 12d. to have the judgment of the court
as to a cottage of which the widow of Geoffrey Dogers deforces him;
pledge, Simon of Strode. The said jurors say that the said Simon has
the better right. And the said Simon remises and quitclaims all his
right to his sister Maud and her husband John Horin, [who] gives the
lord 10s. for entry money; pledges, Simon Patrick, John Talk.
23. Hugh Wiking for not making suit at the lord's mill, 12d.
24. It was presented that William Derwin and John Derwin (fine, 12d.)
committed a trespass against Agnes Dene, and the cry was raised,
therefore etc.
25. Hugh Churchyard contracted [marriage] without the lord's leave;
[fine] 12d.
26. Let Juliana Forester be distrained for her default, also William
Moor.
27. John Kulbel in mercy (fine, 12d.) for not producing Gregory Miller,
and he is commanded to produce him at the next court.
28. Hugh Andrew's son gives the lord 4s. for leave to marry; pledge,
Robert Serjeant.
29. Juliana Forester gives the lord 12d. in order that for the future no
occasion may be taken against her for neglect of suit of court.
30. John Franklain is put in seisin of his father's tenement and gives
the lord 20s. for entry; pledge, Robert Serjeant.
31. Henry Cross gives the lord 4s. for license to marry; pledge, Robert
Serjeant.
32. Isabella Warin gives the lord 4s. for leave to give her daughter
Mary in marriage; pledge, John Serjeant.
33. It is presented by the whole township that Ralph le War has
disseised the lord of a moiety of a hedge, whereas it had often been
adjudged by award of the court that the said hedge belongs as to one
moiety to the lord and as to the other to Ralph, and the said Ralph
claims and takes to his use the whole to the lord's damage etc. Also
they say that the said Ralph holds Overcolkescroft, which land by right
is the lord's.
34. It is presented by unanimous verdict of the whole court that if
anyone marries a woman who has right in any land according to the custom
of the manor and is seised thereof by the will of the lord, and the said
woman surrenders her right and her seisin into the hands of the lord and
her husband receives that right and seisin from the hands of the lord,
in such case the heirs of the woman are for ever barred from the said
land and the said right remains to the husband and his heirs. Therefore
let William Wood, whose case falls under this rule, hold his land in
manner aforesaid. And for the making of this inquest the said William
gives the lord 6s.8d.
35. The tenements of Lucy Mill are to be seized into the lord's hands
because of the adultery which she has committed and the bailiff is to
answer for them.