Book: Our Legal Heritage, 4th Ed.

S >> S. A. Reilly >> Our Legal Heritage, 4th Ed.




The intellectual world included art, secular literature, law, and
medicine. There were about 90 physicians.

The center of government was a collection of tenants-in-chief,
whose feudal duty included attendance when summoned, and certain
selected household servants of the King. The Exchequer became a
separate body. The payments in kind, such as grain or manual
services, from the royal demesnes had been turned into money
payments. The great barons made their payments directly to the
Exchequer. The income from royal estates was received by the
Exchequer and then commingled with the other funds. Each payment
was indicated by notches on a stick, which was then split so that
the payer and the receiver each had a half showing the notches.
The Exchequer was the great school for training statesmen,
justices, and bishops. The Chancellor managed the domestic matters
of the Crown's castles and lands. The great offices of state were
sold for thousands of pounds, which caused their holders to be on
their best behavior for fear of losing their money by being
discharged from office. One chancellor paid Henry about 3000
pounds for the office. Henry brought sheriffs under his strict
control, free from influence by the barons. He maintained order
with a strong hand, but was no more severe than his security
demanded.

Forests were still retained by Kings for their hunting of boars
and stags. A master-forester maintained them. The boundaries of
the Royal Forests were enlarged. They comprised almost one-third
of the kingdom. Certain inhabitants thereof supplied the royal
foresters with meat and drink and received certain easements and
rights of common therein. The forest law reached the extreme of
severity and cruelty under Henry I. Punishments given included
blinding, emasculation, and execution. Offenders were rarely
allowed to substitute a money payment. When fines were imposed
they were heavy.

A substantial number of barons and monasteries were heavily in
debt to the Jews. The interest rate was 43% (2d. per pound per
week). The king taxed the Jews at will.



- The Law -

Henry restored the death penalty (by hanging) for theft and
robbery, but maintained William I's punishment of mutilation by
blinding and severing of limbs for other offenses, for example,
bad money. He decreed in 1108 that false and bad money should be
amended, so that he who was caught passing bad denarii should not
escape by redeeming himself but should lose his eyes and members.
And since denarii were often picked out, bent, broken, and
refused, he decreed that no denarius or obol, which he said were
to be round, or even a quadrans, if it were whole, should be
refused. (Money then reached a higher level of perfection, which
was maintained for the next century.)

The forest law stated that: "he that doth hunt a wild beast and
doth make him pant, shall pay 10 shillings: If he be a freeman,
then he shall pay double. If he be a bound man, he shall lose his
skin." A "verderer" was responsible for enforcing this law, which
also stated that: "If anyone does offer force to a Verderer, if he
be a freeman, he shall lose his freedom, and all that he hath. And
if he be a villein, he shall lose his right hand." Further, "If
such an offender does offend so again, he shall lose his life."

A wife's dower is one-third of all her husband's freehold land,
unless his endowment of her at their marriage was less than one-
third.

Counterfeiting law required that "If any one be caught carrying
false coin, the reeve shall give the bad money to the King however
much there is, and it shall be charged in the render of his farm
[payment] as good, and the body of the offender shall be handed
over to the King for judgment, and the serjeants who took him
shall have his clothes."

Debts to townsmen were recoverable by this law: "If a burgess has
a gage [a valuable object held as security for carrying out an
agreement] for money lent and holds this for a whole year and a
day, and the debtor will not deny the debt or deliver the gage,
and this is proved, the burgess may sell the gage before good
witnesses for as much as he can, and deduct his money from the
sum. If any money is over he shall return it to the debtor. But if
there is not enough to pay him, he shall take distress again for
the amount that is lacking."

Past due rent in a borough was punishable by payment of 10s. as
fine.

Judicial activity encouraged the recording of royal legislation in
writing which both looked to the past and attempted to set down
law current in Henry's own day. The "Liberi Quadripartitus" aimed
to include all English law of the time. This showed an awareness
of the ideal of written law as a statement of judicial principles
as well as of the practice of kingship. In this way, concepts of
Roman law used by the Normans found their way into English law.

Church law provided that only consent between a man and woman was
necessary for marriage. There needn't be witnesses, ceremony, nor
consummation. Consent could not be coerced. Penalties in marriage
agreements for not going through with the marriage were deemed
invalid. Villeins and slaves could marry without their lords' or
owners' permission. A couple living together could be deemed
married. Persons related by blood within certain degrees, which
changed over time, of consanguinity were forbidden to marry. This
was the only ground for annulment of a marriage. A legal
separation could be given for adultery, cruelty, or heresy.
Annulment, but not separation, could result in remarriage. Fathers
were usually ordered to provide some sustenance and support for
their illegitimate children. The court punished infanticide and
abortion. Counterfeiters of money, arsonists, and robbers of
pilgrims and merchants were to be excommunicated. Church sanctuary
was to be given to fugitives of violent feuds until they could be
given a fair trial.



- Judicial Procedure -

Courts extant now are the Royal Court, the King's Court of the
Exchequer, county courts, and hundred courts, which were under the
control of the King. His appointed justices administered justice
in these courts on regular circuits. The sheriff now only produced
the proper people and preserved order at the county courts and
presided over the nonroyal pleas and hundred courts. He empaneled
recognitors, made arrests, and enforced the decisions of the royal
courts. Also there are manor courts, borough courts, and
ecclesiastical courts. In the manor courts, the lord's reeve
generally presided. The court consisted of the lord's vassals and
declared the customs and law concerning such offenses as failure
to perform services and trespass on manorial woods, meadow, and
pasture.

The King's Royal Court heard issues concerning the Crown and
breaches of the King's peace, which included almost all criminal
matters. The most serious offenses: murder, robbery, rape,
abduction, arson, treason, and breach of fealty, were now called
felonies. Other offenses were: housebreaking, ambush, certain
kinds of theft, premeditated assault, and harboring outlaws or
excommunicants. Henry personally presided over hearings of
important legal cases. He punished crime severely. Offenders were
brought to justice not only by the complaint of an individual or
local community action, but by official prosecutors. A prosecutor
was now at trials as well as a justice. Trial is still by
compurgation. Trial by combat was relatively common.

These offenses against the king placed merely personal property
and sometimes land at the king's mercy. Thus the Crown increased
the range of offenses subject to its jurisdiction and arrogated to
itself profits from the penalties imposed. A murderer could be
given royal pardon from the death penalty so that he could pay
compensation to the relatives.

The Royal Court also heard these offenses against the king:
fighting in his dwelling, contempt of his writs or commands,
encompassing the death or injury of his servants, contempt or
slander of the King, and violation of his protection or his law.
It heard these offenses against royal authority: complaints of
default of justice or unjust judgment, pleas of shipwrecks,
coinage, treasure-trove [money buried when danger approached],
forest prerogatives, and control of castle building.

Slander of the king, the government, or high officials was
punishable as treason, felony, misprison of treason, or contempt,
depending on the rank and office of the person slandered and the
degree of guilt.

Henry began the use of writs to intervene in civil matters, such
as inquiry by oath and recogniton of rights as to land, the
obligations of tenure, the legitimacy of heirs, and the
enforcement of local justice. The Crown used its superior coercive
power to enforce the legal decisions of other courts. These writs
allowed people to come to the Royal Court on certain issues. There
was a vigorous interventionism in the land law subsequent to
appeals to the king in landlord-tenant relations, brought by a
lord or by an undertenant. Assizes [those who sit together] of
local people who knew relevant facts were put together to assist
the court. Henry appointed some locally based justices, called
justiciars. Also, he sent justices out on eyres [journeys] to hold
assizes. This was done at special sessions of the county courts,
hundred courts, and manor courts. Records of the verdicts of the
Royal Court were sent with these itinerant justices for use as
precedent in these courts. Thus royal authority was brought into
the localities and served to check baronial power over the common
people. These itinerant justices also transacted the local
business of the Exchequer in each county. Henry created the office
of chief justiciar, which carried out judicial and administrative
functions.

The Royal Court retained cases of gaol delivery [arrested person
who had been held in gaol was delivered to the court] and
amercements. It also decided cases in which the powers of the
popular courts had been exhausted or had failed to do justice. The
Royal Court also decided land disputes between barons who were too
strong to submit to the county courts.

The King's Court of the Exchequer reviewed the accounts of
sheriffs, including receipts and expenditures on the Crown's
behalf as well as sums due to the Treasury, located still at
Winchester. These sums included rent from royal estates, the
Danegeld land tax, the fines from local courts, and aid from
baronial estates. Its records were the "Pipe Rolls", so named
because sheets of parchment were fastened at the top, each of
which dropped into a roll at the bottom and so assumed the shape
of a pipe.

The county and hundred courts assessed the personal property of
individuals and their taxes due to the King. The county court
decided land disputes between people who had different barons as
their respective lords.

The free landholders were expected to attend county, hundred, and
manor courts. They owed "suit" to it. The suitors found the dooms
[laws] by which the presiding officer pronounced the sentence.

The county courts heard cases of theft, brawling, beating, and
wounding, for which the penalties could be exposure in the pillory
or stocks. The pillory held an offender's head and hands in holes
in boards, and the stocks held one's hands and feet. Here the
public could scorn and hit the offender or throw fruit, mud, and
dead cats at him. For sex offenders and informers, stones were
usually thrown. Sometimes a person was stoned to death. The county
courts met twice yearly. If an accused failed to appear after four
successive county courts, he was declared outlaw at the fifth and
forfeited his civil rights and all his property. He could be slain
by anyone at will.

The hundred court met once a month to hear neighborhood disputes,
for instance concerning pastures, meadows and harvests. Usually
present was a priest, the reeve, four representative men, and
sometimes the lord or his steward in his place. Sometimes the
chief pledges were present to represent all the men in their
respective frankpledges. The bailiff presided over all these
sessions except two, in which the sheriff presided over the full
hundred court to take the view of frankpledge, which was required
for those who did not have a lord to answer for him.

The barons held court on their manors at a "hall-mote" for issues
arising between people living on the manor, such as bad ploughing
on the lord's land or letting a cow get loose on the lord's land,
and land disputes. This court also made the decision of whether a
certain person was a villein or freeman. The manor court took over
issues which had once been heard in the vill or hundred court. The
baron charged a fee for hearing a case and received any fines he
imposed, which amounted to significant "profits of justice".

Boroughs held court on trading and marketing issues in their towns
such as measures and weights, as well as issues between people who
lived in the borough. The borough court was presided over by a
reeve who was a burgess as well as a royal official.

Wealthy men could employ professional pleader-attorneys to advise
them and to speak for them in a court.

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.

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