Book: Our Legal Heritage, 4th Ed.

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




The court of the vill enforced the village ordinances. The hundred
court met twice a month and dealt with the petty crimes of lowly
men in the neighborhood of a few vills. The county and borough
courts heard cases of felonies, accusations against freemen, tort,
and debts. The knights make the county courts work as legal and
administrative agencies of the Crown.

The peace of the sheriff still exists for his county. The King's
peace may still be specially given, but it will cease upon the
death of the King. Law required every good and lawful man to be
bound to follow the hue and cry when it was raised against an
offender who was fleeing. The village reeve was expected to lead
the chase to the boundary of the next jurisdiction, which would
then take the responsibility to catch the man.

Admiralty issues (since no assize could be summoned on the high
seas), and tenement issues of land held in frankalmoin ["free
alms" for the poor to relieve the king of this burden], where the
tenant was a cleric were heard in the ecclesiastical courts.

Before Henry's reign, the church, with the pope's backing, had
become more powerful and asserted more authority. Henry tried to
return to the concept of the king being appointed by God and as
the head of the church as well as of the state, as in Henry I's
time, and to include the church in his reform of the legal system,
which would make the spiritual jurisdiction and temporal
jurisdiction conform to a common justice. Toward this end, he
published the Constitutions of Clarendon. But the Archbishop of
Canterbury, Thomas Becket, refused to agree to them, although as
Chancellor he had seen the beneficial effects on the kingdom of
Henry's legal measures. The disagreement came to a head in Henry's
attempt to establish the principle of "one law to all" by having
church clerics punished by the civil courts as before, instead of
having "benefit of clergy" to be tried and punished only in
ecclesiastical courts, even for secular crimes. Clerics composed
about one-sixth the population. The church courts had
characteristically punished with spiritual penalties of a fine or
a penance, and at most defrocking. It could not impose a death
penalty, even for murder. When Archbishop Becket was murdered and
became a martyr, "benefit of clergy" became a standard right,
except for offenses in the king's forests. Appeals could be made
to the pope without the king's permission. The king could take a
criminal cleric's chattels, but not his life. However, though
theoretically bishops were elected by the body of bishops with the
approval of the king, as a practical matter, the king chose the
bishops and the abbots. It was a constant matter of dispute, in
which the pope would sometimes involve himself. Selection of
archbishops was also a frequent matter of contention between king
and pope.

The church copied the assize procedure developed by the Royal
Court to detect ecclesiastical offenses. Trial was still by
compurgation. Bishops could request the Chancery to imprison an
offender who had remained excommunicant for forty days, until he
made amends. Chancery complied as a matter of course. This went on
for six centuries.

The delineations of jurisdiction among these courts were confused
and there was much competing and overlapping of jurisdictions.
However, the court could appoint arbitrators or suggest to the
parties to compromise to avoid the harshness of a decisive
judgment which might drive the losing party to violent self-help.

The office of coroner was established about 1194 to supplement the
judicial investigations of crimes with local officers prior to the
arrival of the itinerant justices. Four knights who were residents
of the county and possessed sufficient land were elected by the
county court for life. Sometimes they had county and royal
connections instead. They received no pay. They determined if
sudden deaths were accidental or due to murder and the cause of
death of prisoners. They also held inquests on other crime such as
bodily injury, rape, and prison break. They attached [arrested]
the accused and evaluated and guarded his chattels until after the
trial. If the accused was found guilty, his possessions went to
the King. The coroner sat with the sheriff at every county court
and went with him on his turns. This office and the forbidding of
sheriffs to act as justices in their own counties reduced the
power of the sheriffs. The responsibility of receiving the oath of
the peace is changed from the sheriff to knights, the duty of the
sheriffs being only to receive and keep the criminals taken by
these knights until the justices came to try them.

Also, at this time, the constitution of the grand jury of the
county was defined. First, four knights were to be chosen in the
county court. These were to select on oath two knights from each
hundred. These two, also on oath, are to add by co-optation ten
more for the jury of the hundred.

In London, if one of two witnesses for the defence died while an
action was pending, the survivor, after offering his oath, could
proceed to the grave of the dead witness, and there offer oath as
to what the dead man would have sworn if he had been alive. If a
foreigner was bound to make oath for debt or any misdeed, he could
make it with six others, his own oath being the seventh; but if
could not find six supporters, he alone could make the oath and
take it in the six nearest churches.

In London, the method of capital punishment was being confined to
hanging, instead of also being in the form of beheading, burning,
drowning, stoning, or hurling from a rock. In cases of drowning,
the offender was first sewn up in a sack with a snake, a dog, an
ape, and a cock.

Chief Justiciar Ranulph Glanvill wrote a treatise on the writs
which could be brought in the Royal Court and the way they could
be used. It was a practical manual of procedure and of the law
administered in the Royal Court.

There are personal actions such as "debt" for specific chattel or
specific sum of money. This splits into two actions. The detinue
award is for the specific chattel or its value. The action of
"replevin" is available to the tenant to recover personal property
which had been wrongly distrained, usually cattle; the goods are
"repledged" pending action. Also, but rarely used, are "covenant"
to protect termors for leases of land for terms of years, and
"trepass": a semi-criminal action brought by a private party for
an offense punishable by death (or in the 1100s by mutilation)
such as murder, rape, robbery, or mayhem, that is done with force
of arms and against the peace of the king. The use of trespass
grew as private actions for felony were supplanted by public
indictment. It occasioned outlawry in default of appearance. These
personal actions were initiated in common law courts by their
respective writs.

These are some of the cases of novel disseisin brought to the
king's court:

Woodbridge v. Bardolf (1194, king's court):
Ralf of Woodbridge seeks before the justices his free
tenement in Hebston by the assize of novel disseisin against
Hugh Bardolf. Against which assize Hugh said that he had
that seisin by judgment of his court for the default of the
same Ralf. And the court has recorded the summons and
distraints reasonably made on the same Ralf. And Ralf
himself has acknowledged the summons and distraints and said
that he ought not hold anything from him in that land;
rather, it is of another's fee. And because neither he nor
anyone for him has complained to the justices that Hugh
unjustly drew him into a plea concerning a tenement which
Ralf himself held of the fee of another lord, it is
considered that Hugh hold in peace. And let Ralf plead by
writ of right if he want and be in mercy for his false
claim.

Turroc v. fitz Walter (1194, king's court):
The assize came to recognize if Clement son of Walter
unjustly and without judgment disseised Matilda of Turroc of
her free tenement within the assize. Clement comes and says
that he disseised her by judgment of his court. The court is
present and records that she occupied more of her lord's
land than she had in dower by the sheriff and by order of
the lord king, so that she was summoned and distrained to
come in to court, and she so responded that she remained in
mercy of 10s. by judgment, so that for that amercement and
for other complaints she made fine with her lord for 1/2
mark [7s.] and put her land in pledge in his court and did
not want to render the 1/2 mark [7s.]. And therefore by
judgment of his court he seised it. Matilda denies all word
for word. And the same Clement only produces two men from
his court; and it is considered that it was no court.
Judgment: let Matilda have her seisin and let Clement be in
mercy for disseisin.

Fitz Hereward v. Prior of Lecton (1195, king's court):
The assize came to recognize if the prior of Lecton unjustly
and without judgment disseised Reginald son of Hereward and
Essolda his wife of his free tenement in Clapston after the
first coronation of the lord king. The prior says that the
assize ought not be taken thereof, because he seised that
land by judgment of his court for default of his service and
his rent, whereof he has his court present, which asserts
the same thing. It is considered that the prior replevy
[give back] to them their land and give them a day in his
court concerning the arrears of rents and services. And let
him treat them justly by judgment of his court.

Stanfeld v. Brewes (1199, king's court):
The assize comes to recognize if Simon of Brewes and Luke
cleric and Peter of Brewes unjustly and without a judgment
disseised Odo of Stanfeld and Juliana his wife of her free
tenement in Michehey within the assize. Simon says that the
assize ought not be taken thereof, because he took that land
into his hand by judgment of his court -- which he produced
and which attests to this -- for default of his service. And
it was testified that Odo holds that land from the same
Simon. Simon was ordered to replevy that land to Odo as well
as the chattels and to treat him rightfully in his court.

fitz William v. Amice et al. (1200, king's court):
The assize comes to recognize if Amice who was the wife of
Richard earl of Clare and Hugh of Ceriton, John of Cornherd,
William of Wattevill, Alexander son of Gilbert, Alexander
son of Matthew, Bartholomew son of Alexander, Robert of
Cornherd, and Geoffrey son of Leveric unjustly and without
judgment disseised Richard son of William of Sudbury of his
free tenement in Sudbury after the feast of St Michael next
before the coronation of the lord king. The countess says
that, when she was separated by papal order from the earl of
Clare her husband by reason of consanguinity, to which
husband the vill of Sudbury had been given with her as
marriage portion, she came to Sudbury and convoked her court
and made the same Richard to be summoned to come to show by
what warrant he held her land. He willingly entered into the
plea and vouched the earl of Clare her former husband to
warrant and at the day given him to have [his warrantor] he
did not have him. And thus by consideration of her court she
seised her land and holds it. Which court she produced and
which attests this. Richard comes and denies that he was
ever summoned or came into her court by summons or vouched
to warranty or so lost seisin by consideration of the court
of the countess. And this he offers [to prove]. It is
considered that he defend himself 12-handed that he did not
willingly enter into the plea and vouch to warranty. Let him
wage his law [prove by the 12-handed oath, thus, by
compurgation]. Pledges of the law: Hugh son of Hugh, Wido of
Sudbury. Day is given them at the quindene of St. John.

This is the suit of Richard of Sudbury: [there follow the
names, but only of 10 men] against the countess Amice who was
the countess of Clare, concerning whom he had complained
concerning a novel disseisin of his free tenement in Sudbury.
She said that by judgment of her court for default of warranty
which he had vouched did she make the [dis]seisin and thereof
did she produce suit. And he denied against her and against
the suit, and law was adjudged. And he comes with his law and
makes it with the abovesaid suit. Therefore it is considered
that he recover thereof his seisin; let the countess be in
mercy for unjust disseisin and also her men, of whom the same
Richard has complained. And let the same countess return to
him the damages done thereof by a jury of law-worthy men of
the vicinity. The names of the men of the countess are in the
writ.

A sample of crown pleas in several hundreds or wapentakes [Danish
name for a hundred] from 1201 to 1203 are:

1. Denise, who was wife to Anthony, appeals Nicholas Kam of
the death of Anthony, her husband, for that he wickedly slew
her husband; and this she offers to prove against him under
award of the court. And Nicholas defends all of it. It is
considered that Denise's appeal is null, for in it she does
not say that she saw the deed. The jurors being asked, say
that they suspect him of it; the whole county likewise
suspects him. Let him purge himself by water [ordeal] under
the Assize. He has waged his law.

2. William de Ros appeals Ailward Bere, Roger Bald, Robert
Merchant, and Nicholas Parmenter, for that they came to his
house and wickedly in the king's peace took away from him a
certain villein of his whom he kept in chains because he
wished to run away, and led him off, and in robbery carried
away his wife's coffer with one mark of silver and other
chattels; and this he offers to prove by his son, Robert de
Ros, who saw it. And Ailward and the others have come and
defended the felony, robbery, and breach of the king's
peace, and say that (as the custom is in Cornwall) Roger of
Prideaux, by the sheriff's orders, caused twelve men to come
together and make oath about the said villein, whether he
was the king's villein or William's and it was found that he
was the king's villein, so the said Roger the serjeant
demanded that [William] should surrender him, and he
refused, so [Roger] sent to the sheriff, who then sent to
deliver [the villein], who, however, had escaped and was not
to be found, and William makes this appeal because he wishes
to keep the chattels of Thomas [the villein], to wit, two
oxen, one cow, one mare, two pigs, nine sheep, eleven goats.
And that this is so the jurors testify. Judgment: William
and Robert in mercy for the false claim. William's
amercement, a half-mark. Robert's amercement, a half-mark.
Pledge for the mark, Warin, Robert's son. Let the king have
his chattels from William. Pledge for the chattels, Richard,
Hervey's son.

3. Serlo of Ennis-Caven appeals Osbert of Dimiliock and
Jordan, Walter's son, for that they in the king's peace
wickedly assaulted, beat and seriously wounded him, so that
by reason of the beating three bones were extracted from his
head; and this he offers to prove against him under the
court's award as a man maimed by that mayhem. And it is
testified by the coroners that the wounds when fresh were
shown in the county [court], and that [the bones were
broken] as aforesaid. And Osbert and Jordan come and defend
word by word. It is considered that Osbert do purge himself
by ordeal of iron on account of the appeal, for Serlo betook
himself against Osbert in the first instance. And let Jordan
be in custody until it be known how Osbert shall fare. And
the other persons who are appealed as accessories are to be
under pledge until [Osbert's fate] be known.

4. The jurors say that they suspect William Fisman of the
death of Agnes of Chilleu, for the day before he had
threatened her body and goods. And the four neighboring
townships being sworn, suspect him of it. It is considered
that he purge himself by water under the Assize.

5. William Burnell and Luke of the Well are suspected of the
burglary at the house of Richard Palmer by the jurors of the
hundred, and by the four neighboring townships, which are
sworn. Let them purge themselves by water under the Assize.

6. Malot Crawe appeals Robert, Godfrey's son, of rape. He
comes and defends. It is testified that he thus raped her
and that she was seen bleeding. By leave of the justices
they made concord on the terms of his espousing her.

7. Walter Wifin was burgled, and of his chattels taken from
his house in the burglary certain boots were found in the
house of Lefchild of Ranam, and the said Walter pursues
those boots as his. And Lefchild said that he bought them in
Bodmin market for 2 1/2 pence, but he knows not from whom.
And besides Walter says that eleven ells of linen cloth,
part of the stolen goods, were sold in Lefchild's house, and
all the other proceeds of the burglary, and that Lefchild
was the receiver of the burglars, namely, Robert of Hideford
and Alan the Foresters, whom he [Walter] had appealed of the
crime. And Lefchild defends. The jurors on being asked, say
that they suspect Lefchild of the said receipt. So let him
purge himself by water under the Assize.

8. Eadmer of Penwithen appeals Martin, Robert and Thomas of
Penwithen, for that Robert wounded him in the head so that
twenty- eight pieces of bone were extracted, and meanwhile
Martin and Thomas held him; and this he offers to deraign
against the said Robert as a man thereby maimed, under the
court's award. And Robert comes and defends all of it word
by word. It is considered that he purge himself by ordeal of
iron. Let the others be in custody until it be known how
Robert shall fare. Afterwards Eadmer came and withdrew
himself, and submitted to an amercement of one mark.
Pledges, Reinfrid, Gill's son, and Philip his brother. Let
the other appellees go quit.

9. Reginald le Teinus accused of the receipt and fellowship
of Robert the outlaw comes and defends. The jurors say that
they suspect him, and the four neighboring townships say
that they suspect him of it. So let him purge himself by
water under the Assize. And there must be inquiry as to
Richard Revel, who was sheriff when the said Robert escaped
from his custody.

10. Osbert of Reterth appeals Odo Hay, for that he assaulted
him as he was returning from Bodmin market, and in the
king's peace and wickedly struck him on the hand with a
stick, and afterwards struck him on the arm with his sword
so that he is maimed; and this he offers to prove as a
maimed man. And Odo defends it all. And that [Osbert] is
maimed is testified by knights sent to see him. Judgment:
let [Odo] purge himself by ordeal of iron because of this
appeal.

11. Wulward of Wadebridge was burgled. And Odo Hay, Lawrence
Smith, Osbert Mediciner, and Benet his son, William Miller,
Robert of Frokemere, and Maud his sister, are suspected of
the burglary by the jurors of the hundred and by the four
nearest townships, which are sworn. Let the males purge
themselves by water under the Assize, and Maud by ordeal of
iron. Roger Morand fled for that burglary, and he was living
in Bodmin, [which town is] therefore in mercy.

12. Robert, Godfrey's son, appeals Philip, William's son,
for that he came on the land of [Robert's] lord Richard
Fortescue, and wickedly and in the king's peace and in
robbery took eight oxen and a mantle, cape, and sword, and
carried them off; and this he offers to prove against him by
his body under award of the court. And Philip comes and
defends all of it word by word. It is considered that the
appeal is null, for the oxen were not Robert's, but
Richard's. The jurors being asked, say that [Philip] did no
robbery to [Richard]. So Richard Fortescue is in mercy for a
false appeal, and let Philip be quit.

13. Peter Burel appeals Anketil of Wingely, for that he
wickedly in the king's peace assaulted him in the field
where he was pasturing his oxen, and beat him, and gave him
four wounds in the head, and in robbery took from him an axe
and a sword; and this he offers to prove against him; but he
shows no wound. And Anketil defends. And the county records
that [Peter] first appealed Roger of Tregadec of the same
robbery and of the same wounds. Therefore it is considered
that the appeal is null, and let Peter be in mercy for a
false appeal. His amercement, a half-mark; pledge for it,
Ralph Giffard.

14. The jurors are in mercy for a silly presentment, for
they presented an appeal which was made in the hundred
[court] and which was not presented in the county [court].

15. Lucy of Morwinstow appeals Robert de Scaccis and Roland
of Kellio and Peter of Lancarf of robbing her of twenty
shillings and eight pence, and of a cloak, price a
half-mark. And it is testified by the jurors that they did
not rob her, and that she is a hireling, and that a man lay
with her in a garden, and the boys hooted her, so that she
left her cloak, and the boys took it and pawned it for two
gallons of wine. It is considered that Robert do give her
three pence in respect of the wine and do go quit. And
Roland and Peter neither come nor essoin [present an excuse
for nonappearance] themselves. And their pledges were
Nicholas brother of Alfred of Bodmin and Herbert Reeve of
Bodmin, who are therefore in mercy.

16. Osbert Church accused of the death of Roland, son of
Reginald of Kennel, on the appeal of the said Reginald, was
detained in gaol and defends word by word. And Reginald
offers proof by the body of a certain freeman, Arkald, who
has his [Reginald's] daughter to wife, who is to prove in
his stead, since he has passed the age of sixty. Osbert
Church defends all of it. The knights of the hundred of
Penwith say that they suspect him of the said death. The
knights of kerrier [hundred] say the same. The knights of
Penwith [hundred] say the same. The knights of Pyder
[hundred] say the same. Judgment: let him purge himself by
water, and Reginald is in mercy, for he does not allege
sight and hearing, and because he has withdrawn himself, and
put another in his place, who neither saw nor heard and yet
offered to prove it, and so let both Reginald and Arkald be
in mercy. Osbert is purged by the water. Osbert's pledges:
Henry Little, Henry of Penant, Ossulf Black, Roger of
Trevithow, John of Glin, Ralph of Trelew.

17. Roger of Wick [was] appealed of the death of Brictmer by
the appeal of Hawise, Brictmer's wife, and was captured in
flight, as say John of Winielton and Ralph of Mertherin, but
the flight is not testified by the hundred. Kerier [hundred]
says the same. Penwith [hundred] says the same. So is
considered that he purge himself by water. He is purged.
Roger's pledges: Ralph of Trelew, Ogier of Kurnick, Richard,
Simon's son, Alfred Malvoisin, Everwin of Lande, John of
Kewerion, Warin of Tiwardeni, Baldwin Tirel, Roger of
Trevithow, John of Glin, William of Dunham, Thomas, Osbert's
son.

18. Richard, William's son, appealed Luke, Richard's son,
and William, the servant of Alan Clerk, of robbery and of
binding him. The appellees have not come nor essoined
themselves. The county together with the wapentake says that
they were appealed, not of the king's peace, but of the
sheriff's peace, so that the suit was and is in the county
[court], and therefore they were not attached to come before
the justices. Therefore the jurors are in mercy for
presenting what they ought not to have presented.

19. William, Hawise's son, appeals Richard, son of Robert of
Somercotes, for that he came in the king's peace to his
house at Somercotes, and broke his house and robbed him
of...[an abrasion] shillings, and a cape and surcoat, and
twenty-five fowls, and twenty shillings worth of corn
[grain], and wounded him in the head with the wound that he
shows; and this he offers to prove against him as the court
shall consider etc. And Richard comes and defends the breach
of the king's peace and the house-breaking, wounding and
robbery, but confesses that he came to a certain house,
which William asserts to be his [William's], as to his
[Richard's] own proper house, which escheated into his hand
on the death of Roger his villein, and there he took certain
chattels which were his villein's and which on his villein's
death were his [Richard's] own: to wit, five thraves of
oats, thirteen sheaves of barley, and twenty-five fowls; and
he offers the king twenty shillings for an inquest [to find]
whether this be so or no. And William says that Richard says
this unjustly, for the said Roger never had that house nor
dwelt therein, nor were those chattels Roger's, but he
[William] held that house as his own, and the chattels there
seized were his. The jurors being questioned whether Roger
did thus hold the house of Richard in villeinage, say, Yes.
Also the coroners and the whole county testify that
[William] never showed any wound until now; and the wound
that he now shows is of recent date. Therefore it is
considered that the appeal is null, and let Richard go quit,
and William be in mercy for his false claim. Pledges for the
amercement, Gilbert, Robert's son, and Richard, Haldeng's
son.

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