Book: Our Legal Heritage, 4th Ed.

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




"Farmers during their terms, shall not make waste, sale, nor exile
of house, woods, and men, nor of any thing else belonging to the
tenements which they have to farm".

Church law required that planned marriages be publically announced
by the 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 non-standard
widths, selling wine by non-standard 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
justicable 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 enquiries 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 mill-wheels. 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 with short summaries are:

CASE: "John Croc was drowned from his horse and cart in the water
of Bickney. Judgment: misadventur. The price of the horse
and cart is 4s.6d. 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 actually 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.

Ruislip [Middlesex]. Saturday after the Purification of the
Blessed Virgin.

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 dishonour 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 -

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