Our Legal Heritage Part 40

- 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 t.i.tle 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 trespa.s.s 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 princ.i.p.al 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.

Members.h.i.+p in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will.

Crown pleas included issues of the King's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by nonstandard widths, selling wine by nonstandard weights. Crown causes were pled by the king's serjeants or servants at law, who were not clerics. Apprentices at law learned pleading from them.

Between the proprietary action and the possessory a.s.sizes 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 t.i.tle, 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 wards.h.i.+p 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 a.s.sizes 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 a.s.sizes 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 antic.i.p.ated 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 s.h.i.+pwreck cases.

Justices of a.s.size, 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 trespa.s.s and debt, unjust seizure and detention of beasts, rent collection, claims of fugitive villeins and their goods, nuisances, and encroachments. The sheriff still const.i.tutes 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 t.i.thing, a group of neighbors responsible for each other's good conduct. This applied to every boy who had reached the age of twelve. He had to swear on the Bible "I will be a lawful man and bear loyalty to our lord the King and his heirs, and I will be justiciable to my chief t.i.thing man, so help me G.o.d and the saints."

Each t.i.thing 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 wards.h.i.+p; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespa.s.s, detinue [detention of personal property which originally was rightfully acquired] and covenant, which now requires a sealed writing; defamation, and inquiries and presentments arising from the a.s.sizes 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 b.a.s.t.a.r.d 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 G.o.d's wrath. These chattel which caused the death of a person were usually carts, cart teams, horses, boats, or millwheels. Then they were forfeited to the community, which paid the king their worth. Sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge.

Five cases are:

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

CASE: "Willam Ruffus was crushed to death by a certain trunk. The price of the trunk is 4d., for which the sheriff is to answer. 4d. deodand."

CASE: "William le Hauck killed Edric le Poter and fled, so he is to be exacted and outlawed. He was in the t.i.thing 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 b.a.s.t.a.r.d 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 p.r.o.nounce or execute a sentence of death or to take part in judicial tests or ordeals. Anyone knowingly accepting a stolen article was required to restore it to its owner.

Heretics were to be excommunicated.

Trial by combat is still available, although it is extremely rare for it to take place.

The manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts.

By statute, no fines could be taken of any man for fair pleading in the Circuit of Justiciars, county, hundred, or manor courts.