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 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 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 justiciable 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 inquiries 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 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 with short summaries 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 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:

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. 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. 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]. 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. 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. 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 dishonor 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. Breakers of the assize [of beer:] William Idle (fined 6d.), maud carter's widow (6d.), Walter Carter. John Witriche in mercy for carrying off thorns. Fine, 6d. Robert Dochi in mercy (fine, 2d.) for divers trespasses. Pledges, Gilbert Priest's son, Ralph Winbold and Walter Green. Ailwin Crisp in mercy for his cow caught in the lord's pasture when ward had been made. Fine, 12d. John Bernard in mercy for his beasts caught by night in the lord's meadow. Fine, 2s. 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. 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. 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. 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. 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. 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. Isabella Sywards in mercy for having sold to Richard Bodenham land that she could not warrant him. 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. From Ralph Joce 6s.8d. for his son, because he [the son] unlawfully carried off grain from the lord's court. Pledge, Geoffrey Joce. From Henry Pink 12d. for a trespass by waylaying. From Eve Corner 6d. for a trespass of her pigs. From Ralph Scales 6d. for timber carried off. From William Cooper 12d. for ploughing his own land with the lord's plough without licence. From Hugh Newman 12d. for trespass in the wood. From Richard Penant 12d. for the same. From Helen widow of Little Ogbourne 6d. for the same. From Nicholas Siward 6d. for a false complaint against William Pafey. From William Pafey 12d. for fighting with the said Nicholas. From the widow of Ralph Shepherd 6d. for a trespass in Pencombe. 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. ....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. 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. Ralph Bar in mercy for having beaten one of the lord's men. Pledges, Herbert Rede and Ralph Brunild. For the common fine of the township, a half-mark. 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.