Staffordshire Historical Collections, Vol. 4. Originally published by Staffordshire Record Society, London, 1883.
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The preface to the Plea Rolls in Volume III. of these Collections gives a sketch of the judicial system of the country to the end of the reign of King John. It will now be necessary to describe the changes made in the administration of the law by the Great Charter, which forms an important stage in legal history.
First comes the famous provision which ordains, "Communia placita non sequantur curiam nostram, sed teneantur in aliquo certo loco." (fn. 1) This established the Court of Common Pleas at Westminster.
The importance of this provision will be best estimated by taking one of the pleas detailed in Vol. III. of these Collections, and collating the proceedings with the published itinerary of King John: it will be seen that the unfortunate suitors either in person or by essoin, followed the Curia Regis from one end of the kingdom to the other.
The Charter then directs that assizes of novel disseisin, and of mordancestor shall not be taken out of their shires. This provision however was so far modified in practice that suits which the Justices Itinerant could not determine on the spot, from such causes as defect of a jury, or non-appearance of one of the parties, were adjourned to another day and place in the same circuit. Staffordshire Pleas therefore are to be found on the Assize Rolls of any of the following counties, viz.: Salop, Hereford, Warwick, Hunts, Bucks, Oxon, Gloucester, Cambridge, Lincoln, Derby, Notts, Northampton, Berks, or Worcester.
The original Charter of King John contained a provision that two justices should be sent into every county four times in each year, who, with the aid of four knights to be chosen by the county Court should hold assizes of darrein presentment, mordancestor, and novel disseisin. To carry out such a provision would have required a very large staff of permanent justices, and the amended Charter of 9 H. III. ordained that justices should be appointed every year to take assizes, with whom should be associated four knights of the county. The proceedings of these annual justices are not extant, except when by accident they are brought up by a writ of recordari into the Court of Common Pleas, (fn. 2) but the Fine and Patent Rolls show they were regularly appointed to hear assizes from about the middle of the reign of Henry III. They have been hitherto confounded by writers on the law with the Justices Itinerant, who were permanent Justiciarii de Banco, and went circuit at intervals of six or seven years. (fn. 3) The lesser Justices of Assize held no general commission; they were merely assigned to take assizes for which a fee had been previously paid at the Exchequer. By the amended Charter, assizes de ultimâ presentatione were in future to be taken before the Justices of the Bench. Writers on the law have construed this to mean that such pleas were to be taken at Westminster only; but this is a mistake. These pleas were heard before the Justices Itinerant in their counties, as well as at Westminster. The provision in fact had a personal application only, and aimed at excluding these assizes from the jurisdiction of any but the permanent judges.
The limitation of time within which writs of mordancestor, de nativitate, and novel disseisin, could be brought, remained unaltered until the Statute of Merton of 20 H. III. By this statute the limit was not to exceed in the case of the two first named assizes, the "ultimum redditum domini Regis Johannis in Angliam," i.e., the last return of King John from Ireland, 12 John, or A.D. 1210. In writs of novel disseisin the limit was the "primam transfretationem domini Regis Henrici qui nunc est, in Vasconiam," or 5 H. III.
Before dismissing the subject of procedure, it may be advisable to add something on the method adopted to enforce the appearance of a defendant in court. In real actions this process was very simple, as on a defendant not appearing to his summons, the tenement in dispute was taken into the King's hands, the Sheriff answering for the issues. If the defendant did not appear to the second summons, and the summons was formally proved by the Sheriff, the land was adjudged to the plaintiff by default, and the defendant had then to replevy his land if he intended to contest the action.
The process in personal actions was more complicated; for in these cases there was no corporal tenement which could be taken into the King's hands; and the process was by attachment, as it was called. The action was first commenced by summons as in real actions: the plaintiff then offered himself in court the first, second, third, and fourth day; if the defendant did not appear on the fourth day, he was attached by pledges. The entry on the Roll is: "A. optulit se quarto die versus B. de placito, etc., et B. non venit, et summonitus (testatus fuit). Judicium: Attachietur quod sit, etc."
If he did not appear upon the first attachment, and the plaintiff offered himself again as before, he was attached by better pledges. The entry on this occasion is: "A. optulit se" (as before), "et B. non venit, et alias fecit defaltam postquam summonitus fuit, et ita quod attachiatus fuit tunc per C. et D. Judicium: Ponatur per meliores plegios, quod sit, etc."
If he did not appear to the second summons, all the pledges were in misericordiâ, and the defendant was summoned to hear judgment on his default. The writ to the Sheriff then runs, "quod habeas corpus B., ad respondendum A., de placito, etc., et ad audiendum judicium suum de pluribus defaltis, etc." If the defendant came and could not give good reason for his defaults, he was amerced for them, and then the action proceeded. If he did not appear, i.e., if the Sheriff had not been able to enforce the last order of the Court, and returned he was not to be found in his Bailiwick, a writ of distringas was issued against his land and chattels. The entry now runs: "A optulit se" (as before), "et B. non venit, et plures fecit defaltas, ita quod preceptum fuit Vicecomiti quod haberet corpus ejus; et Vicecomes mandavit quod non fuit inventus in ballivâ suâ; et ideo Vicecomes distringat eum per omnes terras et catalla, quod sit, etc."
If the defendant did not appear to this writ, another writ of distringas was issued; and if he made default after two writs of distringas, the Sheriff was ordered to take all his lands and chattels into the King's hands. (fn. 6) If the defendant had no lands or goods, he was demanded, in the County Court, at the suit of the plaintiff, till he was outlawed; and if he was arrested after this process, he was kept in prison, or forced to abjure the realm.
In some cases the Sheriff could not execute process, because the Lord of the Liberty had the return of writs within it. In such cases he called upon the Bailiff of the Liberty to execute it. If the Bailiff neglected to do it, a writ of non omittas was issued, by which the Sheriff was commanded not to omit doing it by reason of the franchise, and the Bailiff of the Liberty was summoned to show cause for his neglect.
If the Sheriff was resisted by force in the execution of a writ, which often occurred, there issued another writ of non omittas, commanding him to take sufficient force with him, and to arrest such as resisted him, and to keep them in safe custody till the King's pleasure should be known.
The Sheriff often returned that the person to be attached was a clerk, who could not be forced to find pledges, and had no lay fee by which he could be distrained. In these cases the Bishop of the Diocese was commanded to produce the defendant, and if he failed, was summoned to answer for his default. If the Bishop refused to appear, he could be distrained by his Barony, because it was a lay fee.
The separation of the Common Pleas from the Curia Regis is clearly defined on the Rolls of this reign; thus the Common Pleas are headed, "Placita apud Westmonasterium de termino . . . . . coram A. et B., et sociis suis, Justiciariis de Banco, anno regni Regis Henrici, etc."
In others, coram Seneschallo Regis, or coram Consilio Regis; and in one instance, coram dominâ Reginâ et Consilio Regis. In every case the Roll is easily distinguished from a Common Plea Roll. In the abstracts here printed the heading of every Roll has been given at full length in the original Latin, and the reader can therefore judge for himself.
The Curia Regis took cognizance of every kind of plea, even occasionally the common assizes of novel disseisin, mordancestor, etc., of the counties in which the Court might be sitting. These instances however are rare; the suits usually pleaded before the King were such as affected the royal manors or franchises, sergeanties, the descent of baronies, the partition of the same amongst co-heiresses, and generally all questions affecting tenures in capite, royal rights or services due to the Crown; also appeals of murder, or of lesser personal injuries and trespass committed vi et armis.
The Assize Rolls or proceedings before the Justices Itinerant are headed, "Placita et Assisæ captæ coram A. et B., et sociis suis, Justiciariis Itinerantibus, apud, etc." These Justices were the same as the Justiciarii de Banco, and heard the same class of civil actions, during their iter, as at Westminster, but they heard likewise the assizes (fn. 7) which by the clause of Magna Charta could not be heard out of their shires, and they heard and determined at the same time Pleas of the Crown, i.e., criminal cases, and took cognizance of all the other matters detailed at p. 20 of the Introduction to the Plea Rolls in Vol. III.
A great change had now taken place in criminal procedure; the ordeal had been abolished, and the guilt or innocence of the accused was decided per corpus, or per patriam, viz., by a duel or by a jury.
The duel however was only allowed on the appeal of an individual, i.e., where there was a personal accuser, who could appear in the lists either by himself or by a champion. If the prisoner was indicted per famam patriæ, i.e., by the presentment of a jury, he could only be delivered by the verdict of a jury. The jury in a criminal case was a very different institution from the modern jury. It consisted of the Jury of the Hundred, with whom were associated the juries of the four neighbouring manors or townships. (fn. 8) This was necessary, because the jury gave a verdict from their own knowledge, and the Jury of the Hundred might be ignorant of the facts of the case, and the antecedents of the prisoner. When all these juries had been assembled together, the judge examined into the matter, and interrogated the jurors as to their knowledge of the crime and of the prisoner. The latter might challenge any of the jurors, and according to Bracton might challenge any of the townships. After which one of the Justices handed over to the jury the matter in charge, and according to the verdict given by them the accused was either delivered or condemned.
Theft had now become one of the Pleas of the Crown, but it is necessary to distinguish what class of theft: furtum manifestum, such as where the culprit was taken with stolen property in his possession, was still dealt with by the local Courts. If the offender was taken with stolen property upon him within the manor, and was the tenant of a lord who had cognizance of such crimes, he was tried by the Lords' Court. (fn. 9) This was the jurisdiction called Infangethef. If the offender did not belong to the manor, but was found with stolen property upon him within the manor of a lord who had the jurisdiction called Utfangethef, he could also be tried by the Manorial Court. If he was apprehended elsewhere, he would be tried by the County Court before the Sheriff and the custodes pacis Regis; (fn. 10) for it was a rule of law that a lord could not bring back into his franchise his own man taken out of the manor, and there judge him by reason of such franchise, for a man must abide the law of the place where he offends. (Bracton.) Lords of Manors who had view of frankpledge held a Court Leet, which took cognizance of chance medleys and assaults and woundings, but not of felony or breach of the King's peace or of the Sheriff's peace. These Courts also had cognizance of obstructions and nuisances within the manor, and inflicted fines for them.
The Coram Rege Court, which followed the King; the Court de Banco at Westminster; the proceedings of the Justices Itinerant; those of the Justices assigned specially to take assizes annually; and the County Courts, over which the Sheriffs presided, comprise all the Royal Courts of Justice of the reign of Henry III. Some writers on Legal History speak of the Court of Exchequer as existing from a date much earlier than this reign, but this Court, although it may have had cognizance of matters relating to the King's revenue, did not exist as a regular legal tribunal before the reign of Edward I. At the beginning of the reign of Henry III., all suits arising out of debts owing to Jews were specially assigned to it, and as these debts were for the most part secured on land or real property, this Court gradually developed, partly from this cause, and partly by usurpation, into a regular tribunal for the trial of all kinds of civil actions.
In abstracting the pleas, it has been thought best to follow literally the legal form of record, even at the risk of occasional obscurity; but as a matter of fact, the only suits in which the formal record requires explanation is the writ of mort d'ancestor. This is recorded as follows (vide p. 116 of Vol. III.):—
"Staff. Assisa venit recognitura si Nicholaus avunculus Hervei, fuit seisitus in dominico suo ut de feodo de iij. bovatis terræ cum pertinentiis in Strangereshull die quo obiit, et si obiit, etc. (post coronationem domini Regis Ricardi), et si Herveus de Acle propinguior heres ejus est, quam terram Robertus Boscher, et Idonea uxor ejus, tenent."
In this suit Hervey de Oakley sues Robert Boscher and his wife Idonea for three bovates of land in Stramshall, which he claimed as heir to his uncle Nicholas, who had held the land in demesne as of fee on the day he died, and who had died since the coronation of King Richard. If Nicholas had died before the coronation of King Richard, Hervey could not recover by this form of writ, his remedy would have been a writ of right. Although this form of record appears at first sight obscure, the reader will perceive that it is impossible to put the issue before a jury with more terseness or in plainer terms.
The Rolls which I have described with a numeral only, are the Rolls from the old Carlton Ride Repository. These have been indexed at the Record Office as Coram Rege Rolls, whereas they consist for the most part of Banco Rolls intermixed with a few Assize Rolls. The Plea Rolls from the Tower have been indexed under the heads of Banco and Coram Rege Rolls; but many Banco Rolls are to be found amongst the latter, and Assize Rolls under both heads. In addition to these sources of confusion, a large and important series of Assize Rolls from Carlton Ride have been indexed as Assize Rolls, under the head of Counties. This mode of arrangement is faulty, because the Itinerant Justices heard pleas from any of the counties within their circuit which had been adjourned from a previous hearing within their own Counties. The better plan would have been to have indexed all the Assize Rolls under the iters of the Justices, adding the names of the counties of which the iter was composed. Feeling convinced that the present arrangement is provisional only, and must be altered sooner or later, I have given in every case the heading of the Roll at full length, and the number of the membrane on which the suit occurs, by which means it will be always possible to refer to the original, under whatever nomenclature the Roll may eventually be classed.