OUR LEGAL HERITAGE

S >> S. A. Reilly, Attorney >> OUR LEGAL HERITAGE

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{We have also fully forgiven and pardoned all ill-will, wrath,
and malice which has arisen between us and our subjects, both
clergy and laymen, during the disputes, to and with all men.
Moreover, we have fully forgiven and, as far as it pertains to
us, wholly pardoned to and with all, clergy and laymen, all
offences made in consequence of the said disputes from Easter in
the sixteenth year of our reign until the restoration of peace.
Over and above this, we have caused letters patent to be made
for Stephen, Archbishop of Canterbury, Henry, Archbishop of
Dublin, the above-mentioned Bishops, and Master Pandulph, for the
aforesaid security and concessions.}

{Wherefore we will that, and firmly command that, the English
Church shall be free and all men in our realm shall have and
hold all the aforesaid liberties, rights, and concessions, well
and peaceably, freely, quietly, fully, and wholly, to them and
their heirs, of us and our heirs, in all things and places
forever, as is aforesaid. It is moreover sworn, as will on our
part as on the part of the barons, that all these matters
aforesaid shall be kept in good faith and without deceit.
Witness the above-named and many others. Given by our hand in the
meadow which is called Runnymede, between Windsor and Staines,
on the fifteenth day of June in the seventeenth year of our
reign.}

THESE BEING WITNESSES: LORD S. ARCHBISHOP OF CANTERBURY, E.
BISHOP OF LONDON, F. BISHOP OF BATHE, G. OF WINCESTER, H. OF
LINCOLN, R. OF SALISBURY, W. OF ROCHESTER, X. OF WORCESTER, F.
OF ELY, H. OF HEREFORD, R. OF CHICHESTER, W. OF EXETER,
BISHOPS; THE ABBOT OF ST. EDMONDS, THE ABBOT OF ST. ALBANS, THE
ABBOT OF BELLO, THE ABBOT OF ST. AUGUSTINES IN CANTERBURY, THE
ABBOT OF EVESHAM, THE ABBOT OF WESTMINSTER, THE ABBOT OF BOURGH
ST. PETER, THE ABBOT OF REDING, THE ABBOT OF ABINDON, THE ABBOT
OF MALMBURY, THE ABBOT OF WINCHCOMB, THE ABBOT OF HYDE, THE ABBOT
OF CERTESEY, THE ABBOT OF SHERBURN, THE ABBOT OF CERNE, THE
ABBOT OF ABBOREBIR, THE ABBOT OF MIDDLETON, THE ABBOT OF
SELEBY, THE ABBOT OF CIRENCESTER, H. DE BURGH JUSTICE, H. EARL
OF CHESTER AND LINCOLN, W. EARL OF SALISBURY, W. EARL OF
WARREN, G. DE CLARE EARL OF GLOUCESTER AND HEREFORD, W. DE
FERRARS EARL OF DERBY, W. DE MANDEVILLE EARL OF ESSEX, H. DE
BYGOD EARL OF NORFOLK, W. EARL OF ALBEMARLE, H. EARL OF
HEREFORD, F. CONSTABLE OF CHESTER, G. DE TOS, H. FITZWALTER,
R. DE BYPONTE, W. DE BRUER, R. DE MONTEFICHET, P. FITXHERBERT, W.
DE AUBENIE, F. GRESLY, F. DE BREUS, F. DE MONEMUE, F. FITZALLEN,
H. DE MORTIMER, W. DE BEUCHAMP, W. DE ST. JOHN, P. DE MAULI,
BRIAN DE LISLE, THOMAS DE MULTON, R. DE ARGENTEYN, G. DE NEVIL,
W. DE MAUDUIT, F. DE BALUN, AND OTHERS. GIVEN AT WESTMINSTER THE
11TH DAY OF FEBRUARY THE 9TH YEAR OF OUR REIGN.

WE, RATIFYING AND APPROVING THESE GIFTS AND GRANTS AFORESAID,
CONFIRM AND MAKE STRONG ALL THE SAME FOR US AND OUR HEIRS
PERPETUALLY, AND BY THE TENOUR OF THESE PRESENTS, DO RENEW THE
SAME; WILLING AND GRANTING FOR US AND OUR HEIRS, THAT THIS
CHARTER, AND ALL SINGULAR HIS ARTICLES, FOREVER SHALL BE
STEDFASTLY, FIRMLY, AND INVIOLABLY OBSERVED; AND IF ANY ARTICLE
IN THE SAME CHARTER CONTAINED, YET HITHERTO PERADVENTURE HAS NOT
BEEN KEPT, WE WILL, AND BY ROYAL AUTHORITY, COMMAND, FROM
HENCEFORTH FIRMLY THEY BE OBSERVED.

Statutes which were enacted after the Magna Carta follow:

Nuisance is recognized by this statute: "Every freeman, without
danger, shall make in his own wood, or in his land, or in his
water, which he has within our Forest, mills, springs, pools,
clay pits, dikes, or arable ground, so that it does not annoy
any of his neighbors."

Anyone taking a widow's dower after her husband's death must not
only return the dower, but pay damages in the amount of the
value of the dower from the time of death of the husband until
her recovery of seisin.

Widows may bequeath the crop of their ground as well of their
dowers as of their other lands and tenements.

Freeholders of tenements on manors shall have sufficient ingress
and egress from their tenements to the common pasture and as
much pasture as suffices for their tenements.

"Grain shall not be taken under the pretense of borrowing or the
promise of after-payment without the permission of the owner."

"A parent or other who forcefully leads away and withholds, or
marries off, an heir who is a minor (under 14), shall yield the
value of the marriage and be imprisoned until he has satisfied
the King for the trespass. If an heir 14 years or older marries
without his Lord's permission to defraud him of the marriage and
the Lord offers him reasonable and convenient marriage, without
disparagement, then the Lord shall hold his land beyond the term
of his age, that, of twenty one years, so long that he may
receive double the value of the marriage as estimated by lawful
men, or after as it has been offered before without fraud or
collusion, and after as it may be proved in the King's Court.
Any Lord who marries off a ward of his who is a minor and cannot
consent to marriage, to a villain or other, such as a burgess,
whereby the ward is disparaged, shall lose the wardship and all
its profits if the ward's friends complain of the Lord. The
wardship and profit shall be converted to the use of the heir,
for the shame done to him, after the disposition and provision of
his friends." (The marriage could be annulled by the church.)

"If an heir of whatever age will not marry at the request of his
Lord, he shall not be compelled thereunto; but when he comes of
age, he shall pay to his Lord the value of the marriage before
receiving his land, whether or not he himself marries."

"Interest shall not run against any minor, from the time of death
of his ancestor until his lawful age; so nevertheless, that the
payment of the principal debt, with the interest that was before
the death of his ancestor shall not remain."

The value of debts to be repaid to the King or to any man shall
be reasonably determined by the debtor's neighbors and not by
strangers. A debtors' plough cattle or sheep cannot be taken to
satisfy a debt.

The wards and escheats of the King shall be surveyed yearly by
three people assigned by the King. The Sheriffs, by their
counsel, shall approve and let to farm such wards and escheats
as they think most profitable for the King. The Sheriffs shall
be answerable for the issues thereof in the Exchequer at
designated times. The collectors of the customs on wool exports
shall pay this money at the two designated times and shall make
yearly accounts of all parcels in ports and all ships.

By statute leap year was standardized throughout the nation, "the
day increasing in the leap year shall be accounted in that
year", "but it shall be taken and reckoned in the same month
wherein it grew and that day and the preceding day shall be
counted as one day."

"An English penny, called a sterling, round and without any
clipping, shall weigh 32 wheat grains dry in the middle of the
ear."

Measurements of distance were standardized to twelve inches to a
foot, three feet to a yard, and so forth up to an acre of land.

Goods which could only be sold by the standard weights and
measures (such as ounces, pounds, gallons, bushels) included
sacks of wool, leather, skins, ropes, glass, iron, lead, canvas,
linen cloth, tallow, spices, confections cheese, herrings,
sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and
ale. The prices required for bread and ale were based on the
market price for the wheat, barley, and oats from which they
were made.

The punishment for repeated violations of required measures,
weights, or prices of bread and ale by a baker or brewer;
selling of spoiled or unwholesome wine, meat, fish by brewers,
butchers, or cooks; or a steward or bailiff receiving a bribe
was reduced to placement in a pillory with a shaven head so that
these men would still be fit for military service and not
overcrowd the jails.

Forest penalties were changed so that "No man shall lose either
life or member [limb] for killing of our deer. But if any man be
taken and convicted for taking our venison, he shall make a
grievous fine, if he has anything. And if he has nothing to
lose, he shall be imprisoned for a year and a day. And after
that, if he can find sufficient sureties, he shall be delivered,
and, if not, he shall abjure the realm of England."

The Forest Charter provided that: Every freeman may allow his
pigs to eat in his own wood in the King's forest. He may also
drive his pigs there through the King's forest and tarry one
night within the forest without losing any of his pigs. But
people having greyhounds must keep them out of the forest so they
don't maim the deer.

The Forest Charter also allowed magnates traveling through the
King's forest on the King's command to come to him, to kill one
or two deer as long as it was in view of the forester if he was
present, or while having a horn blown, so it did not seem to be
theft.

After a period of civil war, the following statutes were enacted:

"All persons, as well of high as of low estate, shall receive
justice in the King's Court; and none shall take any such
revenge or distress by his own authority, without award of our
court, although he is damaged or injured, whereby he would have
amends of his neighbor either higher or lower." The penalty is a
fine according to the trespass.

A fraudulent conveyance to a minor or lease for a term of years
made to defraud a Lord of a wardship shall be void. A Lord who
maliciously and wrongfully alleges this to a court shall pay
damages and costs.

If a Lord will not render unto an heir his land when he comes of
age or takes possession away from an heir of age or removes
anything from the land, he shall pay damages.

Kinsmen of a minor heir who have custody of his land held in
socage shall make no waste, sale, nor destruction of the
inheritance and shall answer to the heir when he comes of age
for the issues of the land, except for the reasonable costs of
these guardians.

No lord may distrain any of his tenants. No one may drive animals
taken by distraint out of the shire where they have been taken.

"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".

Henry de Bracton, a royal judge and the last great ecclesiastical
lawyer, 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 them 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 judges were career civil
servants knowledgeable in the civil and canon law. 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,
Westminster Hall in London. 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.
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. Its records were the
coram rege rolls. The title of the Chief Justiciar of England
changed to the Chief Justice of England.

Appeals from these courts could be made to the King and his
council.

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.

Royal judges called justices in eyre traveled to the shires every
seven years. There, they gave interrogatories to local assizes
of twelve men to determine what had happened there since the
last eyre. Every crime, every invasion of royal rights, and
every neglect of police duties was to be presented and tried.
The assize ultimately evolved into the jury of verdict, which
replaced ordeal, compurgation, and battle as the method of
finding the truth. Suspects were failed until their cases could
be heard and jail breaks were common.

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 troves and shipwreck
cases.

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 and covenant, defamation,
and enquiries and presentments arising from the assizes of bread
and ale and measures.

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, the deodand [any personal chattel which
was the immediate cause of death] was forfeited "to God". These
chattel were usually carts, cart teams, horses, boats, and
mill-wheels.

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, i.e. 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 appurtances".

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 chattels and
money of their parents. Proof was by compurgation, the ordeal
having been abolished by the Church.

Trial by battle is still available, although it is extremely rare
for the duel 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, shire, 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."

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,
which even later has offshoots of misdemeanor and the tort of
trespass.)

Chapter 8

The Times: 1272-1348

King Edward I was respected by the people for his good
government, practical wisdom, and genuine concern for justice
for everyone. He loved his people and wanted them to love him.
He came to the throne with twenty years experience governing
lesser lands on the continent which were given to him by his
father Henry III. He gained a reputation as a lawgiver and as a
peacemaker in disputes on the continent. He had close and solid
family relationships, especially with his father and with his
wife Eleanor, to whom he was faithful. He was loyal to his close
circle of good friends. He valued honor and adhered reasonably
well to the terms of the treaties he made. He was generous in
carrying out the royal custom of subsidizing the feeding of
paupers. He visited the sick. He dressed in plain, ordinary
clothes rather than extravagant or ostentatious ones. He
disliked ceremony and display.

At his accession, there was a firm foundation of a national law
administered by a centralized judicial system, a centralized
executive, and an organized system of local government in close
touch with both the judicial and the executive system. To gain
knowledge of his nation, he sent royal commissioners into every
shire to ask about any encroachments on the King's rights and
about misdeeds by any of the King's officials: sheriffs,
bailiffs, or coroners. The results were compiled as the "Hundred
Rolls". They were the basis of reforms which improved justice at
the local as well as the national level. They also rationalized
the array of jurisdictions that had grown up with feudal
government. Statutes were passed by a Parliament of two houses,
that of lords and that of an elected [rather than appointed]
commons, and the final form of the constitution was fixed.

Wardships of children and widows were sought because they were
very profitable. A guardian could get one tenth of the income of
the property during the wardship and a substantial marriage
amount when the ward married.

Most earldoms and many baronages came into the royal house by
escheat or marriage. The royal house employed many people. The
barons developed a class consciousness of aristocracy and became
leaders of society. Many men, no matter of whom they held land,
sought knighthood. The King granted knighthood by placing his
sword on the head of able-bodied and moral candidates who swore
an oath of loyalty to the King and to defend "all ladies,
gentlewomen, widows and orphans" and to "shun no adventure of
your person in any war wherein you should happen to be". A code
of knightly chivalry became recognized, such as telling the
truth and setting wrongs right. About half of the knights were
literate. In 1278, the King issued a writ ordering all
free-holders who held land of the value of 400s. to receive
knighthood at the King's hands.

At the royal house and other great houses gentlemanly jousting
competitions, with well-refined and specific rules, took the
place of violent tournaments with general rules. At these
knights competed for the affection of ladies by jousting with
each other while the ladies watched. Courtly romances were
common. If a man convinced a lady to marry him, the marriage
ceremony took place in church, with feasting and dancing
afterwards. Romantic stories were at the height of their
popularity. A usual theme was the lonely quest of a knight
engaged in adventures which would impress his lady.

The dress of the higher classes was very changeable and subject
to fashion as well as function. Ladies no longer braided their
hair in long tails, but rolled it up in a net under a veil,
often topped with an elaborate and fanciful headdress. They wore
non-functional long trains on their tunics and dainty shoes. Men
wore a long gown, sometimes clasped around the waist. Overtunics
were often lined or trimmed with native fur such as squirrel.
People often wore solid red, blue, or green clothes. Only monks
and friars wore brown. The introduction of buttons and
buttonholes to replace pins and laces made clothing warmer. The
spinning wheel came into existence to replace the hand-held
spindle.

The great barons lived in houses built within the walls of their
castles. In semi-fortified manors, halls were two stories high,
and usually built on the first rather than on the second floor.
Windows came down almost to the floor. The hall had a raised
floor at one end where the lord and lady and a few others sat at
a high table. The hearth was in the middle of the room or on a
wall. The lord's bedroom was next to the hall on the second
floor and could have windows into the hall and a spiral
staircase connecting the two rooms. Most barons and knights
lived in unfortified or semi-fortified houses with two rooms.

In great houses, there were more wall hangings, and ornaments for
the tables. The tables were lit with candles or torches made of
wax. Plates were gold and silver. On the head table was a large
and elaborate salt cellar. Salt and spices were available at all
tables. There were minstrels who played musical instruments or
recited histories of noble deeds or amusing anecdotes. Reading
aloud was a favorite pastime. Most people ate with their fingers,
although there were knives and some spoons. Drinking vessels
were usually metal, horn, or wood. In lesser houses people ate
off slices of bread or plates of wood or pewter [made from tin,
copper, and lead]. They often shared plates and drinking vessels
at the table.

Wardships of children and widows were sought because they were
very profitable. A guardian could get one tenth of the income of
the property during the wardship and a substantial marriage
amount when the ward married.

Queen Eleanor, a cultivated, intelligent, and educated lady from
the continent, fostered culture and rewarded individual literary
efforts, such as translations from Latin, with grants of her own
money. She patronized Oxford and Cambridge Universities and left
bequests to poor scholars there. She herself had read Aristotle
and commentaries thereon, and she especially patronized
literature which would give cross-cultural perspectives on
subjects. She was kind and thoughtful towards those about her
and was also sympathetic to the afflicted and generous to the
poor. She shared Edward's career to a remarkable extent, even
accompanying him on a crusade. She had an intimate knowledge of
the people in Edward's official circle and relied on the advice
of two of them in managing her lands. She mediated disputes
between earls and other nobility, as well as softened her
husband's temper towards people. Edward granted her many
wardships and marriages and she arranged marriages with
political advantages. She dealt with envoys coming to the court.
Her intellectual vitality and organized mentality allowed her to
deal with arising situations well. Edward held her in great
esteem. She introduced to England the merino sheep, which, when
bred with the English sheep, gave them a better quality of wool.
She and Edward often played games of chess and backgammon.

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