OUR LEGAL HERITAGE

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Debts to townsmen were recoverable by this law: "If a burgess has
a gage [a valuable object held as security for carrying out an
agreement] for money lent and holds this for a whole year and a
day, and the debtor will not deny the debt or deliver the gage,
and this is proved, the burgess may sell the gage before good
witnesses for as much as he can, and deduct his money from the
sum. If any money is over he shall return it to the debtor. But
if there is not enough to pay him, he shall take distress again
for the amount that is lacking."

Past due rent in a borough was punishable by payment of 10s. as
fine."

There are legal maxims which are becoming so well established and
known that there will never be a need to write them down as
statutes. As delineated by St. Germain in "Doctor and Student"
in 1518, they are:

1. If a man steals goods to the value of 12d., or above, it is
felony, and he shall die for it. If it is under the value of
12d., then it is but petit larceny, and he shall not die for it,
but shall be punished at the discretion of the judges. This not
apply to goods taken from the person, which is robbery, a felony
punishable by death.

2. If an exigent, in case of felony, is awarded against a man, he
has thereby forthwith forfeited his goods to the King.

3. If the son is attainted [convicted of treason or felony with
the death penalty and forfeiture of all lands and goods] in the
life of the father, and after he purchases his charter of pardon
of the King, and after the father dies; in this case the land
shall escheat to the lord of the fee, insomuch that though he
has a younger brother, yet the land shall not descend to him: for
by the attainder of the elder brother the blood is corrupt, and
the father-in-law died without heir.

4. A man declared outlaw forfeits his profits from land and his
goods to the King.

5. He who is arraigned upon an indictment of felony shall be
admitted, in favor of life, to challenge the number of inquirers
for three whole inquests peremptorily. With cause, he may
challenge as many as he has cause to challenge. Such peremptory
challenge shall not be admitted in a private suit because it is
a suit of the party.

6. An accessory shall not be put to answer before the principal.

7. If a man commands another to commit a trespass, and he does
it, the one who made the command is a trespasser.

8. The land of every man is in the law enclosed from other,
though it lies in the open field and a trespasser in it may be
brought to court.

9. Every man is bound to make recompense for such hurt as his
beasts do in the growing grain or grass of his neighbor, though
he didn't know that they were there.

10. He who has possession of land, though it is by disseisin, has
right against all men but against him who has right.

11. The rents, commons of pasture, of turbary [digging turf],
reversions, remainders, nor such other things which lie not in
manual occupation, may not be given or granted to another
without writing.

12. If a villein purchase lands, and the lord enter, he shall
enjoy the land as his own. But if the villein alienates before
the lord enters, he alienation is good. And the same law is of
goods.

13. Escuage [shield service for 40 days] uncertain makes knight's
service. Escuage certain makes socage.

14. He who holds by castle-guard, holds by knight's service, but
he does not hold by escuage. He that holds by 20s. to the guard
of a castle holds by socage.

15. A descent takes away an entry.

16. No prescription [assertion of a right or title to the
enjoyment of a thing, on the ground of having had the
uninterrupted and immemorial enjoyment of it] in lands makes a
right.

17. A prescription of rent and profits out of land makes a right.

18. The limitation of a prescription generally taken is from the
time that no man's mind runs to the contrary.

19. Assigns may be made upon lands given in fee, for term of
life, or for term of years, though no mention be made of
assigns; and the same law is of a rent that is granted; but
otherwise it is of a warranty, and of a covenant.

20. He who recovers debt or damages in the King's court when the
person charged is not in custody, may within a year after the
judgment take the body of the defendant, and commit him to
prison until he has paid the debt and damages.

21. If a release or confirmation is made to him who, at the time
of the release made, had nothing in the land, the release or
confirmation is void, except in certain cases, such as to vouch.

22. A condition to avoid a freehold cannot be pleaded without a
deed; but to avoid a gift of chattel, it may be pleaded without
deed.

23. A release or confirmation made by him, that at the time of
the release or confirmation made had no right, is void in law,
though a right comes to him after; except if it is with
warranty, and then it shall bar him to all right that he shall
have after the warranty is made.

24. If land and rent that is going out of the same land, comes
into one man's hand of like estate, and like surety of title,
the rent is extinct.

25. If land descends to him who has right to the same land
before, he shall be remitted to his better title, if he will.

26. If two titles are concurrent together, the oldest title shall
be preferred.

27. If a real action be sued against any man who has nothing in
the thing demanded, the writ shall abate at the common law.

28. If the demandant or plaintiff, hanging his writ, will enter
into the thing demanded, his writ shall abate.

29. By the alienation of the tenant, hanging the writ, or his
entry into religion, or if he is made a knight, or she is a
woman, and takes a husband hanging the writ, the writ shall not
abate.

30. A right or title of action that only depends in action,
cannot be given or granted to none other but only to the tenant
of the ground, or to him who has the reversion or remainder of
the same land.

31. In an action of debt upon an agreement, the defendant may
wage his law: but otherwise it is upon a lease of lands for term
of years, or at will.

32. The King may disseise no man and no man may disseise the
King, nor pull any reversion or remainder out of him.

33. The King's excellency is so high in the law, that no freehold
may be given to the King, nor be derived from him, but by matter
of record.

34. If an abbot or prior, an abbot's chief assistant, alienate
the lands of his house, and dies, though his successor has right
to the lands, yet he may not enter, but he must take legal
action.

35. If an abbot buys a thing that comes to the use of the house,
and dies, then his successor shall be charged.

Judicial activity encouraged the recording of royal legislation
in writing which both looked to the past and attempted to set
down law current in Henry's own day. The "Liberi Quadripartitus"
aimed to include all English law of the time. This showed an
awareness of the ideal of written law as a statement of judicial
principles as well as of the practice of kingship. In this way,
concepts of Roman law used by the Normans found their way into
English law.

Church law required that only consent between a man and woman was
necessary for marriage. There needn't be witnesses, ceremony,
nor consummation. Consent could not be coerced. Penalties in
marriage contracts were deemed invalid. Villeins and slaves
could marry without their lords' or owners' permission. A couple
living together could be deemed married. Relatives descended from
the same great great grandfather could not marry, nor could
relatives by marriage of the same degree of closeness. A legal
separation could be given for adultery, cruelty, or heresy.
Fathers were usually ordered to provide some sustenance and
support for their illegitimate children. The court punished
infanticide and abortion.

Judicial Procedure

Courts extant now are the Royal Court, the King's Court of the
Exchequer, shire courts, and hundred courts, which were under
the control of the King. His appointed justices administered
justice in these courts on regular circuits. Also there are
manor courts, borough courts, and ecclesiastical courts.

The King's Royal Court heard issues concerning the Crown and
breaches of the King's peace, which included almost all criminal
matters. The most serious offenses: murder, robbery, rape,
abduction, arson, treason, and breach of fealty, were now called
felonies. Other offenses were: housebreaking, ambush, certain
kinds of theft, premeditated assault, and harboring outlaws or
excommunicants. Henry personally presided over hearings of
important legal cases. He punished crime severely. Offenders
were brought to justice not only by the complaint of an
individual or local community action, but by official
prosecutors. A prosecutor was now at trials as well as a judge.
Trial is still by compurgation.

These offenses against the King placed merely personal property
and sometimes land at the King's mercy. Thus the Crown increased
the range of offenses subject to its jurisdiction and arrogated
to itself profits from the penalties imposed.

The Royal Court also heard these offenses against the King:
fighting in his dwelling, contempt of his writs or commands,
encompassing the death or injury of his servants, contempt or
slander of the King, and violation of his protection or his law.
It heard these offenses against royal authority: complaints of
default of justice or unjust judgment, pleas of shipwrecks,
coinage, treasure- trove [money buried when danger approached],
forest prerogatives, and control of castle building.

Henry began the use of writs to intervene in civil matters. These
writs allowed people to come to the Royal Court on certain
issues. He had some locally based justices, called justiciars.
Also, he sent justices out on eyres [journeys],with wide
responsibilities, to hear and decide all manner of Crown pleas.
This brought royal authority into the localities and served to
check baronial power over the common people. He created the
office of chief justiciar, which carried out judicial and
administrative functions.

The Royal Court also decided land disputes between barons. There
was a vigorous interventionism in the land law subsequent to
appeals to the King in landlord- tenant relations, brought by a
lord or by an undertenant. Assizes [those who sit together] of
local people who knew relevant facts were put together to assist
the court.

Records of the verdicts of the Royal Court were sent with
traveling justices for use as precedent in shire and hundred
courts.

The King's Court of the Exchequer reviewed the accounts of
sheriffs, including receipts and expenditures on the Crown's
behalf as well as sums due to the Treasury, located still at
Winchester. These sums included rent from royal estates, the
Danegeld land tax, the fines from local courts, and aid from
baronial estates. It was called the "Exchequer" because it used a
chequered cloth on the table to facilitate calculation in Roman
numerals of the amount due and the amount paid. It's records
were the "Pipe Rolls", so named because sheets of parchment were
fastened at the top, each of which dropped into a roll at the
bottom and so assumed the shape of a pipe.

The shire and hundred courts assessed the personal property of
individuals and their taxes due to the King. The shire court
decided land disputes between people who had different barons as
their respective lords.

The Crown used its superior coercive power to enforce the legal
decisions of other courts.

The shire courts heard cases of theft, brawling, beating, and
wounding, for which the penalties could be exposure in the
pillory or stocks where the public could scorn and hit the
offender. It met twice yearly. If an accused failed to appear
after four successive shire courts, he was declared outlaw at the
fifth and forfeited his civil rights and all his property. He
could be slain by anyone at will.

The hundred court heard neighborhood disputes, for instance
concerning pastures, meadows and harvests. It policed the duty
of frankpledge, which was required for those who did not have a
lord to answer for him. It met once a month.

The free landholders were expected to attend shire, hundred, and
baronage courts. They owed "suit" to it. The suitors found the
dooms [laws] by which the presiding officer pronounced the
sentence.

The barons held court on their manors for issues arising between
people living on the manor, such as bad ploughing on the lord's
land or letting a cow get loose on the lord's land, and land
disputes. They also made the decision of whether or not a person
was a villein or free. The manor court took over issues which
had once been heard in the vill or hundred court. The baron
charged a fee for hearing a case and received any fines he
imposed, which amounted to significant "profits of justice".

Boroughs held court on trading and marketing issues in their
towns such as measures and weights, as well as issues between
people who lived in the borough. The borough court was presided
over by a reeve who was a burgess as well as a royal official.

Wealthy men could employ professional pleaders to advise them and
to speak for them in a court.

The ecclesiastical courts dealt with family matters such as
marriage, annulments, marriage portions, legitimacy,
wife-beating, child abuse, orphans, bigamy, adultery, incest,
fornication, personal possessions, slander, usury, mortuaries,
sanctuary, sacrilege, blasphemy, heresy, tithe payments, church
fees, certain offences on consecrated ground, and breaches of
promises under oath, e.g. to pay a debt, provide services, or
deliver goods. It decided inheritance and will issues which did
not concern land, but only personal property. This developed
from the practice of a priest usually hearing a dying person's
will as to the disposition of his goods and chattel when he made
his last confession. It provided guardianship of infants during
probate of their personal property. Trial was by compurgation.
An alleged offender could be required to answer questions under
oath, thus giving evidence against himself. The ecclesiastical
court's penalties were intended to reform and determined on a
case-by-case basis. They could include confession and public
repentance of the sin before the parish, making apologies and
reparation to persons affected, public embarrassment such as
being dunked in water (e.g. for women scolds), walking a route
barefoot and clad only in one's underwear, whippings, extra
work, fines, and imprisonment in a "penitentiary" to do penance.
The ultimate punishment was excommunication with social
ostracism. Then no one could give the person drink, food, or
shelter and the only people he could speak to were his spouse
and servants. Excommunication included denial of the sacraments
of baptism, penance, eucharist, and extreme unction at death;
which were necessary for salvation of the soul; and the
sacrament of confirmation. However, the person could still marry
and make a will. Excommunication was usually imposed for failure
to obey an order or showing contempt of the law or of the courts.
It required a due process hearing and a written reason. If this
measure failed, it was possible to turn the offender over to the
state for punishment, e.g. for blasphemy or heresy. Blasphemy
[speaking ill of God] was thought to cause God's wrath expressed
in famine, pestilence, and earthquake and was usually punished
by a fine or corporal punishment, e.g. perforation or amputation
of the tongue. It was tacitly understood that the punishment for
heresy was death by burning. The state usually assured itself
the sentence was just before imposing it. The court of the rural
dean was the ecclesiastical parallel of the hundred court of
secular jurisdiction and usually had the same land boundaries.

Chapter 6

The Times: 1154-1215

King Henry II and Queen Eleanor, who was twelve years older, were
both intelligent, educated, energetic, well-traveled, and
experienced in affairs of state. Henry was the first Norman King
to be fully literate. Eleanor often served as regent during
Henry's reign and the reigns of their two sons: Richard, the
Lion-Hearted, and John. Henry II was a modest, courteous, and
patient man with an astonishing memory and strong personality.
He was indifferent to rank and impatient of pomp to the point of
being careless about his appearance. He usually dressed in
riding clothes and was often unkempt. He was thrifty, but
generous to the poor.

Henry revived and augmented the laws and institutions of his
grandfather, Henry I, and developed them to a new perfection.
Almost all legal and fiscal institutions appear in their first
effective form during his reign. For instance, he
institutionalized the assize for a specific function in judicial
proceedings, whereas before it had been an ad hoc body used for
various purposes.

Henry's government practiced a strict economy and he never
exploited the growing wealth of the nation. He abhorred
bloodshed and the sacrifice of men's lives. So he strove
diligently to keep the peace, when possible by gifts of money,
but otherwise with armed force. Foreign merchants with precious
goods could journey safely through the land from fair to fair.
These fairs were usually held in the early fall, after
sheep-shearing and harvesting. Frankpledge was revived. No
stranger could stay overnight (except for one night in a
borough), unless sureties were given for his good behavior. A
list of such strangers was to be given to itinerant judges.

Henry had character and the foresight to build up a centralized
system of government that would survive him. He learned about
the shires' and villages' varying laws and customs. Then, using
the model of Roman law, he gave to English institutions that
unity and system which in their casual patch-work development
had been lacking. Henry's government and courts forged permanent
direct links between the King and his subjects which cut through
the feudal structure of lords and vassals.

He developed the methods and structure of government so that
there was a great increase in the scope of administrative
activity without a concurrent increase of personal power of the
officials who discharged it. The government was self- regulating,
with methods of accounting and control which meant that no
official, however exalted, could entirely escape the
surveillance of his colleagues and the King. At the same time,
administrative and judicial procedures were perfected so that
much which had previously required the King's personal attention
was reduced to routine.

The royal household translated the royal will into action. In the
early 1100s, there had been very little machinery of central
government that was not closely associated with the royal
household. Royal government was largely built upon what had once
been purely domestic offices. Kings had called upon their
chaplains to pen letters for them. By Henry II's reign, the
Chancery was a highly efficient writing office through which the
King's will was expressed in a flow of writs, and the Chancellor
an important and highly rewarded official, but he was still
responsible for organizing the services in the royal chapel.
Similarly, the chamberlains ran the household's financial
departments. They arranged to have money brought in from a
convenient castle-treasury, collected money from sheriffs or the
King's debtors, arranged loans with the usurers, and supervised
the spending of it. It was spent for daily domestic needs, the
King's almsgiving, and the mounting of a military campaign. But
they were still responsible for personal attendance upon the
King in his privy chamber, taking care of his valuable furs,
jewels, and documents, and changing his bedlinens. There were
four other departments of the household. The steward presided
over the hall and kitchens and was responsible for supplying the
household and guests with food supplies. The butler had duties
in the hall and cellars and was responsible for the supply of
wine and ale. The marshall arranged lodgings for the King's
court as it moved about from palaces to hunting lodges, arranged
the pay of the household servants, and supervised the work of
ushers, watchmen, fire-tenders, messengers and huntsmen. The
constable organized the bodyguard and escorts, arranged for the
supply of castles, and mustered the royal army.

Henry brought order and unity by making the King's Royal Court
the common court of the land. Its purpose was to guard the
King's peace by protecting all people of free status throughout
the nation and correct the disparity in punishments given by
local courts. Heretofore, the scope of the King's peace had
varied to as little as the King's presence, his land, and his
highway. The royal demesne had shrunk to about 5% of the land.
The Common Law for all the nation was established by example of
the King's Royal Court.

A system of writs originated well-defined actions in the royal
courts. This system determined the Royal Court's jurisdiction as
against the church, lords, and sheriffs. It limited the
jurisdiction of all other courts and subordinated them to the
Royal Court. Inquests into any misdeeds of sheriffs were held,
which could result in their dismissal.

Before Henry's reign, the church had become more powerful and
asserted more authority. Henry tried to return to the concept of
the King being appointed by God and as he head of the church as
well as of the state, as in Henry I's time. Toward this end, he
published the Constitutions of Clarendon. But the Archbishop of
Canterbury, Thomas Becket, refused to agree to them. The
disageement came to a head in Henry's attempt to establish the
principle of "one law to all" by having church clerics punished
by the civil courts as before, instead of having "benefit of
clergy" to be tried only in ecclesiastical courts, even for
secular crimes. Clerics composed about one-sixth the population.
The church courts had characteristically punished with a fine or
a penance, and at most defrocking, and never imposed a death
penalty, even for murder. When Archbishop Becket was murdered
and became a martyr, "benefit of clergy" became a standard right.
Appeals could be made to the Pope without the King's permission.
The King could take a criminal cleric's chattels, but not his
life. However, though theoretically the bishops were elective,
as a practical matter, the King appointed the bishops and the
abbots.

Henry and Eleanor spoke many languages and liked discussing law,
philosophy, and history. So they gathered wise and learned man
about them, who became known as courtiers, rather than people of
social rank. They lived in the great and strong Tower of London,
which had been extended as had other castles, so that the whole
castle and grounds were defended instead of just the main
building. On the west were two strongly fortified castles
surrounded by a high and deeply entrenched wall, which had seven
double gates. Towers were spaced along the north wall and the
Thames River flowed below the south wall. To the west was the
city, where royal friends had residences with adjoining gardens
near the royal palace at Westminster. The court was a center of
culture as well as of government. The game of backgammon was
played. People wore belts with buckles, usually brass, instead
of knotting their belts.

London extended about a mile along the river and about half a
mile inland. Most of its houses were two stories, the ground
floor having booths and workshops, and the upper floor living
space. Most of the houses were wooden structures. The richer
merchants' and knights' houses were built of stone. Walls between
houses had to be stone and thatched roofs were banned because
there had been many fires. So roofs were tiled with red-brick
tiles. There were over a hundred churches in the city, which
celebrated feast days, gave alms and hospitality to strangers,
confirmed betrothals, contracted marriages, celebrated weddings,
conducted funerals, and buried the dead. Fish and no meat was
eaten on Fridays and during lent. There was dark rye bread and
expensive white wheat bread. Vegetables included onions, leeks,
and cabbage. Fruits included apples, pears, plums, cherries, and
strawberries. Water was obtained from streams running through
the town to the river and from springs. There were craft guilds
of bakers, butchers, clothworkers, and saddlers, as well as of
weavers. Vendors, craftsmen, and laborers had their customary
places, which they took up every morning. Some vendors walked
the streets announcing their wares for sale.

In London, bells heralded the start and finish of all organized
business. At sunset, the gates of the town were closed for the
night. Only the rich could afford wax candles; others had
home-made tallow or fat lights which smelled and gave off smoke.
Most people washed their bodies. Few babies survived childhood.
If a man reached 30, he could expect to live until age 50. The
sellers of merchandise and hirers of labor were distributed
every morning into their several localities according to their
trade. Outside one of the gates, a horse market was held every
week. They wore horseshoes made of iron or of a crude steel. In
other fields, countryfolk sold pigs, cows, oxen and sheep. London
Bridge was built of stone for the first time. It was supported by
a series of stone arches standing on small man-made islands. It
had such a width that a row of wood houses and a chapel was
built on top of it. In the spring it was impassable by ships
because the flow of water under it varied in height on either
side of the bridge by several feet at half tide.

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