Part 25

Itinerant justices could conduct these assizes: petty and grand. In 1198, the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than 200s. [ten pounds] a year. The four knights came to be selected by the suitors of the county court rather than by the sheriff.

This assize procedure extended in time to all other types of civil actions.

Also removable to the Royal Court from the county courts were issues of a lord's claim to a person as his villein (combat not available), service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor.

The Royal Court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. Other pleas of the Crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the King's servants.

Henry involved the Royal Court in many criminal issues, using the agencies of the county and hundred courts. To detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. A traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. They made such inquiries through assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (These later evolved into grand juries). These assizes were an ancient institution in many parts of the country. They consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. What Henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. The procedure was made more regular instead of depending on crime waves. If indicted, the suspected persons were then sent to the ordeal. There was no trial by compurgation in the Royal Courts, which was abolished by Henry. If determined guilty, he forfeited his chattels to the king and his land reverted to his landlord. If he passed the ordeal but was ill-famed in the community, he could be banished from the community. The ordeal was abolished by the Lateran Council of 1215.

As before, a person could also be brought to trial by the accusation of the person wronged. If the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal.

If a man failed at the ordeal, the penalty prescribed by the assize of Clarendon of 1166 was loss of a foot and abjuring the realm. The assize of Northhampton of 1176 added loss of the right hand. Under the former assize, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal.

Criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the King's peace, homicide, murder (homicide for which there were no eyewitnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. All murders were now punished alike because the applicability of the murdrum couldn't be determined since it was impossible to prove that the slain man had been English.

Trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. One found guilty of it could be fined and imprisoned as well as amerced.

Housebreaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the Royal Court.

The Royal Court had grown substantially and was not always presided over by the King. To avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the Royal Court. First, a plaintiff had to apply to the King's Chancery for a standardized writ into which the cause had to fit. The plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. The progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant.

The Royal Court kept a record on its cases on parchment kept rolled up: its "rolls". The oldest roll of 1194 is almost completely comprised of land cases.

Anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. A wife could represent her husband. The principal was then bound by the actions of his agent. Gradually men appeared who made a business of representing whoever would employ them. The common law system became committed to the "adversary system" with the parties struggling judicially against each other.

The Royal Court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the Crown or not. It also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein presentment]. Many churches had been built by a lord on his manor for his villeins. The lord had then appointed a parson and provided for his upkeep out of the income of the church. In later times, the lord's chosen parson was formally appointed by the bishop. By the 1100s, many lords had given their advowsons to abbeys. This procedure used twelve recognitors selected by the sheriff.

As before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. His moveable goods and chattels became the King's. If he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". The loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder".

The manor court heard cases arising out of the unfree tenures of the lord's vassals. It also heard distraint, also called "distress", issues. Distraint was a landlord's method of forcing a tenant to perform the services of his fief. To distrain by the fief, a lord first obtained a judgment of his court. Otherwise, he distrained only by goods and chattels without judgment of his court. A distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. Law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. For instance, neither clothes, household utensils, nor a riding horse was distrainable. The lord could not use the chattels taken while they were in his custody. If cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. The lord, if he were not the King, could not sell the chattel. This court also determined inheritance and dower issues.

The court of the vill enforced the village ordinances. The hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. The county and borough courts heard cases of felonies, accusations against freemen, tort, and debts. The knights make the county courts work as legal and administrative agencies of the Crown.

The peace of the sheriff still exists for his county. The King's peace may still be specially given, but it will cease upon the death of the King. Law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. The village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man.

Admiralty issues (since no assize could be summoned on the high seas), and tenement issues of land held in frankalmoin ["free alms" for the poor to relieve the king of this burden], where the tenant was a cleric were heard in the ecclesiastical courts.

Before Henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. Henry tried to return to the concept of the king being appointed by God and as the head of the church as well as of the state, as in Henry I's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. Toward this end, he published the Constitutions of Clarendon. But the Archbishop of Canterbury, Thomas Becket, refused to agree to them, although as Chancellor he had seen the beneficial effects on the kingdom of Henry's legal measures. The disagreement 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 and punished only in ecclesiastical courts, even for secular crimes. Clerics composed about one-sixth the population. The church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. It could not impose a death penalty, even for murder. When Archbishop Becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. 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 bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. It was a constant matter of dispute, in which the pope would sometimes involve himself. Selection of archbishops was also a frequent matter of contention between king and pope.

The church copied the assize procedure developed by the Royal Court to detect ecclesiastical offenses. Trial was still by compurgation. Bishops could request the Chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. Chancery complied as a matter of course. This went on for six centuries.

The delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. However, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help.

The office of coroner was established about 1194 to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. Four knights who were residents of the county and possessed sufficient land were elected by the county court for life. Sometimes they had county and royal connections instead. They received no pay. They determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. They also held inquests on other crime such as bodily injury, rape, and prison break. They attached [arrested] the accused and evaluated and guarded his chattels until after the trial. If the accused was found guilty, his possessions went to the King. The coroner sat with the sheriff at every county court and went with him on his turns. This office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. The responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them.

Also, at this time, the constitution of the grand jury of the county was defined. First, four knights were to be chosen in the county court. These were to select on oath two knights from each hundred. These two, also on oath, are to add by co-optation ten more for the jury of the hundred.

In London, if one of two witnesses for the defense died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. If a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches.

In London, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a rock. In cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock.

Chief Justiciar Ranulph Glanvill wrote a treatise on the writs which could be brought in the Royal Court and the way they could be used. It was a practical manual of procedure and of the law administered in the Royal Court.

There are personal actions such as "debt" for specific chattel or specific sum of money. This splits into two actions. The detinue award is for the specific chattel or its value. The action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. Also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trespass": a semi-criminal action brought by a private party for an offense punishable by death (or in the 1100s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. The use of trespass grew as private actions for felony were supplanted by public indictment. It occasioned outlawry in default of appearance. These personal actions were initiated in common law courts by their respective writs.