Law and Society in Later Medieval England and Ireland

Essays in Honour of Paul Brand

Travis R. Baker

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9780367594367
• eBook ISBN: 9781317107767
• Edition: 1
• Topic: History
• Subtopic: European Medieval History
• Index: History

Law mattered in later medieval England and Ireland. A quick glance at the sources suggests as much. From the charter to the will to the court roll, the majority of the documents which have survived from later medieval England and Ireland, and medieval Europe in general, are legal in nature. Yet despite the fact that law played a prominent role in medieval society, legal history has long been a marginal subject within medieval studies both in Britain and North America. Much good work has been done in this field, but there is much still to do. This volume, a collection of essays in honour of Paul Brand, who has contributed perhaps more than any other historian to our understanding of the legal developments of later medieval England and Ireland, is intended to help fill this gap. The essays collected in this volume, which range from the twelfth to the sixteenth century, offer the latest research on a variety of topics within this field of inquiry. While some consider familiar topics, they do so from new angles, whether by exploring the underlying assumptions behind England's adoption of trial by jury for crime or by assessing the financial aspects of the General Eyre, a core institution of jurisdiction in twelfth- and thirteenth-century England. Most, however, consider topics which have received little attention from scholars, from the significance of judges and lawyers smiling and laughing in the courtroom to the profits and perils of judicial office in English Ireland. The essays provide new insights into how the law developed and functioned within the legal profession and courtroom in late medieval England and Ireland, as well as how it pervaded the society at large.

1
Justice delayed

Absent recognitors and the Angevin legal reforms, c. 1200

William Eves

The legal reforms of Henry II’s reign laid many of the foundations of the English common law. Royal control over criminal pleas was increased. Likewise, a number of actions were created which allowed disputes concerning land, which might previously have been heard in lords’ courts, to be brought directly before royal justices. These actions, known as ‘assizes’, proved to be extremely popular, a fact illustrated by the large number of cases found in the earliest surviving plea rolls of the royal courts.¹ The procedures followed by each type of assize could differ somewhat, although a common feature was the mode of proof used to decide the case. This was the ‘recognition’.² Twelve local landholders were empanelled as ‘recognitors’ to provide a formal answer, on oath, to a question of fact. Recognitions nevertheless differed from a modern jury as the recognitors were asked to swear, at least ostensibly, on what they knew to be true, rather than what they judged to be true after weighing the evidence presented to them.³

Although central to the new Angevin procedures, the recognition was not an invention of Henry II’s reign. Carolingian royal inquests had relied on the testimony of jurors.⁴ Likewise, we have records of Anglo-Saxon disputes which were resolved through sworn neighbourhood testimony.⁵ The verdict of groups of neighbours as to a person’s fama could also be used as proof in a range of Romano-canonical procedures.⁶ Nevertheless, as Susan Reynolds has observed, the Angevin reformers built on these procedures and gave recognitions ‘precise form and rules of application’ in the English royal courts.⁷

F.W. Maitland commented that the recognition ‘suited Englishmen well; it became a cherished institution and was connected in their minds with all those liberties that they held dear’.⁸ Indeed, no juridical concept has found more widespread and vocal exaltation in the traditionally sombre confines of Anglo-American jurisprudence. Famously described by Lord Devlin as ‘the lamp that shows that freedom lives’, collective judgment is seen by many as the palladium of liberty.⁹

Despite the importance of the recognition in the early common law, the study of ‘civil’ recognitions in the late twelfth and early thirteenth centuries has been somewhat neglected, with most scholarly attention focussing on the later medieval criminal jury.¹⁰ The works that have considered the recognition have generally fallen into two categories. A number of historians have investigated the earlier history of juries in the Middle Ages, and have attempted to pinpoint the origins of the English procedure.¹¹ Others have considered the influence of the recognition on the socio-political development of the medieval state.¹² The conduct of the recognitors themselves has thus been somewhat overlooked. However, discussion on this topic has recently been reinvigorated by Paul Brand’s re-examination of the ‘Millon thesis’, an argument put forward by David Millon in 1989 which suggested that recognitors in the late medieval and early modern periods eschewed legal norms and frequently used their discretion to decide cases.¹³

This chapter examines another aspect of the conduct of recognitors in civil cases. It investigates the extent to which the absence of recognitors from court affected the administration of justice in the earliest years of the common law. Many of the new Angevin procedures were designed to provide swift justice. It will be seen, however, that a significant number of actions suffered postponements because insufficient recognitors turned up on the day of the hearing. Actions heard at the Bench, which commonly sat at Westminster, were particularly susceptible to these delays. Cases brought before the court which travelled with the king, known as the court coram rege, were also frequently affected. In contrast, actions heard locally by the justices of eyre were less likely to be affected by recognitor absences.

The first part of this chapter outlines the background to the Angevin reforms and illustrates why swift justice may have been of such concern to the reformers. The new Angevin procedures are then examined. Particular attention is given to the procedural rules which were introduced to ensure that cases proceeded to judgment without undue delay. We then turn to the surviving plea rolls of the royal courts to examine the impact of recognitor absences on these new actions. We begin our survey in 1194, the date of the earliest surviving plea rolls.¹⁴ The period up to c. 1208 is considered. This provides a good selection of plea rolls and allows us to end our survey before the activity of the royal courts was disrupted in the tumultuous later years of John’s reign.¹⁵

The background to the Angevin legal reforms

In order to understand the context of the Angevin reforms, it is helpful to consider the nature of English justice in the early years of the twelfth century. A writ of Henry I provides us with an outline, perhaps somewhat idealised, of the court structure in operation in England following the Conquest. Disputes concerning right to land were to be heard in the court of the lord of the fee in which the land in dispute was located. If the jurisdiction of the lord’s court was unsuitable, most likely because the litigants claimed to hold the land in dispute of different lords, the case would be heard in the county courts. Disputes between tenants-in-chief would be heard by the king himself, acting in his capacity as immediate lord of the litigants.¹⁶ It was also possible for other well-placed individuals to call upon the king to hear their cases, although such royal intervention occurred on an ad hoc basis.¹⁷ In any of the above courts, proof might take various forms, including the use of documents and sworn testimony. When cases could not be resolved through other means, the matter was often decided through trial by battle.¹⁸

Regardless of the type of court before which the dispute was brought, the path to justice could be slow and frustrating. Richard de Anstey’s case against his cousin, Mabel de Francheville, provides a well-known instance of a case beset by delays in both the secular and ecclesiastical courts.¹⁹ Richard brought the case before the king’s court in 1158. The first hearing was scheduled to take place at Northampton, so Richard travelled to court with his friends and helpers. However, the matter was postponed and a day was given for a subsequent hearing at Southampton. As Richard alleged that Mabel was illegitimate, the dispute was then transferred to the archbishop of Canterbury’s court. The case was then subject to many delays, and both parties made appeals to Rome. Richard, in his appeal, criticised Mabel’s ‘shiftiness’ and made it clear that ‘he was aggrieved by the fact that he had now been troubled by a series of postponements for more than two years and had been cheated of his just claim’.²⁰ Mabel was eventually judged to be illegitimate and the case then returned to the secular courts. The justiciar gave Richard a day for pleading at London in the beginning of March 1163. However, the case was postponed on numerous occasions and it eventually came before the king in July 1163. ‘At last’, Richard wrote, ‘by the grace of God and of the king, and by judgment of his court, my uncle’s land was adjudged to me’.²¹ The case had cost him £344, 7s, 4d.²²

Richard de Anstey’s case suffered delays in both the secular and ecclesiastical courts. Nevertheless, cases which did not require an intervening ecclesiastical hearing might also suffer long postponements. In the early years of Henry II’s reign, for example, Turstin fitz Simon was summoned to the county court to answer a complaint brought by the abbot of Abingdon. The abbot alleged that Turstin had unjustly obtained possession of the church of Marcham and certain other tenements.²³ The Abingdon chronicler tells us that Turstin, ‘conscious of his misdeed, cleverly evaded the meetings of the county for two years and more… under pretext of the king’s service or illness or some other cause’.²⁴ The abbot met the king at Woodstock in 1157 and ‘strenuously begged him to have mercy and put an end to his pain and the case’.²⁵ Turstin was subsequently summoned to the king’s court and, at last, the abbot was able to obtain justice.

A case between Battle Abbey and Gilbert de Balliol, probably from the following year, proceeded in a similar manner. The dispute concerned land which had been granted to the abbey by Gilbert’s predecessor, and which Gilbert had then taken back into his own han...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of contributors
• Preface
• List of abbreviations
• 1 Justice delayed: absent recognitors and the Angevin legal reforms, c. 1200
• 2 Testament and inheritance: the lessons of the brief widowhood of Isabel, countess of Pembroke
• 3 A crossroads in criminal procedure: the assumptions underlying England’s adoption of trial by jury for crime
• 4 The general eyre and royal finance
• 5 Royal privilege and episcopal rights in the later thirteenth century: the case of the Ashbourne advowson, 1270–89
• 6 The clerk William Tyssyngton and the pursuit of fugitives in the late thirteenth century
• 7 Profits and perils of an Irish legal career: Sir Elias Ashbourne (d. 1356), chief justice and marcher lord
• 8 Two jurisdictions in dispute about canonical appeals: London and Canterbury, 1375–6
• 9 The outlaw in later medieval Ireland
• 10 The origins and development of judicial tenure ‘during good behaviour’ to 1485
• 11 ‘Et Subridet etc.’: smiles, laughter and levity in the medieval Year Books
• 12 Men of law and professional identity in late medieval England
• 13 Legal services for the poor in the early common law
• Index