The Law Courts of Medieval England

Alan Harding

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429558740
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Originally published in 1973 The Law Courts of Medieval England looks at law courts as the most developed institutions existing in the medieval times. Communities crystallized upon them and the governments worked through them. This book describes the scope and procedures of the different courts, appointment of the judges, the beginnings of civil and criminal courts, the origin of the jury system and other aspects of the modern legal system. It is all shown by an analysis of actual reports of court cases of the time, giving a vivid picture of the life of the English people as well as of the ways of the professional lawyers, no less intricate than they are today.

INTRODUCTION

1

The Courts of the Anglo-Saxons

THE BEGINNINGS OF LEGAL PROCEDURE

IN origin, courts may be said to have had two functions: first, the maintenance of social peace by the settlement of disputes between individuals, and second, the maintenance of the social dominance of the king or noble who held the court. Practically the two are inseparable, but logically the maintenance of social peace must come first, for society can hardly be said to exist without a means of settling disputes peacefully, while kings and princes are products of society. Kings, princes, and also priests, come onto the scene as the chosen arbiters of society and the enforcers of society’s sanctions against disruptive elements.

There were procedures for settling conflicts before there were courts in any formal sense. Until there were legal ways of obtaining compensation for the minor damage which men inevitably do to one another in the various transactions of a reasonably developed society, disputes must often have led to killing and blood-feud. The feud was certainly accepted as a normal thing up to the Norman Conquest and beyond,¹ yet a state of feuding without limit or escape is unbearable, and the pressures were all towards the devising of procedures for buying off vengeance and (seen from the side of the injured man) for getting compensation in money. Even in its pure form, there was ‘peace in the feud’. In early times we find kings and clergy emphasizing the moral obligation of vengeance, incumbent on all the kindred and colleagues of a murdered man (the clergy could point to the example of the avenging God), precisely because the threat of vengeance was the only deterrent to violence. But at the same time that vengeance was made the first legal duty, the form vengeance took was softened by royal edict, and it is therefore with the feud that our picture of the growth of a legal system must begin.²

The settlement of feuds by arbitration at which Njal was so expert in Iceland took place in regular assemblies of the people, but evidence that the Anglo-Saxons likewise came together in ‘folk-moots’ for judicial purposes is very scanty.³ Indeed, the Icelandic type of gathering to fix up a settlement would have been made redundant by the laws made by English kings from as early as c. 600, for these set out tariffs of compensation to be paid for all sorts of specific injuries. Because the compulsion to feud was not easily broken, it was still necessary for some authority to force or persuade disputants to stop fighting and come to terms, as Archbishop Theodore stopped a feud between two English kings in the seventh century, but what the terms should be was well known. The wergild is laid down.⁴

So the Old English laws are concerned not with the procedure of trial in court, but with how pressure is put on a man to submit to a peaceful settlement - a matter of formalized threat and siege and riding to and fro.⁵ This was the beginning of legal procedure, and a considerable part of it has always remained this pressure before the court hearing - which may make that hearing unnecessary.

THE OWNERS OF THE COURTS

The injured man, out for revenge, provided one of the two necessary elements of this procedure: the unremitting pressure. The other element - control, restraint, delay while tempers cooled - had to be provided by the man with political or moral power, the lord or the cleric, the person whose function it was to ‘keep the peace’. The function soon became a right, a possession, almost an object or substance: the peace or mund belonging to the man of authority (Doc. 4).⁶ Every ceorl or yeoman had his peace, and so did the king’s cook; within his family and in the area around his house or his kitchen.⁷ When the king or a lord sent a messenger off on a journey, he sent his peace along with him as ‘protection’, and from very early times travellers on ‘the king’s highway’ were regarded as being especially under the king’s peace.⁸ If a misdeed was committed within a peace, compensation had to be paid to the owner of the peace as well as to the person who was directly injured. Here is the fine payable for ‘crime’, the penalty due to the ‘public’ authority, alongside the ‘civil’ damages payable to the private plaintiff: the difference from modern law is that both were payable for the same wrongs.⁹

The strength of a peace was basically a matter of its owner’s political power, and as the king’s political power increased, the king’s peace, which was always there above the other peaces,¹⁰ slowly crushed the others out of existence, but this process was not completed till well after the Norman Conquest. In any case, law enforcement always comes from the man ‘on the spot’, and in the early Middle Ages kings had virtually no professional servants in the localities, relying instead on the natural rulers of the countryside, the great landowners. For the secure possession of the land which was the foundation of their power, these men were dependent on the king; and the king was dependent on them, as the backbone of his army and as economical deputies in matters of government. So it is not surprising that the Anglo-Saxon kings allowed the great landowners comprehensive powers of peace-keeping.

Strictly speaking all we know is that kings sometimes granted to lords that no fines should be paid from their estates for wrongs committed by the inhabitants: these fines for breaches of the king’s nationwide peace, the profits of the king’s justice, were in this way diverted to the lords of the wrongdoers.¹¹ But were the fines to be taken in ‘public’ courts or in ‘private’ courts held by the beneficiaries of the grants ? This much-debated problem has been shown to be unreal.¹² Fines and compensation are the result of diligent policing, and no early English king had the resources to police anything more than his own immediate household. By his grant of these payments the king was simply providing one more incentive to the local lord to enforce the law in his peace and amongst his own men as only he could do. There cannot have been much need of courts at any level to stand between the wrongdoing and retribution: the peace-keeper compelled the payment of the set compensation or cut down the outlaw and the thief caught in the act.

No doubt, though, the lords did have their ‘moots’; meetings of their chief advisers and armed followers, and of the peasantry in each of their manors. In King Ine’s seventh-century laws there is evidence that the system of agriculture by which each village tilled two or three open fields as a community was already requiring communal regulations and, to enforce these regulations, very likely a ‘hall-moot’, the ‘manorial court’ of later times.¹³ The court of the manor was the most typical of all courts. It remained active for well over a thousand years, because the rural community of which it was the organ so long remained the foundation of English society. Its law comprised the customary ways of the community, yet it was quickly accepted that the manor court belonged to the dominant landowner in the village, the lord whose dependants and then tenants the rest of the villagers came to be. After the Conquest every considerable landlord was regarded as entitled to his manor court, in which his steward presided to extract fines for his employer.

At the other extreme from the manorial court, the king had a court for his household and greater subjects. This court - the witenagemot -was just the group of ‘wise men’ (witan) - bishops, abbots and warriors -who were with the king at a particular time, to advise, guard and drink with him; but since they were there, and since many of the king’s land-grants were to themselves, they witnessed these grants and joined with the king in their enforcement. It is important to understand what the king’s grants by charter or ‘land-book’ did. This was not feudalism. There was no concept yet that all land came from the king to be ‘held’ from him in return for a service. A land-book was primarily a political act, conferring the king’s special peace and protection on the lands of the churchman or thegn (nobleman) who obtained it, and on the transmission of that land to the churchman’s successors or to the thegn’s chosen heirs: the moment of transmission was, of course, the dangerous one when the unprotected property was liable to occupation by an outsider (Doc. I).¹⁴ Because land was, and has been till recent times, the one great source of power, the seizure of other people’s land was the perennial vice of the aristocracy. The king worked hard to prevent the resulting dissension within the class upon which he relied, partly by punishing violent seizure as crime against his peace, but more by providing ‘civil’ procedures to arbitrate between rival claimants.

Naturally, the king and his witan would deal with serious offences by his own men, and in these cases the king had available a penalty beyond the ordinary fine: the forfeiture of the land which the culprits had held under the king’s protection (Doc. I).¹⁵ Beneath the king, the great lords too, ecclesiastical and lay, protected the lands of their followers and made grants by charter,¹⁶ and also received forfeiture of the lands of these followers if they acted disloyally or criminally.¹⁷ It is reasonable to think, therefore, that these nobles held other courts, less regular but more exalted than the manor courts, where their leading retainers could settle their disputes about land, courts corresponding to the ‘honour courts’ of the post-Conquest Anglo-Norman aristocracy.

THE KING, THE CHURCH AND THE PUBLIC COURTS

The first signs of the administrative area, which in the tenth century came to be called the hundred, appears much earlier than that in the part of central southern England which was the heartland of Wessex. There, the hundreds of Domesday Book have natural boundaries and are each centred upon some landmark, perhaps an old heathen shrine, the name of which often indicates that it was the ‘meeting-place’ of the area, the place where its moot gathered, though we know nothing of what these meetings did.¹⁸ When information becomes available in the tenth century, the hundred is a fiscal unit, dependent on a royal manor where the king’s taxes are collected,¹⁹ and it was imposed artificially on the rest of England as this was conquered from the Norsemen by the Wessex kings. The appearance of the hundred as an administrative unit must be associated with the new official class of thegns which grew up as reeves in the service of the Wessex dynasty in the ninth century and took its power throughout England in the tenth,²⁰ and similarly its court is to be thought of as the peace-keeping organ of this new class of local potentate, rather than as an age-old popular assembly which suddenly appears in the light of history.

The ‘hundred’ was a hundred hides, and the hide was reckoned as the amount of land which supported a family. This amount obviously varied from region to region according to the richness of the soil, so that it is possible to give only a rough indication of the size of a medieval hundred by saying that a dozen or so hundreds made up t...