Legal and Social Structure in 14th Century England

English Constitutional and Legal History: Court Structure and Social Structure Lecture 12 Click here for a printed outline.

The topic of this lecture What does the entire legal system look like around the year 1300? What does the entire social system look like around the year 1300? How do the two interrelate, if at all?

English population c.1300 Domesday Book (1086): 275,000 tenants = ? 2 million. To convert the first figure into a population figure we need some multiplier to give us household size, plus some estimate of the number of subtenants, landless men, and people who were missed. Most students today give a range of 1.1 to 2.25 million. Poll Tax Returns (1377): 1,386,196 rate payers =? 3 million. To convert the first figure into a population figure we have to estimate the percentage of the population below the age of 14 (who were not subject to the tax), indigents (who also were not subject to the tax), and evaders. Most students today give a range of 2.5 to 3 million.

English population c.1300 (contd) Population in 1300: ?? 6 7 million. To get from 1377 back to 1300, we need to take into account the fact that the plague of 1348 9 and its return in 1360 2, 1369, and 1375 probably resulted in a loss 40 50% of the population, giving us between 5 and 6 million in 1347. Bad harvests in the 1310s probably resulted in a loss of population that was not recovered. the most cautious conclusion is that between 1086 and 1300 the population more than doubled and probably did not quadruple, that is to say, that we re dealing with a range of 4 to 8 million, of which the higher figures, say 6 or 7 million, seem the more likely. These last numbers are amazingly high. Population estimates for the early modern period (which are much more accurate) do not reach 4 million until the end of the 16th century, do not reach 5 million until the middle of the 17th century, and do not reach 6 million until the 18th century. Was England facing a Malthusian crisis c. 1300?

Social structure c.1300 based on income. Rural lay society. In 1300, the maximum that a laborer could hope for was 2 a year. The king received in peace time approximately 30,000 per year. In 1311, Thomas earl of Lancaster had an estimated annual income of 11,000, the earls of Cornwall and Gloucester 6000, four other earls in excess of 3000, another half dozen earls from 400 to 3000. Below the level of earl we have barons, with incomes generally in the 200 to 500 range. All told the earls and barons are represented by approximately 70 families. In 1300 there were approximately 1100 knights, who disposed of incomes ranging from 20 to more than 200 per annum.

Rural lay society (contd) Below the knights we find esquires, a term originally given to aspiring knights, but now used as well for people who will never become knights. Parallel to these we find people who do not even aspire to knightly status, but who nonetheless were lords of manors and possessed incomes in excess of 5 per annum, ranging all the way up to 40 per annum. The number of these is highly conjectural, but we would be in the ball park if we estimated it on the order 10,000 families, and some students of the problem would come close to doubling that figure.

Social structure c.1300 based on income. Clerical society. 17 archbishops and bishops had incomes in the earl and upper baron range, 126 abbots of monasteries were also in this range. Some 700 religious houses had incomes on a par with those of knights and esquires. Some 8 to 9,000 beneficed clergymen had incomes in excess of 5 per annum, with about 10% in excess of 40.

Social structure c.1300 based on income. Urban society. Some merchants had incomes in the knightly range, perhaps a few who had worked up into the baronial range. There were a large number of craftsmen, some of whom had incomes in excess of 5 per year. There a large number of laborers who were indistinguishable from rural laborers except that they worked in towns.

Rural Lay Earls Barons Clergy Archbishops Bishops Abbots Priors Rectors Vicars Urban p/a 400-1100 200-500 # families 140 Knights Esquires Lesser gentry Franklins Villein Tenants Cottars Merchants 20 200 5 40 2000 20 to 40 K Lesser Clergy Craftsmen 2 10 Journeymen 1 3 Apprentices Laborers Servants Marginals Laborers 1 2 Servants Marginals Note how important the overall population is. At the upper reaches of the society we're talking about roughly 100 to 200 K people. That's 5 10% of 2 million, 2 5% of 4 million, 1 2.5% of 8 million.

Converting the income hierarchy into a social hierarchy Earls and barons are tenants in chief; knights are not necessarily tenants in chief; most in fact are not. But there are a great many tenants in chief who are not earls, barons, or knights. They are tenants of the ancient demesne. They are all, in some sense, personally free , though some of them are quite poor, but they have added status because they are tenants-in-chief, even though they are not lords. Earls and barons will ultimately come to be members of what will come to be called the nobility. Most of them will come to be entitled to a personal summons to attend parliament and will be seated in what will come to be called the house of lords, but that has not yet happened in 1300. Archbishops, bishops and certain abbots will join them in the house of lords, but though their status is similar, they are different. They can have no heirs. Also in the case of the abbots they have very large households to maintain, larger than the family which the earl or baron of similar income must maintain, and they are less involved in the military structure of the society.

Income hierarchy into a social hierarchy (contd) Being a knight is not only a social status, it is also a function, and the function of a knight to fight was by no means dead at the end of the 13th century. Being an esquire was also a function, though this function was declining by the end of the 13th century. On the other hand, no one had yet a term for what we have called in the table the lesser gentry . Priors are like abbots in that they have whole religious houses to maintain, and the lifestyles of priories and abbeys in the end of the 13th century was still substantially different from that of the lay houses. Rectors and vicars were more like lay people in that they did not have to maintain religious houses.

Income hierarchy into a social hierarchy (contd) Medieval social theory divided the world into those who fought, those who prayed, and those who worked. The theory did not distinguish between those who worked in agriculture and those who worked in the towns. Probably one in ten of the population in our period lived in towns; later it will become one in seven. The towns also had a sharply hierarchical social structure, but the income groups overlapped. The greatest merchants were the wealthiest but at the lower level of merchants nothing but function distinguished the merchant from the master craftsman.

Income hierarchy into a social hierarchy (contd) The vast majority of the population worked on the land. But here the distinctions in the table among franklins, villein tenants, and cottars is far too simplistic. There was a great variety of statuses, economic, social and functional in medieval English villages. From the point of view of the central royal courts, the most important distinction among these people was freedom vs. unfreedom, both personal and tenurial. But that distinction had been imposed largely from Roman law sources on a much more complicated social reality. Even if a man was regarded by the courts as unfree, he still had status in the king s courts. He could not, however, at least in theory, sue his lord. This distinction is related to the distinction imposed by Henry II s assizes that made villein tenure not subject to the assizes.

Court structure and social structure. Manor courts are for peasants, borough courts are for burgesses, the church courts are for clerics, and the central royal courts are for the rich. This will get you some of the way, but not very far. There are too many exceptions.

Court structure. The general eyre It came into its own in the time of Henry II. It dies out in the 14th century, probably because it was too cumbersome. It heard a vast number of civil pleas and assizes E.g., Wiltshire 1194 5: The assize comes to make recognition whether the prior of Farley unlawfully and without judgment disseised William Burnel of his free tenement in Penly after the first coronation of the lord king. The jurors say that the prior of Farley did disseise him of it. Judgment: William to have seisin of it and the prior [to be] in mercy. . . . And all criminal matters as well. Grand juries made presentments of crimes to it. E.g., Wiltshire 1194 5: Manor of Malmesbury. Emma of Summerford was slain in the house of her mother, and Thomas and Richard of Malmesbury were on that account accused. And the whole jury, being interrogated concerning it, said that they did not suspect the aforesaid Thomas and Richard of Malmesbury of the death of the same Emma. And the knights of the whole county said that they did suspect the aforesaid Thomas and Richard, because the same men then [cont d on next slide}

Court structure. The general eyre (contd) proceeded to Gloucester, and they are convinced that the same men proceeded to Gloucester for the sake of there selling the chattels of that woman. Thomas and Richard are to clear themselves by the water. The coroners laid their rolls before it. E.g., extracts from rolls probably laid before the justices in eyre in Bedfordshire in 1266 7. It happened in the vill of Wilden on [28 October 1266] that unknown malefactors came to the house of Jordan Hull of Wilden and broke into the said house while the said Jordan was absent. And the said malefactors wounded Agnes, wife of the said Jordan, and killed Emma, his eight-year-old daughter. Afterwards they carried off all the goods from the house. . . . Inquest was held before S[imon] Read, the coroner, by four neighbouring townships . . ., who said what has been reported, and that the malefactors were unknown. . . .

Court structure. Parliament The function of the eyre as in some sense the highest court of the realm was taken over by parliament. E.g., parliament roll; 1283: Aymer de Peche, who is ill, beseeches the lord king graciously to command the escheator to return to him the seisin of the manor of Steeple, the custody of which belongs to him because Hugh son of Otto ended his days holding of the said Aymer by military service the aforesaid manor, with which he had been enfeoffed by the same Aymer, who held the aforesaid manor of the lord king in chief. [Endorsed:] Let it be restored because [Hugh] held nothing of the king in chief.

Court structure. Itinerant justices The function of the justices in eyre in the country came to be replaced by specific commissions to justices to do specific things. E.g., In 1225 Martin de Pateshull the CJCB and three Somerset knights were ordered to take assizes of novel disseisin and to deliver the gaols in Somersetshire: Richard Goky, accused of the death of Henry Lightfoot who was slain at Ling, appears and denies the entire charge and puts himself on the country. And the townships of North Curry, Bridgewater, Creech, and Newton, also the twelve jurors, say on oath that they suspect of that death no one but the same Richard, and they affirm that he slew [Henry]. And so let him be hanged. Inquiry is to be made as to his chattels. And the township of Ling and the twelve jurors in the first place presented a certain Robert Young as having killed [Henry]. And afterwards they appear and confess that they did so on the instance of Roger Baryl, serjeant of the hundred. And so [he is to be put in] custody, and the twelve jurors and the township of Ling are in mercy for their false presentment. The amercement of the jurors is pardoned.

Court structure. Itinerant justices (contd) In 1278 it was still possible for the king to commission justices to hear a specific case that didn t fit into the system (Mats. VII 40): The lord King commanded his beloved and trusty Salomon of Rochester and Master Thomas de Sutherington [Justices itinerant, holding the Assizes in the County of Southampton.] that, whereas from the grave complaint of William of Dunstable, his citizen of Winchester, he had understood that, whereas the same William had bought from Robert le Bal of Winchester 103 sacks of good merchantable wool sewn up in 86 sarplers, [sarpler = a large canvas sack for packing wool: used also as a measure of wool.] namely, every sack out of 53 sacks for 8 marks and every sack out of the remaining 50 sacks for 6 marks, of which sarplers the same Robert in the presence of the aforesaid William caused 8 sarplers to be opened, namely 4 of the greater and 4 of the lesser price, whereof the same William had been content, and faithfully promised that the remaining wool sewn up in the sarplers was like the wool opened; and whereas the said William, attaching faith to the statements of the said Robert herein, carried the whole of the wool aforesaid, [cont d on next slide]

Court structure. Itinerant justices (contd) save two sacks and a half which were stolen in the custody of the said Robert, to St. Omer: yet, when the same William caused it to be opened and exposed for sale at St. Omer, he found the wool sewn up in 68 sarplers, of which he had not made inspection, vile and useless and altogether differing from his agreement; whereby the same William, through the default of the aforesaid Robert herein, incurred a loss in his goods and merchandises of a hundred pounds.

Court structure. Common Bench (Common Pleas) At Westminster the central royal court divided into three parts. Magna Carta required that common pleas be held in some fixed place, and the Common Bench, as a separate institution, arose because of this requirement. As this entry shows, the Common Bench in its early years (1220) still heard some criminal pleas as well. Hugh Hop-over-Humber appeals Thomas of Dean for [the following offense:] that on St. Giles s day, between the first and third hours, in the second year of the king s reign, while he, together with his cousin William of Leigh, was in the park of Cuckfield belonging to the earl de Warenne, for the purpose of guarding that park, the said Thomas came with a band [of accomplices], a multitude of men armed with bows and arrows, and assaulted them, aiming an arrow at the said William and hitting him in the leg, so that within nine days he died of the wound. . . .

Court structure. Exchequer of Pleas The plea side of the Exchequer was principally concerned with tax cases. E.g., in 1237: An assize, summoned and attached to make recognition on oath whether Richard of Hinton holds three-fourths of a knight s fee with appurtenances in Eastbury of the king in chief or of Ralph le Moyne appears before the barons of the exchequer on the morrow of St. Hilary: namely. . . .[The names of the twelve jurors are omitted.] They declare on oath that the said Richard of Hinton holds the said three- fourths of a knight s fee with appurtenances in Eastbury of Ralph le Moyne in chief; that the said Richard and his ancestors always rendered to the same Ralph and his ancestors the service owed from this [fief]; and that the said Ralph holds that tenement of the lord king. And so it is decided that the said Richard is to be quit of the scutage exacted from him for the said tenement, and that the same Richard shall henceforth render service for the said tenement to Ralph le Moyne and his heirs as has been accustomed. . . . Occasionally it heard important cases involving merchants, e.g., in 1299:

Court structure. Exchequer of Pleas (contd) William Cause of Lincoln was attached to answer James Pylate . . . of a plea that he do render to him (James) 20 marks which he (William) owes to him; and whereof he proffered a certain writing in which is contained that in the year of Grace 1287, . . . in the fair of St. Botolph, a covenant was made between William Cause, citizen of Lincoln, of the one part, and Everard of St. Venant and James Pylate, merchants of Douai, . . . of the other part, namely that the aforesaid William granted and sold to the aforesaid Everard and James all the wool of the house of Welbeck of the Premonstratensian Order, as well for the year of Our Lord 1290 . . . as for the six years next and continuously following, namely every sack of good wool for 15 marks sterling and every sack of middling wool for 10 marks sterling and every sack of selected locks [ Locks were inferior or short wools.] for 8 marks sterling: whereupon [the agents of Everard and James] . . . have paid to the aforesaid William 20 marks sterling as earnest money (in arris) at the time of the making of the aforesaid writing, to be allowed to the same merchants in payment for the said wools in the last year of this covenant. And he (James) says that he did not receive the aforesaid wools except for the first three years, wherefore he asks for the said 20 marks to be restored to him according to the form of the said covenant.

Court structure. Court before the king (Kings Bench) The court before the king still notionally moved around with the king. It heard important criminal cases and reviewed proceedings in lesser courts. S&M 54 (F), pp. V 65 to V 66, gives us a roll of judicial appointments for the year 1278, showing both the structure of the courts and the fact that the justices were not working for nothing.

Court structure. Manor courts. Examples from the manor court of Ruislip [Middlesex], 1246: . . . The court makes presentment that Nicholas Breakspeare is not in tithing, and he holds land; Therefore let him be distrained. Breakers of the assize [of ale]. . . .[13 persons are named, with a normal fine of 6d.] Roger son of Hamo gives 20s. to have seisin of the land that was his father s and to have an inquest by twelve [men] as to a certain croft held by Gilbert Bisuthe. Pledges: Gilbert Lamb, William son of John, and Robert King. . . . Richard Maleville [offers to prove] at his law [that is to say, by compurgation] as against the lord that he did not take attached property away from the lord s serjeants to the lord s damage and dishonour [amounting to] 20s. Pledges: Gilbert Bisuthe and Richard Hubert. Hugh Tree [is] in mercy for cattle of his taken in the lord s garden. Pledges: Walter of Hull and William Slipper. Fine 6d.

Court structure. Manor courts. Ruislip (contd) Twelve jurors say that Hugh Cross has title to the bank and hedge over which there was a dispute between him and William White. Therefore let him hold in peace, and let the said William be distrained for many trespasses. Later he fined for 12d. . . .

Court structure. Fair courts. Mats. VII 35 to VII 37 show us the franchisal fair court at St. Ives, run by the abbot of Ramsey at the end of the 13th century. It is dealing largely with mercantile affairs that arise out of the fair. Here s a case from 1288: John, son of John of Eltisley, complains of Roger Barber, for that he has unjustly broken a covenant with him; and unjustly because, whereas the said John was in the vill of Ramsey on the Monday after Epiphany last past, a year ago, in the house of Thomas Buck, the said Roger came there and undertook (manucepit) to cure his, John s, head of baldness for 9d., which the said John paid in advance. The next day, Tuesday, the said Roger put him in plaster and did likewise on Wednesday, and afterwards withdrew from the vill, so that, from that day to this, he would in no way interpose, to his, John s, damage a half- mark. And he produces suit [probably transaction witnesses]. The said Roger was present and denied tort and force, etc., and put himself on his law [oath-helpers}; and in finding pledges of his law withdrew from the bar without leave. Therefore the said John craved judgment against him as against one who is convicted.

Court structure. Fair courts. St. Ives (contd) Wherefore it is awarded that the said Roger make satisfaction to the said John for 9d., the sum claimed, and for his damages, which are remitted, and that he be in mercy 6d. for the trespass. This is a more typically mercantile case from 1291: Peter Long of London complains of Geoffrey of Cam [or Caen] and says that he unjustly detains from him 600 ells [a length of cloth, somewhat longer than a yard, 45 in.] of canvas, which he, Peter, through his broker Hamon of Bury St. Edmunds, bespoke [i.e., ordered] and bought from him in his booth in the vill of St. Ives, on the Friday after the feast of St. John before the Latin Gate, for 29s. the hundred and a farthing as a God s penny, to his damage 40s. And he produces suit.

Court structure. Borough courts. Mats. VII 37 to VII 38 shows us one case of many from the rolls of the mayor s court of the city of London from 1421. Richard Whittington [This is Richard Whittington, as in Turn again, Dick Whittington, lord mayor of London.], mercer, brought an action for debt against Stephen Turnebonis, merchant, for 296. In his bill he alleged that he had bought and had in his custody a certain Hugh Coniers, a prisoner of war taken in the battle of Agincourt and put to ransom at 1600 crowns . . . and 16 marks of silver troy weight . . . the whole amounting to 296; and that on 10 July 1420 in the parish of St. Michael de la Ryole the defendant agreed to pay that sum for the prisoner as soon as the plaintiff released to the prisoner all his right and claim in him for the ransom and should be prepared to hand him over to the defendant and obtain for the latter authentic letters under his seal witnessing the release; and that thereupon the plaintiff released his right to the prisoner and was ready to hand him over and obtain the aforesaid letters, but the defendant had not paid the money, though often requested to do so; to the plaintiff s damage 40.

Court structure. Staple courts. Mats. VII 38 to VII 39, which reproduce the Statute of Staple of 1353, tell us that in the 14th century separate courts were established in many towns to deal with transactions concerning the wool trade.

Court structure. County and hundred courts. The county and hundred courts did not keep official rolls, and we are poorly informed about their workings. We get some glimpses of what they were doing when actions that they took were brought before the central royal courts.

Court structure. Church courts. By 1300 every bishop had a regularly sitting consistory court and most archdeacons maintained a lower level court dealing principally with morals offenses, notably fornication and adultery. There were two appellate courts, one at Canterbury and the other at York, and appeal to the pope was still a real possibility. Here is the beginning of a record from the Consistory Court of the bishop of Salisbury in 1271, the full record of which is in the Mats. pp. IX 61 to IX 65: A.D. 1271, Friday after the feast of the translation of St. Thomas, martyr [10 July], Alice of Winterbourne Stoke appeared against William Smith saying against him that he contracted marriage with her, wherefore she asked that he be adjudged her husband by sentence; she says this, etc. [filling out the etc. : not committing herself to proving each and every element in her complaint, but so far as she proves so much may she be able to obtain ]. The man, joining issue, denies the contract; the parties sworn to tell the truth say the same thing as before. The reception and examination of witnesses is committed to the dean of Amesbury.

Court structure. Church courts (contd). P. VII 41 shows us a brief extract from the consistory court of York from 1511, but similar records exist all the way back to 1300: . . . The aforesaid Oliver Foster, at a time before the feast of St. Lawrence recently past, bought and received from the aforesaid George Chart forty sheep, forty lambs and twenty hogs worth 6 6s 8d. The same Oliver on the day of delivery and receipt of the said sheep, lambs and hogs, paid 26s 8d in part payment of the said sum of 6 6s 8d. The same Oliver by his oath faithfully promised the same George to pay 5 the rest of the same 6 6s 8d on a certain day now past. The aforesaid George by himself and his men long before the present suit duly requested the said Oliver to pay to the same George the said 5, the rest of the 6 6s 8d. The aforesaid Oliver, thus requested as is aforesaid has delayed and refused to pay or deliver to the same George the said 5, just as he delays and refuses at the present time. The aforesaid are true, public notorious, and manifest, etc.

An attempt to integrate court structure and social structure Villeins. Distinguish between those personally unfree and those who hold by unfree tenure. To the latter the royal courts are closed in land pleas. For both of them the manor court was their chief court, and the chief source for finding out anything about them. There is a strong sense of community here amounting to a corporate quality. Open fields which are worked in common and which are characteristic of most of England lead to this sense of community. But the manor court was not the only court that villeins saw. They do appear in the hundred, the county; they see royal justices itinerant; they will appear in the courts of the archdeacons of the church in all cases normally when they were in some sort of trouble..

Integrate court structure and social structure (contd) Small freeholders. In most cases they are essentially the same as villeins, suggesting that personal unfreedom may not have made that much difference. But compare the Durham Hallmoot Rolls (1375) [S&M 65, Mats., pp. V-70 to V-71] which seem to indicate some distinctions on the basis of status and which are later than most of the other documents we have looked at. Ultimately, the central royal courts will take jurisdiction of the lands held by servile tenure, which will come to be called copyhold. This does not happen until the 15th and 16th centuries. But personal unfreedom goes into a big decline in the 14th century following the Black Death.

Integrate court structure and social structure (contd) Burgesses. In the towns and cities, there is a major distinction between citizens, those who have the freedom of the city, and non- citizens, those who do not. In many ways the citizens are outside the royal court system. They have the privilege of not being impleaded outside the borough. The borough and the fair courts are important for the development of contract law. Its absorption into the common law lies after 1500 (though not quite entirely). In the 14th and particularly the 15th centuries many contract cases are found in the church courts under the rubric of breach of faith.

Integrate court structure and social structure (contd) Clerics. Their courts never completely separate those. Those who had claims to land litigated in the king s courts, and pleas of contract and trespass could be, and were, brought by and against clerics in the secular courts. The great feudal clerics held honour courts when these were still important. Nor are laymen and women completely outside the church courts. Ecclesiastical crimes, marriage, testament, defamation cases will all bring them into the church courts. The impression, however, of a separate substantive jurisdiction as opposed to a separate people can be exaggerated: cases concerning criminous clerks and benefice and tithe litigation are largely questions of the church handling its own.

Integrate court structure and social structure (contd) That leaves maybe 5% 10% of society, the lay freeholders above the level of simple sokemen. Principally tenants by knight service, though some socage and serjeanty. Like all men they will be sued criminally in the king s courts. They will certainly be in the county courts. They may be in the church courts, particularly for marriage and testamentary matters. But for the principal source of their wealth, land, they will be in the central royal courts. The story that we are about to tell is a story of how changes in jurisdiction and changes in institutions made the central royal courts more available to more people. To put the matter another way how it was that the practice of the central royal courts became the common law of all England.