coram rege

detail of TNA KB27/795 civil side, rot. 1 (Hillary term, 39 Henry VI)

detail of TNA KB27/795 civil side, rot. 1 (Hillary term, 39 Henry VI)

Back in October, at the formal start of my doctoral programme, my supervisor suggested I start looking for relevant examples of gentry behaving badly in the archival records of the Court of King’s Bench. A substantial quantity of those records (specifically, the plea and controlment rolls, which record the workings of that particular judicial body) are online as digital photos in the AALT database (the Anglo-American Legal Tradition project) hosted by the University of Houston. While this makes them much more accessible it does not make them any easier to understand.

Over the last six months, wedged between the conference papers, background reading, archival workshops, and seminars, I have slowly and tediously, learned how to ‘read’ these documents in a way that actually helps with my work. Although, I can’t claim fluency yet. In an effort to remind myself that there has been some actual progress during that time, and because I don’t trust my own memory to keep any of this strait, I will share what little I have learned about the King’s Bench over a few blog entries.

KB- part 1 / History, jurisdiction and process of King’s Bench (1400-1550ish)

There are two fundamental obstacles for people like me who want to use this material in their work. The first is that the history of the King’s Bench is rather opaque and simple questions like “what sort of cases did they hear? How did those cases come before the court? Who recorded these cases and what were they supposed to tell contemporaries?” lack anything like a clean and satisfying answer. Actually, many of the secondary studies of the King’s Bench seem very self-conscious of this problem.

Legal historians who eventually turn their attention to criminal trials and the work of the King’s Bench sound almost apologetic about the state of scholarship. Sir J. H. Baker (and I don’t make a habit of using honorifics with academics, but it suits him), explained the nub of this problem by pointing out that while “the records of criminal justice are rich in details of everyday life”, an important source for social historians, “the history of criminal law has proved less attractive to legal historians, because the same records are more than usually wanting in jurisprudential content.”[1] This means that the social historian who wants to know how KB worked and why the records look the way they do, will get quickly frustrated with the usual sources on legal history.

Keen tells us that “King’s Bench was the highest court in the land, aside from the king’s own council and parliament, and was so called because of its concern with all matters that affected the crown.”[2] That’s nice and tidy, but what exactly constituted matters affecting the crown? In the early stages, this covered the interests of the king as a hereditary land owner and as a titular head of an abstract ‘state.’ The court protected the king’s interests in a very literal sense. Offences or legal disputes that concerned anyone other than the crown could seek remedy in other courts at the local (manor, parish, county) level or in the other high-court of common pleas or the Exchequer (think of the last as a sort of tax or land court). Treason, riot, counterfeiting, and murder could come before the King’s Bench, if it could not be dealt with at the lower courts and appeals against decisions of lower courts could also come to KB, if conditions allowed.

But this is, already, a definition that hardly attains the meaning of that word. You would think it’s easier to ask what did not come to King’s Bench, but that’s just as hard to answer. Small comfort that, as Blatcher points out, even the justices of KB were unclear on their own remit. Chief Justice Huse, writing in 1485, defined the court as “superior to all” other courts in the land and thus anything could be considered relevant to the king’s interest.[3] So cases could come in from either direction and they could involve all sorts of issues.

We can, at least, get some idea of how felony was handled in the King’s Bench and how those cases came before its judges. At the local level of the shire and county, the chief royal functionaries were the Sheriff and the Coroner. These were usually local gentry, elected (a loaded term in this period, but let’s pass over that for now) to hold the office (one year for the Sheriff, and ‘at the king’s pleasure’ for Coroner). Most of these office holders sub-contracted some of their duties to others who did a great deal of the legwork enquiring into cases, responding to orders from higher up, collecting jurors, and delivering people to court or custody.[4] Sheriffs usually handled the cases bought by individuals against each other and, depending on the nature of the claim, he could resolve them without having to refer them any higher. If that happened he could refer them to KB or to the local Justices of the peace, usually connected with a commission of the peace, for that region.

Justices of the Peace, who were not always locals, were appointed by the crown as need demanded. Commissions of the peace were the in-between stage of medieval legal jurisdiction and the close rolls, recording the writs and licences issued under the king’s seal, are filled with special commissions to enquire into X or Y in some locality.[5] This is the legal background for most of the 15th century and wherever you were one, or all three, of these institutions would oversee investigations into felony.

These courts are in addition to other local courts at the level of manors (where the local land-owner, by virtue of older custom had juridical powers over his tenants, at least to a certain extent), towns, and other jurisdictions that held special ‘liberties’ granting authority to hear certain cases. Most of these concerned the sort of stuff we would now see in small claims court or which concerned contract, debt, and other issues of a financial nature. Order, as in the keeping of the king’s peace, fell within the jurisdiction of other officers, particularly the sheriff and coroner.

Coroners had a wider remit than their modern counterparts (at lest the North American ones). They had local jurisdiction over the king’s amorphous interest which covered murder, riot, some forms of assault, treason, and other felonies that infringed on those royal interest.[6] Cases that came before the Coroner were usually referred straight on to the King’s Bench through the indictment system and many cases could be called into the court through the same system by sending a writ of some description down to the Coroner commanding him to do something about something.[7]

It’s at this point that I would like to say that 1- I’m glad I don’t have to maintain a detached and academic tone with these entries because it’s really hard to write about something this confusing and dense without sounding confused and dense. 2- I am already worried that this has overly simplified the working of KB. Maybe my sources will save me from any accusations of sloppiness. But really, you aren’t going to use this in a term paper are you? If you do, you are screwed. Not because I’m wrong, but because doing so would suggest you have no clue what you are doing. I may be uncomfortable with this topic myself, but I’m just writing a blog entry, not course work.

At any rate you get the idea. King’s Bench handled all sorts of cases and the most serious crimes, particularly those involving violence, collected at this level. They also heard plenty of other cases that didn’t involve felony and within the records of the court, these are not clearly separated and the reasons for their appearance before the court is not always clear. That this was the case even in the early modern period has caused its own problems. At this point G. O. Sayles can at least dispense with the civil plea side of the court by explaining that the civil side heard common pleas which are identified as such not because the concern common law, but because the case takes place between two common litigants. That’s why you can find a murder case in the civil side, when it’s an appeal brought by the family of a victim against the accused (and later cleared) suspect.[8]

Now there are some added complications in that some cases get into KB through a couple of legal fictions and those will spoil the sampling if you aren’t careful in weeding them out.

Most civil law processes in the middle-ages worked through writs and because these things are their own confused ball of tangled parchment, let us just accept the inaccurate definition of a writ as a legal claim or suit, brought to the court, alleging some problem and seeking remedy. Normally, someone who sought legal remedy had to seek a writ in his local jurisdiction but if the target of that writ, say a debtor, had left the jurisdiction, you could fling all the writs and summonses around all you wanted and it wouldn’t bring the accused any closer to a hearing. Also, some courts may decide that they couldn’t hear a certain case because its jurisdiction did not cover that type of debt of offence and litigants had to go through the process all over again at a different level.

However, the King’s Bench, as it sat in Westminster, held regular county jurisdiction in Middlesex and cases that would normally go to the court of common pleas would stay before KB. Anyone who was already within the jurisdiction of KB (as an officer of the court, or as a prisoner of the court at Marshalsea) they could be sued in KB on other matters, not typical of the court. What developed was called the bill of Middlesex‘ which was a legal fiction. Baker explains this better than me, naturally “If A wished to sue B for trespass, detinue and debt, he need only sue a writ of trespass, [in their home court] upon which B would be arrested and committed to the marshal; A could then start his debt and detinue actions” before KB. “Around the middle of the fifteenth century attorneys discovered that the like advantage could be obtained even if there was no genuine complaint of trespass: the writ secured the arrest, whatever the facts.”[9]

The result is that there are lots of cases in KB rolls, post 1450s, that have no reason for being there other than these fictions. Added to this is the regular allegation of vi et armis—force and arms. While most of the trespass indictments used under the Bill of Middlesex disappeared once the accused got to Marshalsea. The litigant behind the initial charge that brought B into Middlesex would simply go to Westminster and submit his actual charge before KB, and things would proceed from there. These cases are recognizable when you see some charge of debt and then an order to the marshal to retrieve someone from Marshalsea, without any explanation as to why he is there in the first place.[10]

Trespass, as Baker explains it, was a claim for wrongs not an assertion of rites. Lots of medieval litigation revolved around writes (who owned what, who was entitled to this or that resource, what were the terms of payments, contracts, rents, etc.) All one could hope for with a charge of trespass was damages. There was no question of writes, only of damages and their worth. Lower courts handled these but if there was an allegation of force, or violence contra pacem regis—against the king’s peace—you could get the case into KB. This, naturally, was the mechanism that made the Bill of Middlesex so useful. It also meant that there were heaps of trespass cases sent up to KB with allegations of vi et armis which were, in all probability, completely bogus.[11] This also means that these sort of cases where there was no substance to the initial charge of trespass will not appear on the crown side but will be heard in the civil side. The trespass was what brought the crown into the case, but since there was no actual case of trespass—and no issue that directly concerned the king—the case would involve only common litigants with the court acting as the 3rd party of judgement. No risk in mistaking some legal fiction of this type if you only look at the crown side cases.

That doesn’t mean that all of the charges of trespass and violence in the crown side are free of exaggeration but there are a few ways to identify the over-sold indictment. If there is little more than vi et armis videlicet gladii etc (with force and arms, that is to say, with swords etc.) you are probably dealing with a fictional case of force or at least a formulaic claim of force and threat.[12] Usually, accusations of force and arms which are not a legal fiction involve more details or seem to describe something like a break-and-enter. Legal records are built on formulaic language and while that makes it easier for the scribes to do their work, and to some degree, makes it easier for me to read their work, it conceals the individuality of each case.

Once you know what to look for, you need to know how to make sense of the records themselves and that is no less convoluted than the legal process itself. That will also need to wait for a later blog entry.

NOTES

[1] J. H. Baker, An Introduction to English Legal History, 4th ed. (Oxford University Press: Oxford, 2007), p. 500.

[2] M. H. Keen, England in the Later Middle Ages: A Political History, (Methuen: London, 1973), p. 5.

[3] Marjorie Blatcher, The Court of King’s Bench, 1450-1550: A Study in Self-Help, (Athlone Press: London, 1978), p. 34.

[4] I’m not sure there is a good study of the office of Sheriff for the 15th century but things don’t change too much anyway and Richard Gorski, The Fourteenth-Century Sheriff: English Local Administration in the Late Middle Ages, (Boydell Press: Woodbridge, 2003) is probably fine for background.

[5] Justices of the peace are better documented, but that scholarship isn’t too accessible. The foundational work is B. H. Putnam and T. F. T. Plucknett (eds.), Proceedings Before the Justices of the Peace: In the Fourteenth and Fifteenth Centuries, Edward III to Richard III, (Spottiswoode, Ballantyne: London, 1938). Keep in mind that the date on this means it was done before most of the KB material at the PRO was available for scholars. I’m not sure how well it holds now. Otherwise there is J. R. Lander, English Justices of the Peace, 1461-1509, (Alan Sutton: Gloucester, 1989), which is probably as comprehensive a study of the topic you are likely to find for a few decades.

[6] As interesting as the Coroners are, there isn’t an abundance of material on them. The primary study is still R. F. Hunnisett, The Medieval Coroner, (Cambridge University Press: Cambridge, 1961), but that stops in the fourteenth century. John G. Bellamy, Criminal law and Society in Late Medieval and Tudor England, (St. Martin’s Press: New York, 1984) is spectacularly unhelpful, which is perplexing. Otherwise, you have to make do with bits and pieces where you find them.

[7] Baker, p. 505-6, explains the indictment system. The Coroner’s indictments are not amongst the scanned material at AALT (other than the JUST series which isn’t very useful). The documentary aspect of KB is for a different entry but the bulk of indictments are in the KB9 division.

[8] G. O. Sayles, ‘The Court of King’s Bench in Law and History’, in G. O. Sayles, ed., Scripta Diversa (Hambledon Press: London, 1982) p. 221.

[9] I have done no justice at all the the bill of Middlesex and I suggest you read instead: Baker, pp. 41-3, or Blatcher, pp. 111-66, which goes into this in more detail, but at the cost of indigestion.

[10] Having said this, I don’t actually have an example of this before me but this is consistent with what Baker and Blatcher describe. Odds are the initial trespass may get into the KB controlment rolls and would certainly show up (if it survives) in the recorda or panella files but those will wait for another entry.

[11] Baker, pp. 60-1.

[12] See the example action on trespass in Baker, p. 534.

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3 thoughts on “coram rege

  1. It doesn’t get any easier in the early-modern period because some of these kinds of cases were increasingly likely to be in Star Chamber, but not guaranteed to be there. And the House of Lords was also claiming to be the highest court. Then in the 1640s it gets really crazy, with Parliament doing all sorts of stuff by Ordinances which technically don’t have the same force as Acts and aren’t recognised by the law courts, so eventually Parliament passed an Ordinance for indemnity that was supposed to override the courts. When I was going through indemnity cases in SP 24, I gave up on trying to classify which courts and laws were used to claim damages for requisitioned horses because it was all too confusing.

    • I hear you. At least with STAC they are in English and tend to contain more details since they recorded the argument and not just the process. You don’t get direct speach in the 15th c. KB records but you will get it in STAC. I will, in the fullness of time, wrestle with Star Chamber when they start to take over most of the elite felonies post 1509.

  2. Pingback: Summer Summary | Pen, Book, Sword.

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