A. "STUDY OF LEGAL MESS m MEDIEVAL
ENGLAND

Thesis f0: flue Dog-m of M. A.
MLCHtGAN STATE UNIVERSHY _-
Alan Michael Keller '

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ABSTRACT
A STUDY CF LEGAL PROCESS IN MEDIEVAL ENGLAND
by Alan Michael Keller

In the period from the conquest of England by
William the Conqueror to the end of the sixteenth century
English law. based on the foundation of Anglo-Saxon legal
praCtices. developed substantively into a relatively well
organized and efficient system. One of the major concerns
was to insure that persons involved in litigation would
appear at court to resolve the issues in which they were
involved.

This concern of the common law was well founded due
to three primary considerations. The first was that the
agents involved in law enforcement and in the apprehension
of criminals were few, and these few were not very well
organized or equipped to do their jobs. The second was
that once a criminal was taken into custody few prisons
could house him safely until the time of the trial. The
third consideration was that in this period the methods

used to solve these problems were just developing, and it

Alan Michael Keller

is only at the end of this period of growth that these legal
processes really became effective..

The methods and institutions which were tried, used
and discarded'to solve the problems of coercion may be
divided into three general classifications. The first was
the development of the process of attachment. This included
confiscation of the goods and chattels of the reluctant
defendant, followed by the attachment of his body that is arrest.

The second was the development of a system of surety
and responsibility to force the accused to appear. This
involved the proffering of bail or mainprise by the accused.
which would be forfeited upon his failure to appear before
the justices on the assigned day.

The third was the use of individuals and groups
and especially the institutions of tithing and frankpledge
to help the existing peace officers to maintain order and to
apprehend fugitives from the law. As time passed and the
first two methods developed and became refined, the use of
private citizens and frankpledge and tithing in the legal
system declined.

Finally. when all other devices failed. the law
resorted to the ancient Anglo-Saxon practice of outlawry.

This action, originally used as a punitive measure by the

Alan Michael Keller

law against those accused of the most serious crimes, was
in this period the end result of legal procedure. When all

else failed, the recalcitrant defendant was outlawed.

A STUDY OF LEGAL PROCESS IN MEDIEVAL ENGLAND

BY

Alan Michael Keller

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS

Department of History

1963

,p’

Approved J//:,%J1j£71 ;' wz‘t'.'( ~

_/

PREFACE

This work is dedicated to my beloved sister Louise,
to my parents who are responsible for my education and any
success that I attain and to whom I owe infinite gratitude,
and to Dr. Marjorie Gesner, whose patient guidance and
encouragement is responsible for whatever merit the work

holds.

ii

In the early period of the development of English
law one of the major concerns of those who administered the
law was how to compel a man involved in litigation to
appear at court. The whole process of adjudication rested
on this appearance, for without it the process of rendering
justice came to a halt.1 To avert the danger of the failure
to render justice. several legal methods were devised and
evolved to deal with the contumacious. These devices were
framed within the context of the medieval period, and were
usually the logical results of the social conditions in
England at this time.

To understand the various contrivances used and the
reasons for their use. it is necessary to examine briefly
the state of development of the English legal system in
the early medieval period. The law in England was a crude
and harsh affair following the Anglo-Saxon invasions. and
it sought in a relatively unsophisticated way to control

an equally harsh and crude community. It was a community

 

1W. S. Holdsworth, A History of English Law, 13 vols.

(London. 1924), IX, 253. It is an old legal principle that
no proceedings were to occur against an absent defendant.

that already had the concept that a legal wrong2 could be
done by one member to another. but the implementation of this
concept to the practical resolution of wrongs was a difficult
task to accomplish. Legal institutions and process were

just not far enough advanced to make easy the settlement

of these wrongs.

There were three major considerations which illustrated
the defects of the legal system in this period. The first
was the lack of an organized police force. In the event
of some wrong committed there was no professional agency
to bring the defendant to justice. The individuals con-
cerned had to act for themselves as their own policemen.

This was the Pself-help? system of the Anglo-Saxons. It
required that the wronged party deal directly with the
alleged defendant in forcing the adjudication of the issue.
The family or kin-folk were expected to aid in this process,
and in doing so were a major factor in the legal system at
this date. Later. just preceding and after the Norman con-
quest of England. a system of communal responsibility which

included the institutions of tithing and frankpledge

 

2J. W. Jeudwine. Tort, Crime and Police In Medieval

Britain (London. 1917): P. 45. jThere was hardly any
distinction between civil and criminal law as such. All
acts which called for settlement were wrongs—-torts, as
they were called in English law.?

developed. which replaced the "self-help" system and made
law enforcement considerably more responsible and efficient.

The second consideration concerned the lack of prison
facilities. and the conditions in those prisons which did
exist. Once a man had been apprehended there were few
places which could effectively hold him in custody until
trial and judgment had been completed. This situation was
further complicated by the fact that life was so harsh in
the few existing prisons that the prisoner often perished
while in custody. Prisons also presented a costly and
troublesome problem to the gaolers: so much so that it was
not common to keep a man in prison. Consequently. other
measures had to be devised to overcome the lack of suitable
custody.

The measures utilized to deal with the two problems
stated above may be considered as a third illustration of
the early character of the law. These measures which sought
to deliver the defendant for trial and judgment before a
tribunal, were called 9process.? Within the scope of process,
a series of steps attempted to bring the accused to court in
the absence of an effective police force and suitable
custodial facilities. As might be expected. process in the

early Anglo-Saxon period did not operate smoothly or with

any great efficiency. but procedures initiated later matured
into a working system of enforcement. By the time of the
late Anglo-Saxon and early NOrman period, the older and
more unsophisticated Germanic procedures began to be largely
superseded by the developing system of process.3 The
methods evolved out of the mass of early Germanic law
slowly grew into an effective system which would be used
throughout the medieval period.

From the earliest beginnings in the history of
English law. a primary antecedent of medieval criminal pro-
cedure resided inthe ancient Germanic institution of out—
lawry. Through the process of outlawry the law could deal
with the most serious cases and with those offenders who
were fugitives from justice. In the medieval period, out-
lawry was the ultimate weapon of the law4--the last resort
against the accused. Upon this man was thrust the sign of

the Awolf's head?--the sign of the outlaw.5 It was a sentence

 

3Frederick Pollock and Frederic William Maitland,
The History of English Law, 2 vols (Cambridge, 1923). I, 476.
Hereafter cited as Pollock and Maitland.

4Pollock and Maitland, II. 581.

5Select Pleas Of the Crown: 1200-1225(Selden Society).
ed. F. W. Maitland (London, 1888). P. 47. Hereafter cited as
Pleas of the Crown(Selden Society). Also. Year Books Of the
Reign of King Edward the First(Rolls Series), ed. and trans.
Alfred J. Hbrwood, 5 vols. (London. 1863-79), Years 20 and 21,
p. 237

 

 

 

dreaded by all men in medieval England, for in it was held
the pronunciation of death. The complete destruction of the
man was involved; henceforth he would cease to exist as a
living member of society.
It is necessary to know and understand the reasons
for the proclamation of this ultimate and most dreaded
weapon of the law. The law was weak. It lacked the agencies
to coerce appearance at trial; it lacked prisons; it lacked
executioners to execute. It needed a dire method of punish—
ment for serious crimes6 and a stronger coercive power to
be used against fugitives from justice. Thus, the law had
recourse to what Heinrich Brunner describes as, Fthe
sentence of death pronounced by a community which has no
police constables or professional hangmen."7
On Christmas day in the year 1066. after having
defeated the Anglo-Saxon forces at Hastings, William, Duke
of Normandy. was crowned king of England at Westminster Hall.

As the Duke of NOrmandy, William was the inheritor and

possessor of a political system which made NOrmandy the

 

6The crimes generally considered in this classifi-
cation were treason. homicide. arson. and rape. Lesser crimes
rarely resulted in outlawry unless they were compounded by
the flight of the accused.

7Heinrich Brunner. Deutsche Rechtsgeschichte (Leipzig.
1887): I. 173.

strongest and most efficiently governed duchy in France.

This system he imported into England; and with the combination
of his own administrative genius. and the methods that he
imported from Normandy. he built upon the base of the best
Anglo—Saxon institutions the foundations for an enduring

and well governed kingdom.

The government which William left to his heirs had
great potential to grow and develop in their hands. and,
indeed. the more talented of his successors did foster this
potential until the state became more powerful and more
systematically organized. Under the impetus of this increased
institutional advance, a noticeable change took place in
the law in general and in process in particular. To be
sure. the law and process had been in an evolutionary flux
during the Anglo-Saxon period as the Anglo-Saxons continued
to improve their government. but with the advent of the
Normans the rate of metamorphosis rapidly increased. The
result was a more modern and comprehensive concept of legal
institutions. The increased power of the state allowed the
law to conceive of a greater variety of more effective
weapons to deal with the criminal. and a marked improvement

in criminal process followed.

Outlawry could now be an integral and important
part in the process of the constraint of the contumacious.
With the increased influence of the state in the maintenance
of order, the concept of outlawry as a punitive measure
rapidly declined. The sign of the wolf's head was no longer
widely used as a substantive punishment, but was now
considered as part of criminal process. By the thirteenth
century, such records as the Year Books, Records of Crown Pleas,
Coroners Rolls and Rolls of the Justice in Eyre were filled
with examples of outlawry used as process; and one never
finds any indication of outlawry used as a punitive measure
in this period. What was recorded was the difficulty to
compel accused persons to stand trial and to abide by the
judgment of the court. Outlawry now emerged as the ultimate
in the long and intricate process of criminal procedure.
we will now see how outlawry was used in criminal procedure
and the other steps in procedure which led to the ultimate
proclamation.

In the event of some action involving a litigable
matter, English medieval law required that the issue be
adjudicated and justice be rendered. As long as the
parties involved, especially the defendant, appeared at

court to try the issue, it didn't matter whether the verdict

was found for the plaintiff or for the defendant, the law

was nevertheless satisfied.8 But when the accused or suspected
failed to appear at court, then the orderly process of the
law came to a halt. No further judicial action could be
taken against the defendant, and unless the defendant later
appeared(voluntarily or under coercion), the law was thwarted.
now the powerful engines of coercion which had been growing
up since the first coming of the Anglo-Saxons were mobilized
against the fugitive. These engines might function slowly
and clumsily by modern standards, but they moved inexorably
forward toward the goal of appearance of the accused or
ultimately of outlawry.

During the period from William the Conqueror to the
sixteenth century, the king's royal officer in the shire (the
sheriff), in most cases was made responsible for the appearance
of the accused at court. In order for the sheriff to fulfill
his duty to present the accused before the justices on the
assigned day, the courts issued various writs designed
to aid the sheriff in his work. These writs were issued
from three sources: the Chancery, from the king's court of

Common Pleas, and from the King's Bench court.

 

8Henrici de Bracton, De Legibus Et Consuetudinibu§_
An liae, ed. Travers Twiss, f. 126. Hereafter cited as
Bracton.

In purely civil actions, that is, in actions between
private parties in which no force or breach of the king's
peace is alleged, as well as in actions concerning force
and breach, litigation was begun by the suit or purchase
of an original or first writ. This writ was sued from the
Chancery or from the Chancellor of a county palatine,
upon payment of a stated fee.9 Two cases heard in 1422
illustrate the use of an original writ. In the first, we see
that William Chauncellor, the chancellor of Durham. upon the
complaint of Hugh Asteley and his wife Agnes, issued the
necessary original writ under his seal on 16 September, 1422.10
In the second, the death of Henry V in 1422, raised a problem
of court records in the first year of the reign of his son,
Henry VI. The defendant in the case questioned the validity
of the proceedings by claiming that-the record showed that,
the plaintiff lacked an original writ. In reply, they I
plaintiff presented the court records from the reign of

Henry V which demonstrated that an original writ had been

sued out of the Chancery and that a day for the trial had

 

9William Blackstone, Commentaries on the Laws Of
En land, 19th ed., 4 vols.(London, 1833), P. 56. Hereafter
cited as Blackstone.
loYear BoOk of Henry VI: I Henry VI, 1422(Selden
Society), ed. C. H. Williams (London, 1933), p. 56. Hereafter
cited as Y.B. I Henry VI(Selden Society). The county of
Durham had palatine powers.

10

already been assigned.

In effect this original writ was the selection by the
plaintiff of any one of the many various legal formulas
available to him for legal redress, and it specifically
stated his cause. No action could be taken against the
defendant with the wrong writ or formula. In the records of
the Hilary Term of 4 Edward II in 1310,12 we see the results
of having proceeded with the wrong one. A certain Alice
commenced a civil action against D., and both parties took
a prece parcium (both parties prayed justice) on the following
day. The next day D. failed to appear, and Alice claimed
favorable judgment by default of D. But the judge Stanton,
J., reminded the plaintiff, Alice, that she had purchased
the wrggq original writ and therefore she could not legally
proceed; and the two regular clerks of the court Killeby and
Langalle affirmed this. His advice to her was to immediately
sue out the correct original, in order for her to benefit

from the justice of the court.

 

11Y. B. I Henry VI(Selden Society), p. 90.

12Year Books of Edward II(Selden Society), ed. F. W.
Maitland, vols. l-3, F. W. Maitland and G. J. Turner, vol. 4,
F. W. Maitland, L. W. V. Harcourt, and W. C. Bolland, vols.
5, 7, G. J. Turner, vols. 6, 9-10, W. C. Bolland, vols. 8,
11—12, 14 (pt. 2), 15—18, P. Vinogradoff and L. Ehrlich,
vols. l3, 14 (pt. 1), G. J. Turner and W. C. Bolland, Vol.
19, M. D. Legge and W. Heldsworth, vols. 20-21, J. P. Collas
and‘W. Heldsworth, vol. 22, and J. P. Collas and T. F. T.

Plucknett, vols. 23-24, 25 vols. (London, 1903-1953), 4 Edward
II: 1310-1311, p. 132.

11

In addition to the statement of the complaint of the
appellor, the original writ directed the sheriff to command
the defendant to do justice to the plaintiff, or to appear
before the court of Common Pleas at Westminster. In the
trial of Bydyke v. The Prioress of Kilburn, heard in the
Trinity Term of 4 Edward II in 1311,13 the plaintiff Bydyke
sued out the original writ EElQ in git; (a specialized writ
of entry) in which the Prioress was accused of illegally
holding his land, according to the provisions of the Statute
of Westminster (II).14 The attorney for the plaintiff prayed
the court to hear the plea, and to summon Agnes the Prioress
to appear at court and answer the charges. In another case
in the same term,15 the record of the court preserves some
of the exact wording of the original writ. The cause of the
case was partially stated in the words, thereof such a
one [the defendant] deforces him [the plaintiff] of so much."
In another part of the record, the justice, Bereford, C. J.,
asks the defendant, 9What does the original writ say?

Does it not say: 'We command thee etc.?' Is not this a

commandment etc.?9

 

13Y.B. 4 Edward II(Selden Society), p. 41.

1413 Edward I, s. 2, c.3. All statutes hereafter

cited, unless otherwise specified are from Statutes At Large.

15Y.B. 4 Edward II(Selden Society), pp. 130-33.

 

12

Once the original writ had been purchased, in order
to inform the defendant of the charges made against him,
two of the sheriff's men called Vsummoners" were sent to
serve notice of the complaint made in the writ.16 The
records of the courts frequently mentioned this part of the
process, and in them we can see that the original writ made
this duty of the sheriff and his men clear and exact. For
example, in the Michaelmas Term, 49 Henry VI in 1470, the
record reports,l7TAnd be it known that the sheriff was
commanded to summon by good summoners the said Ralph, William
Skydmore, and Thomas to be here at the appointed day, to wit,
the quindene of the feast of St. Martin.9 Moreover, it was
part of the process that the party named in the writ was

to be Fsolemnly summoned,f as was the case of Ralph and

Katherine West in the Easter Term of 1470,18 who "being

solemnly summoned, did not come." Henrici de Bracton cites
a great many writs concerning various causes in which the

defendants were to be fisolemnly summoned by good summoners."19

 

l6Blackstone, III, 279.

17Year Bodks of Edward IV: 10 Edward IV and 49
Henry VI, 1470(Se1den Society), ed. N. Nielson (London, 1931),
p. 118. Hereafter cited as Y.B. 10 Edward IV and 49 Henry
.!l(Se1den Society).

18Y.B. 10 Edward IV and 49 Henry VI(Selden Society):
p. 13.
19Bracton, f. 384.

13

He also states, that for a summons to be lawful, there must

be at least two summoners, and that they must serve their

notices fifteen days before appearance should be made.20
In the event that the defendant failed to heed the

summons and appear at court, a writ of attachment [pgng) was

duly issued against him by the Common Pleas bench. This

writ directed the sheriff to attach the defendant by gages

(goods required to be pledged), and safe pledges (sureties

who would be amerced upon his failure to appear), as security

for his appearance at the next county court. The courts

reasoned that if a man showed a lack of respect for its

authority or its writs, the situation could be rectified by

the application of practical coercive measures. During

the Michaelmas Term of 1202, in Suffolk,21 Peter Walter

failed to appear upon legal summons, and the reaction of the

court in using such practical measures as it deemed necessary,

could be seen in the record of the case. The court said,

[Therefore let William [the plaintiff] have a writ to the

sheriff to attach Peter by safe pledges that he be at Westminster

on the morrow of S. Andrew to answer thereto.” In another

 

20Bracton, f. 334, and 52 Henry III, c. 26.

21Select Civil P1eas(Se1den Society). ed. William
Paley Baildon (London, 1890), p. 50. Hereafter cited as
Select Civil P1eas(Se1den Society).

14

case in 1201,22 we similarly see that, ”The sheriff was
commanded to attach Walter de WOodyates and‘William his son,
so that they should be [here] to answer. . . ." Bracton
records several writs by which he illustrates the process

of attachment in forcing the accused to appear. In one writ,
the king greets the sheriff and says, *we enjoin you that
you distrain B. [the defendant] by his lands and chattels

in your bailiwick [and] that he present himself, &c., on
such a day in order to make answer to A. on such a plea,

"23
SCCQ.

While in another writ, the king similarly greeted

the sheriff, but in this case safe pledges were required

to insure appearance. The writ read, ”Put under bail and

safe sureties B. that he should appear before our justiciaries

at westminster on such a day to make answer to A. concerning

a plea. . . .F24
If at the next meeting of the court, the defendant

failed to appear and made default, his gages would be

forfeited, or his sureties amerced, and another writ of

attachment was issued against him. This was a writ of

distringas or distringas infinite, in which he would be

 

22Select Civil P1eas(Se1den Society), p. 44.
23Bracton, f. 440b.

24Bracton, f. 439b.

15

continuously attached by the sheriff until all his goods

and lands were taken; or he appeared at court.25 In 1310,26
we see in the case of Spreye v. Ledet a clear illustration
of this process against the contumacious. John and Henry
Ledet failed to appear upon summons, and were attached

by the sheriff; John to the value of twenty shillings and
four suretors, and Henry to the value of half a mark and four
suretors. They both still failed to appear at the next
meeting of the court, and the sheriff was ordered by the
court to distrain them further by all their lands, and all_
their suretors were to be put in mercy. This increasingly
stringent pressure applied against the contumacious may also
be seen in some of the writs cited by Bracton.. In one, the
defendant, after he failed to appear before the justices to
answer the plea on the assigned day, ras he was attached,?
was to be placed again by the sheriff under bail and better
sureties.27 In another, we see more clearly that the

situation for the contumacious became increasingly more

serious and aggravated after each default or failure to appear.

 

5Distringas or distress is the act of taking a
personal chattel out of the possession of the wrong—doer.

26Y.B. 4 Edward II(Selden Society), pp. 8—9.

27Bracton, f. 440.

16

This writ, after it was recited that the defendant had been
originally attached to answer the plea, went on to say,
"and if he should not have come, the distress ought to be
further aggravated, to wit, that the sheriff should distrain
him by his lands and chattels that he may be secure of
producing him on another day."28 The writ continued to
direct the sheriff further to distrain the accused until
all of his property had been taken into the hands of the
king and he had nothing left to attach, if he still failed
to yield to the summons of the court. Thus, in actions of
a civil nature, the process of suing out an original writ,
then summons, and finally attachment, was the procedure used
by the law in compelling appearance. The procedure ended
with the distress of all the property of the contumacious,
and at this point the law rested.

In actions other than purely civil cases, that is,
in pleas of trespass y; et_anmi§_(with force and arms),29
the process against the contumacious was somewhat different.

Here, after the original writ was sued out, simple summons

was deleted from procedure, and the defendant was automatically

 

28Bracton, f. 440b.

29The full Latin phrase is: Vvi et armis et contra
pacem domini regis,9 by force of arms and against the peace
of our lord the king.

l7

put under gages and safe pledges without considering whether
he answered the original writ or not. Obviously, trespass

by force and arms was considerably more serious than merely
purely civil actions, because the courts naturally sought

some form of more immediate security that would insure the
appearance of the defendant. As soon as a plea of trespass
was made before the justices, the court ordered the attachment
of the accused. For example, in 129930 in Warwickshire,
”Robert de Herle was attached to answer the lord king on a
plea of conspiracy and trespass.V And in Lincolnshire, in
1299,31 John of Taddington and others, Fwere attached to
answer Nicholas of Thornton on a plea of conspiracy and
trespass. . . ." At this point in the proceedings, if such

as the above Robert and John did not appear before the justices

on the assigned day and if they continued to remain contu-

macious, the court of Common Pleas issued a writ of distringas

 

to attach and distrain the defendant, until either he appeared
or his goods or sureties were amerced and exhausted.

Bracton records the wording of one of these writs in an

 

30Select Cases In the Court Of the Kings Bench:

Under Edward I(Selden Society), ed. G. O. Sayles, 3 vols.
(London, 1936-39), III, 84. Hereafter cited as Cases In
Court of Kings Bench: Edward I(Selden Society).

31Cases In Court of Kings Bench: Edward I(Selden
Society), III, 86.

18

appeal made directly before the king. The writ in part
said, ”But on that day, if they [the defendants] should not
have come, . . . then upon the appellor presenting himself
to carry on the suit, let them be attached by better sureties,
and then in the end that he [the sheriff] should present
their persons, and that the order of attachments be observed.
And if they shall have withdrawn themselves let them be
required as aforesaid, and let all his sureties be amerced."32
In a more practical setting, that of distringas, we can look
to a case heard in 1329 at Norfolk.33 Here, the plea was
held before the king's justices, and the record reported that
the sheriff, who had already distrained Thomas of Yarmouth
and Simon of Dalling once was to do so again. But now he
was to distrain them by 9all their lands etc., and from the
issues etc., and to have their bodies before the king .
to answer the king concerning various trespasses.”

unlike peaceable civil cases, process in actions of
trespass by force and arms did not end with exhaustion
of the defendant's goods. Trespass was a very much more

serious matter, which included crimes ranging from petty

 

32Bracton, f. 149b.

33Select Cases In the Court Of the Kings Bench:
Under Edward III(Selden Society), ed. G. O. Sayles (London,
1958), p. 21. Hereafter cited as Cases In Court Of Kings
Bench: Edward III(Selden Society).

 

19

theft to murder or treason. When dealing with the contu-
macious in this more serious class of litigation, the

courts would have been at a considerable disadvantage if
they had only the power to attach and distrain the goods

and chattels of the accused, or amerce his pledges. So

in these pleas involving injuries by force, the justices
issued to the sheriff a writ directing him to take personal
custody of the body of the defendant, that is, to arrest
him and to present him at court to answer the charges of the
plaintiff, on the day that the writ was returnable. This
was the writ capias §g_respondendum (take the body to answer),
or as it was commonly known, capias. The capias as part of
process was of considerable importance as could be seen from
the records and documents available. A statute of Edward
III34 provided for the writ, and it carefully specified
against whom the capias was to be issued and how it was to
be administered. The statute said in part, ”That after any
Man be indicted of Felony before the Justices in their
Sessions to hear and determine, it shall be commanded to

the Sheriff to attach his Body by Writ or by Precept, which
is called a Capias.9 The capias was used in every case of

trespass against the contumacious, including certain peaceable

 

3425 Edward III, 3.5, c.14.

20

trespasses such as fraud and contempt according to the
Statute of Marlborough and the Statute of westminster(II).

In a case heard in 1318,35 we get a clear illustration of

its use. In this case, Richard Hamund was appealed of
trespass Xi.§E.§£El§ by the prior of Wallingford; and the
court records show that "the king's sheriff of Berkshire took
Richard by a certain [capias] writ of the king sent to him
on that account to take his body." In another case, in the
Hilary Term of 13 Edward III in 1339,36 a woman sued an
appeal against three men for the murder of her husband. The
coroners of the county were ordered to take the bodies of

the accused, and keep them in safe custody so that they

could be presented at the next county court. In a rather
unusual case in 1470,37 we see another illustration of the
use of capias against the contumacious. Here, the court
records show that the sheriff was ordered to take the accused
prisoner by writ of capias; but in the process of the

arrest, the prisoner was rescued by his friends. NOW the

 

35Y.B. 12 Edward II(Selden Society), p. 13.

36Year Bock of the Reign Of King_Edward the Third
(Rolls Series), ed. and trans. Alfred J. Horwood, vol. 1 and
Luke Owen Pike, vols. 2-15, 15 vols. (London, 1833-1911),
Years 12 and 13, p. 152.

37Y.B. 10 Edward IV and 49 Henry_VI(Selden Society),

 

p. 130.

21

sheriff had to state the particulars of the rescue exactly,
in order to justify his failure to carry out the directions
of the capias.

This whole process took place under the auspices of
the court which issued the writ. The capias was issued under
the private seal of the court, and in the name of the chief
justice of the particular tribunal. It was purely a judicial
expedient adopted by the court to compel appearance; and
although in most cases in the thirteenth and fourteenth
centuries the process leading to capias was begun by suing
out an_griginal_writ, the ca ias, unlike the original writ,
itself was not connected with the name of the king, and it
lacked the emblem of the great seal of England.38

In its order to the sheriff to take the accused into
custody, the capias specified the day and place in which
the court expected the accused to be presented. For example,
in a case in the Michaelmas Term of 12 Edward II in 1318,39
the sheriff was ordered "to take him [Thomas de wynterburne]
if etc., and saving etc., so that he have his body [before

the court] at York on the morrow of All Souls etc.” In the

same case, but in a different section of the record, we

 

38Blackstone, III, 282.

39Y.B. 12 Edward II(Selden Society), p. 13.

22

see another order of the court to take another of the
defendants involved in the case into custody. Here, a
somewhat fuller directive was given to the sheriff, saying
that, "the sheriff is ordered to distrain him [Othuel Purcel]
by all his lands etc., and that of the issues etc., and that
he have his body here one month from Easter to answer etc."
If the sheriff appeared at this specified time and failed

to produce the defendant either because he had fled or
because he was living in another county, or for another
reason such as in one case in 1305,40 where the accused was
reported to be overseas, then the sheriff returned the writ:
non est inventus, he [the defendant] is not to be found,

in the sheriff's bailiwick.

The next step in cases of trespass with force, other
than treason or major felony, was the issuance of a second
writ, sicut capias alias to the sheriff. This writ repeated
the instruction of the first capias for the sheriff to take
the accused into custody with the words, "as we have formerly
commanded you.? If at the return of this writ the sheriff
again reported that the accused was non est inventus, then

a third capias was issued by the court, called a sicut

 

40Cases In Court Of Kings Bench: Edward I(Selden

Society), III, 150.

23

pluries capias. This instruction of arrest was in the words:
”as we have often and formerly commanded you.” Process

such as this can be discerned in the records of the courts
which describe it with varying degrees of completeness.

One case before the court in the Hilary Term of 8 Edward II
in 1315,41 gives a particularly clear and complete description.
The court record says, "Master Robert of Pickering brought

a writ of trespass against two men and a chaplain, laying
that by force and arms they had taken and carried away his
stored corn. In respect to the two, the Sheriff returned
that they had been attached, and that, consequently, he

would afterwards be answerable for the issues; and in respect
of the chaplain he returned that he was not to be found, and
that Robert had therefore sued the ca ias, and afterwards

the sicut alias and then the sicut pluries.’ The principle

 

of the procedure observed in cases such as this, that is,

the issuance of multiple writs of arrest, was later incor-
. . 42 .

porated into a statute of Edward III in 1350. ThlS

statute provided that if any man be indicted for felony,

his body was to be attached by the sheriff on a Writ or

 

41Y.B. 8 Edward II(Selden Society), p. 21, and

Y.B. 1 Henry VI(Selden Society), pp. 36-38.

4225 Edward III, 3.5, c.14.

24

Precept called capias. If the sheriff reported that the
accused was not to be found, then another capias followed;
and if the sheriff at the return of the second capias
reported non est inventus, then the law proceeded to a more
stringent writ called a writ of exi ent, which will be
discussed later. In either the earlier instances as
illustrated by the court record above or the later one,
the law moved against the contumacious in clearly defined
steps and as we shall see with increasing vigor and severity.
Two other points of importance in regard to the
writ of capias remain to be considered. The first is the
action taken by the court upon issuance of the original
ca ias, when the accused lived or traveled in another
country. In English law in the medieval period, as is true
today, the trial of an action had to take place in the county
in which the act was committed, and the original capias was
43

usually issued for that county. But if it was known that

the defendant was in another county, a writ testatum capias

 

was issued to the sheriff of that county, reciting the

 

3Since a man could be outlawed for failing to appear
at trial in only a county court, in the county in which the
act was committed, it seems logical to assume that the trial
of the action could likewise occur only in a county court in
the same county. See Cases In Court of Kings Bench: Edward I
(Selden Society), I, 30.

25

original capias and informing him that the accused "lurked

or wandered" in his bailiwick; and that he should take him.44
In due time, the original capias came to be merely supposed,
by the court, in order to avoid the trouble of issuing two
separate writs saying the same thing; and the action taken
against a defendant in another county was thus begun by
testatum capias. For example, in a case heard in 1470, a
man who was known to be living in Sussex was wanted by the
justices sitting in Gloucester, to testify in a case of
outlawry concerning an alleged mistake in the identity of
the outlawed person. No orders were addressed to the
sheriff of Gloucester on this matter; but the sheriff of
Sussex received directions to have the body of the witness
in question before the court on the assigned day.45 The
courts so feared that a man would circumvent the cause of
justice by fleeing to another county that a statute of
Edward III specifically stated the procedure to be taken

in such cases. The statute said: WWhere in Times past

some persons appealed or indicted of divers Felonies in

one County, or outlawed in the same County, have been

 

44Blackstone, III, 283.

45Y.B. 10 Edward IV and 49 Henry VI(Selden Society),
p. 110.

26

dwelling or received in another County, whereby such
Felonious Persons indicted and outlawed have been encouraged
in their Mischief, because they may not be attached in another
County; it is enacted, That the Justices assigned to hear
and determine such Felonies, shall direct their writs to all
the Counties of England, where need shall be, to take such
Persons indicted."46

The second remaining point concerned indictment for
treason and the major felonies such as rape, arson, homicide,
assault and robbery. For these acts, excluding treason,
a statute of Edward III47 entitled ”What Process shall be
awarded against him that is indicted of Felony? provided
for a lesser number of writs of capias to be issued;
that is, instead of three writs (gapias, capias, alias, and
gapias pluries), two were specified as legal procedure.
Blackstone says, that in practice, even the two writs called
for in this statute fell into disuse, and eventually only
one capias was required to be issued to take legally the

body of the accused.48 While there were several statutes

which defined treason and provided for the forfeiture of the

 

465 Edward III, c.11.
47

25 Edward III, 5.5, c.14.
48

Blackstone, IV, 319.

27

traitor's lands to the king,49 no specific provisions of the
law indicated how the traitor was to be taken. But Bracton,
in a discussion of high treason, indicated that in practice
one accused of treason should be seized immediately after
being appealed or indicted. This seems to imply a single
order for arrest.50 From the records of the courts, the
idea of a single order for arrest (capias) seems to be
reinforced. For example, in a plea heard during the Trinity
Term in 1214,51 the sheriff of the county of Cornwall was
9commanded to have the body of Baldwin Tyrel before the
king . . . to answer" a charge of high treason. The
language of this and other cases indicates only one issuance
of ca ias,52 rather than two or three orders for arrest.
Treason and felony were so serious that the courts probably
felt that the extra time used in suing out the gligg and/or
pluries writs, gave the accused undue opportunity to make

good his escape.

 

4925 Edward III, 3.5, c.2; 34 Edward III, c.12;

21 Richard II, c.3,4 and 12.
50Bracton, f.ll9.
51Pleas of the Crown(Seldon Society), p. 67.

52Cases In Court Of Kings Bench: Edward III(Selden
Society), p. 61.

28

We have seen how procedure against the contumacious
went, as directed from the court of Common Pleas. The
court records indicate that until the fifteenth century this
court heard a majority of the cases which could be adjudi—
cated by royal justice. Certain statutes in the thirteenth
and fourteenth centuries were in large measure responsible
for the development of the two major royal courts: the King's
Bench and the Common Pleas. For example, a statute of
Henry III, in 122553 established the court of Common Pleas
in fixed chambers at Westminster, where it remained until
it was abolished in 1875, while a statute of Edward I in
1300,54 caused the justices of the Kings Bench to follow
the king, Fso that he may have at all Times near unto him
some Sages of the Law.? The advantage of knowing where a
royal court was at all times in seeking justice, was as
obvious to plaintiffs in the middle ages as it is today.
In addition, another statute of Edward I in the same year,
1300,55 greatly limited the scope of jurisdiction of the
justices travelling with the kings, so that they could hear

pleas of actions which occurred only within close proximity

 

539 Henry III, c.ll.

5428 Edward I, 3.3, c.5.

5528 Edward I, 3.3, c.3.

29

of the royal person. All other pleas by this statute were
left for adjudication by the court of Common Pleas.

But in the fifteenth century, after the King's
Bench court had acquired jurisdiction in all matters which
affected the king through its long association with him, we
see it begin to hear many of the pleas which would formerly
have been heard in the court of Common Pleas. In the scheme
of procedure against the contumacious, this development of
the King's Bench was important. The King's Bench in the
fifteenth century had developed a relatively advanced and
sophisticated procedure as compared to the Common Pleas.
Instead of the long and complicated process of suing out the
original writ, attachment, and ca ias, which the Common
Pleas used to proceed against the accused, the King's Bench
used just one writ to accomplish the same thing. This was
the bill of Middlesex. It acted in effect, as a capias
to attach the body without the preliminaries of a capias
in the Common Pleas. It directed the sheriff of MLiddlesex56
to take the body of the accused into custody, and to present
him before the court to answer the trespass on the day that

the writ was returnable. In the trial of Skypwythe v.

 

56The bill got its name from the King's Bench sitting

in Middlesex. Had the court sat in another county, such as
Gloucester, it might have been called the bill of Gloucester.

3O

Gouselle in the Michaelmas Term of 49 Henry VI in 1470,57

we see that the plaintiff, Skypwythe, had sued out a bill
from the King's Bench to cause the defendant to appear. No
original writ was needed according to the court record, and
the defendant was placed in the safe custody of the marshal
(custodian) of the King's Bench prison, according to the
instructions usually given in such a bill. In another case
in 1422,58 the sheriff of Sussex was commanded to present
John Giles before the court by a bill of Middlesex. The
accused failed to present himself before the justices, and
the sheriff reported that he was non est inventus. The
court could then proceed to a more stringent measure of
coercion.

At this point in the long process which the common
law used to compel appearance, more persuasive measures
were interpolated into the procedure. Following the return
of non est inventus by the sheriff on a writ of capias or
bill of Mdddlesex, the law continued to move by measured and

well defined steps to its final and most effective action,

the proclamation of outlawry.

 

57Y.B. 10 Edward IV and 49 Henry VI(Selden Society):

p. 115.

58Y.B. 1 Henry VI(Selden Society), p. 21.

31

Up to this time, the defendant was still a man with
certain rights before the law. But now if he failed to
respond to the summons of the court, he faced the prospect
of losing these rights and protections and of consequently
being put outside of the law. The vicissitudes of the man
.who incurred this sentence of outlawry were great. As an
outlaw he lost all his legal standing in the community;
that is, the community put him outside of its protection.

He was consequently at war with the law which had banished
him. Since this ”lawless” creature lost all standing in

the community, he forfeited all of the contractual rights
which he formerly possessed and at the same time all of the
bonds of feudal homage which were owed to him and which he
owed to others were dissolved.59 By statute of Edward 11,60
his property and his goods and chattels were forefeited to
the king who could waste them for one year and a day, and
following this they would escheat to the ”chief Lord of the
same Fee.” werst of all was the position of vulnerability

in which his person was placed. Not only was it everyone's

duty to capture the outlaw, but everyone was authorized to

 

59Bracton, f. 129.

6017 Edward II, c.16.

32

slay him if he resisted capture.61 If one was caught
harboring the outlaw with knowledge of his condition, he

was considered to have committed £1 most serious crime.
Indeed, in a case in 1201,62 two people, suspected of having
received such a person, were immediately taken and remanded
to the custody of the sheriff for further action- The
outlaw was a completely friendless and solitary man, just

as a wolf is friendless and solitary. He consequently bore
the appellation of the ”wolf's-head,” which name is mentioned
in Bracton and in a case in 1202, in Northamptonshire.63
Such were the conditions of the outlawhslife and the

reasons for the dread of the proclamation.

Because of the serious nature of outlawry the common
law moved slowly in the steps taken against the recalcitrant.
When the sheriff returned that the person named in the writ
of capias was non est inventus, the court issued a writ of
exigent (exigi facias) as provided by a statute of Edward

III in 1350.64 The statute said, ”And if the Sheriff return,

 

61Bracton, f. 129.

62Pleas Before the King 0r His Justices: 1198-1202
(Selden Society), ed. Doris Mary Stenton, 2 vols. (London,
1952-53), II, 71. Hereafter cited as Pleas Before the King
Or His Justices(Selden Society).

63Bracton, f. 128; Pleas Of the Crown(Selden Society),
pp. 21-23.

6425 Edward III, 3.5, c.14.

 

33

that the Body is not found, and the Indictee cometh not,
the Exigend shall be awarded.” The issuance of the writ
of exigent began legal motions against the accused which
would last for five months. The sheriff was directed to
begin the process of ”exacting” or ”demanding" the fugitive
to appear at the county or shire court in order to render
justice or ”stand to right.”65 In the practice of the law
during this period, the act of ”exacting" or ”demanding"
was merely a public summons of the accused made at a duly
constituted county court. The language of the writs of
exigent was varied, but each writ informed the sheriff
what actions he should take against the contumacious. In
one writ that Bracton records, the text reads, ”. . . if
the Viscount shall send that the appellee has not been
found, but that he has withdrawn himself, then let it be
enjoined (as before) that he should attach him, [his body]
if he should be found, but if not, that he should cause him
to be sought for from county to county, until he shall be
"66

outlawed by the law of the land. . . . This writ

directed the sheriff to cause the accused to be ”sought."

 

65This phrase is used in a case in 1293 in Middlesex,

Cases In Court Of Kings Bench: Edward I(Selden Society), II
145-146.

Bracton, f. 142, emphasis inserted.

34

But in another writ cited by Bracton, we see that the "man

appealed ought to be interrogated at four shire courts,

67

 

from shire court to shire court until he be outlawed.”

Here the word ”interrogated,' means ”summoned.” The writ
might have said that the fugitive should be ”demanded,"
”exacted” or ”summoned” and have meant the same thing as
”sought” or ”interrogated." In fact, there are countless
cases in the extant records of various courts which illustrate
the varied and frequent use of such proclamations. For

example, in 1201 in Cornwall,68 wulward of Lanhydrock fled,

and the record says, ”let wulward be interrogated.” In 1221,

 

at wercester,69 Nicholas Walensis escaped from custody and
the court proclaimed ”Therefore let him be exacted and
outlawed.” In Norfolk in 1198,70 Gilbert fled after

having stabbed Jordan Bete, and the record reads, "Let him

be summoned etc.” Whatever form was used in the particular

 

 

67Bracton, f. 125b, emphasis inserted.

68Pleas Before the King Or His Justices(Selden
Society), II, 81, emphasis inserted.

69Rolls Of the Justices In Eyre: Being the Rolls Of
Pleas For Lincolnshire (1218-1219) and wercestershire(1221)
(Selden Society), ed. Doris Mary Stenton (London, 1934),
p. 545, emphasis inserted. Hereafter cited as Justices In
Eyre: Lincolnshire and wercgstershire(Selden Society).

7OPleas Before the King Or His Justices(Selden
Society), II, 12, emphasis inserted.

35

exigent, the law was giving to the defendant, to the best
of its ability, the information that he faced charges in
court and that if he failed to answer them he would be
outlawed by the law of the land.

From the time that the exigent was awarded by the
court until the actual proclamation of outlawry was made,
a period of five months usually elapsed. In this time the
accused would be ”exacted” or ”summoned” five separate
times at five successive county courts, held once each month
in the county where the deed was committed. Bracton states,
however, that there may be an interval of time between the
award of exigent and outlawry greater than five months or
that the county courts need not be successive under
certain circumstances (such as war). These variations were
permissible as long as the total number of exactions at
county courts was the legal number.71 But in a case in
Worcester in 1221,72 the justices ruled to the contrary in
an extended case of outlawry, as any interval in the process
was considered too long, and it would set a bad precedent.
There was some question as to what is a legal number of

exactions at the successive county courts. After the justices

 

71Bracton, f. 126.

2Justices In Eyre: Lincolnshire and Wercestershire
(Selden Society), pp. 581-82.

36

received a return of non est inventus on the capias or bill
of Middlesex, the exigent was, of course, awarded against the
contumacious. According to Bracton, at the first county
court following the award, the accused received his first
exaction. Bracton calls this exaction a ”simple calling,"73
implying an informal summons of the defendant. Exaction
at this first county court was not to be included in the
total number of formal interrogations. At the next four
meetings of the county, the defendant was more formally
exacted four times, and if he still failed to appear after
the fourth formal summons, he was then proclaimed an outlaw
by the writ of capias utlagatum. Thus, after a total of five
county courts, which included a simple calling of the accused
and four formal exactions, the sheriff was commanded by
ggpias utlagatum, ”to take the outlaw” and to present him
before the justices to deal with his contempt. And it must
be noted, that this method of counting the number of formal
exactions by Bracton, is confirmed in several cases, with

74

a good example in a case heard at WOrcester in 1221,

where the record specifically indicated that the defendant

 

73Bracton, f. 125b.

4Justices In Eyre: Lincolnshire and Wbrcestershire
(Selden Society), p. 540.

37

ought to be outlawed at the fourth shire court.

But in two cases in the Coroners Rolls75 which
describe the exaction process in detail, five rather than
four specific exactions in each are mentioned, with no
implication that the first exaction made at the first
county court was in any way different or less formal than
the others, as Bracton indicates. In one of the above
cases heard in Nerthamptonshire,76 the defendants were
”exacted for the first time and did not appear,” on Thursday,
August 18, 1323. And those named in the writ of exigent
were, ”exacted for the fifth time” on Tuesday, December 8,
1323. Nowhere in the record of this case is there any
suggestion that anything other than five formal exactions,
in five months, at five county courts had occurred, and
although the results of four or five formal exactions were
the same, the method of accounting can be confusing.

Each step taken in this process of exaction moved
the contumacious one step closer to the loss of the ”king's

peace,, or outlawry. The law made every effort to see that

 

75Select Cases From the Coroners Rolls: 1265-1413
(Selden Society), ed. Charles Gross (London, 1896), Nerthampton-
shire, pp. 77-78, Bedfordshire, pp. 32-35. Hereafter cited
as Coroners Rolls(Selden Society).

76Coroners Rolls(Selden Society), pp. 77-78.

38

there were no procedural errors of any kind. A proclamation
of outlawry in 1221 was voided because of one such procedural
error. In this case, the outlawry of one John 1e Waller was
reversed as he was exacted one more time (six times) than
the law allowed.77 In another question of procedure, we

see that the county court in which the outlawry was

produced had to be a legally constituted tribunal. The
proper royal representatives had to be present. In a case
concerning this question, an outlawry was annulled because
the sheriff was not present, as he was attending another
county court at the same time.78 Furthermore, the writ

of exigent had to be very exact in its wording in naming

the one to be ”demanded” or outlawed. In 1470, one J.
Boteler, yeoman, was mistaken for the outlawed J. Boteler,
gentleman, and was captured. Upon inquest by the judges,
the innocent yeoman was, of course, set free, and the
sheriff was amerced for false arrest.79 Because women and

children were not considered within the law, due to their

 

Justices In Eyre: Lincolnshire and worcestershire
(Selden Society), p. 540.

78Cases In Court of Kings Bench: Edward I(Selden
SOCietY) 3 II. 41-43.

7?Y.B. 10 Edward IV and 49 Henry VI(Selden Society),
pp. 140-41.

39

inability to participate in frankpledge and tithing,80

they were not to be "outlawed” for failing to appear at court:
they were rather to be ”waived.” In a case in 1323, heard

in Northamptonshire,81 ”. . . John of Langley, and John of
Gloucester were outlawed, and the said Matilda [of Drayton]
was waived.” If at any time during exaction or during any
part of procedure an error was made, the whole action to the
point of error was annulled, and the process had to be begun
again.82 Finally, the law had to deal with the fugitive,
whether outlawed or not, who had successfully gained sanctuary
in a church. So long as he remained in the environs of the
church, up to a period of forty days,83 his body was free
from seizure byizhe authorities. Bracton maintains, however,
while taking cognizance of the Assize of Clarendon, that

for a layman to enter the church even after the period of
forty days had elapsed to seize the fugitive, would be
”horrible and unhallowed.”84 His remedy for this matter

was not for the clerics of the church to use physical force

 

80Bracton, f. 125b.

81Coroners Rolls(Selden Society), pp. 77-78.

82Y.B. 8 Edward II(Selden Society), pp. 21-22.

83Assize of Northampton (1176); Bracton, f. 136.

84Bracton, f. 136.

40

to drive the fugitive from sanctuary, but rather to "deny
such a person victuals” to accomplish this task.85 Another
alternative to rid society of the dangerous fugitive in
sanctuary was also available to the law. This was to allow
the beseiged defendant to abjure the realm if he steadfastly
refused to face the charges levied against him. If the de-
fendant chose to leave England, a statute of Edward 1186
provided for the safety of his person while still in the

church or on the road toward the assigned port of exit.

So long as the abjurer continued on the road with no diversions
and if he left the realm on the assigned day, he was in the
king's peace and protection. In 1276, we see that Eustace
Putthe of Tilbrook, who had escaped from the king's prison

and gained sanctuary in the church of Spaldwick, there

”abjured the king's realm according to the custom of
England.”87 And similarly, in 1318, walter Alway of

Thropston, who took refuge in the church of Saint James in
Thropston, confessed to the slaying of Robert Alway: ”and

he abjured the realm of England . . . and the port of Dover

was assigned to him."88

 

85Bracton, f. 136.

869 Edward III, 5.1, c.10.

87Coroners Rolls(Selden Society), p. 36.

88Coroners Rolls(Selden Society), p. 67

41

This process of compulsion was well summed up in verse in
the Pleaders Guide 56-58:

But first attach him, and attend
With Capias fig Respondend.

Let loose the Dogs of war and furies,
TESTATUM, ALIAS, PLURIES;

But if at length non est invent,

At him again with Exigent.

Proclaim him by the Act's direction
(Act Blst. Elizabeth 3rd. Section)
Then smite him as a Coup gg Grace
‘With Utlagatum Capias.

Exacted, outlaw'd and embruted,

His head to head of wo1f transmuted.
Compell'd by writ of Exigenter

The Lists against his will to enter.89

 

The methods which were in the hands of the law in
the middle ages to force the appearance of a defendant, were
both interesting and varied. They ranged from the actions
of law enforcement by the king's royal servants throughout
the realm, to the duties imposed upon individuals and
groups at various levels in society. We have already seen
much of the role of the king's officers in the judicial
system during this period, but the very important role of
the ”private citizen” in this scheme remains to be
d i scussed .

The first legal duty of the individual in medieval

English society was to assist in the maintenance of civil

 

89Quoted from W. S. Holdsworth, A History Of English
La‘W, IX, 254, note 3.

42

peace and tranquility. It is necessary to remember that
there was no well organized police force to help prevent
crime, and no well organized agency to apprehend the criminal.
The sheriffs,were few in number, and these few could

police only limited areas. Absence was often necessary

as shown in a case before the King's Bench heard in the
Easter Term of 1291.90 A proclamation of outlawry was
annulled because the sheriff of the county was in attendance
at another county court and without the sheriff's presence
the court that proclaimed the outlawry was not a legal
tribunal. If the sheriff could not consistently appear

at monthly county courts, his ability to properly administer
the day-to-day duties to the whole area under his juris—
diction was probably even less consistent and efficient.

The numerous proclamations of outlawry in the records

attest to the fact that the law officers were often unable
to produce the accused before the court, and consequently
many crimes went unresolved. The abilities of law enforce-

ment officials were so limited, that in many instances the

identity of the criminal was never discovered by the

90Cases In Court of Kings Bench: Edward I(Selden
Society), II, 41-43.

43

law,91 and even the deceased in a homicide might go unidenti-
fied.92 Consequently, the individual and the community as
a whole had to be included in law enforcement, to supplement
the often abortive efforts of the royal officers.

The role of the private person in the scheme of
compulsion in medieval law has several facets, which may
be reduced to two general classifications. The first, is
the active participation of the members of the community
in the apprehending of the criminal. When the act of felony
was brought to the attention of the community, a certain
procedure was ordinarily followed. For example, in the
event of finding a dead body, an alarm or the ”hue and cry”
was raised by the finder as actually occurred when Agnes
Colburn found her son Henry dead, on August 22, 1266, at
Barford.93 Or when the body of John Clerk, tiler, was
found on August 9, 1366, as the jury reported to the Coroner

of.Middlesex, that; ”Thomas Clerk of Aldgate Street first

 

91Rolls of the Justices In Eyre: Being the Rolls Of

Pleas and Assizes for Gloucestershire, warwickshire and

Staffordshire (1221-1222)(Se1den Society), ed. Doris Mary

Stenton (London, 1940): Pp. 401, 406. Hereafter cited as
.Iustices In Eyre: Gloucestershire, warwickshire, Stafford—
shire (Selden Society) .

2Justices In Eyre: Gloucestershire, Warwickshire,
$§taffordshire(Selden Society), p. 400.

93Coroners Rolls(Selden Society), p. 3.

44

found him, and he raised the hue [and cry]."94 The

witness or witnesses to a crime were to raise the "hue"
and give chase to capture the criminal. The Coroners Rolls
in 126795 reported that the township of Sudbury saw the
commission of assault and homicide on an unknown man. "The
hue was raised and the aforesaid persons [the defendants]
were pursued into the county of Huntingdon; the hue was
[also] pursued in the county of Bedford from township to
township."

The ancient use of the hue and cry by the Anglo-
Saxons in England was confirmed in a series of statutes of
the post-Norman kings. Early in this series was the statute
of Winchester of 1285,96 which had as the title of its
first provision: ”Fresh Suit shall be made after Felons and
Robbers from Town to Town, &c." This clause provided, that
”Cries shall be solemnly made in all Counties, Hundreds,

Markets, Fairs, and all other Places where great Resort of

People is, so that no one would be ignorant of such

felonies or felons. In the second clause of the same statute,

”Town, Hundreds, and Franchises, were made responsible to

‘

94Coroners Rolls(Selden Society), p. 55.

95Coroners Rolls(Selden Society), p. 9.

9613 Edward I.

 

45

present the felon, and the counties were ordered to produce
him within forty days. If any of the above failed in this
charge, they would be answerable for the damages. In a
statute of Edward III in 1354,97 the provisions of the
statute of Winchester (1285) were confirmed by a clause
that said, ”immediately after Felonies and Robberies done,
fresh suit be made from Town to Town, and from County to
County.” And once again, ”Towns, Hundreds, Franchises, and

Counties, were ordered to capture the body of the felon, or
to remain answerable for the damages.

Once the hue and cry had been raised by the populace,
a statute of Edward 1,98 provided that the neighbors of
the district were to turn out with their prescribed "harness,”
to apprehend the criminal and keep the peace. ”Every Man
between Fifteen Years of Age, and Sixty Years,” says the
statute ”shall be assessed and sworn to Armor according to
the Quantity of their Lands and Goods.” For example,
”From Fifteen Pounds Lands, and Goods Forty Marks, and
Hauberke, a Breast-plate of Iron, a Sword, a Knife and a

liorse . . . and he that has less than Twenty Marks in Goods,

shall have Swords, Knives, and other less Weapons,” and

 

9728 Edward III, c.11.

9813 Edward I, c.6.

46

"that they shall follow the [Hue and] Cry with the County . .
as they are bounden." The law made clear to the community
and to each individual the role each was expected to play

in bringing a criminal to justice.

In practice, we see several interesting and illustra-
tive cases of the hue and cry. In a plea during the
Michaelmas Term of 1328 before the King's Bench,99 Richard
of Welford and Geoffrey of Weston, merchants of London,
were robbed of one-hundred and thirty pounds, and "immediately
after that robbery was committed, they had raised the hue
and cry against those evildoers and pursued them from town-
ship to township in those parts with the hue and cry thus
raised.” According to the laws of the realm, Richard and
Geoffrey by properly raising the hue and cry, had a right to
expect that the men in the towns where the ”cry” was raised
would then capture the criminals as they were bound to do
under the provisions of the statute of Winchester. But the
men of the towns involved failed to make the attempt, and
by terms of the Statute they were accordingly to be amerced
for the damages; one-hundred and thirty pounds. Another

<:ounty reported that its men had arrested the fugitives upon

‘

99Cases In Court Of Kings Bench: Edward III(Selden
S<>ciety), pp. 34—35.

47

the hue being raised in thgt county, within the prescribed
"forty days". The justicesthereupon issued a stay for the
order of amercement against the alleged negligent town for
damages; it could not be held to answer under the statute
if the evildoers had been arrested by another group. In
another instance in 1378,100 John Souter struck and killed
John Here, while the deceased was at home. The accused
man fled, and the men of Urchfont were amerced for the
damages: that is, the appraisal of the sword which was the
murder weapon, at four pence. In 1218, the vill of
Brinsworth in Yorkshire was put in mercy upon its failure
to take one Adam Buscell for the slaying of Elias, son of
Roger of Brinsworth. The village knew of the slaying and it
also knew that Adam Buscell was the culprit.101

The responsibility put on local inhabitants to
participate in and maintain law and order, carried over into
other similar duties. In a case heard at WOrcester in 1221,

the Rolls of the Justices for that eyre reported that,

William de Bracy, suspected of the slaying of William of Stone,

 

100Coroners Rolls(Selden Society), p. 106.

101Rolls Of the Justices In Eyre: Being the Rolls
SE: Pleas and Assizes For Yorkshire in 3 Henry III (1218-1219)
(Selden Society), ed. Doris Mary Stenton (London, 1937),
PE). 194-95. Hereafter cited as Justices In Eyre: Yorkshire
(Selden Society).

48

fled to sanctuary in Stone Church. The king's serjeant put
the villages of Stone, Heathy, and Dunclent on guard to see
that de Bracy did not escape. However, de Bracy did escape
dressed in monks attire, and "The villages admit this and
therefore are in mercy.”102

Another aspect of the hue and cry and community
participation in bringing the accused to justice, was the
trial and treatment of one caught red-handed in the act of
a crime, or ”hand—having” (the holding of the stolen goods
or the weapon used for the crime). In this situation a
procedure called ”summary justice” was used. This justice
was rendered quidkly and with little procedural ceremony,
though the court records indicate that its use disappeared
in the late fourteenth century. In a typical case, in the
town of Bodden, the hue and cry was raised against a horse
thief during the night. The thief was caught with the horse
in his possession, and the Prior of Bodden hastily summoned
a court which tried and hanged the accused.103 Bracton
comments on such cases, saying that, if such things as the

dead body or ”bloody knife” implicated the accused, then by

ancient constitution, no further proof was needed and justice

¥

1onustices In Eyre: Lincolnshire and wercestershire
(Selden Society), p. 559.

103Y.B. 30 and 31 Edward I(Rolls Series), PP. 501-502.

49

could be quickly done.104 The felon could be gotten into
court and his career as a danger to society could be ended
quickly with a semblance of judicial authority.

The second of the general classifications of the
roles of ”private citizens” in the functioning of the law,
concerned two specialized English medieval institutions,
'called tithing and frankpledge. The origins and exact
nature of both are open to much controversy,105 and are
therefore beyond the scope of this study. But certain
salient characteristics may be discerned, from the time of
‘William the Conqueror to the sixteenth century.

Generally speaking, tithing and frankpledge
constitute a system of collective police functions by
local groups, which had in it the element of surety for
each of the members. According to Bracton,106 all males
twelve years old and over, except ”magnates, knights, and
their relations, a clerk, a freeman, . . .” were to be in a
tithing or in frankpledge. These groups consisted of ten
to twelve men, presided over by a ”headman” or ”tithing-man,”
or by a lord who guided and was responsible for the frankpledge.

—

104Bracton, f. 137.

105For a good summary of this subject see, Bryce Lyon,
A Constitutional and Legal History of Medieval England (New
York, 1950) .

106Bracton, f. 124b.

50

In the records of the Justices in Eyre at WOrcester in 1221,107

there are several notations which name the tithing-man who
was responsible and the locality of the tithing. For
example, in one case the record reports that Theobold 1e
Fulur was suspected of homicide and that, "he fled, and he
was in the tithing of Robert Keis of Berrow. . . .”108 In
another case in the same eyre,109 we see that Thomas of
Belbroughton was the master of a frankpledge which carried
his name and that he was responsible for the actions of its
members. In a more complete description, the Coroners Rolls
report an inquest held at Ensham in 1390, where, ”Richard
Cavill, tithingman of Ensham, John London, tithingman of
Cassington, John Sexy, tithingman of Sutton, and John Hawkin,
tithingman of Stanton Harcourt, together with their tithings,"
”swore oath as to the cause of the death of one William
Bray.”110

One of the most important responsibilities of the

 

107Justices In Eyre: Lincolnshire and worcestershire

(Selden Society).

108Justices In Eyre: Lincolnshire and worcestershire
(Selden Society), pp- 591-92.

109Justices In Eyre: Lincolnshire and wercestershire
(Selden Society), p. 557.

110Coroners Rolls(Selden Society), p. 96.

51

frankpledge or tithing was to produce a member in court if he
was involved in a litigable matter. In most cases the
tithing or frankpledge had to act when one of the group
committed a felony and then fled from justice. We see
countless cases of the frankpledge and tithing used in

this way. In most of these instances we see this indirectly,
as the various groups were amerced for their failure to
present the accused member at court. In wercestershire in
1221,111 Jordan 1e Stut killed William Willoc and fled.
Jordan was in the frankpledge of Nicholas 1e Rus of Severn
Stoke, and therefore the frankpledge was put in mercy. The
Pleas Heard Before the Crown records in an inquest taken in
Somerset,112 that William, Richard's son, was outlawed for
theft; and we see that he ”was in the tithing of John
Eskelling's chord, [sic] which is therefore in mercy.”
Similarly, in 1201 in a case heard at Wells, the tithing

of Ash Priors was made responsible, that is, put in mercy
for having allowed the escape of Richard Coffin and Richard,

son of Botilda. Both were accused of having participated

in the slaying of Walter de Wik, and both were in the

 

111Justices In Eyre: Lincolnshire and WOrcestershire

(Selden Society), p. 545.

112Pleas Of the Crown(Selden Society), p. 80.

52

tithing of Ash Priors.113

However, there are several cases in the court records
which indicate a more direct and active participation of
the frankpledge and tithing in maintaining the law and
compelling the accused to appear at court. In 1323 in
NOrthamptonshire, in the inquest of the coroners of Northampton
town, one John Small had been killed while resisting arrest
by ”the constable and frankpledges of the township of Stdke
Bruern.”114 And again in 1321, we see the tithing in a
more active and direct role, as ”Hugh Lucas of Thropston
was arrested in the fields of Little Addington with a bay
horse belonging to Thomas Howett of Irthlingborough by the
tithingmen and constable of [Irthlingborough].”115

In another example of the role of tithing, we see
that William of Churchill appealed John of Bilstone and
Richard of WYke for unjust imprisonment in 1255. In the
transcript of the case, John and Richard admit freely that

they imprisoned William, but they claim that they did so

because ”the aforesaid William's tithing had presented him

 

113Pleas Before the King Or His Justices(Selden

Society), II, 216.

114Coroners Rolls(Selden Society), p. 79.

115Coroners Rolls(Selden Society), p. 67.

53

as a thief and wrongdoer,’

. 1 . . .
to answer for him.” 16 In order for the tithing to aVOId

and ”because the tithing refused

the responsibility and possible amercement upon the escape
or further wrongdoings of William, they rather presented him
for incarceration to the local authorities. The action
taken by this tithing was considerably different than that
of the tithing of Richard of Caundle in Somerset, in 1201.
In this case, when Richard was appealed of murder by
Odierna, widow of Adam, he presented as sureties, Richard
de Bruneshull, and his tithing of Caundle. Richard never
did appear for trial nor did he essoin himself, and his
tithing was put in mercy for his nonappearance; but at least
his tithing had fulfilled its duty and acted as surety for
him.117

The law was so much concerned with the maintenance
of order by the use of frankpledge, that in a case in 1221,
heard at Worcester, we see the consequences to a man not

enrolled in a frankpledge or tithing. Here, John Alfolc,

who was arrested on suspicion of robbery and had come to

 

116Select Cases Of Procedure Without Writ: under

Henry III(Selden Society): ed. H. G. Richardson and G. O.
Sayles (London, 1941), p. 100. Hereafter cited as Procedure
Without writ: Henry III(Selden Society).

117
II, 221.

 

Pleas Before King Or His Justices(Selden Society),

 

54

court to answer, said that "he does not wish to put himself
upon the country.” Since he was not in frankpledge or
tithing and since he did not have a lord who was willing to
be surety for him, the court replied, ”therefore let him
abjure the realm and leave the land before the Saturday
next after the octave of St. John the baptist.” He also
was required to forfeit his goods and chattels into the
hands of the king's sheriff.118
The responsibility for the members of frankpledge
and tithing to participate in the scheme of the law, in the
post-Nbrman period, rests on the provisions contained in two
major statutes. The first and more important one was the
Assize of Clarendon of 1166, issued by Henry I. This assize
confirmed and regularized the parctice of inquests held by
.royal officers which had been used with increasing frequency
and effectiveness in England since the Domesday Book
investigations by William I. The Assize provided that,
"for the preservation of peace and the enforcement of justice,
inquiry shall be made in every county and in every hundred

through twelve of the more lawful men . . . to tell the

truth . . . whether there is any man accused or publicly

 

118Justices In Eyre: Lincolnshire and Worcestershire

(Selden Society), pp. 589-90.

 

55

known as a robber or murderer or thief, or any one who has
. . "119
been a receiver of robbers or murders or thieves. . . .
This inquiry was to be made twice a year by the sheriff or
the justices, and it came to be known as the ”View of frank-
pledge” or the ”sheriff's tourn.” The second statute,
issued in 1325 by Edward 11,120 was entitled, ”The Statute
for View of Frankpledge." It provided for essentially the

same testimony to be sworn by the jurors before the royal

officers, but it specified in detail a large number of

specific subjects into which the sheriffs were to make inquiry.

For example, inquiry was to be made; ”Of Thieves that steal
Clothes . . . of Cries levied and not persued . . . Of
Escapes of Thieves or Felons . . . Of WOmen ravished . .
of Clippers and Forgers of Money,” and for many other of the
various concerns of the king to secure the peace of his
realm.

In its efforts to compel the accused to appear, the
law would proceed to its most stringent form of coercion-—

outlawry--only when forced to do so. As we have seen,

 

9From Statutes of the Realm, translated in Sources
Of English Constitutional History: A Selection Of Documents
From A.D. 600 To the Present, ed. and trans. Carl Stephenson
and Frederick George Marcham (New York, 1937), p. 77.

12018 Edward II.

56

outlawry was a long and complicated process, and the results
of this process was often of dubious value. If the accused
chose to live the life of a fugitive, the cause of the
plaintiff was still left unsatisfied, and in addition, the
contempt shown to the king's court during the process re-
mained unpunished. Consequently, the law much preferred to
make the defendant more responsive to its directives by the
less dramatic but more practical methods of attachment,
surety and responsibility.

Although the many writs and court records of the
period indicate that actual recourse to outlawry was
commonplace, it is also apparent that the law made even
more frequent and greater efforts to compel appearance by
the rapidly developing system of personal security or
surety. Surety in medieval law has several facets and
perhaps the best way to understand it is to see, first,
how it was used in practice. The accuser or appellant, in
order to assure the law that he would prosecute his suit to
outlawry if need be, was required to put up ”pledges” or
”security” for prosecution. This proffering of pledges
had the effect of making the appellor responsible before the
law for his actions, or, more specifically, for his lack of

(action. Bracton cites many writs that describe the manner

57

in which the appellor was made responsible and which show

how he was directed to prosecute his appeal. For example,

in one representative writ, the king greeted his royal

sheriff in the shire and said, "If A [the appellor] has

given you security to persue his complaint, then place B

and C . . . under bail and sureties . . . to answer the

said A,” and if they (the defendants) do not come to answer
the charges, ”then upon the appellor presenting himself to
carry on the suit, let them be attached by better sureties.

. . .”121 In an illustrative phrase from another of Bracton's
writs, we see the king inform the sheriff, ”if A shall make
you secure, eth”122 then you [the sheriff] may proceed
further against the appellee, but not until the plaintiff

A, has become responsible before the law, by making you
”secure.” The security that was usually offered by the
appellor or accuser was the names of certain responsible

men who would act as his ”pledges for the prosecution."

If the appellor failed to prosecute his suit, then these
pledges for the prosecution stood responsible and therefore
amerciable before the law. The court records contain countless

references to pledges for prosecution and to the consequences

of the appellor failing to complete the suit. For example,

 

121Bracton, f. 149b.

122Bracton, f. 149b.

58

in the Trinity Term of the year 1212, two men failed to
complete prosecution in an accusation of arson. Both of the
appellors were put in mercy, and their ”pledges to prosecute,"
one John of Draughton and one Robert of York were also put
in mercy.123 In another case in 1313, we see one John de
Craven appeal Miles de Munteney and five others of felonious
assault. From the court record we learn that the pledges

of prosecution for the plaintiff, John, were John atte Wood
and Thomas of Thorpe. The record further informs us that,
”John de Craven, solemnly called the first, second, third
and fourth day, did not come, and he was the appellor.
Therefore let him be arrested and his pledges of prosecution
amerced. . . ."124 Thus, the law provided for its satis—
faction in a litigable question concerning the prosecution
of a cause.

Similarly, the law used the same principles of surety
and responsibility to deal with the far more important
problem of the appearance of the accused. One concept
dealing with this problem was that something of value could

be held by the law in lieu of the appearance of the defendant

in court. Then the law by the use of such a measure would

.—

123Pleas Of the Crown(Selden Society), p. 66.

124Select Cases In the Court Of the Kings Bench:
IELnder Edward II(Selden Society), ed. G. O. Sayles (London,
1 957), p. 50.

 

59

have a good method to cause the accused to be responsible
for his actions. The implications of this were fully
understood and were finally recognized and confirmed

in a statute of Edward III in 1350. The law said, "the
Sheriff shall cause to be seised his [the accused] Chattels
. . . and [if] the Indictee cometh not . . . the Chattels
shall be forfeit . . . but if he come and yield himself

. . . then the Goods and Chattels shall be saved.”125

In practice this is what happened as we can see by a

review of a few cases. In 1202 Henry Lenveise failed to
answer a plea made against him, ”Wherefore precept [was
sent] to the sheriff that he put him by gage and safe
sureties to appear . . . and to show wherefore he has kept
his day in the coming of the Justices into Essex as he was
summoned.”126 And again in the WOrcestershire Eyre of 1221,
we see that Isabella, wife of the deceased William of Stone,
appeals four men of the death of her husband, and they did
not appear to answer the charge.. Therefore, the transcript
reports, ”let the sheriff take their lands and chattels into

"127

the kings hands., While the inevitable loss of one's

 

12525 Edward III, 5.5, c.14.

126Pleas Before the King Or His Justices(Selden

Society), II, 261.

127Pleas Of the Crown(Selden Society), p. 86.

60

property must certainly have had some effect on the thoughts
of recalcitrant defendants, in the more serious charges of
felony when reluctance to face the court was great, the

law needed recourse to a somewhat more effective use of
surety. Indeed, the Sheriff (Gilbert Fitz Renfrey) of Ybrk
and the coroners of Yerk in 1218 reported, that in serious
acts of felony they rarely jug; attached those accused of
breach of peace.128 In cases such as these they looked to
the more responsible and efficient provisions for surety,
such as those found in bail and mainprise and in frankpledge
and tithing.

In the medieval period, the scheme of bail and main-
prise was utilized as an integral part of the process to
bring the accused to court. Before we see how bail and
mainprise were used in practice, it would be wise to examine
briefly the theory of these two legal devices, and some of
the differences between the theory and the practice. To
begin with, in the middle ages bail and mainprise as
descriptive legal terms were often used interchangeably in

the records of the courts.129 This was quite understandable,

 

128

p. 304.

129Matthew Hale, The History Of the Pleas Of the

(Crown, 2 vols. (London, 1778), II, 124. Hereafter cited as
Hale, P.C.

Justices In Eyre: Yorkshire(Selden Society),

61

since in effect bail and mainprise accomplished approximately
the same thing, that is, the procuring of the release of a
person from legal custody and undertaking to have him appear
before the court. For example, the transcript of a case in
1422, said in one place that the defendant was ”handed over
in bail” to certain men until the time of the trial, and in
another place in the very same record, that the defendant
was released to the same men ”who gave mainprise to have

the [same] body” at court at the specified time.130 Although
in practice, bail and mainprise seem to mean approximately
the same thing, legally however, there is a major theoretical
difference between the two. If a man were to be delivered

up or released on bail, in the eyes of the law (even though
the defendant has his physical freedom), he is technically
still in the custody of the law. For example, if a

defendant was granted bail from the King's Bench in fact,

his custody was merely shifted from the King's Bench prison
to the custody of those who secured his release, his bailors.
But in the eyes of the law the defendant is still in the
custody of the Keeper or Marshall of the King's Bench Prison,

_ig custodia marescalli.131 Uhder the terms of bail, the

 

130Y.B. I Henry VI(Selden Society), pp. 3-5.

131Hale, P.C., I, 325.

62

prisoner could be reseized and committed, if there was a
doubt as to his appearance at trial. It was thought that
the ”incumbent risk” which was assumed by the bailor or
”keeper” to produce the prisoner, was as good a certainty
of the accused coming to trial as incarceration in one of
the few and not very secure royal prisons}

Mainprise on the other hand, in legal theory does
not hold the accused in custody as does bail.133 The court
merely delivers gut of its custody to the suretors or main-
pernors the body of the accused for them to present at
court on the assigned day. Moreover, mainprise is always
granted in recognizance of a certain sum of money, while
bail may or may not be granted under these conditions.134
For example, bail may also be granted under the considerably
more stringent terms of corpora pro corpore, that is,

”body for body.” In a case before the King's Bench court
in 1287, we see an illustration of this. The court record

reports, ”Robert de Lavendrye . . . is handed to the hail

of Robert le Crevequer, [and others], to have his body at

 

132Justices In Eyre: Ybrkshire(Shelden Society),

record a considerable number of cases of breach of prison.

133Hale, P.C., II, 35.

134Hale; P.C., II. 124.

63

the aforesaid term, body for body. . . ."135 Theoretically

then, the body of the bailor would be liable upon his failure

to present the accused, while the mainpernor would be liable

only for the sum of money which he had pledged as security.
Returning to the practice of bail and mainprise,

we can see two situations in which they were used to insure

appearance in court. The first is the case where the

defendant is already in the custody of the law, and where

he is released or repleived upon pledge of bail or mainprise

by some suretor(s). In almost every instance, the courts

saw fit to release the accused on security, rather than

keep him in prison. In one case, William Skinner was arrested

on charges of homicide, and upon the appearance of ”pledges

of the peace” on William's behalf, who would answer for

him if he failed to appear at trial, the constables allowed

him his freedom.136 In another case, six men came forward

and, ”gave mainprise to have the body of the aforesaid

William Barkyng here at the aforesaid term, namely, their

"137

bodies for his body. Here, in addition to an illustration

of freedom granted upon a pledge of security, we see an

 

135Cases In Court Of Kings Bench: Edward I(Selden

Society), I, 167.

136Coroners Rolls(Selden Society), p. 104.

 

137Y.B. I Henry VI(Selden Society), p. 104.

 

64

obvious use of the word mainprise in the theoretical sense
of bail.

There are many cases such as these in the court
records, and among them there are many variations in the
terms provided for release and in the language that is used.
In his treatise on the law, Hale says that there ought to
be at least two men of ability or substance as pledges,
before the defendant may be released.138 Bracton gives us
a more detailed example of the terms of surety, in a writ
that he cites. In this writ, the king sends greeting to
the Viscount and says, ”If twelve free and loyal men of your
county have become sureties before you to present before us
or our justices on such a day 3., [the defendant] to answer
in court concerning an appeal which A. [the plaintiff] has
made . . . then cause that appeal to come before us or
our justices. . . .”l39 Similarly, in a case in the
Michaelmas Term in 1280, an order from the king was sent
to the sheriff to release one Ralph of Burn (accused of
horse stealing), if he could find twelve "upright and lawful

men” to assure his appearance on the assigned day.140

 

138Hale, P.C., II, 125.
139Bracton, f. 149b.
140

Cases In Court Of Kings Bench: Edward I(Selden
Society), I, 70.

65

However, in 1366 Thomas ughtred was held in gaol by the
sheriff, until Thomas found mainprise of: four knights
and one esquire, who were bound for the sum of five—hundred
pounds.141 And in 1295, we see a very interesting case
concerning the terms set for mainprise. Here, although
the accused procured the necessary writs for his release,
he still lay in prison for a year-and-a-half, as the prison
warden had strict orders from the Bishop of Bath notto
make deliverance unless three-hundred and twenty pounds
were offered as security.142

In many cases of deliverance from custody, we see a
rather unique phrase used in the court records which seems
to indicate a type of release quite similar in effect to
bail or mainprise. This phrase is, ”making fine of the king."
It occurs when the accused appeared before the arresting
officers and was consequently taken into custody. At this
time, the prisoner proceeded to pray deliverance from the
king's officers by the offering of a sum of money tendered

or pledged by a friend or a relative. In a case in 1310,

we see a particularly illustrative example of the process of

 

141Select Cases Before the Kings C0unCil= 1243‘1482

(Selden Society), ed. I. S. Leadam and J. F. Baldwin (Cambridge,
1918), p. 55. Hereafter cited as Cases Before Kings Council
(Selden Society).

142Cases Before Kings Council(Selden Society), p. 11.

66

"making fine." Here, Thomas the defendant was taken into
custody and "Afterwards Thomas made fine with the king for
the trespass by twenty shillings by the pledge of John of
Theford of the county of Nerfolk. Therefore let him be
delivered etc.”143 In another case in 1260, heard in
Leicestershire, the record reports that, ”William made

fine . . . by forty shillings, for fear of impriSonment and
[sic] to be put on bail.”144 Thus, it seems that ”making
fine” must have the same effect as bail; that of deliverance
from prison.

Usually, the cost of "making fine" for the defendant
or his suretor was the sumof one-half mark. In a plea heard
at York, we see that Rannulf of Abeford (accused of felonious
assault) ”came and made fine by half a mark by pledges of
‘Walter son of William of Abeford."145 Similarly, in another
case heard at Yerk, we see John,son of Swan of Upton, put
in mercy for false appeal against Adam de Mora. The record

reports that, ”afterwards John came and made fine by half

a mark by pledge of Adam the reeve of Upton and Adam the

 

143Y.B. 4 Edward II(Selden Society), p. 129.

144Procedure Without Writ: Henry III(Selden Society),
p. 101.

145 . . .
Justices In Eyre: Yorkshire(Selden Soc1ety),
p. 231.

67

14 . .
forester of Elmsall." 6 But In a number of Instances we

see various sums of money, other than half a mark required
to ”make fine with the king." For example, in 1253,
William de Kyme was required to ”make fine of the king" for
the sum of twenty marks.147 And in 1298, in a plea heard
in Ybrkshire, one Roger the carter was required to make
"fine with the lord king by ten pounds.”148 Thus, whether
the sum for ”fine” was the usual half a mark, or ten pounds,
or any other figure, ”making fine of the king” was an act
resulting in deliverance from custody, in the sense of bail
and mainprise. It was a pledge of money for the future
appearance of the defendant; and in accordance with a statute
of Edward III, published in 1363, the fines were to be taken
in the presence of the pledges, and ”that the Pledges Know
the Sum of their Fine before their departing.”149

In order to be released on bail or mainprise, the

accused had to sue out a writ of replevin or recovery for

his body from the king. Generally, one of three writs was

 

146
pp. 218-19.
147procedure Without Writ: Henry III(Selden Society),

Justices In Eyre: Yorkshire(Selden Society),

p. 32.

148Cases In Court Of Kings Bench: Edward I(Selden
Society), 111. 67-

14938 Edward III, 5.1, c.3.

68

used by the accused to gain his freedom. The most often
used was the writ ge_homine replegiando, which directed the
sheriff to deliver the body up upon pledge of sufficient
security that the accused would appear in court to answer
the charges made against him. The writ was a comprehensive
document in that it was applicable in almost every offense,
up to and including felony. But it served until the advent
of the writ of habeas corpus made it obsolete.

The two other writs used to effect release from
custody are more limited in scope than that of ge homine
replegiando. The writ_ge manucaptione (writ of mainprise),
was used to obtain the release of a defendant accused
especially of a felony. Because the charge of felony was
such a serious matter, the sheriffs in many cases refused
to release prisoners on low bail. In a situation such as
this, the defendant then sought release by an offer of a
greater pledge of bail and mainprise, accompanied by the
writ geumgnucaptione. Finally, those who were imprisoned
specifically on the charge of murder, had recourse to the

writ g2 Odia gt Atia under certain conditions. If a man

 

was under heavy suspicion of murder, he could not avail
himself of the writ. But if he could prove that the charge

of murder and the consequent imprisonment was a result of

69

the "ill will" or "malice" of the sheriff, he could then
obtain his release upon pledge of sufficient surety and
this writ.
Bracton mentions the writ g2 homine replegiando as
150

the correct formula to secure release on bail, and Hale

cites the writs g2 manucaptione and ge_0dia gt Atia, as well

151

 

as ge homine replegiando, as possible formulas for release.
But‘both Bracton and Hale indicate basic limitations in the
use of these writs under certain conditions and in certain
classes of cases. According to Hale, the above named writs
were to be addressed to either the sheriff of the county,
. . . . 152 .
his bailiff(s), or to a Justice of the Peace. But in an
. . 153 . . .
enumeration of actions by Bracton, which is confirmed by
154 . . .
Hale, we see that such cases as serious felony, homic1de
and treason are listed amongst those offenses which are not
bailable by such royal officers as sheriffs, bailiffs, or

Justices of the Peace. In such cases as these, only the

King's Court, which acted in the king's name could grant

 

150Bracton, f. 154.

lSlHale' P.C.. II, 127-270

152Hale, P.C., II, 126.

153Bracton, f. 154.

154Hele, P.C., II, 126-27.

7O

. 155 .
bail. This was true because, as we have already seen,

all persons bailed before the King's Bench justices were
supposed to be still in the custody of the 1aw,_in custodia
marescalli. Obviously, it was considered that security in
terms of bail or mainprise given into the hands of minor
royal officials, was not security enough for those crimes
of the most serious nature. Blackstone concludes that bail
is allowed for offenses less than serious felony, but for
the most serious crimes the public may demand the highest
security, that of the actual body in custody.156
A series of statutes issued throughout the medieval
period clearly illustrates the fears and attempts of the
crown to insure the appearance of the accused in court, by
the suspension of bail in the enumerated offenses by local
officials. In 1275, Edward I declared, that a sheriff or
his bailiffs would be attainted and would lose their offices,
if they allowed to bail those indicted or appealed of felony,
homicide, treason, arson, counterfeiting, etc.157 This

statute was the basis for the limitations of those offenses

which were bailable, and upon it further statutes were issued.

 

155Hale, p.c., II, 126-27; 3 Henry VII, c.3.

156Blackstone, IV, 297-98.

1573 Edward I, c.15.

71

A statute of Edward III, in 1330, informed those men who
were "Keepers of the Peace and Sheriffs” that "such as

shall be indicted . . . shall not be let to Mainprise by
the Sheriffs, nor by none other Ministers, if they be not

mainpernable by the Law:' and ”if they make Deliverance, or
let to Mainprize [sic] any so indicted, which be not main-
pernable, and to punish the said Sheriffs, Gaolers, and
others, if they do any Thing against this Act."158
Throughout the medieval period, further statutes were
published which added to the body of the law dealing with
bail and mainprise. A statute of Henry VI, in 1444,
supplemented the statute of Edward I in 1275, by providing,
”the said Sheriffs, and all other Officers and Ministers
aforesaid, shall let out of Prison all Manner of Persons

by them or any of them arrested, or being in their Custody,
by Force of any writ, Bill or Warrant in any Action Personal,
or by Cause of Indictment of Trespass, upon reasonable
Sureties of sufficient Persons, having sufficient within the
Counties where such Persons be so let to Bail or Mainprise,

to keep their Days in such Places as the said Writs, Bills

or Warrants shall require.” But according to the statute,

 

1584 Edward III, c.2.

72
there were exceptions to the above, as the statute indicates
in such instances as those outlawed by capias utlagatum,
vagabonds refusing to serve according to the statute of
Laborers, and those in ward by virtue of condemnation.159
Another statute concerning the bailing of those in custody
for non-bailable offenses appeared in 1486. This statute
of Henry VII, echoed the practice of the time and reiterated
that those arrested for ”light Suspicion of Felony” were
bailable, but that ”divers Persons, such as were not main—
pernable, were oftentimes letten to Bail and Mainprise, by
Justices of the Peace, against the due Form of the Law,
whereby many Murderers and Felons escaped, to the great
Displeasure of the King, and Annoyance of his liege People.”160
The statute further stated that the letting to bail had to
be done by at least two justices and in strict accordance
with the law, as had been basically stated in the statute
of 1275. Thus, the concern of getting the accused to appear
at trial carried over into the pronunciations of the law.
The policy of allowing minor royal officials to administer

bail and mainprise was reconsidered upon demonstration that

it was basically unsound, and did not in practice guarantee

 

15923 Henry VI, c.9.

1603 Henry VII, c.3.

73

appearance of the accused.

In practice, the use of these statutes which regulated
bail and mainprise can be observed in court records. For
example, in an interesting and illustrative plea heard before
the King's Bench court in Shropshire, in 1304,161 the
sheriff, Richard of Harley, set free on mainprise Roger
1e Wilde and Denis la Gardenere of Ludlow; both of whom were
indicted as accessories in the homicide of William of Eyton.
The sheriff. Richard, was imprisoned because he illegally
allowed to mainprise Roger and Denise, who according to the
statute of 1275,162 were irrepleviable. In addition they
did not have a writ (g; homine replegiando) from the king.
The newly appointed sheriff of the county, Walter, imprisoned
the old sheriff Richard of Harley, but was ordered by the
king to release him on mainprise, if Richard could find
twelve lawful freemen as sureties. Richard did present
the requisite security, but Walter refused to allow him his
freedom, as he claimed that since Richard mainprised non-

repleviable felons, he himself was non-repleviable. New

the situation became complicated, as the current sheriff,

 

161Cases In Court Of Kings Bench: Edward I(Selden

Society), III, 127-29.

1623 Edward I, c.15.

74

Walter, was himself put in mercy for illegally163 holding
Richard in gaol, after Richard had proffered sufficient and
legal security. Indeed, a sheriff was not to replieve those
who were non-repleviable by the law or those who failed to
present a warrant of mainprise from the king. But Richard
had obtained the proper writ from the king, and, in addition,
his crime, that of allowing to bail those who were non-
bailable, was itself an act for which the present sheriff,
Walter, was required to grant bail, and for which no statute
expressly prohibited deliverance. In a more clear-cut case
heard at Suffolk in 1356,164 John Toft and William Heath,
constables of the vill of Bergholt, were put in mercy as
they accepted ”pledges of the peace” and released from custody
William, son of Thomas Skinner, who stood accused of
manslaughter. This decision to put the negligent constables
in mercy seems to refer back to a note written in a session
of the Royal Court with Justice Spigornel presiding. The

note said, ”if a Sheriff let go on bail a prisoner who

is attached for manslaughter, he shall answer for him at

 

 

Eyre.”165 Thus, by statute and by precedent, the minor
16323 Henry VI, c.9.
164 .
Coroners Rolls(Selden Soc1ety), p- 104.
165

Y.B. 30 and 31 Edward I(Rolls Series), p. 506.

75

royal law officers in the various localities throughout
the realm knew which prisoners could be released upon
pledge of security and the consequences of negligent duty
concerning such releases.

The use of surety in the form of pledges of bail
or mainprise to cause appearance of the accused, can
also be seen when the defendant remained outside the custody
of the law. We have already seen the point at which the
law began to exert heavy pressure on the fugitive to
surrender in the exaction process leading to outlawry. At
almost any one of the five county courts at which these
summons or exactions took place, or at almost any time
during this process, the defendant might come forward and
offer pledges that he would appear at the next meeting of
the county court. If the accused appeared on the assigned
day, the process of exaction stopped, and the proclamation
of outlawry would never be pronounced. But, after the fifth
exaction at the fifth county court had been made, the
fugitive could no longer offer pledges for appearance, nor
could anyone appear for him to tender his pledges. At this
point the man became an outlaw, and no essoin was admitted

. . . 1
because then the process would tend to be drawn on indefinitely. 66

 

166Bracton, f. 125.

76

For example, in a case heard in 1275 in Cambridgeshire,167

three men were appealed of homicide and breach of the kings
peace. They fled upon the commission of the act, and in due
course the process of exaction began. Two of the defendants
were mainprised to appear before the justices after the third
exaction; both of them appeared and they were taken into
custody, and their pledges were saved. The third defendant
however, was mainprised to appear before the justices after
the fourth exaction, and he failed to appear. By the law,

he could make no further pledge to appear, he would now be
outlawed, and his mainpernors would be put in mercy.

Thus, after many variations of the theme of surety and
responsibility, the law utilized its last and most dread
weapon--the proclamation of outlawry, to compel the recal-
citrant to stand to right. Considerable time and effort
had been expended by the law in the process evolved to
force appearance, and as we have seen, only reluctantly

was the sentence of outlawry pronounced.

 

167Coroners Rolls(Selden Society), pp. 32-35.

BIBLIOGRAPHICAL ESSAY

I. Primary Sources:

In research for this study, the two most valuable
sources of information were the records and cases of English
justice as collected and edited in the publications of the
Selden Society and the Rolls Series: and in the statutes of
the various reigning monarchs as the pronunciations of the
law. Both of these sources are extremely valuable in long-
term investigations, in that they yield after careful
scrutiny a full and accurate picture of the development of
substantive and procedural English medieval law. The Selden
Society offers a collection of edited and translated English
legal manuscriptsin a set at present totaling seventy-nine
volumes. Especially valuable for this study were the
following. Select Pleas Of the Crown, 1200-1225, ed. F. W.
Maitland (London, 1888), is a collection of transcripts of
criminal pleas from the Curia Regis rolls. Select Civil
Pleas, 1200-1203, ed. W. P. Baildon (London, 1890), is a
collection of civil pleas from the Curia Regis rolls.

Select Cases From the Coroners Rolls, 1265-1413, ed. Charles

 

Gross (London, 1896), contains cases illustrating the role

of the Coroner in the judicial system. The Year Bodks of

77

78

Edward II (25 vols., London, 1903-53), is a series of
transcripts of cases, both civil and criminal, reported
during selected years in the reign of King Edward II.
Especially valuable were; Year Bock 4 Edward II, ed. G. J.
Turner (London, 1914), Year Book 12 Edward II, ed. J. P.
Collas and T. F. T. Plucknett (London, 1950), and Year

Book 8 Edward II, ed. W. C. Bolland (London, 1925), for cases
and procedure in criminal law. Select Cases Before the Kings
Council, 1243-1482, ed. I. S. Leadam and J. F. Baldwin
(London, 1918), is a valuable collection of illustrative
criminal actions. Year Books of Henry VI, 1 Henry VI,

ed. C. H. Williams (London, 1933), and Year Bocks 10 Edward
IV and 49 Henry VI, ed. N. Nielson (London, 1931), are similar

in content to the Year Books of Edward II. Rolls of the

 

Justices In Eyre: Being the Rolls of Pleas and Assizes For
Lincolnshire,_1218-l9, and Worcestershire, 1221, ed. Doris
Mary Stenton (London, 1934), is a valuable report of the
Assize rolls of criminal cases heard by the justices in
eyre. Rolls of the Justices In Eyre: Being the Rolls of

Pleas and Assizes for Ybrkshire in 3 Henry III, ed. Doris

 

Mary Stenton (London, 1937) and Rolls of the Justices In
_Eyre: Being the Rolls of Pleas and Assizes for Gloucester-

shire, Warwickshire and Staffordshire, 1221-1222, ed. Doris

Mary Stenton (London, 1940), are similar in content and value

79

to the Justices In Eyre: Lincolnshire and wercestershire.
Select Cases In the Court of the Kings Bench: Under Edward I,
ed. G. O. Sayles (3 vols., London, 1936-39), contains pleas
from the Coram Rege rolls heard before the Court of Kings
Bench.' Select Cases In the Court of the Kings Bench: Under

Edward II, ed. G. O. Sayles (London, 1957), and Select Cases

 

In the Court of the Kings Bench: Under Edward III, ed. G. O.
Sayles (London, 1958), are similar in content. Select Cases
of Procedure Without Writ: Under Henry III, ed. H. G. Richardson
and G. O. Sayles (London, 1941), has cases heard without
royal writ before the kings court and the justices in eyre.
Pleas Before the King or His Justices: 1198-1202, ed. Doris
Mary Stenton (2 vols., London, 1952-53), contains cases heard
directly before the king and transcripts of the pleas from
the Curia Regis rolls. The Rolls Series includes the

Year Bocks of the Reign of King Edward the First, ed. and
trans. Alfred J. Horwood (5 vols., London, 1863-79), and

Year Books of the Reign of King Edward the Third, ed. and
trans. Alfred J. Horwood and Luke Owen Pike (15 vols., London,
1883-1911). This series includes many cases heard before

the Court of Common Pleas, in both civil and criminal actions.
Especially useful were: Year Books 20 and 21 Edward I and

Year Books 30 and 31 Edward I, ed. Alfred J. Horwood (London,

 

80

1863-66), and Year Books 12 and 13 Edward III, ed. Luke Owen
Pike (London, 1888). For statutes, the collection of laws
in Statutes At Large is good, but not the best source. Many
of the statutes listed are translated from the Latin or
French. Also, Sources of English Constitutional History:

A Selection of Documents from A.D. 600 to the Present, ed.
and trans. Carl Stephenson and Frederick George Marcham

(New Ybrk, 1937) is a good collection of selected documents,
helpful in this study in materials found in Statutes of the

Realm.

II. Legal Treatises:

Henrici de Bracton, De Legibus Et Consuetudinibus
Angliae, ed. Travers Twiss (6 vols.,London, 1878-83) is the
earliest and best treatise on the law to the thirteenth
century. It is an accurate and comprehensive evaluation,
upon which many later commentaries are based. Matthew Hale,
The History 021the Pleas of the Crown (2 vols., London, 1778)
is a good source for information on the law as concerned
Crown pleas. William Blackstone, Commentaries On the Laws
of England, 19th ed. (4 vols., London, 1836) is a valuable
recapitulation of the law; especially of the commentaries

of Bracton.

81

III. Secondary Sources:

Frederick Pollock and Frederic William Maitland,
The Historyrof English Law, 2nd ed. (2 vols., Cambridge, 1923)
is an excellent general study of the substantive and procedural
structure and development of early English law. William S.
Holdsworth, A History of English Law, 7th ed. (12 vols.,
London, 1924-56) is a comprehensive study of English law.
well detailed and documented, it is an excellent reference
work. J. W. Jeudwine, Tort, Crime and Police In Medieval
Britain (London, 1917) is a brief summary of early law and
custom. Bryce Lyon, A Constitutional and Legal History of

Medieval England (New Ybrk, 1950) is a textbodk of high

 

quality. Heinrich Brunner, Deutsche Rechtsgeschichte (2 vols.,
Leipzig, 1887-92) is an excellent and systematic study of

early Germanic law.

 

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