The Rule of Laws, page 28
IN THE CENTURY or so before the Black Death, the wool trade had brought new wealth to the English populations, which increased markedly. New towns were formed, granted charters by the kings, where merchants established guilds to promote trade in wool, sheepskins, leather, lead, and tin, the five ‘staples’ of medieval commerce. Towns established borough courts, where local officials heard cases concerning credit and debts, trade disputes, allegations of minor violence, damage to property, and infringements of urban regulations.20 Urban prosperity depended on courts that could resolve commercial disputes effectively and cheaply, and local officials exercised tight control over their courts. The fines also generated income for their coffers. But the jurisdiction and procedures of the borough courts varied enormously, and some towns had a variety of them, which could compete with one another for cases. Meanwhile, courts leet monitored the responsibilities of the tithings, coroners investigated causes of death, and staple courts monitored essential goods.21
Favoured elites, such as the Abbot of Ramsey, were also granted permission to hold fairs, which created their own ‘pie-powder’ courts. The fair of St. Ives, a small vill near Cambridge, soon attracted international merchants, while manorial lords held more local markets. In their courts, named after the dusty feet, the pieds poudrés, of travelling merchants, mayors, bailiffs, and stewards would hear claims of misconduct. They had to mete out justice swiftly, before traders moved on, and they might send the constables to seize goods or shame culprits by tying them to the pillory or tumbrel. As the wool trade expanded and the English economy diversified, so did the fairs, and eventually the Crown directed that in every town with a market for one of the staples the merchants should elect officials to arrest, try, imprison, and punish delinquent merchants. Most wrongs concerned debts, breaches of agreement, and the quality of goods. In 1275, for example, a baker at St. Ives accused a woman of breaking into his house, abusing his wife, and pouring yeast over his white flour.22 This, he said, had cost him three pence, and he also wanted half a mark for the ‘shame’. The bailiffs allowed the woman to bring witnesses to swear to her good character as a defence to the charge of abuse and damage, but hamsoken (house-breaking) was a serious charge, so they called for a jury of merchants and townsmen to hear the case. They were following the procedures of the manor and borough courts, to ensure that merchants were tried by a jury of their peers.
THE PRACTICE OF convening local juries to try disputes spread throughout most of England during the thirteenth and fourteenth centuries. It extended to Devon and Cornwall, where people followed the ancient practice of tin mining. During Roman times, tinners had extracted deposits from the fine-grained sand in Cornwall’s rivers and streams, smelting it in small granite blowing houses, which dotted the moors and waste lands between farming villages.23 The tinners were free to set up their ‘bounds’ anywhere, placing rocks or turves at the corners of an area, which they could claim as their own for as long as they continued to work it. Local sheriffs were collecting tin coinage, a tax on smelted tin, by the middle of the eleventh century, and in 1198 Richard I’s chief minister convened courts in Exeter and Launceston where juries of miners decided on the law and practice relating to coinage. He also appointed a chief warden for the stannaries, as the mining areas were known, to oversee and enforce their ‘ancient customs and liberties’ and prevent tinners from selling their wares outside authorized markets. In 1201, King John confirmed the customary rights of the tinners to mine and dig turves anywhere, including on the lands of bishops, abbots, or lords, ‘as they have been accustomed to do’. Only churches and churchyards were immune, although the tinners had to pay a share of their profits as a ‘toll’ to the landowner. The king also granted free status to the tin miners, which meant they did not have to pay dues to the lords of their manors, tolls on roads and bridges, or charges at the markets. The chief warden, he declared, had to ‘do justice and right’ to the tinners, which could include imprisoning them in the stannary gaol or seizing the possessions of any they outlawed.
The practice of tinning presented unique issues for the law to resolve. The warden established eight courts over the next century, one in each of the mining districts of the two counties. Tinners charged with murder, manslaughter, ‘mayhem’, or other serious offences had to go to the royal courts, but lesser cases were heard by local jurors. Working tinners and blowers, the owners of blowing houses, the adventurers who funded new enterprises, smiths, colliers, and the makers of mining utensils all used the stannary courts. They also heard disputes between tinners and people not involved in the industry, although in this case, half the jury would be non-tinners. A landowner could complain if miners destroyed his crops, and a parson might report people he had caught digging in his churchyard. One tinner accused the local lord of evicting him from his rightful streamworks; another claimed he had been wrongly imprisoned by the mayor of Fowey for allowing the waste from his works to silt up the harbour. If the jury did not do justice, they could appeal directly to the warden.
The industry developed specialist procedures for assessing and marketing its products. Having smelted the tin, the tinners would stamp it with the owner’s mark, a process regulated by the stannary courts, and take it for coinage to one of the tin towns. Loading their tin onto carts and packhorses, they arrived to meet the controller, with his stamping hammer, weights, and scales, who weighed and marked each piece of smelted tin. These he then passed to the assayer, who assessed the quality and determined the coinage. This the owner would have to pay before he could sell the tin to one of the London dealers or pewterers’ factors who crowded the town. Merchants travelled from as far as Italy and Flanders to secure the best Cornish tin. The stannary courts regulated these processes into the sixteenth century. In 1508, Henry VIII established a Convocation of twenty-four men for Cornwall, six from each of the county’s stannaries, to approve all ‘statutes, acts, ordinances, and proclamations’ relating to tin. Devon already had its own Convocation, effectively an independent parliament, to regulate its tin trade. These continued their work alongside the stannary courts into the eighteenth and nineteenth centuries.
THE ENGLISH CROWN granted charters for numerous other courts in the Middle Ages. Woodland, heath, and moor in many parts of the country were claimed by the kings as hunting grounds. The Saxon kings had enjoyed the sport, and William the Conqueror extended the lands reserved for the hunt.24 By the thirteenth century these forests provided food for the king’s table, timber for his building projects, and an income from fines and rents as well as sport for the king’s retinue. Ignoring objections from his barons, Henry III passed the Charter of the Forest in 1217, which confirmed the status of these lands. But it also provided that no one should lose life or limb ‘for the sake of our venison’, that is, for poaching, and it confirmed the privileges held by local people to make ponds, take fowl and wild honey, collect timber and firewood (estovers), graze their cattle and pigs (pannage), and undertake a certain amount of mining. Sixty years later, Edward I passed another act to reinforce the offences of ‘trespass in the vert’ and ‘trespass on venison’, which covered all sorts of improper use of the forests.
Edward’s act solidified a complicated structure of official oversight and specialist courts for the forests. Wardens and foresters managed the land, took charge of slain beasts, checked for illegal activity, and caught, killed, and salted the venison required by the king. Bishops, sheriffs, and constables had to produce offenders before judges sitting in the eyres, and could even summon earls and barons to answer for activities on their estates. Meanwhile, local communities elected their own verderers, who were directly responsible to the Crown for enforcing the forest rules. Just as coroners would investigate the suspicious deaths of humans, verderers could hold inquests into the deaths of slain beasts, and they could mete out small fines for minor offences. They supervised the taking of estovers and pannage, the felling of trees for the king, mining, and charcoal burning. Needy villagers were tempted to allow their pigs to wander onto the forest to eat acorns and beechnuts, or to let them stay longer and roam farther than was allowed, and they crept in by night to collect brush and firewood or iron ore. Some took wild honey and captured hawks, while the more ambitious felled trees, trapped deer, or surreptitiously cleared and incorporated forest lands into their fields. Most were fined when caught, although many were exempt because they were considered too poor. But if the verderers suspected poaching, they had to summon twelve jurors to hold an inquest, sending suspected offenders to the warden for imprisonment until the next eyre.
Forest eyres were normally held every two to three years, although when Edward I ordered the sheriff of the Forest of Dean to appoint four justices for an eyre in 1282, it was the first in twelve years. The hearings in Gloucester lasted for ten weeks and were still not finished when the king was called away to fight the Welsh. By then, a thousand people had attended, all those charged with offences since the last eyre, and many of them had had to make an arduous journey to await trial and judgement. On the first day the judges considered fifty-eight cases of stealing and interfering with deer, two cases of people who had burned the heath, and seventy-two who had either failed to appear or given guarantees for others. The verderers had already dealt with minor offences, but the judges still had to consider the cases of over four hundred people accused of vert offences, including taking and selling oak, burning charcoal, cutting branches and brushwood, and grazing animals in the forest. Although the verderers issued fines and confiscated wagons, boats, and oxen from peasants who had stolen forest produce, they themselves later received fines for failing to prosecute all offences.
During the chaos of the Wars of the Roses, the Crown relaxed its oversight of these courts, but the system of forest management continued. When Elizabeth I needed large quantities of timber for her naval fleet in the sixteenth century, she reviewed and revived the system. It continued into the following centuries, only gradually subsumed by the work of the kings’ courts.
Meanwhile, peasants and artisans who lived near seas and major rivers developed skills as fishermen, sailors, chandlers, and wherrymen. Their activities were all liable to present particular legal issues, which they took to the admiralty courts.25 Someone who came across valuable goods washed up from a shipwreck might also find themselves defending their right to keep it in front of an admiralty judge. When Edward III turned his navy into a private enterprise in the mid-fourteenth century, he gave his lord admiral power to hear legal disputes. To guide the court’s activities, the king put together a collection of documents that included the Rolls of Oléron, a set of laws and judgements for maritime trade that Eleanor of Aquitaine had drawn up some two hundred years earlier based on Byzantine mercantile laws. At least officially, the admirals were supposed to apply this civil law along with the ‘ancient customs of the sea’, even when they heard claims for mariners’ wages, or disputes about the loss or delivery of freight. And, like the pie-powder courts, they had to mete out swift justice to sailors and merchants who would soon again put to sea.
The judges of the common law courts sometimes objected to the powers of the admirals, but in the sixteenth century Henry VIII confirmed their jurisdiction over all bays, harbours, rivers, and streams as far as the first bridge. He declared that they could hear cases of maritime trespass, riots, routs, unlawful assemblies, extortions, oppressions, contempts, concealments, misprisons, conspiracies, and other ‘outrages’. These included crimes against the laws of the realm as well as the laws, customs, and maritime ordinances of the court of the admiralty.26 The admirals and their deputies regulated the sale of boats, took charge of goods found in the rivers or on the shores, and registered merchant ventures, granting letters of safe conduct to foreign merchants who loaded their goods onto boats registered in English ports. Merchants, including clothworkers, leather sellers, tailors, and drapers, along with fishmongers, vintners, brewers, and grocers, would typically come to their courts with claims for loss of goods. When the Edward sank between Greenwich and Blackwall, a haberdasher brought a claim against the ship’s owner for loss of his pack of felt hats and other valuable fashion items. Like other medieval courts, the admirals would convene a jury, largely made up of mariners, and they would include foreigners if the dispute involved a foreign party. Dutch and French merchants and sailors all came to the English courts along with Germans and a handful of Italians, Scots, Spaniards, Danes, Swedes, and Greeks, and many of them needed interpreters. In a complicated case the admiral might have to send deputies to take statements from crucial witnesses in other parts of Europe.
The admirals’ courts also kept an eye on maritime regulations and punished minor misdemeanours. In London, a fisherman was convicted of ‘forestalling fish’ by selling it outside the official market at Billingsgate; he was sentenced to two months in prison, as well as the hefty fine of £4. Another was given two hours in the pillory for fraudulent begging with a counterfeit licence. A sailor was flogged when he deserted after taking his ‘press money’ and dragged through the water to the nearest shore, while a man who cut off a piece of rope on board a ship was ducked in the Thames. A shipmaster was, bizarrely, sentenced to a year in prison for carrying ‘his majesty’s subjects’ to be educated abroad.27 The use of riverways also caused problems. One man brought a claim against another who had prevented him from using the ford on a public right of way, forcing him to use a more dangerous crossing, where his pack animals had foundered. And a farmer claimed that his neighbour had cut the rope of the boat he used to reach his fields, letting it float away down the river Arundel.28 But most cases concerned those with maritime occupations—sailors, masters of vessels, fishermen, sailmakers, and ships’ carpenters, along with lightermen, owners of wharves, ballesters, and watermen.
Their quarrels did not always call for maritime expertise. One day, a waterman named Style was rowing a wherry near Greenwich Stairs when he noticed a boat rowed by another waterman, Tucker. Someone in Style’s boat shouted ‘lubberly knaves’ at Tucker’s craft, though ‘only in jesting sort’, as witnesses later claimed. But Tucker took offence and uttered ‘lewd and ill speeches’, going on to shout ‘vile and irreverent’ words to Captain Hammades, who was steering Style’s wherry. The insults were returned, missiles thrown, and Style’s head was cut open. Witnesses claimed they heard Tucker saying he ‘cared not a straw if he had killed Style’. The next day Style was recovering in his local inn, the Cardinal’s Hat, his head ‘swathed in a kercher’, when an apologetic Tucker appeared, saying he was ‘sorry as for his own brother’ and would make good (pay compensation), if honest men decided the matter. Style retorted that it was not just a matter of his own injury and loss of income; the matter touched the honour of Captain Hammades and required due process of law. He took the case to the admiral’s court, which awarded him compensation for the three weeks he ‘lay at expenses’ and had to call upon a surgeon.29
Outside London, vice admirals toured the ports, summoning juries to present and hear cases. They considered claims that a shipmaster had abandoned sick mariners in Iceland along with allegations of unsafe pilotage and claims for nondelivery of fish, for maritime wages, and for breaches of hiring agreements, while vicars claimed tithes of fish. The courts took censuses of ships and mariners, held inquests into the grounding or loss of vessels, and took charge of findings on the seashore. But they depended on the knowledge and cooperation of local people. When Lord Admiral Sir Julius Caesar rode down to the West Country and tried to tell the local mariners what to do, his circuit ended in failure.30 He was more successful in the many cases that resulted from hostilities between England and Spain, during which Elizabeth declared that all Spanish ships could legitimately be raided. Sir Francis Drake’s fleet seized a ship riding at anchor in the heavily guarded port of Cadiz because it was loaded with Spanish wine, wool, and ducats, even though the ship’s owners were neutral in the conflict. And English ships would harass any French vessels they encountered during later tensions between the two countries. Ambassadors, of course, intervened, peppering the lord admiral, the Privy Council, and even the queen with complaints and petitions.31 This was the heyday of the admiralty courts.
WHEN HENRY VIII dissolved the monasteries, he distributed their lands among his most favoured supporters. Landowners were now extracting taxes in money or as payments in kind, but they could still enforce labour obligations. Tenants continued to grind their corn, reap their fields, dig and transport peat, and even accompany their lords on military expeditions. At the same time, the population was rapidly increasing, practically doubling between 1520 and 1600. The king introduced many new laws and statutory offences, and litigation increased, reaching staggering levels under Elizabeth around the turn of the century. One notorious local bully in Shrewsbury brought sixteen actions against his neighbours in the course of a year.32 Scholars are unsure about how to account for this turn to the courts, but it may be that legal innovations and new ways of making claims encouraged those with grievances to try litigation. The central courts saw a huge rise in cases, as did the borough courts, and the manor courts remained important.
But the central common law courts gradually extended their capacity and their remit. Over the following decades, they took over the work of the forest courts, although the verderers continued their regulatory duties into the nineteenth century, and they absorbed the work of the pie-powder, stannary, and admiralty courts. Enclosures and other land reforms decreased the work of the manor courts, although, when industrialization led to population growth in areas without borough courts, disputants had to use the manorial courts for all sorts of civil disputes. The manor courts were only abolished in the land reforms of 1925.
