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English Legal History
3/6/2009
Outline
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1066–1300 IN IMAGES;
The Problem of Proof
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1.
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Assize of Clarendon, c. 1, 14 (Mats., p. IV–1,
3)
1. In the first place the aforesaid King Henry, on the advice of all his
barons, for the preservation of peace, and for the maintenance of justice,
has decreed that inquiry shall be made throughout the several counties and
throughout the several hundreds through twelve of the more lawful men of
the hundred and through four of the more lawful men of each vill upon oath
that they will speak the truth, whether there be in their hundred or vill
any man accused or notoriously suspect of being a robber or murderer or
thief, or any who is a receiver of robbers or murderers or thieves, since
the lord king has been king. And let
the justices inquire into this among themselves and the sheriffs among
themselves.
2. And let anyone, who shall be found, on the oath of the aforesaid,
accused or notoriously suspect of having been a robber or murderer or
thief, or a receiver of them, since the lord king has been king, be taken
and put to the ordeal of water, and let him swear that he has not been a
robber or murderer or thief, or receiver of them, since the lord king has
been king, to the value of 5 shillings, so far as he knows.
14. Moreover, the lord king wills that those who shall be tried by the law
and absolved by the law, if they have been of ill repute and openly and
disgracefully spoken of by the testimony of many and that of the lawful
men, shall abjure the king’s lands, so that within eight days they shall
cross the sea, unless the wind detains them; and with the first wind they
shall have afterwards they shall cross the sea, and they shall not return
to England again except by the mercy of the lord king; and both now, and if
they return, let them be outlawed; and on their return let them be seized
as outlaws.
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2.
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Glanvill, section 1.9 and all
of bk. 2 (Mats., p. IV–9 to IV–16)
[9] If the tenant denies
all the summonses, he shall swear twelve-handed in respect of each of
them. If any one of the oath-helpers
defaults on the appointed day, or if a lawful and unanswerable objection
can be made to one of them on personal grounds, then the tenant loses his
seisin at once on account of the default.
If, however, the oath-helping is duly accomplished, then the tenant
shall answer to the plea on that same day.
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3.
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Polstead Saga, entry 33 (Mats., p. IV–35 to
IV–36)
33. [Michaelmas, 1204] “Robert de Coddenham [Suffolk] demands against Hugh
de Polstead fourscore acres of land with appurtenances in Boxford [Suffolk]
as his right and heredity of which Thomas his father was seised as of fee
and right and in his demesne in the time of Henry the father of the king,
etc., taking from it esplees to the value of half a mark, etc.; and this he
offers to deraign by his free man named Ralph Picot who offers this, etc.,
as of his sight. And Hugh comes and
defends his right and says that in the court of the abbot of St. Edmunds a
duel was waged between them about the same land, and afterwards he essoined
himself for sickness in coming to court and afterwards for bedsickness, and
he lay in a county other than Suffolk.
And since the same abbot did not have the power to have the view of
him held by his knights, the same Robert obtained a writ of lord G. that he
might be viewed by lawful men of the county
of Surrey in which he lay and that
they might give him a day at the first county of Suffolk. Hugh came to this county with his
champion, and Robert essoined himself, and the four viewer knights of his
sickness essoined themselves, and a day was given to them at the next
county. And then Hugh came with his
champion and Robert did not come or essoin himself, and by consideration of
the court he withdrew without a day and about this he puts himself on the county of Suffolk. Robert, on the other hand, says that it
is true that they were given a day at the first county and that he, Robert,
essoined himself, and at the second county both of them appeared with their
champions, and because the county did not have a record of the duel that
had been waged, both of them were told to look after themselves as best
they could, and thus they withdrew without a day. And he did not make any default, and on
this he puts himself on the county.
Afterwards Hugh said as he had previously said,
that he appeared at the first county with his champion, and Robert essoined
himself. And at the other county Robert made default because he did
not come nor did his champion. And a
day was given for a third county to hear their judgment, and then Robert
came and his champion, and they were told to come to a forth county unarmed
to hear their judgment. And then
they came, and by consideration of the county Hugh
withdrew without a day. On the other
hand, Robert asked that it be allowed him that Hugh previously said that he
withdrew at the second county without a day and afterwards he acknowledged
that at the fourth county he withdrew without a day. A day was given to them in the octave of
St. Hilary [21 January].” Id.
240.
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4.
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Canon 18 of the Fourth Lateran Council (1215)
18. [Clerics to dissociate from shedding-blood]
No cleric may decree or pronounce a sentence involving the shedding of
blood, or carry out a punishment involving the same, or be present when such
punishment is carried out. If anyone, however, under cover of this statute,
dares to inflict injury on churches or ecclesiastical persons, let him be
restrained by ecclesiastical censure. A cleric may not write or dictate
letters which require punishments involving the shedding of blood, in the
courts of princes this responsibility should be entrusted to laymen and not
to clerics. Moreover no cleric may be put in command of mercenaries or
crossbowmen or suchlike men of blood; nor may a subdeacon, deacon or priest
practise the art of surgery, which involves cauterizing and making
incisions; nor may anyone confer a rite of blessing or consecration on a
purgation by ordeal of boiling or cold water or of the red-hot iron, saving
nevertheless the previously promulgated prohibitions regarding single
combats and duels.
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5.
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Tancred of Bologna, Ordo
iudiciarius 3.6 (a small piece of a long, but clear “how-to-do-it” book
on how to run a proceeding in an ecclesiastical court; the work was written
just before and just after 1215)
We dealt above with the genus of proofs. Now let us look at them by
species, and first, concerning witnesses, because living voice is stronger
than dead. Nov.73.3. And since more cases are determined by witnesses than
by the other proofs, and very frequently greater debate arises about the
statements of witnesses than about the other proofs, let us therefore
examine witnesses very fully, dividing the treatise on witnesses into many
titles, on account of its prolixity. First, it is to be seen who can be
witnesses and who not.
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