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Published online by Cambridge University Press: 16 January 2009
The relationship between the jurisdictions of local courts and central courts in late-medieval and early-modern England remains largely unexplored. It is nevertheless important to an understanding of the development of the common law, because of the prevailing notion that the great increase in litigation in the royal courts in the early Tudor period was connected with a decline in the use made of local courts. A massive transfer of business to the centralised royal courts might have affected the common law in ways other than the purely numerical, in that it could have brought a reception of legal ideas and remedies already well known out in the country. On that footing, the appearance of new kinds of action in the central courts at this period may represent transfers of jurisdiction rather than changes in legal thinking.
1 The writer is grateful to the Huntington Library for providing him with a Research Fellowship in 1983, and to the legal history colloquium at New York University School of Law in 1991 for some helpful suggestions.
2 Dugdale, W.Monasticon Anglicanum (1821 ed.), vol. III, pp. 233–234Google Scholar; Tanner, T.Notitia Monastica (1787 ed.), sig. Xx. For a full history of the libertyGoogle Scholar, see Searle, E.Lordship and Community: Battle Abbey and its banlieu 1066-1538 (Toronto, 1974), pp. 197–246.Google Scholar
3 See Searle, E., “Battle Abbey and Exemption: the forged charters” (1968) 83 Eng. Hist. Rev. 449–480.Google Scholar
4 An allowance of cognizance to the abbot of Battle is noted in Y.B. Mich. 21 Edw. Ill, fo. 38, pi. 34; but it is not stated whether it was in Battle. The abbot had extensive privileges in parts of Kent: 6 Edw. II, Placita de Quo Warranto, p. 333; 27 Edw. Ill, Lib. Ass., pi. 72; Rast. Ent., Conusance, pi. 1. Cf. also Y.B. Trin. 34 Hen. VI, fo. 53, pi. 21 (dated Mich. 35 Hen. VI).
5 Brit. Lib., MS. Harley 3586, ff. 34v-35r (abbey register): “Placita aule domini regis apud Bellum die mercurii proxime post festum Sancti Bartholomei anno regni regis Edwardi nunc xviij0. Johannes atte More attornatus abbatis et conventus de Bello venit in curia coram senescallo et marescallo die mercurii supradicto et calumpniat quod dictus abbas curiam suam per omnia teneat ut in quadam clausula carte eorundem abbatis et conventus, quam dictus Johannes in curia predicta protulit, plenius continetur. . . [sets out parts of two charters] Quibus libertatibus Galfrido Scrop tune capitali justiciarii domini regis existenti et Edmundo Passellee monstratis, ut per discretum consilium suum dicte libertates sicut per progenitores domini regis et per ipsum dominum regem nunc conceduntur debito modo allocarentur, per quorum discretionem et consilium predicte libertates eisdem abbati et conventui in omnibus allocantur.”
6 H.E. Huntington Library, Battle Abbey records [hereafter BA] 630, 683, 684 and 687 cite Hil. 2 Edw. IV, rot. 345.
7 The following rolls are cited in the abbey records: Mich. 8 Hen. VI, rot. 622 (BA 577); Mich. 24 Hen. VI, rot. 608 (BA 630); Mich. 39 Hen. VI, rot. 407 (BA 577); Trin. 6 Edw. IV, rot. 358 (BA 630); Pas. 16 Edw. IV, rot. 332 (BA 683, 684); Trin. 16 Edw. IV, rot. 330 (ibid.); Mich. 16 Edw. IV, rot. 336 (BA 687); Hil. 8 Hen. VII, rot. 103 (BA 764); Hil. 14 Hen. VII, rot. 151 (BA 753); Pas. 14 Hen. VII, rot. 143 (BA 977); Pas. 16 Hen. VII, rot. 103 or 240 (BA 764); Mich. 6 Hen. VIII, rot. 537 (BA 789, 818, 979); Pas. 14 Hen. VIII, rot. 137 (BA 818, 820a, 839, 841c); Trin. 14 Hen. VIII, rot. 129 (BA 839, 841c). In Harvard Law Sch. MS. 1201 there is a copy of an exemplification of a Battle charter, and of the record of a fine removed to Battle, Trin. 13 Hen. VIII, rot. 339 (citing Trin. 12 Hen. VIII, rot. 134). The abbot's jurisdiction was recognised in Purfet's Case (1339) Y.B. Mich. 13 Edw. Ill (Rolls Ser.), p. 69, pi. 36.
8 Abbot of Battle v. Twysden (1466) BA 630. For grants of cognizance licet fuerit pars, see D.E.C. Yale, “ludex in Propria Causa: an Historical Excursus” (1974) 33 C.L.J. 80-96. The abbot also claimed cognizance in actions brought against him: J.B. v. Abbot of Battle (1457), Y.B. Hil. 35 Hen. VI, fo. 54, pi. 18; Fitz. Abr., Conusauns, pi. 12.
9 There are examples of 1482 and 1522 in BA. Cases were occasionally removed into Chancery by corpus cum causa (as in Oxenbrigge v. Steward of Battle, Cl/61/549, c. 1480/83) or certiorari(as in BA 743 and 745, 1483; Whityng v. Steward of Battle, Cl/66/187, c. 1480/83). In 1579 a recovery of £50 was halted by an Exchequer writ of privilege (BA vol. 96, m. 49). But in 1600 two writs of corpus cum causa from the Common Pleas failed to stop judgment (BA vol. 98, mm. 60-85).
10 Moyle v. Abbot of Battle (1494) Y.B. Mich. 9 Hen. VII, fo. 10, pi. 6; Caryll's report, Y.B. Trin. 16 Hen. VII, fo. 16, pi. 17 (misdated); KB 27/931, m. 40d.
11 See E.J. Courthope and B.E.R. Pomeroy, Lathe Court Rolls and Views of Frankpledge in the Rape of Hastings 1387-1474 (1931), Sussex Rec. Soc. vol. 37. The rolls are in the British Library, Add. Ch. 31524-31814. That there was a 40s. limit there is shown by examples of 39s. damages (pp. 76, 82), and particularly by a judgment for 39s. lljd. damages (p. 104). One plaintiff brought detinue for a grammar book valued at 39s. 1 Id. (p. 79). Trial there was always by wager of law.
12 This style was used only after the dissolution. In the earlier rolls there is no style: the caption is simply, “Bellum. Curia tenta ibidem . . .”.
13 For this kind of business, see Searle, Lordship and Community, pp. 404–406.Google Scholar
14 There is mention in 1534 of an action in the nature of an assize of mort d'ancestor (BA 874).
15 BA vol. 97, m. 77. This was by writ of entry in the post, with voucher, in the manor court. The effectiveness of manorial recoveries was not then settled: see Dell v. Hygden (1595), Baker and Milsom, Sources of English Legal History (1986), 203.
16 Searle, Lordship and Community, pp. 407–417.Google Scholar
17 Letters and Papers of Henry VIII, vol. XIII, pt. 1, no. 249(8).
18 The last register book of the court baron in the Huntington Library ends in 1737, but it is recorded that courts were kept up until about 1930: The Victoria History of the County of Sussex, vol. IX (1937), p. 106.
19 BA vol. 98, m. 89.
20 Baker, J.H.English Legal MSS. in the U.S.A., vol. 1 (1985), p. 48, no. 143.Google Scholar
21 The bailiff is so mentioned in the claims to cognizance.
22 Th e court issued its precepts to the bailiff.
23 E.g. B A 763 (1500): “materia . . . remanet ut prius usque adventum Vincentii Fynche senescalli curie a d inde judicandum secundum legem”. In B A 752 (1498) there is a similar respite until the coining of the high steward (magnus senescallus). In 1536 the high steward (the earl of Wiltshire) seems rarely to have attended, and several cases were adjourned to await his coming (B A 883-888).
24 Robert Belknap (created serjeant in 1362) was steward from 1352: B L MS . Harley 3586, fo. 19v (copy of instrument of appointment); Searle, Lordship and Community, p . 420.
25 Admitted 1425, having previously been at New College, Oxford; J.P . Sussex 1444-76; steward of the bishop of Chichester. There is a brass figure, in armour, at West Firle, Sussex.
26 M . Clough ed. , The Book of Bartholomew Bolney, Sussex Record Soc. vol. 63 (1964), p . xxv, citing B A chartulary.
27 H e is mentione d as “bailiff” in a fine of 26 July 1476: B A 683-684. (Also in a fine of 1474: B A 662.)
28 Fine of 6 Dec . 1476: B A 687. (Also in a fine of Feb . 1477: B A 985.) Bolney did not die until April 1477: Bolney's Book, p . xxvi.
29 He is described in 1466 as “of Greysynn”: BA 5, no. 1938 (information supplied by Mr. C.H.C. Whittick); Searle, Lordship and Community, p. 423.
30 Wedgwood, J.C and Holt, A.D.History of Parliament: Biographies of the Members of the Commons House 1439-1509 (1936) p. 326. His father was also called Vincent, and was J.P. Sussex 1466-76. According to Wedgwood (n. 4) he was probably the ancestor of Heneage Finch, Lord Nottingham.Google Scholar
31 The Victoria History of the County of Sussex, vol. IX, p. 113.
32 BA 687.
33 The beadles' rolls record payments of 66s. 8d. to Finch (by name from 1518: BA 95) until 1524.
34 He was paid 66s. 8d. in 1524-25 (BA 85). The hand in the rolls changes in June 1524. Nevile is named steward in a fine of 7 June 1526 (BA 841d).
35 Valor Ecclesiasticus, vol. I, p . 349. Hi s fee was £14 6s. 8d .
36 Beadles' accounts (BA 102). There are changes of hand in the rolls in Oct. 1469 and March 1471, and a change of format in 1471/73, which may have resulted from the appointment of an under-steward. Perhaps Bolney was becoming too aged to perform his duties in person.
37 Final concord in BA 733d. In 1481-82 an attempt was made to pay the under-steward 66s. 8d., but the item is deleted from the accounts. Bokeland was one of the abbot's coroners for the liberty of Battle in 1486 (74 Sussex Record Soc. xxxi) and was appointed an arbitrator in 1501 (BA 764). He made his will on 6 Aug. 1501, and it was proved on 3 March 1502 (P.C.C. 2 Blamyr).
38 Those occurring more than once were, in chronological order: Nicholas Okehurst (1450,1465); John Draper (1450, 1463); John Lucas (father and son, 1460-1520); John Jefferay (1463, 1466); Thomas Underclyffe (1465-70); Richard Colman (1470-76); John Smalewode (1473-1510); William Creche (1477-83); John Gotle (1478-83); Nicholas Moraunt (1480-82); and John Westbourne (1473-82).
39 The names were checked against the writer's unpublished list of Common Pleas attorneys 1450-1530, and of known members of the inns of court and chancery in the same period.
40 John Lucas I had been beadle 1449-59, and Richard Colman was beadle 1459-69 (in both cases just before their first acting as attorney); John Westbourne (d. 1502) acted for the abbot at Westminster in Hil. 1479, presumably as a solicitor (P.R.O., SC6/1878), and lived at Salehurst (will, P.C.C, 19 Blamyr); Nicholas Moraunt (d. 1532) was the abbot's receiver in 1497/99 (P.R.O., SC6/1874, fo. 1), and evidently lived at Battle (will, P.J.D.B., vol. I, p. 1, desired burial there). John Lucas II (d. 1520) was of Sharpisham in Battle.
41 Nicholas Okehurst: 37 Sussex Rec. Soc. at p. 105. Described as yeoman in 1450 (BA 566, defendant). There was an attorney called John Westbourne in the 1440s and 1450s, but he was probably of Gloucestershire and lived too early to be the Battle attorney: P.R.O.. E13/146, m. 29 (attorney in the Exchequer, 1456); CP 40/745, m. 323 (mainpernor, Gloucs case, 1447).
42 E.g., Richard Excetre, the sacrist, in 1468 (BA 634) and 1480 (BA 722, 727). Monks, being civiliter mortui, had to be joined with the abbot as plaintiff.
43 E.g., Robert Oxenbrigge, esquire, in the 1480s (BA 722, 733bis, 736). He was steward of the abbot's household (P.R.O., SCI/1878, m. 8).
44 E.g., Sir Thomas Echyngham in 1474 (BA 663); Sir Edward Guldeford in 1513 and Sir William Finch in 1517 (BA 799).
45 E.g., John Lucy, haberdasher of London, in 1482 (BA 736); Thomas Northland, alderman of London, in 1482 (BA 737; and see his will, P.C.C. 23 Logge).
46 E.g., William Mill, rector of Warbleton, in 1482 (BA 737); and Henry Sharpe, dean of Westminster, the same year (BA 738).
47 E.g., James Pesemersshe, son of Sir John, in 1481 (BA 726); Goddard Oxenbrigge in 1482 (BA 742). Cf. Searle, Lordship and Community, p. 403.
48 This is suggested by the lay subsidy returns of 1524-25: J. Cornwall ed., The Lay Subsidy Rolls for the County of Sussex 1524-25, Sussex Record Soc. vol. 56 (1957), at pp. 153-157.
49 For a valuable study of the complex credit relationships in a medieval village, based on similar court records, cf. Clark, E. “Debt litigation in a late medieval English vill” in Raftis, J.A. ed., Pathways to Medieval Peasants (1981), pp. 247–279.Google Scholar
50 In this Table, LS refers to The Lay Subsidy Rolls for the County of Sussex 1524-25, 56 Sx R.S. (1957). Sx R.S. refers to the Sussex Record Society.
51 See p. 520, below.
52 Counting was exceptionally tedious, because the multiple entries in a case at each stage made it necessary to list each case by the parties' names.
53 E.g., replevin, account, curia claudenda, and “deceit”.
54 Such an action did not properly lie: Y.B. Trin. 50 Edw. Ill, fo. 13, pi. 3; Putnam, B.H.The Enforcement of the Statute of Labourers 1349-1359 (1908), p. 432.Google Scholar
55 Deceit is ambiguous, because it might indicate either an action on a warranty or assumpsit. The latter is suggested by a pica of deceit “in making a mill” in 1477 (BA 695).
56 Treated as trespass in 1466 (BA 625) and 1469 (BA 636).
57 Treated as trespass in 1466 (BA 624) and 1481 (BA 732).
58 BA 748 (settled) and 749 (demurrer).
59 E.g., two examples in 1521 (BA 817, 818) and another in 1522 (BA 823).
60 In 1524 (BA 830) and 1535 (BA 878). Cf. the King's Bench examples in 94 Selden Soc. 257 n. 3 (1518, 1528, 1543).
61 In 1544 (BA vol. 97, m. 83); it appears from the verdict that this was a case of negligence in looking after a cow. Cf. the King's Bench example of 1514 (deceptio super casu by bill) in 94 Selden Soc. 268.
62 E.g., placitum de mala vox in 1526 (BA 838); verdicts in case in 1533 (BA 868) and 1536 (BA 888). In a case of 1583, the verdict (presumably emulating the declaration) sets out the words with innuendoes (BA vol. 97, m. 36).
63 E.g., in 1581 there are six verdicts which refer to undertakings.
64 E.g., placitum nocumenti in 1527 (BA 848), unless this is a quod permitiat.
65 E.g., one plea of trespass on the case is later described as detinue (BA vol. 96, m. 6). Cf.verdict referring to the finding of goods (BA vol. 96, m. 43).
66 This conjecture is reinforced by the appearance of judgments for round figures such as f 100 and £200: see p. 525, below.
67 The mean figure for the 14 years analysed in Appendix I is 14 times.
68 E.g., in Feld v. Mell (1487), which begins in BA 726. there were 15 precepts of distringas. In Eston v. Pell (1527), which begins in BA 850, after 7 precepts of distringas the bailiff returned that the defendant had nothing to distrain within the jurisdiction, and so a capias was ordered.
69 E.g., BA 877 (1534), 888 (1536).
70 In 1483 the bailiff was amerced for not having the body of Goddard Oxenbrigge, arrested in two pleas of debt, and returned that he had been let out by unknown malefactors at night (BA 743).
71 Cf. BA 672 (warrant of 1475).
72 BA vol. 96, m. 25 (1578).
73 BA vol. 95, m. 6d (1554); vol. 96, m. 46 (1579).
74 The rolls from 1471 to 1473 are missing.
75 From 1474 there are frequent references to pleadings in papiris: e.g., “placitum patet in papiris” in 1474 (BA 661); answer made “ut patet in billa inter philacia” in 1481 (BA 728); declaration “in filaciis hujus curie” in 1483 (BA 744). The filed documents were not confined to pleadings: e.g., submission to taxation, “prout in filaciis” in 1474 (BA 661) or “in papiris” in 1494 (BA 749).
76 E.g., in cattle-trespass the defendant pleads the fault of a third party in not fencing the land, absque hoc that he did any trespass (BA 834); in an action on the Statute of Labourers, the defendant pleads a retainer on condition of payment by instalments (BA 639); in debt on a bond, the defendant pleads duress of imprisonment (BA 592).
77 E.g., co-executrix not named (BA 612); one of the plaintiffs not an administrator (BA 754); excommunication (BA vol. 96, mm. 39-48). In BA vol. 96, mm. 26-43, there is evidently some confusion between a plea in abatement and a demurrer to the declaration.
78 Verdicts on such pleas are entered in BA 845 and 846.
79 E.g., B A vol. 97, m. 83 (1544); vol. 96, m. 4 (1572); vol. 96, mm. 29-^9 (1578-79); vol. 96, mm. 40-51 (1578-79).
80 E.g., in BA 629, 634, 663, 722, 744 and 747.
81 E.g., in BA 573 (bis) and 753.
82 Based on concluded suits only.
83 Records available for 1572-73,1578-80,1581-84 only.
84 In the hundred of Mere, Wilts., we find a default in law (with execution awarded in consequence) as late as 1586: P.R.O., SC 2/209/26, 22 Feb. 1586. (There are four successful wagers of law in the same bundle, 1584-86).
85 E.g., two examples in BA 722.
86 BA vol. 98, mm. 64-69. For informal attempts by the common-law courts to control damages, see Helmholz, R.H.“Damages in Actions for Slander at Common Law” (1987) 103 L.Q.R. 624–638.Google Scholar
87 Cf. Searle, Lordship and Community, pp. 401-402, where it is assumed that interest was awarded.
88 E.g.,BA vol. 96, m. 39 (1578) and m. 51 (1579).
89 Mclntosh, M.K.Autonomy and Community: the royal manor of Havering 1200-1500 (1986), p. 196, detects a comparable trend a century earlier in the manorial court at Havering, Essex, where the proportion of cases ended by nonsuit increased from 33 per cent, in 1464-65 to 97 per cent, by 1497.Google Scholar
90 94 Selden Soc. 99, 364.
91 E.g., the hundred of Mere, Wilts., where this entry occurs on 10 March 1495 (P.R.O., SC 2/209/17): “Andreas Lecy optulit se versus Johannem Blanford in placito debiti, qui declaravit ut inter memoranda . . .”).
92 E.g., the Macclesfield borough portmote: P.R.O., SC 2/312/10 (file for 1532-33). The files here contain the pleadings, with jury verdicts endorsed on the panels. After this paper was written, Mr. W.A. Champion brought to the writer's attention some interesting examples of paper pleadings, in law French, at Shrewsbury.
93 Suggesting actions on bonds: see p. 518, above.
94 Cf. some available figures for two municipal courts of the same period. In the borough portmote of Macclesfield for 1532-33, the mean sum recovered in 12 debt actions was 11s.: P.R.O., SC 2/312/10. The highest debt recovered was only 24s. But here there are no actions on bonds, and there was probably a 40s. limit.
The Staple Court of Bristol may provide a better comparison inasmuch as there was no 40s. limit; on the other hand, it was restricted to merchants. In 1509-10, the mean sum recovered in 79 actions was just under £5: E.E. Rich, The Staple Court Books of Bristol (1934), Bristol Record Soc. vol. 5, pp. 88-89 (total given as £384 4s. 10id.). By 1596 the mean figure had risen to over £43.
95 This is based on a sample of four rolls from 1494-95 (CP 40/930-932 and 934, 933 being unfit for production). In the twelve months covered there were 75 debt actions in which the total debts recovered amounted to £1,219 18s. 5d., giving a mean of £16 5s. 4d.
96 The same four rolls (last note) contain 31 trespass cases in which the total damages recovered amounted to £211 5s. 4d., giving a mean of £6 16s. 4d.
97 In the sample above, 58 of the 75 judgments for debt were in actions brought on bonds. The usual sum claimed in such actions was between £10 and £20, but the figures are distorted by the occasional very large sum: e.g. two bonds for £100 (the largest noted) in CP 40/930, m. 149, and CP 40/932, m. 121. (Since many of the judgments were upon default or confession, it cannot be certainly known how many of the bonds were conditional; but the penal bond was the normal form by this date.) The sums claimed in debt on a contract were generally much lower, sometimes as low as 40s: e.g., CP 40/931, m. 128d; CP 40/934, m. 312d. However, even a bond could be made for as little as 40s.: e.g., CP 40/931, m. 333d; CP 40/932, m. 107.
98 Blatcher, M.The Court of King's Bench 1450-1550 (1978), pp. 10–21,168–171Google Scholar; Iws, E.W.The Common Lawyers in pre-Reformation England (1983), pp. 199–216Google Scholar; Brooks, C.W., Pettyfoggers and Vipers of the Commonwealth (1986), pp. 48–74.Google Scholar
99 A similar analysis of 58 courts held for the hundred of Mere, Wiltshire, in 1494-95, 1566-67, 1584-85 and 1600-01 (P.R.O., SC 2^09/17, 19, 26, 32) shows an increase from 27 actions a year in 1494-95 to 48 each in 1566-67 and 1584-85. There were also 48 actions in 1600-01, but by then only concords were being recorded. (42 of the 48 actions in 1584-85 ended by concord.)
100 One obvious piece of missing information is the extent to which Battle residents used the central courts. Such information could not be collected without considerable labour.
101 De plegiis acquietandis.
102 Slander; de plegiis acquietandis.
103 Both assumpsit.
