Our Legal Heritage: King AEthelbert - King George III, 600 A.D. - 1776: June 2011 (Sixth) EditionReilly, S. A.
History
Our Legal Heritage: King AEthelbert - King George III, 600 A.D. - 1776: June 2011 (Sixth) Edition
Reilly, S. A.
Law -- England -- History
Trespass was a serious and forcible breach of the peace onto land that
developed from the criminal law of felony. One found guilty of it could
be fined and imprisoned as well as amerced.
Housebreaking, harboring outlaws, and interference with the royal
perquisites of shipwreck and the beasts of the sea which were stranded
on the coast [such as whales and sturgeon] were also punishable in the
Royal Court.
The Royal Court had grown substantially and was not always presided
over by the King. To avoid court agents from having too much
discretionary power, there was a systematic procedure for bringing cases
to the Royal Court. First, a plaintiff had to apply to the King's
Chancery for a standardized writ into which the cause had to fit. The
plaintiff had to pay a fee and provide a surety that the plea was
brought in good faith. The progress of the suit was controlled at
crucial points by precisely formulated writs to the sheriff, instructing
him for instance, to put the disputed property under royal protection
pending a decision, to impanel an assize and have it view the property
in advance of the justices' arrival, to ascertain a point of fact
material to the plea, or to summon a 'warrantor' to support a claim by
the defendant.
The Royal Court kept a record on its cases on parchment kept rolled up:
its "rolls". The oldest roll of 1194 is almost completely comprised of
land cases.
Anyone could appoint an agent, an "attorney", to appear in court on his
behalf, it being assumed that the principal could not be present and
royal authorization given. A wife could represent her husband. The
principal was then bound by the actions of his agent. Gradually men
appeared who made a business of representing whoever would employ them.
The common law system became committed to the "adversary system" with
the parties struggling judicially against each other.
The Royal Court took jurisdiction over issues of whether certain land
was civil or ecclesiastical [assize utrum], and therefore whether the
land owed services or payment to the Crown or not. It also heard issues
of disturbance of advowson, a complex of rights to income from a church
and to the selection of a parson for the church [assize of darrein
[last] presentment]. Many churches had been built by a lord on his manor
for his villeins. The lord had then appointed a parson and provided for
his upkeep out of the income of the church. In later times, the lord's
chosen parson was formally appointed by the bishop. By the 1100s, many
lords had given their advowsons to abbeys. This procedure used twelve
recognitors selected by the sheriff.
Public-domain text, read in full here on John Shaqi.
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