Heirs to Merlin Chapter Eight: Law and Governance
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- The Ars Magica Reference Document
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- The Heirs to Merlin product page on this wiki
Chapter 8: Law and Governance
England has one of the most centralized and effective system of law and governance in Europe. All men have access to the king's justice in major matters, and can pursue cases against the mightiest of lords with a chance of success. Criminals are punished, and malicious folk brought to book if they issue false accusations. Nevertheless, the land is violent — it is only three years since the civil war was brought to an end — and many cases are resolved in favor of might rather than right.
Common Law
The common law is so called because it is common to all inhabitants of the kingdom. Every area, even every manor, has its own customs governing minor matters, but all important issues that do not involve the Church (see "Canon Law," page 71) can be taken to the king's courts and brought under the common law.
Most of the common law derives from the customs of the realm, and there is no authoritative written source. A compilation was made at the end of the twelfth century, and was in common use among the justices, but it is now out of date, especially since the issue of Magna Carta. The Great Charter is almost the only example of written law in England, outside the Church; its provisions can be enforced in the courts, even against the king, and take precedence over claims of other customs.
Although little of the law is written down, the customs and procedures are well understood, and must be followed if a case is to be successfully pursued. As a result there is a growing demand for individuals with legal knowledge and experience, and some lords even retain royal justices to advise, and sometimes decide, on their cases.
Courts
There are many courts in England, ranging from the humble manor court to the court coram rege (in the presence of the king). None of them have particularly fixed procedures, although the broad outlines, as described in this chapter, are prescribed by custom. No courts are officially in constant session, although the court of the King's Bench does sit most of the time. The others have specified intervals at which they meet, and criminals are imprisoned until they can be brought to trial.
The hundred court, which is very local, might meet every week, while the county court meets roughly once a month (the precise interval varies from one county to another). People are reluctant to have the courts meet more often, as many people owe suit of court, which means that they are required to be present when the court is meeting. Since this can mean a long journey to the county seat, fewer meetings are better.
The king's justices often travel round the country on an eyre, when they investigate all pending cases of the king's pleas. One such general eyre is currently in progress, and has been since 1218, as civil war tends to produce many cases. The justices in eyre summon courts when they arrive in a county, generally in the county town, and leave when they have heard all the cases. Eyres come in several kinds. General eyres deal with all offenses, and are the most common type. Special eyres are given particular terms of reference, such as investigating the behavior of local officials. A particularly important kind of special eyre is the eyre of gaol (jail) delivery, which simply goes around the country trying everyone held in prison, so that they can be either hanged or released.
The court of the King's Bench sits at Westminster, and is one of the highest courts of appeal. Important civil cases and cases of treason are often tried there, and cases may be taken there between eyres if a royal decision is required. Indeed, one of the provisions of Magna Carta is that it must sit in one place, rather than following the king around the country, so that people can find it easily. This court also issues the writs which begin civil actions in the county courts. For a writ "of course" (see page 103) it is only necessary to talk to one of the junior clerks — they are issued automatically. The senior professional justice at this court is Martin of Pattishall.
The highest court of the land is the court coram rege, where the king himself sits in judgment. This sits wherever the king is, whenever he wants, and the only way to get its decisions changed is to convince the king or his successor to change his mind. Magna Carta constrains the king to follow the rule of law to a great extent, but royal favor is still a very important element in winning cases here. Only the most important cases reach this level — there is no right of appeal to higher courts.
Crimes and Writs
The division of the law into criminal and civil cases is newly established, but has one important consequence. The accuser in a criminal case may not come to an agreement with the accused and have it confirmed by the court, while the parties in a civil case may.
Bricstan's Case
A man named Bricstan lived on the estate of the abbey of Ely. He was neither rich nor poor, but was content with his own goods. He lent money to his neighbors when they were in need, but because men are untrustworthy he took pledges against repayment. Thinking that he had no enemies, and inspired by God, he resolved to take the vows of a monk at Ely.
Alas, there was an evil minister of King Henry, named Robert "Malarteis," which means "evil doer," because he would try to catch men through lies and deceit, so that he could bring them to ruin. Robert accused Bricstan of having found a hidden treasure, and using it to become an usurer. He claimed that he only sought to become a monk to avoid prosecution for usury and larceny. He was taken before the court, and falsely accused, and the accusers mocked him, because he was short, fat, and ugly. In the end, he was unjustly condemned, all his goods were confiscated, and he himself was handed over to be imprisoned.
He was taken to London, loaded down with heavy chains, and locked in a dungeon. He cried out for aid to St. Benedict, under whose rule he wished to live, and St. Etheldreda, at whose abbey he wished to take the vows. After five months of misery he came to an extreme of misery, having gone three days without food, and he called once more on the saints, in a feeble voice.
Suddenly, in a blaze of light, St. Benedict, St. Etheldreda, and St. Sexburga her sister appeared before him. St. Benedict broke the fetters from his legs, and then struck the ceiling so hard that the guards sleeping above awoke in terror. Afraid that the prisoners had escaped, they rushed downstairs, and were relieved to find the doors undamaged and locked. When they entered, however, and found the man they had fettered standing free, they all marveled greatly.
— From a letter of the bishop of Ely
Criminal cases can be brought in the king's courts for major offenses — essentially, those for which the penalty could be death or mutilation. Treason, homicide, rape, arson, robbery, wounding, forgery, and breach of the king's peace are the main categories. These are the pleas of the crown, and may only be tried in a royal court. There are two ways in which a suspect may be brought before the court. The first is by appeal. The victim of an offense (or someone who witnessed the crime or saw the body in the case of homicide) appeals the suspect to the sheriff of the county. The accused must then appear before the court. Alternatively, the suspect may be presented. Juries of presentment, groups of twelve free men from an area, are gathered by the justices, and required to present anyone they know to be suspected of a crime. They can be amerced (fined) if they fail to do so, so juries do present people they know to be suspected but believe to be innocent.
Once someone has been accused, he may be taken into custody and held until the next court — this is known as "attachment." If an attached suspect escapes, the officers responsible for holding him will be amerced. If the accused is not in custody, it is the responsibility of his tithing to bring him to court. The tithings are groups of men, often of ten, but not always, who are responsible for each other's behavior. In theory, almost every man is supposed to be a member of a tithing, but this is not true in practice. The most important legal exemptions are for knights and clerics, but not everyone who should be a member is. If the tithing fails to present the accused, they will be amerced. If the accused is not in a tithing, the whole village where the crime took place may be amerced if he fails to appear. If the accused is a woman, it is the responsibility of the man under whose authority she is to present her — usually her husband or father.
Royal Justices, 1220
John of Guestling (knight), Ralf Hareng (knight), Thomas of Heydon (clerk), Robert of Lexington (clerk), Stephen of Segrave (knight)
Pleas of the Crown
The magi, as is normal, keep order within their own covenant, punishing any offense. One of the grogs murders a local villager and, after some investigation, the magi try and execute him. A couple of weeks later, the sheriff arrives to summon the dead grog to the king's court. The magi find themselves appealed before the court for homicide or, if they're really unlucky, treason, for usurping the powers that rightly belong to the king.
If the accused fails to appear in court, he is summoned to the next court. If he fails to attend three times, he is declared an outlaw. At that point, he faces summary execution if caught, unless he takes sanctuary in a church and then abjures the realm — promises to leave England and never return. If the accuser does not appear, then he will be amerced, and the case will usually be dropped. (Thus, out of court settlements can be reached, particularly if the accused is prepared to pay the accuser's amercement.) If both the accused and the accuser appear, the case can proceed. The justices then try to reach the truth of the matter. The jury consists of local men with knowledge of the case, and they are asked to swear to the facts of the matter. The justices may question other people, and may question the jury if they think that the truth is being concealed. A jury which interferes with the course of justice can be amerced.
If the court decides that the accused is guilty, he will normally be hanged. He might instead be mutilated, losing a limb or extremity. Blinding and castration are sometimes used as a punishment for robbery, while petty theft is often punished by the loss of an ear. People who lose an ear for some other reason can obtain a written statement from a court that they are not convicted criminals.
In some cases, justice can be more summary. Many lords have the right of infangtheof, which means that they can hang a thief taken in the act without further ado. If a crime is discovered while the perpetrators are still present, the hue must be raised. Once the hue is raised, the whole community is supposed to pursue the malefactors. If they are killed by the hue, the killers are held innocent, but if the hue was not called, they may be accused of homicide in turn. If the criminals escape the hue, they may still be summoned to court. Offenses such as simple theft, brawling, and assault can be dealt with at the lord's court, or even more local courts, and do not bear such heavy penalties.
Civil actions usually concern land. These actions are initiated by writs, which must be obtained from the king. The common types given below are writs "of course," which are issued on request for a nominal fee, at least if the case does not draw the attention of the king. Other writs may be obtained by those in favor with the king, but they often cost more. People may proffer as much as £100 for a writ to have their claim to land investigated.
The most fundamental writ is the writ of right. This starts an investigation into who has the right to hold a given piece of land, and the decision reached in such a case is final. The two parties in the case are allowed a number of essoins (permitted failures to attend court), and the case cannot proceed until they are both present in court. At that point, they can resolve ownership either by battle or by going on the grand assize. In the former case, the two fight, and the victor keeps the land. In the latter, twelve knights from the surrounding area are impaneled, and they make a declaration as to who is the rightful holder of the land. The grand assize is more popular than trial by battle, but both are still legal.
Since the writ of right can take a long time to resolve, there are a number of faster writs designed to get the appellant (the person making the claim) possession, or seisin, of the land. These do not determine final right to the land, but they do determine who should have immediate use of it. The most important is the writ of novel disseisin. If someone has been recently ejected from some land, he can obtain this writ, and the assize will determine whether he was in possession at the appropriate time. If he was, he will be put back in possession. The other party may bring a writ of right, but may not use the land in the meantime. The intent of the writ of novel disseisin is to stop the powerful seizing land and then forcing the victims to go through lengthy court proceedings without the land. Thus, the parties are only allowed two essoins, and if they fail to turn up to the third session the case will go against them by default.
Of similar importance is the writ of mort d'ancestor. This writ is used to claim that the petitioner's ancestor was seised of the land at his death, and that the petitioner, as his heir, should now be in possession. Again, only two essoins are allowed, and this writ aims to prevent lords from taking advantage of a death to eject a tenant.
A writ can be challenged on technical grounds. It may be poorly drafted, referring to the wrong land or to the wrong people, or it may claim that one party possesses land he obviously does not. The writs of novel disseisin and mort d'ancestor cannot be brought against close relatives, so the defendant can claim to be related to the plaintiff. Either party can also appeal directly to the king, although this only works if you already have a good relationship with him or one of his close counselors.
Novel Disseisin
The covenant acquires a vis source by certámen, and ejects the other covenant's guards. The guards bring a writ of novel disseisin in the county courts, and the characters have no legal case, since certámen is not a recognized part of the common law. It would even be difficult to show that the magi had refused to respect certámen, as the legal action was initiated entirely by mundanes. Unless the covenant can gain some powerful mundane allies, it will lose the vis source again.
Magna Carta
Selected clauses from the 1217 reissue:
- In the first place we have granted to God, and by this our present charter confirmed for us and our heirs for ever, that the English church shall be free, and shall have its right undiminished and its liberties unimpaired. We have also granted to all free men of our kingdom, for ourselves and our heirs for ever, all the liberties written below, to be had and held by them and their heirs of us and our heirs.
- No one shall be compelled to do greater service for a knight's fee or for any other free holding than is due from it.
- Common pleas shall not follow our court, but shall be held in some fixed place.
- No bailiff shall in future put anyone to trial upon his own bare word without reliable witnesses produced for this purpose.
- No free man shall be arrested or imprisoned or disseised from any free tenement, liberty, or custom, or outlawed or exiled or victimized in any other way, nor will we attack him or send anyone to attack him, unless through the lawful judgment of his peers or by the law of the land. To no one will we sell, deny, or delay justice.
Forest Law
The forest law applies in those regions of the country designated royal forest. While its original aim was to protect game for the king's hunt, it now has rather broader functions, allowing the king to draw more revenue from these areas than from non-forest land. The Charter of the Forest, issued in 1217 when Magna Carta was reissued by Henry III, restricts the king's rights here. He may not create new forest, and he must disafforest all those forests created by Henry II, Richard, and John. Since the records are not entirely clear on this matter, there is considerable controversy over which land should be disafforested.
Forest law prohibits hunting game without specific royal permission, cutting wood, and lighting fires, among other things. Justice within the forest is meted out by the foresters and forest eyres, a completely separate system from the common law. The Charter of the Forest limits them in a fundamental way: they may not hand out penalties in life or limb. That is, they are effectively limited to amercing those convicted of offenses against the forest law.
Rule
In theory, all lay governance is the activity of the king. This was not the case in practice even under John; now that the king is a twelve-year-old boy, his control is even more a matter of principle rather than reality. The ramifications of the king's minority are discussed in the Politics chapter (see page 136). This section will outline the machinery of royal rule, used by whoever is in charge.
The crown has two main concerns: upholding justice, and enforcing the king's rights. The rights enforced tend to be ones with financial implications, since the crown needs money to pay for armies if other methods of enforcement fail. One result of this is that the king will often grant privileges to specific people or areas, in return for a substantial amount of money. No such grants can be made in perpetuity until the king is of age, however.
The Royal Court
The royal court has four main branches: the King's Bench, the Exchequer, the Chancery, and the Chamber. The court of the King's Bench (described above, page 101) always sits at Westminster, as required by Magna Carta, but the other branches follow the king around the country. They are often to be found at Westminster, but the court spends quite a lot of time at Winchester. It rarely travels to the north of England, East Anglia, or the West Country.
The Exchequer, headed by the treasurer, Eustace de Faukenberg, sits twice a year, at Michaelmas (the end of September) and the end of March. It is responsible for checking that all moneys owed to the crown are paid, and for issuing receipts. The sheriffs must account for their shires at the Exchequer, as must the holders of borough liberties. The administrators of the Exchequer are called the Barons of the Exchequer, and have the power to amerce anyone who fails to pay all that they owe.
The Chancery, headed by the chancellor, Richard de Marsh, is responsible for issuing statements over the king's Great Seal. At the moment, there is no Great Seal, because the king is not of age, so documents are issued over the seals of the justiciar or other high officials. (See the Politics chapter.) The Chancery clerks are also responsible for keeping the records of government, and they do this extremely efficiently. The Pipe Rolls contain records of all court cases, payments of dues and taxes, and petitions to the king. They are large rolls of parchment, made of sheets sewn together, and are recorded in the order that decisions were made. This makes it virtually impossible for anyone who is not a chancery clerk to find anything in them.
The Chamber, headed by the chamberlain, is responsible for purchasing the things that the king needs. This ranges from food to castles, although at the moment the king is not buying many castles. The chamberlain also controls the king's Privy Seal, which he can use to seal purely personal documents. The distinction between the two seals is not at all clear, since both indicate the king's will, but the Great Seal is more official, and people seeking important charters try to have them sealed with the Great Seal.
Local Rule
The king acts on a local level through the shire and hundred courts. The sheriff of the county is the agent of the king, required to collect taxes and dues, and enforce writs issued by the chancery. He does not, usually, have the authority to judge pleas of the crown, but lesser offenses, such as disputes over escaped animals, can be heard in front of him.
Twice a year the sheriff's tourn travels round all the hundred courts, taking the view of frankpledge. (The tourn is the sheriff's formal visitation of his shire, to collect taxes and enforce the law.) The view of frankpledge requires all the local men over twelve to attend, and each tithing must present any of its members who are known criminals for judgment. Some lords have view of frankpledge, which means that they take the sheriff's place at this court. Since one of the things that tithings are required to denounce is sorcery, it would be useful for covenants to obtain view of frankpledge over their residents, especially if they do not have totally harmonious relations with the covenfolk.
The sheriff also collects all the money due to the crown. Generally, he farms the shire, meaning that he pays a fixed sum to the Exchequer, and then keeps whatever he collects. This can lead to abuses, which can be raised with the king. There is a tendency away from giving the sheriffs farm of the shire, and to require them to account for all the money they receive, but this requires much closer oversight.
The exceptions are the two palatine counties, Cheshire and Durham. Within those, the lord of the county has all the authority of the king. He may hear pleas of the crown, collect taxes on his own authority, and so on. He need not account for himself at the Exchequer, and will only be called to account at all if suspected of treason. He is required to pay taxes to the king, and to be loyal to the monarch, but his activity is unregulated within his palatinate.
Ralph de Neville
Vice-chancellor
Ralph de Neville is the bastard son of an important baronial family. In a common career move for acknowledged bastards, he has entered the church and, as a clerk, the royal service. His illegitimacy means that he cannot be ordained to major orders, but he is currently seeking Papal dispensation so that he can advance further in the church. This dispensation will almost certainly be granted: the church does not normally refuse able men on the grounds of their birth.
He has been in the royal service for many years, and has had custody of the royal seal since 1213. He is now vice-chancellor and, in the absence of a Great Seal, he does almost all the work normally done by the chancellor, overseeing the issue of charters and writs and attesting that they are valid. Indeed, people often forget that he is not the chancellor, even, on occasion, people like Peter des Roches (see page 138).
He holds many benefices, employing priests as vicars to perform the duties, and is quite wealthy. However, he is holding out hope for a bishopric, just as soon as he gets a papal dispensation from his bastardy. Ralph is an ambitious man, and not particularly pious, seeing the church mainly as a source of income. He is also a very efficient and effective bureaucrat, and a decent politician.
Falkes de Bréauté
Falkes is the son of an unmarried Norman peasant, and possibly the most powerful individual in England. Indeed, hostile chroniclers have described him as "more a king than the king". Certainly, the royal court does not at present have the power to confront him when he disobeys its commands.
Falkes's rise has not made him popular. In part, this is the hostility of the aristocracy to powerful men who are not of their class, but in part it is due to the methods by which he rose. He is a military adventurer, and a brave, skilled, and utterly ruthless warrior. He served King John well and loyally, and thus earned the enmity of many barons.
In 1211, he was made sheriff of Glamorgan, and by the end of John's reign he was sheriff of seven counties, forming a bloc in the center of the country. Early in 1215, John rewarded Falkes by marrying him to Margaret, the widow of the earl of Albermarle and the daughter of the earl of Devon, thus giving him personal control of many lands. He also holds about a dozen castles, some of them officially on the king's behalf. However, Falkes has refused to give up any of his charges until the king comes of age, and the government cannot compel him.
Falkes is particularly unpopular with the church, because he does not respect its immunities. On one occasion he rode into St. Albans abbey with his men, killed a monk who was fleeing for the chapel and refused to let any of the others enter it, so that they could not claim sanctuary on holy ground. He then demanded one hundred pounds from the abbot, and got it. Afterwards, he had a dream in which a stone fell from the abbey church and crushed him to death, and his wife interpreted it as a sign that St. Alban would take revenge. Afraid, Falkes went to St. Albans, and appeared before the monks stripped to the waist. He had some of his men beat him with sticks, and then begged the abbot's forgiveness. It was granted, and he stood and dressed, and then turned to the abbot and said, "My wife sent me here because of a dream, but do not think for a moment that you will recover what I took from you."
Late in 1217 he was made guardian of the young earl of Devon, and thus effectively earl. He was also supposed to hold the shrievalty of Devon, but Robert de Courtenay refused to surrender it, and claimed that he should have had the wardship of the heir. Relations between the two men are very hostile, and constantly threaten to break out into warfare.
Proof of Wrongdoing
The magi get some evidence that a rival covenant has been paying the king to assist them in their mundane affairs a clear breach of the Code. The other magi will clearly deny everything, but the chancery records will contain the king's copy of any agreement. If the magi can convince the chancery clerks to let them examine the records, they might be able to produce damning evidence. Of course, they can't afford to offer the clerks too much, because that will also be against the Code.
Sheriffs of England, 1220
Bedfordshire Falkes de Bréauté Berkshire Richard fitz Regis Buckinghamshire Falkes de Bréauté Cambridgeshire Falkes de Bréauté Cheshire Palatinate: the Earl of Chester Cornwall Henry fitz Count County Durham Palatinate: the Bishop of Durham Cumberland Robert de Vieuxpont, lord of Westmoreland Derbyshire Philip Mark Devon Robert de Courtenay Dorset Peter de Maulay Essex Aimery de St. Amand Gloucestershire Ralph Musard Hampshire Peter des Roches, Bishop of Winchester Herefordshire Walter de Lacy of Ewias Lacy and Meath Hertfordshire Aimery de St. Amand Huntingdonshire Falkes de Bréauté Kent Hubert de Burgh, the Justiciar Lancashire Ranulf, Earl of Chester Leicestershire William de Cantilupe Lincolnshire William Longespee, Earl of Salisbury* Middlesex None (direct governance by royal court) Norfolk Hubert de Burgh, the Justiciar Northamptonshire Falkes de Bréauté Northumberland Philip of Oldcoates Nottinghamshire Philip Mark Oxfordshire Falkes de Bréauté Rutland Falkes de Bréauté Shropshire Ranulf, Earl of Chester Somerset Peter de Maulay Staffordshire Ranulf, Earl of Chester Suffolk Hubert de Burgh, the Justiciar Surrey William de Warenne, Earl of Surrey Sussex Matthew fitz Herbert Warwickshire William de Cantilupe Wiltshire William Longespee, Earl of Salisbury Westmoreland Robert de Vieuxpont, lord of Westmoreland Worcestershire William de Beauchamp of Bedford Yorkshire Geoffrey de Neville * contested by Nicola de Hay
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