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.iii). And after they have been examined, let my sheriffs andofficers go about my other business, and swear that they will attend tothe holding of inquisitions on the lands of the barons, according to thelaw (cap.xvii).123The Assizes of Clarendon and Northampton, along with the Assize ofArms of 1181 and the Assize of the Forest of 1184 placed tightercontrols over the whole populace, and gave extensive powers andresponsibilities to the king s officers in enforcing them.The sheriffsmight enter any borough, castle, or liberty, even the honour of Walling-ford , to arrest murderers and thieves, and gaols were to be built inevery shire to accommodate the accused until they could be put to theordeal; even those absolved before the justices, if they had been openlyand disgracefully spoken of by the testimony of many and that oflawful men were to abjure the realm; a religious house was not toreceive a man of the lower orders as a monk until his reputation wasknown, unless he shall be sick unto death ; no one in all Englandshould receive members of the sect of Cathar heretics branded andexcommunicated at Oxford , and any house in which they dwelt shouldbe carried outside the village and burnt ; dogs caught in the king sforest were to be mutilated.124 For the eyre of 1194 a list of questions122Harding, Law Courts of Medieval England, 51 3, 58, 60, 74; Green, Government ofEngland under Henry I, 207.123EHD ii.438 48; J.Boorman, The sheriffs of Henry II and the significance of 1170 , inLaw and Government in Medieval England and Normandy: Essays in honour of Sir JamesHolt, ed.G.Garnett and J.Hudson (Cambridge UP, 1994); J.Beauroy, Centralisation ethistoire sociale: remarques sur l Inquisitio Vicecomitum de 1170 , Cahiers de CivilisationMédiévale, 37 (1994).124EHD ii.407 13, 416 20 (nos.24, 25, 27, 28). 136 Judicial Systems of France and Englandwas drawn up which the parties of justices were to address to the jurieson their circuits.The concerns of the chapters of the eyre ranged fromthe state of the king s demesne lands, through the affairs of the Jews, tothe malpractices of the sheriffs and bailiffs.Confronted by KingRichard s enormous demands from abroad for money, first for hiscrusade and then to ransom himself from a German prison, and at homeby the revolt of Count John, the king s brother, the justiciar and arch-bishop of Canterbury, Hubert Walter, turned the eyre into a highlyorganized political and financial as well as judicial instrument.Justicewas magnum emolumentum, a great source of profit to the king, anda chronicler described the eyre of 1194 as reducing all England topoverty.The capitula itineris were an important new form of law-making the only form open to Hubert Walter in the absence of theking and the steady lengthening of the list in the thirteenth centuryreflects the growing scope of English government.125Chapter 20 of the instructions of 1194 ordered the appointment ofthree knights and a clerk in each county as keepers of the pleas of thecrown.Their job was to record the initial proceedings in criminal cases:the finding of bodies ( coroners still hold inquests on suspiciousdeaths); the indictment of the suspected killers by juries of the neigh-bouring villages; the surviving victims exhibition of their wounds andformal commencement of accusations ( appeals of felony ) in the shirecourt; and the felons confessions or abjurations of the realm or out-lawry.126 The king s justices were asserting control over the establishedforms of criminal trial, the unilateral ordeals or the judicial duelbetween the accused and a private appellant.127 Chapter vi of theInquest of Sheriffs demanded inquiry into accusations made from spiteor for reward, and in cap.36 of Magna Carta King John promised thefree granting of the writ of inquisition of life and limb that is, toinquire whether an accusation of crime carrying such penalties wasbrought out of hatred and malice.128 In this way the jury was beingintroduced into the criminal process in England before Pope Innocent III,in that same year of 1215, forbade clergy to bless the instruments ofthe ordeal in order to invoke God s judgment, so forcing the use of petty juries (distinct in concept though not always in membership frompresenting or grand juries) to decide on the guilt of criminals in125EHD iii.1189 1327, ed.Harry Rothwell (London, 1975), 303 6; Harding, The LawCourts of Medieval England, 64 5.126EHD ii.304; Harding, Law Courts, 74.127Bartlett, Trial by Fire and Water, caps.4 and 5; P.R.Hyams, Trial by Ordeal: The Keyto Proof in the Early Common Law , in On the Laws and Customs of England: Essays inHonor of Samuel E.Thorne, ed.M.S.Arnold et al.(Chapel Hill: U.of North Carolina Press,1981), 121 6.128EHD ii.439 40; Beauroy, Centralisation et histoire sociale , 19; J.C.Holt, MagnaCarta, 2nd edn.(Cambridge UP, 1992), 460. Justice by royal writ in England 137England.129 Judicial duels continued, though the justices did their best todiscourage them, except in the case of approvers : felons who clutchedat the chance of a reprieve if they could defeat and thus convict anumber of their accomplices in successive bloody combats.The majorityof normal appeals of felony were not prosecuted to the end, but thejustices would still take the verdict from a jury and punish the accusedfor any trespass against the king s peace.130 Trespassers were punishedby imprisonment and a fine, but felons convicted by appeal or under theassize of Clarendon lost a foot, to which the Assize of Northampton, for the sake of stern justice , added the loss of the right hand andabjuration of the realm within forty days.In the course of the thirteenthcentury hanging became the normal penalty for felony.131Jury-trial instead of the ordeal, and abjuration of the realm ratherthan exile from the diocese, were examples of a new, secularized, royaljustice [ Pobierz caÅ‚ość w formacie PDF ]
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.iii). And after they have been examined, let my sheriffs andofficers go about my other business, and swear that they will attend tothe holding of inquisitions on the lands of the barons, according to thelaw (cap.xvii).123The Assizes of Clarendon and Northampton, along with the Assize ofArms of 1181 and the Assize of the Forest of 1184 placed tightercontrols over the whole populace, and gave extensive powers andresponsibilities to the king s officers in enforcing them.The sheriffsmight enter any borough, castle, or liberty, even the honour of Walling-ford , to arrest murderers and thieves, and gaols were to be built inevery shire to accommodate the accused until they could be put to theordeal; even those absolved before the justices, if they had been openlyand disgracefully spoken of by the testimony of many and that oflawful men were to abjure the realm; a religious house was not toreceive a man of the lower orders as a monk until his reputation wasknown, unless he shall be sick unto death ; no one in all Englandshould receive members of the sect of Cathar heretics branded andexcommunicated at Oxford , and any house in which they dwelt shouldbe carried outside the village and burnt ; dogs caught in the king sforest were to be mutilated.124 For the eyre of 1194 a list of questions122Harding, Law Courts of Medieval England, 51 3, 58, 60, 74; Green, Government ofEngland under Henry I, 207.123EHD ii.438 48; J.Boorman, The sheriffs of Henry II and the significance of 1170 , inLaw and Government in Medieval England and Normandy: Essays in honour of Sir JamesHolt, ed.G.Garnett and J.Hudson (Cambridge UP, 1994); J.Beauroy, Centralisation ethistoire sociale: remarques sur l Inquisitio Vicecomitum de 1170 , Cahiers de CivilisationMédiévale, 37 (1994).124EHD ii.407 13, 416 20 (nos.24, 25, 27, 28). 136 Judicial Systems of France and Englandwas drawn up which the parties of justices were to address to the jurieson their circuits.The concerns of the chapters of the eyre ranged fromthe state of the king s demesne lands, through the affairs of the Jews, tothe malpractices of the sheriffs and bailiffs.Confronted by KingRichard s enormous demands from abroad for money, first for hiscrusade and then to ransom himself from a German prison, and at homeby the revolt of Count John, the king s brother, the justiciar and arch-bishop of Canterbury, Hubert Walter, turned the eyre into a highlyorganized political and financial as well as judicial instrument.Justicewas magnum emolumentum, a great source of profit to the king, anda chronicler described the eyre of 1194 as reducing all England topoverty.The capitula itineris were an important new form of law-making the only form open to Hubert Walter in the absence of theking and the steady lengthening of the list in the thirteenth centuryreflects the growing scope of English government.125Chapter 20 of the instructions of 1194 ordered the appointment ofthree knights and a clerk in each county as keepers of the pleas of thecrown.Their job was to record the initial proceedings in criminal cases:the finding of bodies ( coroners still hold inquests on suspiciousdeaths); the indictment of the suspected killers by juries of the neigh-bouring villages; the surviving victims exhibition of their wounds andformal commencement of accusations ( appeals of felony ) in the shirecourt; and the felons confessions or abjurations of the realm or out-lawry.126 The king s justices were asserting control over the establishedforms of criminal trial, the unilateral ordeals or the judicial duelbetween the accused and a private appellant.127 Chapter vi of theInquest of Sheriffs demanded inquiry into accusations made from spiteor for reward, and in cap.36 of Magna Carta King John promised thefree granting of the writ of inquisition of life and limb that is, toinquire whether an accusation of crime carrying such penalties wasbrought out of hatred and malice.128 In this way the jury was beingintroduced into the criminal process in England before Pope Innocent III,in that same year of 1215, forbade clergy to bless the instruments ofthe ordeal in order to invoke God s judgment, so forcing the use of petty juries (distinct in concept though not always in membership frompresenting or grand juries) to decide on the guilt of criminals in125EHD iii.1189 1327, ed.Harry Rothwell (London, 1975), 303 6; Harding, The LawCourts of Medieval England, 64 5.126EHD ii.304; Harding, Law Courts, 74.127Bartlett, Trial by Fire and Water, caps.4 and 5; P.R.Hyams, Trial by Ordeal: The Keyto Proof in the Early Common Law , in On the Laws and Customs of England: Essays inHonor of Samuel E.Thorne, ed.M.S.Arnold et al.(Chapel Hill: U.of North Carolina Press,1981), 121 6.128EHD ii.439 40; Beauroy, Centralisation et histoire sociale , 19; J.C.Holt, MagnaCarta, 2nd edn.(Cambridge UP, 1992), 460. Justice by royal writ in England 137England.129 Judicial duels continued, though the justices did their best todiscourage them, except in the case of approvers : felons who clutchedat the chance of a reprieve if they could defeat and thus convict anumber of their accomplices in successive bloody combats.The majorityof normal appeals of felony were not prosecuted to the end, but thejustices would still take the verdict from a jury and punish the accusedfor any trespass against the king s peace.130 Trespassers were punishedby imprisonment and a fine, but felons convicted by appeal or under theassize of Clarendon lost a foot, to which the Assize of Northampton, for the sake of stern justice , added the loss of the right hand andabjuration of the realm within forty days.In the course of the thirteenthcentury hanging became the normal penalty for felony.131Jury-trial instead of the ordeal, and abjuration of the realm ratherthan exile from the diocese, were examples of a new, secularized, royaljustice [ Pobierz caÅ‚ość w formacie PDF ]