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Angevin Reform of the Appeal of Felony

Published online by Cambridge University Press:  28 October 2011

Margaret H. Kerr
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Extract

When Henry II (1154–1189) ascended the English throne, centralization of administration became a key theme of his government and judicial reform a key theme of centralization. Throughout his reign, Henry enlarged royal jurisdiction over pleas of land by providing, by means of royal writs, jury trial before the king's justices as an alternative to judgment in the seignorial courts. The assize of novel disseisin (1155 x 1166) led the way for the assizes utrum (1164), mort d'ancestor (1176), and darrein presentment (post 1179), and for the Grand Assize (c. 1179) and writs of dower. Henry also centralized and tightened royal jurisdiction over criminal pleas through the Assize of Clarendon (1166) and reform of the appeal of felony.

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Articles
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Law and History Review , Volume 13 , Issue 2 , Fall 1995 , pp. 351 - 391
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Copyright © the American Society for Legal History, Inc. 1995

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References

1. See Sutherland, D. W., The Assize of Novel Disseisin (Oxford, 1973)Google Scholar; Biancalana, J., “For Want of Justice: Legal Reforms of Henry II,” Columbia Law Review 88 (1988): 433.CrossRefGoogle Scholar The assize of novel disseisin addressed the problem of plaintiffs ejected from possession of land and required them to be restored to possession before the merits of the dispossessor's case could be heard; the assize utrum was a proceeding to determine whether land in litigation was under the jurisdiction of the Church or the Crown; the assize of darrein presentment determined whether the plaintiff landowner was the last patron—and therefore the one with the present right—to present a clergyman to a disputed church; the assize of mort d'ancestor required a lord to admit the heir of a tenant to the lands of which the ancestor had been seised at the time of his death; the Grand Assize determined ownership of land in an action brought by writ of right—previously determined by trial by battle; the writs of dower permitted widows to enforce their rights of dower in the cases that they had received either none or only some part of their dower.

2. Text in English in Douglas, D. C. and Greenaway, G. W., eds., English Historical Documents, 1042–1189, 2 vols. (London, 1953), 2:407.Google Scholar See Hurnard, Naomi, “The Jury of Presentment and the Assize of Clarendon,” English Historical Review 56 (1941): 374CrossRefGoogle Scholar; Helmholz, R. H., “The Early History of the Grand Jury and the Canon Law,” University of Chicago Law Review 50 (1983): 613.CrossRefGoogle Scholar

3. Ullmann, Walter, Principles of Government and Politics in the Middle Ages (London, 1961), 155.Google Scholar

4. See Hurnard, “The Jury of Presentment,” 374.

5. 59 Geo. Ill c. 46.

6. Nigel, Richard Fitz, Dialogus de Scaccario, ed. and trans. Johnson, C., Carter, F. E. L., and Greenway, D. E. (Oxford, 1983), 87–88.Google Scholar

7. Text in English in Douglas and Greenaway, English Historical Documents 2:451.

8. At Norfolk in 1198, a private appellor appealed several individuals of selling the king's corn by false measure and committing other misdeeds tending to defraud the king and offered to prove by his body (that is, by battle); the case, however, went to a jury, and the appellor withdrew after the four neighboring villages said they did not suspect the appellees. Stenton, D. M., ed., Pleas before the King or His Justices, 1198–1202, 4 vols. (Selden Society, vols. 67–68 and 83–84, 1952, 1967), 2:pl. 19.Google Scholar

9. This is an idea that has been advanced and rejected before, but which deserves reconsideration. See Hamil, Frederick C., “The King's Approvers: A Chapter in the History of English Criminal Law,” Speculum 11 (1936): 247–48.CrossRefGoogle Scholar

10. Roger D. Groot has made one of the few contributions to the study of the appeal of felony in “The Jury in Private Criminal Prosecutions Before 1215,” American Journal of Legal History 27 (1983): 113.

11. On the reform of pleas of land, see Biancalana, “For Want of Justice,” 433; Pollock, F. and Maitland, F. W., The History of English Law Before the Time of Edward I, 2 vols. (2d ed., 1923), 2:57Google Scholar; S. F. C. Milsom, The Legal Framework of English Feudalism (1976); Palmer, S., “The Feudal Framework of English Law” Michigan Law Review 79 (1981): 1130.CrossRefGoogle Scholar On criminal law reform, see Hurnard, “The Jury of Presentment,” 374; Helmholz, “The Early History of the Grand Jury,” 613.

12. Hunter, Joseph, ed., The Pipe Roll of 31 Henry I (London, 1833; reprint 1929), 1.Google Scholar

13. “Since, then, a man can save his life by accusing and convicting others of guilt like his own, and also because whatever contributes to the peace of the realm is undoubtedly to the King's advantage, he is called the King's approver.” Fitz Nigel, Dialogus de Scaccario, 88.

14. The Pipe Rolls of 2–3–4 Henry II (Record Commission, 1844), 4 (1155–56). The appearance of a woman as an approver, in a male warrior society, is startling in light of the consistent association of approvers with duels. However, an entry from 1174–75 may perhaps shed some light on the role of this woman approver. There, a woman and a boy “who appealed villeins who had burned [to death] their lord” were on the royal payroll. The king clearly wished to have the appeal proceed, and was supporting the appellors to that end. The Great Roll of the Pipe (Pipe Roll Society, 1884–1925), 22:198. It was probably only intended that the woman approver of 1155–56 make an accusation, and the appeal would thereafter follow the normal course of a woman's appeal, likely ending in trial by ordeal, as did the 1174–75 case – the king paid for the blessing of the ordeal pits – or by compurgation, or possibly in trial by battle using a champion. The woman in 1155–56 is the only woman named in the pipe rolls as an approver, but there may have been three women approvers in 1176–77 as well. PR 26:198.

15. For king's approvers in 1155–66, see PR 2–3–4 Henry II, 4, 46, 62 (1155–56); ibid., 94, 103, 105 (1156–57); ibid., 111, 112, 113, 114, 149, 158, 168, 175, 183 (1157–58); PR 1:2, 53 (1158–59); PR 2:13 (1159–60); PR 4:2 (1160–61); PR 6:66, 71 (1162–63); PR 7:25 (1163–64); PR 8:32 (1164–65); PR 9:106, 130 (1165–66). For private approvers in 1155–66, see PR 2–3–4 Henry II, 4 (1155–56); ibid., 82 (1156–57); ibid., 111 (1157–58); PR 1:48 (1158–59); PR 2:13, 49 (1159–60); PR 4:59 (1160–61); PR 5:11, 26, 37, 45 (1161–62); PR 6:72 (1162–63); PR 8:40 (1164–65); PR 9:72, 105, 130–31 (1165–66).

16. PR 2–3–4 Henry II, 111 (London), 113 (London ferm) (1157–58). Gerard was paid 60 s. 10 d. in the London account, exactly double the usual rate, and 53 s. 10 d. in the London ferm account. Humphrey was paid 45 s. 7 d. et ob., one-and-a-half times the usual rate, in each of the London and London ferm accounts. In the latter account, Humphrey's payment was stated to be for “three parts of the year.”

17. PR 5:37 (1162–63). Paganus was for some unstated reason paid £7.10.9.

18. PR 2:13 (1159–60). The champions were paid half a mark (13 s. 4d.) altogether.

19. PR 11:3 (1166–67); PR 13:169, 170 (1168–69); PR 15:16 (1169–70).

20. PR 13:170 (1168–69) (at 157, Winchester, there is an unnamed “forger approver” who might be identified with Osbert); PR 15:16 (1169–70); PR 16:40 (1170–71); PR 18:84 (1171–72); PR 19:51 (1172–73).

21. PR 1:51 (1172–73); PR 22:198 (1174–75); PR 25:198 (1175–76); PR 26:175 (1176–77); PR 27:111 (1177–78); PR 28:106 (1178–79).

22. PR 25:198 (1175–76); PR 26:175 (1176–77); PR 27:111 (1177–78); PR 28:106 (1178–79).

23. PR 25:91 (1175–76); PR 26:57 (1176–77); PR 27:86 (1177–78).

24. PR 26:187, 189 (1176–77); PR 27:89, 90 (1177–78). John owed fifteen marks “for right of two knights' fees” (pro recto de feodis .ij. militum) (the account added, “But he has not yet had his right”), a sum that he still owed in 1177–78.

25. PR 26:198 (1176–77); PR 28:26 (1178–79).

26. PR 34:43 (1184–85); PR 37:212 (1186–87). There may be a reference, as well, to William Tusard in 1185–86: in the pleas of the forest in Essex, one Fulko Ruffus accounted for £9.17.4 “so that he can defend himself by the free law concerning Tusard's right” (ut possit se defendere libera lege de recto Tusardi). PR 36:15 (1185–86).

27. PR 11:3, 203 (1166–67); PR 13:8, 157, 169, 170 (1168–69); PR 15:16(1169–70); PR 16:40, 61, 148 (1170–71); PR 18:46, 84, 145 (1171–72); PR 19:33 (1172–73); PR 21:50 (1173–74); PR 25:99 (1175–76); PR 26:68 (1176–77); PR 27:28 (1177–78); PR 28:57 (1178–79); PR 31:156 (1181–82); PR 32:83 (1182–83).

28. PR 11:1–2, 12, 102, 175 (an unspecified but probably large number of approvers since their upkeep and transportation cost over £11 for the year) (1166–67); PR 13:160, 169 (1168–69); PR 16:19, 55 (1170–71); PR 21:8, 10 (one of the few approvers recorded as hanged), 49, 121 (1173–74); PR 22:108, 188, 198, 203 (1174–75); PR 25:91, 99, 198 (one of three approvers at Winchester was hanged) (1175–76); PR 26:51, 106, 198 (in London there may have been several approvers, or they may just have been people held pending trial: four men, one described as “expedati” – presumably meaning he had been convicted of an offense and been mutilated by the loss of his foot, and three women) (1176–77); PR 27:49 (1177–78); PR 28:81 (1178–79); PR 29:2 (1179–80); PR 30:51, 153 (intriguingly, in 1180–81, instructors were hired to teach the approvers in Surrey—probably seven of them – how to fight) (1180–81); PR 31:58 (ominously, the approver's chattels were valued, a sure indication of execution), 146, 156 (two men were seemingly paid for the entire year, 60 s. 10 d. between them; and they were also paid for sixty-nine days in the following year) (1181–82); PR 32:83, 93, 138, 141 (1182–83); PR 33:112 (1183–84); PR 34:110, 173 (1184–85); PR 36:70, 82, 102, 111, 187, 201 (1185–86); PR 37:45 (1186–87); PR 38:19 (in London there were six approvers at different times who collectively fought thirteen duels) (1187–88).

29. It is interesting that forest approvers disappeared as well. Juries of presentment may have been used to identify offenders against the forest laws before the Assize of the Forest was made in 1184. In the pipe roll for 1179–80, two entries among the forest pleas in Staffordshire state that three men who had not paid fines levied on them for forest offenses “perished by the assize” (perierunt/periit per assisam). PR 29:13. “Perish” is the word used in the pipe rolls and eyre rolls to indicate failure in the ordeal. The assize referred to could well be the Assize of Clarendon. The Assize of the Forest, c. 4, ordered the installation of foresters in the royal forest, and c. 7 dealt with the appointment of twelve knights in each county to guard the king's venison and vert. The forest officers seem to have been responsible for making presentments of offenders from that time on.

30. Although the major changes to the private appeal of felony began during the reign of Henry II, his government may not have been the first to see possibilities for improvement and increased royal presence in the appeal. There are hints that Henry I instituted some reforms. For example, according to the legal treatise Leges Henrici Primi (The Laws of Henry the First) (c. 1118), if the accuser in a criminal matter failed to prove the charge, he had to pay compensation to the accused; compensation to the king is not mentioned. Nevertheless, in the pipe roll of 1130 there is a fine payable to the king for a false claim, the usual fine imposed from Henry IPs reign onward when an appellor failed to prove his case. (L. J. Downer, Leges Henrici Primi [Oxford, 1972], ss. 24, 2, 59, 28. PR 31 Henry I, 136.) Henry I also, during the course of his reign, moderated criminal law penalties. William of Malmesbury wrote that “In the beginning of his reign, that he might awe the delinquents by the terror of example, he was more inclined to punish by deprivation of limb; afterwards by mulct” (fine). William of Malmesbury in De Gestis Regum Anglorum 2:487, quoted in Mooers, Stephanie L., “A Reevaluation of Royal Justice under Henry I of England,” American Historical Review 93 (1988): 349.CrossRefGoogle Scholar Henry, or one of his forebears, appears to have acted to restrict trial by battle to reasonably serious matters, such as theft or breach of the king's peace, and other accusations that could lead to a penalty of death or mutilation. Leges Henrici Primi, s. 59, 16a. Further, town charters granted by Henry permitted abolition of the judicial duel. The charter of Newcastle-on-Tyne (c. 1100–35) forbade combat between burgesses in the appeal, except on charges of treason, and substituted oath for battle. Citizens of London seem to have been exempt from the duel from before c. 1135. Bateson, M., ed., Borough Customs (Selden Society, vol. 18, 1904), 33–34.Google Scholar

31. The first evidence of the oath to prosecute seems to be found in the eyre rolls for Wiltshire in 1194. Maitland, F. W., ed., Three Rolls of the King's Court in the Reign of Richard I, A.D. 1194–95 (Pipe Roll Society, vol. 14, 1891) 97Google Scholar (2), 112. According to Hall, G. D. G., ed., The Treatise on the laws and customs of the realm of England commonly called Glanvill (London, 1965), 21Google Scholar, an appellor who failed to proceed was to be imprisoned until willing to prosecute, and his surety was liable to amercement (c. 1185).

32. PR 31 Henry I, 73 (concealing a thief), 75 (remission of king's suit), 89 (concord in a homicide matter), 102 (remission of king's suit), 115 (false judgment), 119 (default in trial by battle [defec'duelli]), 120 (false judgment), 136 (false claim), 155 (adjournment or respite [resp] of a lord's man in a homicide matter), 156 (remission of king's suit), 157 (default in trial by battle).

33. PR 31 Henry I, 45, 74, 91, 93, 97, 116, 119 (breach of the peace); ibid., 90 (abduction of a woman), 149 (a fine by the Jews of London for homicide), 159 (homicide). There were, in addition, two fines in that year for misdoings that do not seem to fit into these categories: assault—although in that case the victim of the assault died—and beating a villein: ibid., 32, 55.

34. PR 2–3–4 Henry II, 15 (slaying a Jew), 53 (breach of the king's peace) (1155–56), ibid., 126 (slaying a priest), 163 (death of a priest) (1157–58); PR 2:35 (castration) (1159–60); PR 4:37 (rape) (1160–61); PR 8:47 (rape), 111 (castration by a priest) (1164–65). Although the status of the castration victims is not mentioned in the records, it may be that they were clerics.

35. PR 12:214 (assault on a cleric) (1167–68); PR 26:13 (injury to a woman [pro injuria illata Eluiue]) (1176–77); PR 30:41 (rape [femina vi oppressa]) (1180–81); PR 32:165 (assault by the Jews) (1182–83); PR 34:71 (assault on clerics) (1184–85); PR 36:89 (rape [femina vi oppressa]) (1185–86).

36. For example, PR 9:76 (treasure trove/discovery of lead), 128 (nuisance/broken pond) (1165–66); PR 11:48 (disseisin), 89 (great fish), 106 (disseisin), 156 (nuisance/ broken pond), 206 (forest offense/attempting to take a bow from king's officer) (1166–67); PR 12:137 (wreck) (1167–68); PR 30:40, 41 (nuisance/open well), 41, 43 (wreck), 44, 45, 61, 89, 91, 116 (disseisin), 44, 89 (nuisance/raising of pond; raising of ditch), 49–50 (four instances of wine sold against assize) (1180–81); PR 31:31, 34, 80, 87, 112, 119, 143, 144 (twenty-five instances of disseisin), 83 (two instances of great fish), 143, 144, 145 (four instances of wreck) (1181–82); PR 32:30, 73 (three instances of grain shipped out of England against the assize), 37, 38, 43, 44, 55 (twenty-one instances of money-changing [escambium]) (1182–83); PR 33:55 (wine sold against assize; disseisin; nuisance/raising of a mill), 72, 106, 107 (thirteen instances of money-changing) (1183–84); PR 34:38, 39 (wreck), 67, 68, 108 (six instances of wine sold against assize), 191, 231 (five instances of nuisance/ditches raised; stopping a watercourse) (1184–85). Fines in pleas of the forest passim.

37. An asterisk (*) denotes fines commonly imposed in Henry IIs reign. Only the earliest appearance found is noted. PR 9:7 (false claim*), 31 (default*), 46 (denying a pledge*; default in an appeal*), 49 (default in prosecuting an appeal), 57 (concealing a crown plea*; false judgment*), 76 (failing to appear before the justices*), 87 (failing to produce a pledged man before the justices), 108 (allowing a man, who then fled, to be without pledges), 129 (being a pledge for a fugitive) (1165–66); PR 11:43 (failing to appear for a duel), 74 (failing to pursue a killer), 84 (making a man fight two duels in one day), 91 (putting a man to the ordeal of water without the king's Serjeant), 136 (failing to arrest a thief) (1166–67); PR 12:28 (arranging a duel badly), 33 (unjust judgment), 43 (burying a slain man without the proper officials present), 67 (false testimony), 68 (false presentation of a plea), 69 (unjustly seizing a man), 70 (releasing homicide suspects without putting them under pledges), 71 (failing to have a suspected man to right, failing to make an oath), 75 (threatening someone before the justices; receiving an outlaw), 107 (lying before the justices), 134 (unjust hanging; giving a false judgment for a duel to proceed), 150 (false essoin, that is, requesting an adjournment on fictitious grounds), 167 (withdrawing from an appeal*) (1167–68); PR 13:33 (denying and then acknowledging a pledge, a summons), 115 (confessing and then denying it) (1168–69); PR 15:102 (changing an oath in a jury inquest), 131 (unjustly imprisoning a man) (1169–70); PR 16:15 (withdrawing from an appeal without license* and contradicting the record of the justices), 16 (vouching someone to warranty and then not producing him), 102 (permitting killers to be released without pledges), 150 (failing to produce witnesses he had called) (1170–71); PR 22:26 (refusing to swear an oath), 68 (failing to prosecute an appeal), 77 (counselling perjury), 94 (contradicting the jurors), 162 (removing a bloody knife from a man's hand), 174 (failing to raise the hue and cry over homicide), 178 (imprisoning a man whom he wished to prove a villein and being unable to prove it) (1174–75); PR 25:67 (concealing a slain man), 145 (contradicting the king's court), 203 (a vill concealing a slain man) (1175–76); PR 26:13 (the burgers of Oxford drawing a man to the gallows to be hanged) (1176–77); PR 27:104 (bringing an appeal for hate and spite) (1177–78); PR 28:77 (false words*; not having an outlaw before the court; not having a fugitive before the court) (1178–79); PR 30:43 (refusing to turn an arson suspect over to the king's Serjeant), 112 (concealing in a verdict what he afterward acknowledged) (1180–81); PR 31:87 (failing to arrest a killer), 102 (allowing a thief to escape), 118 (allowing a prisoner to escape), 134 (imprisoning a man without license of the sheriff), 144 (permitting a man to be outside a frankpledge; scorning to come to the hundred court) (1181–82); PR 32:5 (concording without a license), 12 (being present at a judgment to hang a man), 14 (failing to appear in court on an appointed day), 23 (putting a man to the ordeal of water unjustly), 30 (justice unjustly done), 61 (refusing to give gage and pledge to the justices), 80 (unjustly seizing the chattels of a dead man), 90 (failing to pursue a thief; keeping the chattels of a fugitive), 123 (con-cording a crown plea; being present at the concord of a crown plea) (1182–83); PR 33:83 (scorning to come to the hundred court), 107 (burying a man drowned in a well without the Serjeant's view) (1183–84); PR 34:4 (a vill putting a man to the ordeal of water without warrant), 17 (unjust judgment of the ordeal of water; hanging a thief without the view of the king's Serjeant), 36 (improper pleading* [stulto dicto]), 70 (forcing a thief who passed the ordeal to abjure the realm), 71 (burying a dead man without the view of the Serjeant), 89 (inquiring as to the truth of an appeal), 108 (hanging a man unjustly and without the justices and the sheriff), 185 (unjustly contradicting the jurors; concealing chattels of a thief) (1184–85); PR 36:6 (unjustly instructing the jurors), 17 (contradicting the jurors after judgment; unjustly harassing the jurors*), 66 (harassing the jurors), 124 (perjury) (1185–86); PR 38:93 (failing to raise the hue and cry to capture a killer) (1187–88).

38. PR 31 Henry, 119, 157 (1130). This fine continued in Henry II's reign: see PR 13:55(1168–69).

39. Refusal of duel: PR 2–3–4 Henry II, 138 (1157–58) and PR 1:65 (1158–59). See also PR 38:79 (1187–88), where an appellor was fined for withdrawing from a duel. For recreantisa, see PR 2–3–4 Henry II, 114 (1157–58); PR 1:11, 21 (1158–59); PR 8:11 (1164–65); PR 36:75 (1185–86). See also PR 38:78 (1187–88), where pledges were fined for the appellor's recreantisa.

40. PR 12:167 (fecit et postea dimisit) (1167–68); PR 13:90, 114 (1168–69); PR 15:51, 89 (plea of land?) (1169–70); PR 16:39 (forest plea), 40 (1170–71); PR 22:161, 176, 179 (1174–75); PR 25:50, 93, 109, 110, 139, 144, 158 (plea of land?) (1175–76); PR 26:30 (1176–77); PR 27:15 (1177–78); PR 28:7, 65 (2), 66, 77, 78 (1178–79); PR 29:4, 111, 117 (1179–80); PR 30:41, 46, 59, 61 (2), 149 (1180–81); PR 31:18, 113 (1181–82); PR 32:38, 43, 44, 79 (2), 90 (2), 95, 123 (1182–83); PR 33:55 (1183–84); PR 34:4, 68, 69 (7), 70 (9), 71 (3), 87, 90 (2), 101, 102 (2), 103, 113 (4), 179, 192, 201 (3) (1184–85); PR 36:7, 8 (2), 17 (3), 23, 25 (5), 31 (3), 34, 35 (2), 38, 55, 66, 89, 91, 127, 128 (2), 134 (2), 136 (plea of land?), 143, 154, 165 (2), 183, 190 (1185–86); PR 37:49, 102, 104, 151 (1186–87); PR 38:26, 27 (2), 34, 37, 49, 52 (7), 53 (2), 73 (3), 74 (4), 76 (4), 78 (13), 79 (fourteen, including one for withdrawing from a duel), 80 (2), 91, 92, 93 (3), 94 (2), 97, 103, 104, 111, 117 (2), 119, 146 (2), 147 (3), 160, 161 (4), 162 (2), 168 (2), 169 (2), 177 (2), 197 (5), 206, 207 (3), 213 (1187–88). Many of the fines were not paid in full in the year that they were imposed and so reappeared in the pipe rolls in following years. Only the first report of each fine is included in this list.

41. PR 16:15, 77 (1170–71); PR 25:110 (1175–76); PR 31:78 (2), 79 (2) (1181–82); PR 34:231 (1184–85); PR 36:176 (1185–86); PR 37:5 (1186–87); PR 38:161 (1187–88).

42. PR 9:49 (pro defectu prosequendi) (1165–66); PR 22:68, 177 (1174–75); PR 27:7 (2), 8, 9, 75 (1177–78); PR 28:65 (3) (1178–79); PR 29:10, 11, 117 (1179–80); PR 30:59 (2), 61 (2), 88, 91 (1180–81); PR 31:17, 112, 127 (3) (1181–82); PR 32:61, 73 (2), 80 (1182–83); PR 33:48, 66 (1183–84); PR 34:36 (2), 40, 58, 59, 87, 89 (3), 90 (5), 101, 103 (2), 112, 113 (1184–85); PR 36:17, 23, 34, 40, 62 (2), 74, 114, 139, 165, 175, 183 (1185–86); PR 37:160 (1186–87); PR 38:37, 42, 43 (5), 44 (9), 46, 61, 62 (5), 63, 73, 78 (6), 79, 93, 115 (2), 116 (2), 117 (7), 118 (4), 119 (3), 125, 126 (4), 127 (4), 132 (2), 133, 147, 154 (8), 207 (2), 213 (plea of land?) (1187–88). Some of the fines were not paid in full in the year that they were imposed and so re-appeared in the pipe rolls in following years. Only the first report of each fine is included in this list.

43. PR 9:46, 76 (1165–66); PR 12:87 (1167–68); PR 13:29, 34, 59, 139, 147 (1168–69); PR 19:5 (1172–73); PR 22:177 (2) (1174–75); PR 25:109 (1175–76); PR 26:185 (1176–77); PR 28:34, 77 (3), 78 (1178–79); PR 33:48 (1183–84); PR 36:165 (1185–86). During this period there were numerous fines for unspecified “defaults” as well, but since it was possible to default in ways other than abandoning an appeal these defaults have been left out of consideration here. In Glanvill (at 21) it is stated that it was within the discretion of the king or his justices to prosecute both parties for contempt of court, or, in the case of the appellor, for false claim if they failed to appear. Fines specifically stated to be for contempt of court in either the pipe rolls or the eyre rolls are either nonexistent or so rare as to escape my notice. There are many fines for false claim in the pipe rolls of Henry II; but in the eyre rolls “false claim” seems to be a fine reserved for cases where the appellor had not abandoned the appeal, but had been unable to prove the case.

44. Thorne, S. E., ed. and trans., Bracton on the Laws and Customs of England, 4 vols. (Cambridge, Mass.: 1968–1977), 2:335.Google Scholar

45. Glanvill, 171.

46. Pledges specifically mentioned for an accused person: Leges Henrici Primi, ss. 57, 2 (plegiatus) and 57, 6 (datis plegiis rectum faciendi), 71, 1c (plegios) (to guarantee a settlement), 76, 1a (plegios) (to guarantee payment of wergeld). Other forms of security for an accused mentioned, particularly a gage (vadium): ibid., ss. 23, 1 (divadiatione), 41, 1c (divadiatus), 52, 1a (vadium recti), 80, 2 (divadietur), 82, 2 (fide vel sacramento vel fideiussoribus astrictus [to guarantee amends]) and 94, 2d (divadietur vel implegietur). Cf. the late seventh-century laws of Hlothhere and Eadric, s. 8, in Attenborough, F. L., ed. and trans., The Laws of the Earliest English Kings (Cambridge, 1922)Google Scholar, where an accused person may be required to provide his accuser with a surety (byrigean geselle).

47. For fines imposed on appellors' sureties under Henry II, see PR 12:148, 150 (1167–68); PR 22:45, 46, 177, 178 (1174–75); PR 28:34?, 47? (1178–79); PR 29:4?, 10?, 11?, 13, 96, 100, 101, 102?, 110–111?, 117? (1179–80); PR 31:18, 112?, 127, 134, 143 (1181–82); PR 32:30, 31, 32 (1182–83); PR 33:48? (2), 73 (1183–84); PR 34:69 (6), 90? (2), 102, 103, 113, 185 (2), 186 (1184–85); PR 36:7 (3), 17 (3), 23?, 35, 40, 66 (2), 139?, 165, 176 (2) (1185–86); PR 37:57 (2), 80, 125 (2), 139 (1186–87); PR 38:27, 37?, 41, 44?, 52, 59, 73, 74, 75, 76, 77 (3), 78 (four fines, plus one imposed on appellor's sureties for the appellor's recreantisa), 79 (6), 91 (2), 92, 93, 104, 115?, 117?, 139, 145 (2), 146 (4), 147 (7), 154?, 160, 197, 198, 199, 207? (1187–88). Many sureties were explicitly fined “because the person he pledged withdrew from/did not prosecute the appeal.” Entries marked with a question mark (?) indicate a situation where an appellor was fined for failing to prosecute or for withdrawing; in a following entry, another person was fined “pro plegio” of that appellor, strongly suggesting that the person fined pro plegio was fined because of the appellor's abandonment of his or her appeal.

48. Glamill, 21.

49. Stenton, D. M., ed., Earliest Lincolnshire Assize Rolls, A.D.1202–1209 (Lincoln Record Society, vol. 26, 1926), pls. 541 (jurors revealed concord), 826 (fine imposed).Google Scholar

50. PR 32:5, 123 (concording without a license; a half mark, twenty marks) (1182–83); PR 34:5, 36, 182 (concord of a crown plea; three to one hundred marks) (1184 – 85); PR 36:138, 163 (concording without a license; a half mark, twenty shillings) (1185–86); The Great Roll of the Pipe (Pipe Roll Society, n.s., 1925-), 1:85 (concording without a license; 61 s. 8 d.) (1190); PR.NS 6:93, 95 (concording without a license; one mark) (1195); PR.NS 7:172, 178 (concording without a license; one mark) (1196).

51. PR 33:105 (being present at concord of a crown plea; ten marks) (1183–84); PR 34:230 (being present at concord of a crown plea; one mark) (1184–85); PR 36:60 (being present at concord of a crown plea; £40.13.4) (1185–86); PR 38:26 (being present at concord without license; a half mark) (1187–88).

52. Bracton 2:402. See also ibid. 355, where Bracton stated that “the county court may be ordered by the justices in their eyre to sue on the king's behalf from one county court to the next until the accused has been outlawed according to the law of the land” if the appellor died, refused to sue, or became physically incapable of suing before an appellee who fled had been outlawed. There are obvious echoes in Bracton, and in the English secular justice system, of the ex officio procedure of the Church courts. See Fraher, Richard M., “The Theoretical Justification for the New Criminal Law of the High Middle Ages: ‘Rei Publicae Interest, Ne Crimina Remaneant Impunita,’” University of Illinois Law Review (1984): 577Google Scholar, and also Helmholz, “The Early History of the Grand Jury,” 613.

53. It is difficult to know whether an improperly constituted appeal that was quashed could be brought again, if properly constituted. There do not appear to be any cases in the eyre rolls of the reigns of Richard and John that were clearly a second attempt following a quashing of the first attempt—although there were sometimes different appellors appealing the same appellee(s) for the same incident at the same time, perhaps with the intention of saving the action should one or more appeals be quashed for technical problems. See, e.g., Wrottesley, G., ed., Collections for a History of Staffordshire (Staffordshire Record Society, vol. 3, 1882) 95–96Google Scholar; Stenton, D. M., ed., The Earliest Northamptonshire Assize Rolls, A.D 1202 and 1203 (Northamptonshire Record Society, vol. 5, 1930)Google Scholar, pls. 16, 17, 681, 682. It appears that acquittal or concord in a first appeal would invalidate a second appeal on the same facts. See Stenton, Pleas before the King 2:pl. 737 (Wells, 1201), where the defendant went quit in a first appeal of death brought by the victim's wife, and a second appeal of the same death was quashed on two grounds, one of them being that the appellee went quit in the first appeal; ibid. 3:pl. 746 (Shrewsbury, 1203), where the appellee's defense, which was allowed, was that the appeal had been made before and the parties had concorded; and Stenton, Northamptonshire Assize Rolls, pl. 16 (Northants., 1202), where the appellor released and quit claimed the appellee, and then some time later brought the same appeal against him, which was quashed because of the earlier release.

54. There was almost no use made of the jury in abated appeals before 1218–19. Except in three cases there do not seem to be instances in the eyre rolls of Richard's and John's reign of justices abating an appeal and then showing any interest in the substance of the charge. See Stenton, Pleas before the King 2:pls. 265, 383 (out of five appeals abated) (Launceston, 1201); Stenton, Lincolnshire Assize Rolls, pl. 816 (out of twenty-six appeals abated) (Lincoln, 1202). Note, however, that if an appellee requested an inquest by jury, it was not unusual for the appeal to be declared null and for an opinion to be given on the merits: see Stenton, Lincolnshire Assize Rolls, pls. 561, 909 (Lincoln, 1202); Wrottesley, History of Staffordshire (Lichfield, 1203), 92; Stenton, Lincolnshire Assize Rolls, pl. 1508 (Lincoln, 1206); Stenton, Pleas before the King 4:pl. 3428 (York, 1208).

55. PR:NS 2:110; PR:NS 6:214–15; Chancellor's Roll, 8 Richard I (1196), 186. For examples of the inquest de odio et atia in John's reign, see Stenton, Northamptonshire Assize Rolls, pl. 26 (Northants, 1202); Stenton, Lincolnshire Assize Rolls, pls. 539, 561, 607, 616, 909 (Lincoln, 1202); ibid., pl. 1508 (Lincoln, 1206); Fowler, G. H., ed., “Roll of the Justices in Eyre at Bedford, 1202,” Publications of the Bedfordshire Historical Record Society 1 (1913): pls. 208, 250Google Scholar; Wrottesley, History of Staffordshire, 92 (Lichfield, 1203); Stenton, Pleas before the King 3:pls. 740, 746 (Shrewsbury, 1203).

56. Naomi Hurnard, The King's Pardon for Homicide Before a.d. 1307 (Oxford, 1969), 339. PR 27:104 (1177–78); PR 34:89 (1185). See also PR 28:77 (1178–79), where a man was fined for “unjustly impleading” another man for a death (Willelmus de Stockton debet dim. .m. quia fecit injuste imbreviari Reginaldum de Elveden' de morte cujusdam hominis).

57. Stenton, Pleas before the King 2:pl. 19 (Norfolk, 1198); ibid. 4:pl. 3425 (York, 1208). In the case of the Norfolk appeal, there may have been some special arrangement that when a private individual made an appeal on behalf of the king, trial would be by jury rather than by battle.

58. Maitland, Three Rolls, 99 (Wiltshire, 1194). Stenton, Pleas before the King 2:pl. 619 (Launceston, 1201). At the same Launceston sitting in other cases where the appellor was maimed rather than overage, the appellee went straight to the ordeal: ibid., pls. 288, 350, 356, 357. Stenton, Lincolnshire Assize Rolls, pl. 650 (when the jury said that they suspected the appellee, the appellor withdrew) (Lincoln, 1202). In a second appeal in Lincoln where the appellor was past fighting age and in two appeals where the appellor was maimed, no jury was empanelled. Ibid., pls. 595, 843, 851. In each of these three cases the court awarded the ordeal of hot iron and then, somewhat surprisingly, gave the choice of who would carry the iron to the appellee. As was quite natural the appellee chose the appellor every time and the appellor then either withdrew or concorded the suit. Stenton, Pleas before the King 2:pl. 739 (Wells, 1201).

59. Ibid., pls. 734, 742 (of fourteen women's appeals, of which four were tried) (Wells, 1201); ibid., pls. 323, 337, 382, 399 (of sixteen women's appeals, of which six were tried) (Launceston, 1201); Stenton, Lincolnshire Assize Rolls, pls. 693a, 738, 855 (of eighty-six women's appeals, of which three were tried) (Lincoln, 1202); Wrottesley, History of Staffordshire, 96 (of five women's appeals, of which one was tried) (Lichfield, 1203). There is one instance in the records under review of an appeal of rape being tried by a jury before the ordeal was abolished. Stenton, Pleas before the King 2:pl. 337 (Launceston, 1201). Appeals of rape, however, were not tried by ordeal before 1215, rather by attestation of officials that the appellor had made an immediate complaint and had looked properly victimized. Ibid. 2:pls. 342, 395 (Launceston, 1201); Stenton, Lincolnshire Assize Rolls, pls. 590, 916 (Lincoln, 1202); Stenton, Pleas before the King 4:pls. 3424, 3491 (York, 1208). Following the abolition of the ordeal, trial by jury at once became the accepted means of dealing with an appeal of rape. See Stenton, D. M., ed., Rolls of the Justices in Eyre for Yorkshire, 1218–19 (Selden Society, vol. 56, 1937)Google Scholar, pls. 545, 591, 594, 688, 741, 745, 763, 784, 803, 809, 818, 847, 848, 927, 932, 934, 955, 956, 957, 959, 963, 974, 976, 1074, 1082, 1095.

60. Groot, Roger, “The Jury of Presentment Before 1215,” American Journal of Legal History 26 (1982): 1.CrossRefGoogle Scholar See also Kerr, M. H. et al., “Cold Water and Hot Iron: Trial by Ordeal in England,” Journal of Interdisciplinary History 22 (1992): 573.CrossRefGoogle Scholar

61. A pattern in John's reign of having appellees automatically go sine die in un-prosecuted appeals and quit in retracted appeals is visible but is not consistent. However, from the first eyres of Henry Ill's reign it is apparent that whatever policy had created that pattern was no longer in force. From 1218 the jury played an important role in disposing of abandoned appeals.

62. Stenton, Pleas before the King 2:pls. 729, 733 (withdrawn by female appellor), 735, 745, 747, 749 (not prosecuted by female appellor) (Wells, 1201); ibid. 2:pls. 252 (not prosecuted by male appellor), 276 (withdrawn by male appellor), 310 (not prosecuted by female appellor), 329 (withdrawn by male appellor) (Launceston, 1201); Fowler, “Roll of the Justices in Eyre at Bedford, 1202,” pl. 210 (not prosecuted by female appellor); Stenton, Lincolnshire Assize Rolls, pls. 540, 541 (not prosecuted by male appellor), 726, 818 (withdrawn by male appellor). See also ibid., 580a (jury considers guilt of accessory after principal outlawed); Stenton, Northamptonshire Assize Rolls, pls. 16 (withdrawn by female appellor), 38, 72 (not prosecuted by female appellor; in the first case, appellee bought a jury inquest); Wrottesley, History of Staffordshire, 91–92 (two appeals withdrawn by male appellors, one appeal not prosecuted by female appellor); Stenton, Pleas before the King 3:pls. 688 (appellee bought a jury inquest to exonerate him of the death of a thief killed by pursuers in the hue and cry), 755 (not prosecuted by female appellor) (Shrewsbury, 1203); ibid. 4:pls. 3424, 3428 (not prosecuted by male appellor; in the first case, the appellor “attested” that appellee not guilty, in the second, appellee bought jury inquest for a determination of his innocence), 3457 (not prosecuted by female appellor; appellee bought jury inquest for a determination of his innocence), 3460 (not prosecuted by maimed male appellor; appellor “attested” that appellor badly treated by appellees), 3462 (not prosecuted by male appellor; appellee bought jury inquest for a determination of his innocence), 3471 (not prosecuted by female appellor appealing of rape; “attested” that she was bound and shamefully treated) (York 1208).

63. Wrottesley, History of Staffordshire, 45; Stenton, Pleas before the King 2:pl. 351 (Launceston, 1201); ibid., pl. 750 (Wells, 1201); Fowler, “Roll of the Justices in Eyre at Bedford, 1202,” pl. 219. The custom of referring the appeal to the jury when the appellor had died does not seem to have been obligatory but it was followed in twenty-seven of the fifty-four cases in the records under examination in which the appellor had died.

64. By Henry Ill's reign, the concern about interfering with the appellor's rights seems to have centered on homicide (Bracton 2:355–56), and it remained focused there. Christopher Whittick argues that by the fourteenth century, if an appeal pending in king's bench was also the subject of an indictment, the indictment would be removed to king's bench “in order that the court might proceed more safely and advisedly in the appeal.” Whittick, “The Role of the Criminal Appeal in the Fifteenth Century,” in Law and Social Change in British History, ed. J. A. Guy and H. G. Beale (1984), 66. In the fifteenth century, an appeal took precedence over an indictment and process on indictment had to cease as soon as an appeal was notified to the court. Whittick suggests that it was common from the middle of the fifteenth century for arraignment on indictment to be delayed for a year and a day to save the appellor's rights (note that the Statute of Gloucester, 1278, c. 9, provided that an appeal of death could not be abated for delay if brought within a year and a day of the deed). However, the practice of delaying arraignment in homicide cases was abolished by statute in 1487. The statute provided for immediate trial on indictment, but the defendant, if acquitted, was to be returned to prison or bailed to await a possible appeal. Ibid., 68–69.

65. Bracton 2:355–56.

66. Wrottesley, History of Staffordshire, 41.

67. Appellees who went quit following a jury verdict of “not suspected”: Fowler, “Roll of the Justices in Eyre at Bedford, 1202,” pl. 210; Stenton, Lincolnshire Assize Rolls, pl. 540; Wrottesley, History of Staffordshire, 91*; Stenton, Pleas before the King 4:pl. 3428 (York, 1208). Appellees who were released sine die following a jury verdict of “not suspected”: Stenton, Northamptonshire Assize Rolls, pl. 72; Stenton, Pleas before the King 3:pl. 688* (Shrewsbury, 1203); ibid. 4:pls. 3457, 3462 (York 1208). There is no apparent correlation between whether the appellor withdrew or simply failed to prosecute, and whether the appellee went quit or sine die: except for the two cases marked with an asterisk, in which the appellor had withdrawn, the appellors had failed to prosecute in all cases. At York in 1218–19, in all but one case where there was a jury verdict of “not suspected,” the appellee went quit. Stenton, Rolls of the Justices in Eyre for Yorkshire, pl. 616; at Coventry and Shrewsbury in 1221, all appellees not suspected went quit. Stenton, D. M., ed., Rolls of the Justices in Eyre for Gloucestershire, Warwickshire and Staffordshire, 1221, 1222 (Selden Society, vol. 59, 1940).Google Scholar Under Henry III, an acquittal seems to have been the almost invariable response to a jury verdict of “not suspected” or “not guilty.” However, there appears to have been a little confusion at Worcester in 1221, where two appellees not suspected went quit, but another two went sine die. D. M. Stenton, ed., Rolls of the Justices in Eyre for Lincolnshire 1218–19 and Worcestershire 1221 (Selden Society, vol. 53, 1934), pls. 1074, 1211; 1092, 1192.

68. Stenton, Lincolnshire Assize Rolls, pls. 608, 678, 872. The pipe roll for 1188–89 contains a reference to a fine paid by a man to be under pledges to stand to right (PR 38:94) but does not reveal under what circumstances. The eyre roll for Wiltshire in 1194 shows no appellees put under pledges, but numerous people who had been presented rather than appealed were put under pledges in case some individual wished to accuse them or speak against them. Maitland, Three Rolls, 80, 81, 83, 98, 109. Neither were any appellees put under pledges at Norfolk in 1198. At Launceston in 1201, three accused appeared on presentment, were not suspected, and were put under pledges (Stenton, Pleas before the King 2:pl. 621).

69. At Lichfield in 1199, where two women appealing of the death of their husbands did not pursue their action, the jurors did not suspect the appellees, and judgment was that the appellees be under pledges. At Wells in 1201, when a woman abandoned her appeal, saying that she now did not know who had committed the offense, the twelve knights of the hundred said they did not suspect the appellee “of this or anything else,” and the appellee was ordered to be under sureties. Also at Wells, when a woman appellor released the appellees and the only one of them who appeared in court was not suspected, he was put under pledges. At Lincoln in 1202, in an appeal which went unprosecuted, the appellee gave one mark for an inquest, the jurors did not suspect him, and he was released under pledges; in another appeal, where the appellee was appealed as an accessory and the principal had fled and been outlawed, the appellee was also released under pledges. At Lichfield in 1203, where a woman appellor did not prosecute, the appellee, who was not suspected by the jurors, was ordered put under pledges. Wrottesley, History of Staffordshire, 39; Stenton, Pleas before the King 2:pls. 735, 743 (Wells, 1201); Stenton, Lincolnshire Assize Rolls, pls. 555, 580a (and cf. pl. 588c, a presentment, where the accused was not suspected and was put under pledges); Wrottesley, History of Staffordshire, 92.

70. At the eyre in Buckinghamshire and Bedfordshire in 1195, a man was hanged following his confession. Maitland, Three Rolls, 143. At Wells in 1201, another man was hanged after he confessed to the crime. Stenton, Pleas before the King 2:pl. 732. At the Yorkshire eyre in 1218–19 a principal appellee was defeated in a judicial duel and hanged as convicted; an accessory confessed his involvement in the death and turned approver, but the men he appealed fled, and it was adjudged that his appeal had failed and he also was hanged. Stenton, Rolls of the Justices in Eyre for Yorkshire, pl. 823.

71. In the four cases in the eyre rolls in which an appellee was put to the ordeal and in which the outcome of the ordeal is known, the appellees all passed. Stenton, Pleas before the King 2:pls. 619, 620 (Launceston, 1201); Stenton, Lincolnshire Assize Rolls, pls. 693a, 855 (Lincoln, 1202). The very high pass rate in ordeals is discussed in Kerr, “Cold Water and Hot Iron.”

72. Meekings, C. A. F., ed., Crown Pleas of the Wiltshire Eyre 1249, (Devizes, 1961), pls. 168Google Scholar, 385, 479 (possibly hanged), 497.

73. See note 31.

74. PR 22:153 (1174–75); PR 26:118 (1176–77). In 1180–81 there were numerous fines for breaking a park, but this may very well have been an attempted disseisin. PR 30:89.

75. S. F. C. Milsom and Alan Harding have between them reviewed extensively the proceedings associated with the name “trespass” in the thirteenth and fourteenth centuries. The civil trespass action for damages, brought by oral complaint as early as 1200 and by writ from c. 1224 (although the name of “trespass” did not attach to the writ until c. 1250), comprehended many different kinds of wrongs to real and personal property and to the person including trespass to land, ejectment, reaping crops and felling trees, depasturing, hunting and fishing, assault and battery, false imprisonment, abduction, taking of goods and livestock, damage by fire and animals, and negligent blacksmithing. Actions for damages on a writ of trespass were joined by appeals of trespass, civil remedies sought through the appeal. The feature of essential interest about civil trespass actions is that they found their way into the royal courts, where they otherwise had no business to be, through allegations that were often spurious of force (vi et armis) and breach of the king's peace (contra pacem regis). The plaintiffs in effect forced the king to take jurisdiction in these actions by alleging that the defendants had in some way offended the king as well as the plaintiffs. S. F. C. Milsom, “Trespass from Henry III to Edward III,” Law Quarterly Review 74: 195, 201, 407, 561. Harding, Alan, ed The Roll of The Shropshire Eyre of 1256 (Selden Society, vol. 96, 1981), xxxv–xxxviGoogle Scholar, xxxvii–xlii. “Complaints” of trespass also existed and were associated with special inquiries mounted by the king and the barons. There was, in addition, a special form of the writ of trespass ordering officials to take presentments from local juries to find out who had committed trespasses against the plaintiffs named in the writ – particularly after the Barons' Revolt in 1258. Harding believes that the status given to this writ of trespass in books of writs, its greater importance in relation to other early writs of trespass, reflects the king's special concern over riotous and forceful wrongs and for the peace of the countryside. Harding, Roll of The Shropshire Eyre, xlii–xliv. On the criminal side of trespass, fines for trespass in appeals that were tried by jury rather than by battle were imposed from the middle of the thirteenth century. The earliest such fines in the records under review were in Surrey in 1235. Jury verdicts in appeals sometimes declared the defendant guilty or not guilty of a trespass if the prosecution had been pursued not merely to satisfy the appellor but to keep the king's peace. Harding notes that trespass in this context refers to the offense against the king for the breach of his peace, not to the felony for which the defendant was appealed. C. A. F. Meekings and D. Crook, eds., The 1235 Surrey Eyre, 2 vols. (Surrey Record Society, vol. 32, 1983), pls. 393, 466, 471, 508, 523. Harding, Roll of The Shropshire Eyre, xxxvi.

76. PR:NS 6:236 (1195).

77. PR:NS 10:15, 20 (hundred), 157, 160, 175, 177 (vill), 281, 287 (1199). PR:NS 12:112, 113, 123, 183, 247, 252 (1200).

78. In the pipe rolls prior to 1220, see PR:NS 14:135, 153, 166 (1201); PR:NS 15:93 (3), 122, 234, 257 (4), and 122 (a vill) (1202); PR:NS 16:146, 155, 183, 196 (2), and 146 (a hundred) (1203); PR:NS 18:4, 54 (at least one trespass fine and possibly thirteen additional trespass fines), 74, 101 (2), 143, 153(3), 170 (3 – before King John personally), 204 (6), 205, 225 (2), 226, 241 (5), 249, 252 (3), 256, and also 110 and 111 (two vills) (1204); PR:NS 19:24, 35, 52, 97 (3), 155, 195, 211, 214, 228, 230, 250, 251 (2), 264, and also 153 (a hundred) (1205); PR:NS 20:14, 64, 100, 101, 164, 205, and also 32 (a vill fined one hundred marks), 33 (the County of Norfolk fined twenty marks), 34 (the County of Suffolk fined thirty marks), and 166 (a fine of £89) (1206); PR.NS 22:126 (the burgesses of a town fined) (1207); PR:NS 24:77, 106 (1209); PR.NS 26:33, 35, 38, 90 (1210) (the so-called “Autumnal Justices” of 1210 also imposed many large fines for trespass, generally something in the neighborhood of forty marks, but there are trespass fines of one hundred, two hundred, and even five hundred marks. See PR:NS 28:xxxiv–xxxvi); PR.NS 28, 81 (4), 143 (4), and also 26 (a fine of twenty marks), 82 (a fine of one hundred marks), 258 (a fine of forty marks) (1211); PR:NS 30:59, 98 (5), 111, 160 (2), and also 16 (the men of Rochester, for a trespass against the men of the bishop of Rochester), 38 (the County of York, and eight cities, vills, and socs), 63 (a fine of one hundred marks) (1212); PR:NS 35:47, 151, 166, and also 25 (perhaps a frankpledge) and 32 (two hundreds) (1213); PR:NS 37: 24 (2) (1215).

79. Note that “murder” was not, in the early thirteenth century, a word used to describe homicide but rather to describe a fine imposed on a vill or hundred that failed to prove “Englishry” in a homicide. Following the Conquest, the Normans, wary of Anglo-Saxon treachery, had instituted a rule that the whole local population would be fined if a Norman were found dead in the area. To avoid the fine, the vill had to present evidence via the testimony of relatives or neighbors that the deceased was English, not Norman. This rule continued in effect even after the Norman and Anglo-Saxon populations were indistinguishable because of intermarriage.

80. PR:NS 35:166 (1214); PR:NS 42:46 (1219); PR:NS 48:226, 231 (1221); C. T. Clay, ed., Three Yorkshire Assize Rolls (Yorkshire Archaeological Society, vol. 44, 1911), 17; Curia Regis Rolls (PRO, 1922- ), 7:165, and see also ibid.: 177 (Gilbert English was fined one hundred shillings for himself and his seven men for trespass against Elias de Farham; Elias used three marks of Gilbert's fine to obtain his release from prison, where he had landed because he had appealed his lord, Gilbert English).

81. Stenton, Pleas before the King 2:pls. 276 (when the appellor did not prosecute, “it was attested” – by whom not stated – that the appellees had treated the appellor badly; one appellee made fine by a half mark), 323 (although the appellor, a woman, was apparently prepared to proceed, the jurors made a statement that the appellee had done what he was accused of; he made fine with the king by a half mark and with the appellor by a half mark), 382 (the wounds of a woman appellor who was apparently prepared to proceed were attested by the jurors; the appellee made fine by a half mark), 399 (although the woman appellor was apparently prepared to proceed, the jurors “bore witness” that the appellees did not rob her, but merely took a cloak she had left behind; the one appellee who appeared was ordered to pay the appellor three pence); and also pl. 290 (a man who had been appealed as an accessory voluntarily made fine by ten shillings and gave the appellor forty pence) (Launceston, 1201).

82. Ibid. pls. 285 (the jurors “bore witness” to the appellor's claim concerning assault and wounding, although the appellor was apparently prepared to proceed), 310 (when a woman appellor withdrew, the jurors said that the appellor had been beaten by the appellees, as she had claimed), 342 (in an appeal of rape, in which the appellor was apparently prepared to proceed, “it was attested” – by whom not stated – that she was seen bleeding and that she had been raped) (Launceston, 1201).

83. Wrottesley, History of Staffordshire, 91.

84. Stenton, Pleas before the King 4:pls. 3437 (the appellor did not prosecute her appeal of rape; there was no indication of jury involvement, but the appellee was taken into custody and fined by a mark), 3460 (in an appeal of mayhem, the appellor did not prosecute his appeal; however, “it was attested” that he had been badly treated by the appellees, and six of them made fine, variously, by three marks, one mark, and thirty shillings), 3491 (although the appellor was apparently prepared to proceed in her appeal of rape, “the village bore witness” that they heard it said that she had raised the hue and made complaint before the coroners; the parties were brought to agreement by twenty shillings and an amercement was pardoned); 3406 (a woman did not prosecute an appeal of rape; the appellee gave the lord king a half mark), 3421 (after the principal had been outlawed for a death, an accessory fined by a half mark) (York, 1208).

85. Ibid. 4:pls. 3407, 3415, 3420, 3423, 3424, 3428, 3429, 3431, 3439, 3442, 3454, 3457, 3462, 3475, 3476, 3477, 3485, 3486, 3490, 3492, 3505 (twenty-one fines for “judgment”) (York, 1208). Judgment was usually sine die, or else quit, but also for a jury verdict (pls. 3428, 3457, 3462). In every case where the appellee fined for judgment, the appellor had not appeared.

86. Appellors were either fined or taken into custody (where presumably they remained until they fined). Stenton, Rolls of the Justices in Eyre for Yorkshire, pls. 449, 473, 522, 553, 583, 585, 594, 603, 649, 671, 687, 688, 695, 698, 763, 766, 806, 821, 839, 850, 866, 923, 941, 955, 1029, 1086.

87. In total, three fines were imposed: Stenton, Rolls of the Justices in Eyre for Gloucestershire, pls. 910, 954; Stenton, Rolls of the Justices in Eyre for Lincolnshire, pl. 1141.

88. Set out below are cases in which convicted defendants were fined directly and cases in which they were taken into custody until they fined for their release. The asterisk denotes fines specifically called trespass fines in the record. Meekings and Crook, Surrey Eyre, pls. 393*, 466*, 471*. 508*, 518, 523* (five fines). H. Summerson, ed., Crown Pleas of the Devon Eyre of 1238 (Devon and Cornwall Record Society, n.s., vol. 28, 1985), pls. 94, 127, 133, 147, 203, 229, 230, 234, 259, 260, 261, 263*, 274*, 364, 371, 467, 478, 480, 500, 503, 528, 561, 587, (662), 684, 729 (twenty-six fines); in an additional three cases, the appellees were taken into custody but the record does not indicate that they fined out of custody: ibid., 611, 618, 620. Bayley, K. E., ed., “Two Thirteenth-Century Assize Rolls for the County of Durham,” Surtees Society 127 (1916) (six fines)Google Scholar; ibid., pls. 9, 60, 335 (fine only); ibid., 119, 204* 241 (damages and fine); ibid., 32, 205, 208 (damages only). Healey, C. E. H. Chadwyck, ed., Somerset Pleas (Somerset Record Society, vol. 11, 1897), pls. 760Google Scholar, 761, 852, 858, 864, 901, 941, 962, 908, 982, 1010, 1013, 1065, 1139*, 1115, 1186, 1187, 1194, 1207, 1219, 1226 (twenty-one fines). Chew, H. M. and Weinbaum, M., eds., The London Eyre of 1244 (London Record Society, vol. 6, 1970), pls. 84Google Scholar, 190 (two fines, damages also awarded). Clanchyl, M. T., ed., The Roll and Writ File of the Berkshire Eyre of 1248 (Selden Society, vol. 90, 1973), pls. 727Google Scholar, 728, 787*, 816, 818*, 848*, 888, 896*, 911*, 918, 930*, 931*, 997, 1007*, 1030*, 1034* (sixteen fines); in addition, in ibid., pl. 904, the appellee was taken into custody but the record does not indicate that he fined out of custody. Meekings, Crown Pleas of the Wiltshire Eyre, pls. 448, 343, 274, 517 (four fines); in the following cases, appellees were found guilty and committed to custody, although the record does not indicate that they fined out of custody: ibid., pls. 44–45, 411 (pardoned), 526 (pardoned), 562. Harding, Roll of The Shropshire Eyre, pls. 566, 621, 747, 748, 794 (five fines); appellees were taken into custody in the following cases, but the record does not indicate that they fined out of custody: ibid., pl. 613 (the appellee was poor), 743, 890, 901. W. Page, ed., “Three Early Assize Rolls for the County of Northumberland,” Surtees Society 88(1891): 68–133, pls. 92, 108, 113, 117 (four fines).