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|CRIME AND JUSTICE|
|Subject:||Reforms of judicial procedures|
|Original source:||Charter in borough archives|
|Transcription in:||Mary Bateson, ed. Records of the Borough of Leicester, (London, 1899), vol.1, 151-53, 156-61, 163-64.|
Firstly, it often happens that when a man has brought a plea of debt or trespass against another it takes six months to a year before he can get the accused to answer [in court], partly because the bailiffs' distress is ineffectual, [partly] because they [i.e. the accused] hide away their possessions in rooms or elsewhere so that no-one can distrain them, and [partly] because they avoid being amerced for their defaults [in appearing in court]. To correct this, it is decided that when one man brings a complaint of debt or of goods wrongfully taken or withheld against a resident of the town, if the accused is absent he is to be summoned in the presence of two neighbours to appear at the next court session to give answer. If he fails to come to that session, a simple distress is to be made until he attaches himself by guarantors to be at the next session. If he refuses to find guarantors, or finds the guarantors but still does not come, let it be ordered to distrain him to appear at the third session by the great distress, by whatever of his can be found, inside or outside his house. Even if he hides away or shuts up his possessions in a room or elsewhere, the bailiff may in the presence of the neighbours enter everywhere in order to distrain him until he answers to justice. And if he had found guarantors for his appearance, they are to be amerced for failing to have him there on the day appointed, unless they can show good reason why they did not. The same procedure regarding distresses is to apply in cases of trespass, except that guarantors are to be found from the very beginning. After the accused has made his defaults and then is forced to come by the great distress effected against him, he is to be amerced, unless he can excuse his defaults by saying that he was out of town, or did not know about the suit, or was prevented for some other reason, and is willing to take oath to that.
[ .... ]
On the day that the parties first meet in court, the defendant may if he wishes declare "Have law" and, by that, obtain an adjournment as was previously the custom. However, a declaration of "Have law" in a case means that a delay cannot be granted more than once. When he has declared "Have law", he must find pledges or put his stall up as surety, if he has a stall, that he will come to the next court session, as was previously the custom. If he still does not come, he may be distrained by the great distress, as mentioned above, until he comes. And when he comes he is to be amerced if he cannot excuse his defaults.
[ .... ]
[Failure to defend]
It was the custom in times past, when the parties had to plead and the plaintiff had stated his accusation, that if as soon as the words had come out of the plaintiff's mouth the defendant did not say "thwart nay" he was considered not to have offered a defence, which was called "swarless". He was then not allowed to speak [in his defence], nor ask for advice, nor have any man who knew legal procedure speak for him; so that many lost [their cases] through ignorance of legal procedure. For this reason it is now decided that, when the parties appear for purpose of pleading, the plaintiff should without challenge or interruption clearly state his accusation personally, if he knows how, or (if not) by someone who is assigned for that, so that the suit is not terminated or jeopardized by forgetting to specify the time [when the offence occurred] or by any other circumstance. But if the defendant asks for specification of time or any other detail necessary to ensure his better response to the accusation, let the specification be made at that time without challenge. Then, once the plaintiff has made the accusation, the defendant may have a reasonable amount of time to reply, so that he is not caught off guard. If he wishes to consult with counsel, he may have permission to do so and return to say what he thinks may best serve him all without challenge or interruption by himself or, if he lacks the knowledge, by someone else assigned to that. If he thinks that his initial response was insufficient, he may take another position if he is prepared to hold to it and receive judgement thereon. If it happens that when the plaintiff has stated his case the defendant cannot deny the accusation made against him, or refuses to answer even after being reprimanded by the bailiff (unless he can state a good reason why he should not respond), he may be considered as not offering a defence and as swarless, as was the custom in the past.
[Naming compurgators where an accusation is refuted]
It was previously the custom that the defendant could not make any answer to the plaintiff's accusation except to admit everything or to say "thwart nay" to everything. If he responded with denial, he had to perform his law with himself as the sixth hand. Then his adversary, or someone on his behalf, would choose persons to undertake [the oath] with him who were neither favourable nor hostile to the other party. If he [i.e. the defendant] could not do his law with those persons named, then he would be convicted of the charge, whether it was true or false. Because of this it is now decided that, in a plea of debt, if the defendant denies it and the plaintiff has proof of the debt in the form of a tally or live witnesses, he is to be given the chance to prove his case. So that, if he has only a tally or witnesses, let him take oath first, followed by the witnesses he presents; the witnesses are to be examined about what they heard and saw, if they were present when the debt was incurred or the tally made. According to what they verify, let him recover his debt or lose [his case]. It is to be ensured that the witnesses are law-abiding persons, not suspicious customers nor paid to give false evidence. If he calls witnesses who, for reasons of favouritism or malice, fail to tell the truth, they are to be distrained by the bailiff to come and tell the truth, and are to be examined as already mentioned. Alternatively if the parties agree to put their case before an inquest of neighbours who know the truth of the matter, let an inquest be held. If the plaintiff has only his own word [to support his accusation], the defendant is to be at his law by as many good and law-abiding persons as the court decides, but not [suspicious] customers or those paid to make false oaths. And if he performs his law on the day assigned him, he is to be acquitted. If he fails, he is to be convicted of the accusation. Pleas of trespass proceed in the same fashion: if the defendant says "thwart nay", he is to be at his law and perform it in the same way. No-one is henceforth to be distrained to do his law by the persons named, as was the custom previously. If the defendant in a plea of trespass wishes to submit his case to an inquest, let the inquest be made by suitable persons, excluding his enemies. If on the day assigned for the inquest the defendant fails to appear, he is to be distrained to appear at the next court session. If he fails to appear at that session, let the inquest be taken in his absence, and judgement given and executed.
[Pleading through attornies]
Because it has not been the custom for attornies to be taken except in court, and in the presence of the parties, and then only by the plaintiff, so that as a result many people have lost their cases, it is decided that either party may, if desired, appoint an attorney, regardless of whether his adversary is present or absent. The attorney is to be received [by the court] in the place of the party, to act as he would himself act, except only in doing law. That is, in those cases which can be pleaded by attorney. This [appointment is to be made] before two jurats who can bear witness to [the authority of] the attorney, if necessary.
[No-one to be distrained unless a pledge, mainpernor or debtor]
Because it has previously been the custom to distrain a neighbour to produce his neighbour, it is now decided that no-one is to be distrained on someone else's behalf unless he was his pledge or mainpernor, or there is some other reason why he should be distrained for him. It is also ordered that the mayor and all the jurats who are in town, unless they have a reason for being prevented, be at all court sessions to give justice and pass judgement. If a man is amerced, [the amount of] the amercement should be assessed the same day or the following, and that by the jurats and according to his wealth and his offence not arbitrarily by the bailiff. No jurat or bailiff who is responsible for doing justice or passing judgement is to assist with pleading or act as an advocate, unless it is on his own behalf or for one of his relatives in which circumstance, he is not to participate in passing judgement.
These reforms, along with others not included here, were part of a charter issued by Leicester's lord, Earl Edmund Crouchback, although whether the initiative came from the Earl or perhaps even his brother, Edward I, himself a great legal reformer (see polic_lond3.doc) or from the townspeople cannot be said. But many of the reforms are reminiscent of those found in other towns during this period, the result of popular complaints about misgovernment.
Some of the reforms were actually reversions to an earlier state of affairs, changes in legal procedures having made it easier for defendants to delay answering to justice. For example, in one of the ordinances not included above, the older custom of forfal (a Danish term meaning a delay) was substituted for essoins; the reason is not clear, but probably the forfal either reduced the period of delay or could be used less repetitively than essoins. Another of the ordinances not included above denied plaintiffs the right to make three defaults in appearance before proceeding with prosecuting their cases; instead, the failure of a plaintiff to prosecute at the court session assigned to the case would result in it being dismissed.
On the other hand, some customs were abolished. One, prohibiting a man from introducing a complaint in court while he himself was the subject of such a complaint, had resulted in the abuse that if an offender could get to the authorities before his victim and lay an accusation against the victim, this would delay the victim being able to bring an accusation.
Note the indications that townsmen might avail themselves of legal advisors to help them through the technical business of pleading a case. In fact, the reforms expand the right to either party in a case.
Titles of the capitulae come from a fourteenth century copy of the reforms.
"simple distress" "great distress"
"thwart nay" "swarless"
"perform his law"
|Created: August 18, 2001. Last update: November 23, 2002||© Stephen Alsford, 2001-2003|