The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

33.

THE METHODS OF THE ROYAL COURTS OF JUSTICE IN THE FIFTEENTH CENTURY1

By Hubert Hall2

WESTMINSTER.—THE KING’S COUNCIL

THE following morning Richard de Anesti was awakened at an early hour by his brother, with a message from the Treasurer that he should lose no time in presenting himself in the Hall of Rufus, on account of the great concourse of barons and knights and clerks, learned in the civil law, who should be attracted by the grandeur and novelty of this ceremony. Without any delay, therefore, Richard donned the richly jewelled dress which it befitted one of his rank to assume on such an occasion, and taking advantage of his present familiarity with the clerks of the King’s Chapel, he enjoyed the privilege of hearing early mass, attended by the King and his household; after which he followed in the royal train that filed through the private entrance at the south end of the Great Hall. The lower part of the spacious building was already densely crowded with a brilliant company, but the upper end was kept clear by the marshals for the accommodation of the councillors and the distinguished suitors whose cause they were about to decide. Here the King took his seat on a lofty decorated throne prepared for the occasion, having on either side a bench richly draped, on which, and on two other benches at right angles to them, the prelates, earls, and barons who had received summonses to attend the Council, were placed in due order of precedence,—the Archbishop of Canterbury, the Justiciar, Richard de Luci, the Vice-chancellor, Master Thomas Brown, Ralph the physician, and several other distinguished persons, occupying seats on either side of the throne; whilst several clerks, furnished with material for writing, occupied a place where they could be easily overlooked by the Vice-chancellor and Master Thomas.

Meantime the less dignified clergy, deans and archdeacons and canons, had ranged themselves on the right side of the hall, and the great body of the king’s tenants-in-chief and other lay personages similarly on the left; those in front seated on low benches, and those behind standing, in order to obtain a better view of the proceedings.

Richard de Anesti himself had taken a position with several officers of the Receipt immediately behind his patron, the Treasurer, who sat near the end of the bench on the right of the throne. Presently a flourish of music announced the approach of the exalted suitors, who entered the Hall by the great door at the north end in three separate divisions.

First came the referees, chosen by both parties indifferently, whose mission it was to guarantee the adherence of the two kings to the present arbitration on pain of forfeiture of several important castles on either side, while it was their further duty to convey an impartial and authoritative report of the decision of the English king to the two contending sovereigns. These referees were four in number—a bishop and a lord, with whom were joined two principals of the Orders of the Knights of the Temple and of St. John. These legates, in their robes of office, preceded by heralds and banners of both countries, and followed by a body of clerks bearing membranes of parchment and ink-horns, advanced slowly up the centre of the hall, and after making a deep obeisance to the King, took the places reserved for them on his right hand. They were immediately succeeded by the embassy of Castille, comprising a bishop and several nobles of high rank, with numerous clerks learned in the law, the rear being brought up by a mounted knight in complete armour, preceded by a herald and attended by two squires on foot, who appeared as the champion of Castille. The embassy of Navarre followed in like order at a convenient distance.

Then the advocates of both parties having taken their places immediately in front of the throne on either side, the King opened the proceedings by referring to the previous Council at Windsor, at which the conditions of the arbitration and the formal statements of claim had been concluded, and the final hearing of the matter had been adjourned to the present meeting. Wherefore, he concluded, it was open to both parties to dispute in turn upon their respective allegations, before judgment was pronounced. At this announcement, the Bishop of Palenza rose and claimed the favour of the King and his Council on behalf of a native advocate of great repute, who was prepared to argue the cause of his master, Alphonso of Castille.

The King having signified his assent, the advocate referred to came forward and addressed the council with great fluency in choice Castilian Latin, interspersed with quotations from legal authorities. This discourse, which embraced a statement of the lineage of the kings of Castille and Navarre, and a narrative of the historical events connected with the violent usurpation of the territories now claimed by King Alphonso, was illustrated by references to numerous original charters and other documents, which, being handed in from time to time by the Bishop of Palenza, were read aloud by the Vice-chancellor, after which they were closely inspected by Henry himself.

When the Castilian advocate had concluded his argument, an advocate on the side of the King of Navarre replied at length in similar style, denying the allegations of his adversary, and advancing a counter claim to other territories of which his master had been forcibly dispossessed by King Alphonso or his ancestors, supporting also his contention by reference to documentary evidence. In the course of both arguments, the King frequently interrupted, demanding an explanation in clerical Latin of certain passages. The councillors also seemed to exhibit marked signs of impatience from time to time, and at length, almost before the Navarrese had well concluded his speech, Richard de Luci addressed the King to the effect that, without any disrespect to the representatives of the powerful and virtuous princes here present, it was plain that the bishops and barons whom the King had summoned to assist in the decision of this cause were unable to comprehend the allegations of either side any more than if they were spoken in a barbarous tongue, and, therefore, it seemed to him desirable that the advocates should be required to use the Norman tongue, which, he added, was held in most esteem in the courts of divers Christian kingdoms. To this proposition the Bishop of London offered as an amendment that clerical Latin should be admitted; but this was negatived by a murmur of dissent amongst the lay nobility present, and a lively interchange of views followed on both sides. The King, however, put a stop to the discussion in a peremptory manner, and gave his decision in favour of admitting clerical Latin, but only in written allegations, with which each party was to furnish the Council within three days, in order that when these documents had been clearly explained and discussed by the Council, judgment might be given without further parley. Wherefore the present meeting was declared to be adjourned.

When the King had given this decision, the two embassies, without venturing any objection, withdrew in the same order as they had arrived, and their example was followed by the majority of those present. The chief topic of interest amongst the military part of the audience was the appearance of the two champions, of whose prowess in the wars against the Saracens many stories had been spread abroad, and the probabilities of the matter being referred to the battle was earnestly discussed on all sides. The clerical element, on the other hand, was anxious rather to argue the points of procedure that had arisen during the recent hearing, and especially the pretensions of the baronage that only the French tongue should be admitted. Concerning this subject, the Treasurer, who joined Richard as the King’s retinue was leaving the hall, had much to say, advancing many reasons on either side, but himself leaning somewhat to that of the barons, on the ground that the record of every plea should be made in the vulgar tongue, as being a proclamation more solemn than any deposition in writing; though now, he added, matters were somewhat altered, except in the ancient franchises.

At this point Richard inquired of the Treasurer what difference existed between the sessions of the king’s court before the king himself or before his justices. At which the latter replied as follows:

“You must know that the King sits in justice alone and supreme in all manner of causes, yet for the most part he uses to commit the hearing of the pleas of the subjects, and pleas of the Crown touching his revenue, or for the breach of his peace, and of the assizes of the realm, to his barons and justices; although I have known our King to preside in the matter of a convention made between two freeholders, whilst he has committed the judgment of an appeal of treason to the justices. But in those causes which concern the inheritance of lands and the encroachment upon his forests, and appeals in ecclesiastical causes, he is ever wont to hear and determine everything, with the assistance of his household or of the peers of the realm.”

“And in which court,” asked Richard, “is the greater wisdom discernible.”

“Now, truly,” replied the Treasurer, “I am in doubt as to an answer; for though the suitors benefit through the skill and precision of the presiding justices, yet it cannot be denied that our King himself is an incomparable judge of those things which are resolved by the course of the civil and canon laws. For in these causes he is both wise and subtle and resolute, so that none may gain any advantage over him in disputation, as you would have seen had you been present at the hearing of the great cause between the Bishop of Chichester and the Abbot of Battle.”

“Nay,” said Richard, “but if you remember I was then present, being engaged in pursuing my own causes; and I have also heard of the King’s skill in deciding the matter of the inheritance of Earl Bigot in his late court at Windsor.”

“However,” the Treasurer resumed, “I do not otherwise commend those general processes, for a large assembly is in its nature incapable of judicial gravity; so that the sessions of such a body are generally attended with confusion and quarrels, and even with blows. As to this doubtless you are aware of the reason for the Archbishop’s absence to-day, him of York I mean, who is but now recovering from the wounds inflicted on him at the Council holden here last Easter.”

“I have heard some rumours of this dispute,” replied Richard, “but nothing plainly.”

“Then I will tell you,” said the Treasurer, “who was an eye-witness, though an unwilling one. The Council whereof I speak was convened by the Cardinal for the reformation of ecclesiastical abuses, and the King was present there with his sons, and all the bishops and abbots and chapters of the kingdom. And when all were assembled in the chapel of the infirm monks, here at Westminster, it was seen that those archbishops, and their suffragans and their monks, were arrayed against one another like hostile armies about to join battle. And presently the signal was given, when the Archbishop of Canterbury went forward to take his seat at the right hand of the Cardinal; for immediately the other Archbishop stood in his way, and claimed the dignity of that place as an ancient privilege of his Church; and because he still pressed forward, plucked him by the border of his pall. Whereupon the Bishop of Ely, who stood by, seized the aggressor by the back of his neck, and so held him fast, and his cap fell off and was broken. And at the same instant the servants of the Archbishop of Canterbury and others fell upon him, and threw him upon the ground and beat him, and trampled on him with their feet, so that he was rescued from their hands scarcely breathing. And by reason of this scandal, the King was compelled to make peace between them, and to send the Archbishop of Canterbury and the Bishop of Ely abroad with his daughter, as far as St. Gilles, whence they are only lately returned. But the Archbishop of York has little health and less desire to attend more councils.

“This then is the sum of that which you seek to know, that it is better, for the welfare of the whole community that there should be a constituted body, how small soever, to hear and resolve all causes at some fixed spot, rather than that the King should depute sundry of his courtiers to determine such matters, to whom the science of the Curia and of the Exchequer may perchance be wholly unknown. And it is certain that sooner or later these changes will become necessary, for in the multitude of our judges there is little wisdom and much guile. But concerning these things, I would desire you to hear Ranulph de Glanvill and his brethren, who have greater experience in them than we at the Exchequer.”

With such talk as this they reached the hall of the inner palace, where dinner was prepared, and where the King entertained at his own table the foreign legates, with many prelates and nobles of the kingdom, and other clerks and laymen of his court, marshalled in due order of precedence. The fare indeed was modest, as befitted the beginning of Lent; but Richard was surprised at the infinite variety of fish that was served at each table: lordly salmon and great trout both sodden and baked with verjuice and spices, pike of three feet in length, roasted whole upon spits and stuffed with herbs and anchovies, eels in crust, potted lamperns, with tench, bream, and dace, and other common fish, all denizens of the river, and many of them long fattened in the fish stews that formed an important feature of the palace inclosure. Together with these was served almost every sort of sea fish that found its way to the riverside market. As soon as the banquet was ended, the King withdrew into his chamber for the purpose, it was understood, of conversation with the Spanish and Navarrese delegates respecting the political institutions of their respective countries, a subject of invariable attraction for this royal statesman.

Richard, learning that his friend the Treasurer was disposed for study, readily joined himself with a company of the younger courtiers present, who purposed, according to custom, to repair to the playing fields beyond the city walls, in order to initiate the Lenten tournaments always held there on Sunday afternoon—when the Court happened to be at London—between the chivalry not yet dignified by knighthood and the noble youths of the city. Accordingly, not long afterwards a gay cavalcade wended its way along the Strand towards the city, where, having fallen in with an equal number of the youths of the city mustered in the great square before the Church of St. Paul, the two squadrons proceeded towards the fields, followed by an immense concourse of spectators, both on foot and horseback.

Arrived at the appointed spot, where spacious lists had been prepared for the occasion, the tournament was opened by single courses between champions on both sides,—the citizens being, according to custom, the challengers. In this mimic warfare, however, neither steed nor rider was protected by armour, the latter having only a shield and a headless lance. The encounter, however, though bloodless, was an equal test of horsemanship and skill in the use of the lance, whilst the risk of severe falls and contusions was a sufficient proof of hardihood. As soon as the single contests were exhausted, and the champion who had displayed the greatest prowess had been proclaimed victor by the umpires, and rewarded with the prize of a gold chain, with which he was decorated by the fair hands of the daughter of one of the city magnates, a general engagement followed, the opposing bands vying in their display of skilful manœuvres, forming and wheeling and charging in several ranks, until at a given signal the combat was suspended, and the result was declared to be in favour of the courtiers, a verdict which excited some murmurs from the populace. Indeed Richard, who had remained an interested spectator of the tournament, having won his spurs many years before in the expedition against Toulouse, observed that an evident rivalry existed between the courtiers and citizens, which was not confined, as he was reminded by a recent tragedy, to a harmless encounter like the present. For as the former, after a joyous carousal and ceremonious farewell of the civic potentates, were returning again towards Westminster, the young heir of Bigot, next to whom he rode, asked if he intended on the morrow to witness the trial of John the Elder and those citizens, his fellows, who stood accused of housebreaking and other crimes against the king’s peace; of which, doubtless, he added, the murder of the brother of his father’s old friend and companion in arms, the Earl Ferrers, when the Court first came to London, was one.

The sun had set behind the orchards and thickets of the Abbey before the party returned to Westminster; and immediately after supper Richard sought his couch, resolved upon being present at the expected trial of the recreant magnates of the city.

On the following morning, therefore, he rose early and waited upon his lord and patron, Richard de Luci, the justiciar, to whom the conduct of the trial belonged. Here he was informed by one of the deputy marshals of the Curia that the midnight robber, who had been previously wounded and secured, had been admitted as the king’s prover, and that he had already denounced many of note amongst the younger citizens, some of whom had fled the city, and others were already taken, besides John the Elder, all of whom were lodged in the gaol of Newgate, and would be brought before the king’s justices at Westminster that very morning. Upon hearing this news, Richard proceeded to the lodging of his kinsman, Ranulph de Glanvill, who, on learning his wishes, readily consented to accompany him.

Long before the hour appointed for the trial, a crowd of citizens had assembled in front of the palace gates, while more privileged courtiers had taken their stand in the body of the Hall itself. At the hour appointed for the proceedings of the court to begin, the Justiciar, Richard de Luci, entered, attended by various serjeants and officers, and also by several clerks and scribes who were prepared to endite a report of the proceedings in the rolls of the court. The Justiciar took his seat on the broad bench at the summit of the Hall, and the clerks occupied benches at a table immediately in front. Next the king’s “prover” was brought in, unarmed, for, having lost his right hand in the manner before related, it was not intended that he should substantiate his accusation by a personal combat. After him followed the sheriff of London, William, son of Isabel, to whose custody the prisoners had been committed, and three or four of these wretches, half-naked and securely pinioned, under the escort of the sheriffs, serjeants, and the gaoler of the king’s prison, were next brought up to the bar which divided the judges and clerks from the body of the court.

The proceedings which followed were short and simple in the extreme. The Justiciar rose and spoke a few words to the effect that the King was deeply moved to anger by the frequent contempts and crimes committed heretofore by divers malefactors of that city, which he was resolved to visit with condign punishment, as would presently be evident. At the conclusion of this significant preamble, the king’s “prover” was pushed forward by the sheriff. Pale as death, with trembling limbs and faltering accents, he appealed John the Elder, and others his associates, for that they did by night within the king’s peace, feloniously break into the lodging of a certain lord, namely the brother of the Earl of Ferrers, and him wounded, and dragged into the street, and killed with blows; and also for that the same did, not long afterwards, feloniously break into the lodging of another lord, namely Robert de Estutevill, and this he offers to prove as the court shall direct, being a man maimed. And the defendants, thus appealed, answered, and traversed the entire charge, word for word. Thereupon twelve citizens, who had been impanelled by the sheriff in open court, as dwelling in the same wards with the accused, and sworn to declare the truth of the matter, came forward and stated that they held the said persons appealed in grave suspicion of guilt, who thereupon demanded the franchise of the city, namely, to clear themselves by the joint oath of their peers. But the Justiciar denied this claim, on the ground of the supreme jurisdiction of the king in his court, and decreed that they should clear themselves by the water, for such, he said, is the King’s commandment, and that it be done suddenly.

The whole proceedings had not lasted ten minutes, and here were six men adjudged to a shameful death practically unheard, and with no appeal but to the justice of Heaven to work something like a miracle in their behalf, for such was the real meaning of the ordeal of water—a yet more desperate resource than the trial of the heated iron, though the accused had not even been permitted to choose between these implements of torture.

Thus thought Richard de Anesti as he found himself hurried along in the eager throng of sightseers which pressed towards the great doorway through which the officials and prisoners had already passed on their way to the place of torment.

It is related that in the old days of simple piety and austere faith before the Conquest, the ordeal was always performed as a solemn religious mystery in the interior of a church, and the Divine interposition on behalf of the innocent was invoked by prayer and fasting; but now the test had degenerated into a meaningless form of law—a straw carelessly dropped within reach of a sinking man. Therefore, without proceeding as far as the Church of St. Peter, the procession halted on the verge of the abbey precincts, where, in an excavation made for the purpose, a large copper filled with water was already steaming over a roaring furnace of pine logs. Here the prisoners were halted, and the sheriffs’ serjeants bandaged each probationer’s hand and arm with thick folds of linen, to the upper and lower joints of which the sheriff affixed his seal upon a thin disc of molten lead. Then the accused were called upon in turn to attempt the ordeal, which consisted in plunging the bandaged arm into the now boiling cauldron, so as to snatch away from the bottom a large white stone. This John the Elder successfully accomplished, but two out of his five associates were not so successful; for one of them being overcome by the heat of the furnace, or blinded by the smoke and flame, was unable to lay hold of the stone, and still groping for it with his arm, fainted with the pain, and would have been either boiled or roasted alive if the sheriff had not plucked him forth. This horrible sight so disconcerted the last of the accused, that, having advanced to the edge of the furnace, his courage failed him, and he piteously refused to make the required attempt. Thereupon he was adjudged guilty, and sentenced by the Justiciar to be hanged with the other prisoners who had failed to clear themselves in the manner required by custom. The four remaining prisoners who had braved the terrors of the ordeal were now respited in order that the judgment of God might be apparent from the inspection of their arms at the lapse of three days; for then he upon whose flesh appeared no mark of scalding was held to be unscathed by the water, and was discharged or banished, according to his character; but otherwise he was punished with the extreme rigour of the law. These then were now removed under a guard to prison, but the two already convicted, having been hurriedly tied by their feet to the tails of two horses, were dragged in that manner by the sheriffs and a mounted party towards the place of execution, followed by a large part of the spectators both on horseback and on foot. Richard had no desire to be present at the final act of justice, but returned slowly towards the palace, still musing upon the problem which had been suggested by the recent scene, and which was nothing less than the possibility of the administration of justice in a spirit of equity and humanity.

He had not proceeded far before he was overtaken by Ranulph de Glanvill and his brother William, and together they returned to the White Hall, where they found the Treasurer and a few other clerks and courtiers awaiting the King’s return from his daily hunting expedition, and here, after some conversation upon the subject of the late proceedings, Richard, addressing himself to the Treasurer, mentioned the objections which had occurred to him as a layman in the judgments of criminal presentments, inquiring whether this process was common to other kingdoms, and for what reason the great perfection displayed in the judgments of the Curia and Exchequer in other pleas had not been extended also to these; and, lastly, whether the evil were such a one as might be remedied. To which the Treasurer replied as follows:

“It is true that neither the providence of the king and his justices, nor the vigilance of the sheriffs and his other ministers, can wholly prevent those evils of which you have complained. But whether the laws themselves and the assizes of the kingdom are to blame therein, I will not willingly decide, but will refer you on this point to our most learned justice, your kinsman here.”

Ranulph de Glanvill, who was thus appealed to, appeared to accept the Treasurer’s challenge, for he immediately addressed himself to Richard in the following words:

“I admit,” he began, “in part the truth of what you have spoken. But consider now that there is no similitude between the Common Pleas of the King’s Court or at the Exchequer and the presentments of which you make mention, which notoriously are practised in the provincial courts, according to the ancient laws of the English, among which is this same trial by the ordeal, whereas the Curia and Exchequer are in their origin wholly Norman. But it is to be considered in respect of the ordeal, that if the accused be nobles or freemen, or burgesses, they shall have the appeal of battle, or the judgment of their peers, or the custom of their city; though truly our King is no respecter of persons, as you have just now seen, and thinketh that for men convicted by the oath of their neighbours, the ordeal is sufficient. So then this judgment is clearly to be laid to the charge of the English laws, and I myself who have read these laws throughout, believe that they are requisite to the state of this kingdom, and that they will continue with little change into after times. For the nature thereof is this: To preserve the peace of God, together with the king’s peace, unto all men, wherein it is enjoined that the whole body of people shall be assisting, and therefore they are the best judges of their fellow’s guilt or innocency, to which end also they solemnly invoke the judgment of God to declare the truth before the guilty are punished.”

Richard could not help admitting the justice of these reflections, and because, he added, he himself had spent nearly six years in the prosecution of a single suit, it seemed at least a merit that justice should be expeditious even at the expense of outward ceremonies.

Then several courtiers who were present having marvelled greatly at the exceeding length of his suit, at their request, and with the permission of the Treasurer and the other great men there, Richard spoke as follows.

WESTMINSTER.—THE KING’S COURT

“It is now thirty years ago,” Richard began, “that William de Sackville, my uncle, died, leaving to me and to one other a disputed inheritance. And the cause hereof was this: that the same William, long before, was contracted in the bond of matrimony with Albreda, daughter of Geoffrey de Tregoz, but notwithstanding this solemn vow, he soon afterwards married Adeliza, daughter of Aubrey de Vere, contrary to the laws of Holy Church. And thereupon Albreda, whom he had thus wronged, brought her suit in the ecclesiastical courts, and because she could not have justice done her there, she appealed thence to the Bishop of Winchester, being at that time the legate of our lord the Pope, by whom the truth of the matter was certified to the Court of Rome. And afterwards, by virtue of a certain rescript of our lord the Pope, sentence of nullity was pronounced in a synod held at London in the year of Our Lord 1143, and accordingly the said William returned to Albreda, and lived with her till his dying day. But although he thus submitted himself to the decree of Holy Church, and put away her with whom he had sinned, yet he continued to bear a great affection towards her, and especially to the daughter whom she had borne to him, by name Mabel. And many years after, being infirm with age and sickness, the said Mabel and her husband came to him and abode with him till his death, and afterwards entered upon all his manors and lands, on the pretext that the said Mabel took the same as his daughter and heiress. Moreover, they feigned that the said William, before his death, had repented of the evil that he had wrought towards Adeliza, having confessed the whole truth in the presence of the Abbot of Colchester and other religious persons, as follows. That he had by no means entered into that contract with Albreda, as had been supposed, but had received a release thereof from her father to himself and his father, by agreement on both sides, after which he married Adeliza openly in the face of the Church, who was driven from his house against his will by the subtle devices of Albreda, and of those who were in hope to inherit in default of his issue by her such as afterwards came to pass. Alleging further that the legate and those who were joined with him in pronouncing that sentence of nullity had been influenced therein by gifts.

“And because Mabel and her husband were in possession of my rightful inheritance, and would not even make a concord with me about the same, I sent a certain man of my own into Normandy for the King’s writ, whereby I impleaded my adversaries. And when my messenger brought me the writ, I proceeded to Sarum, in order that it might be returned under the Queen’s seal. And when I came back I heard that Ralph Brito was about to cross the water, so I followed him to Southampton to speak with him, in order that he might purchase for me the King’s writ addressed to the Archbishop, because I knew that the plea would be removed into the Archbishop’s court. And having returned from Southampton with the Queen’s writ, I went to Ongar, and delivered the writ to Richard de Luci, who, having seen the same, gave me a day for pleading at Northampton on the eve of St. Andrew; and before that I sent Nicholas my clerk for Geoffrey de Tregoz, and for Albreda his sister, to wit she who had been my uncle’s wife, whom he found at Berney, in Norfolk. And when the clerk returned, I went to Northampton to open my pleadings with my friends and helpers, and hence Richard de Luci gave me another day at Southampton, on the fifteenth day. Afterwards Ralph Brito came from Normandy, and brought me the King’s writ, whereby the plea was removed into the Archbishop’s court, and I carried the writ to Archbishop Theobald, whom I found at Winchester; and then he gave me a day on the feast of St. Vincent, and that plea was held at Lambeth; and thence he gave me a day on the feast of St. Valentine the Martyr, and that plea was held at Maidstone. From thence he gave me a day on the feast of St. Perpetua and St. Felicity; and meanwhile I went to the Bishop of Winchester, to talk with him, so that he might certify the divorce which had been before him in the synod at London. And having received the bishop’s certificate, I appeared on the day assigned to me prepared for pleading, and that plea was held at Lambeth. From thence he gave me a day on the Monday next after the Lætare Jerusalem. And meanwhile I went for Master Ambrose, who at that time was with the Abbot of St. Alban’s, in Norfolk; and Sampson my chaplain I sent to Buckingham for Master Peter de Melide.

“Having thus secured the clerks above-named, I kept my day with my helpers at London. Thence the Archbishop gave me a day on Quasimodo Geniti Sunday; and meantime I sent John my brother beyond sea to the King’s Court, because I was informed that my adversaries had purchased the King’s writ not to plead until the King should return from beyond sea; and therefore I sent my brother for another writ, that my plea should not be stayed by reason of this writ of my adversaries. And in the meantime I went myself to Chichester, to talk with Bishop Hilary, so that he might testify to the divorce which had been pronounced in his presence by my lord of Winchester, in the synod at London; and I received his testimony, namely, the letters which he despatched to the Archbishop testifying the divorce.

“At London I kept my day with my clerks and witnesses and friends and helpers, and I remained there during four days, pleading every day. Thence he gave me a day on Rogation day, and when I kept it at Canterbury, my adversaries said that they would not plead on account of the summons of the King’s army against Toulouse. So I followed the King, and I found him at Auvilar, in Gascony. And in this journey I waited thirteen weeks before I was able to have the King’s writ to proceed with my pleadings. As soon as I had purchased the King’s writ, I returned, and having found the Archbishop at Mortlake, I delivered the King’s writ to him, and he gave me a day on the feast of St. Crispin and St. Crispianus, on which day I came to Canterbury; and from thence he gave me a day on the octaves of St. Martin, on which day I came to Canterbury. From thence my lord of Canterbury gave me a day on the feast of St. Lucia the Virgin; and meanwhile I sent Master Sampson my chaplain to Lincoln for Master Peter. But when my day came I was unable to plead on account of my illness; so I sent my essoigners, who had me excused at Canterbury. And thence a day was given me on the feast of St. Fabian and St. Sebastian, on which day I came to London, where my lord of Canterbury then was; and from thence he gave me a day on the feast of St. Scolastica the Virgin, and I kept it at Canterbury; and thence on Lætare Jerusalem, and I kept it at London; and thence on Misericordia Domini Sunday. And in the meantime I sent Robert de Furneis and Richard de Marci for Godfrey de Marci, and I myself went to the Bishop of Winchester, that I might obtain a more perfect certification of the divorce pronounced by him. And I found the bishop at Fareham, by Portsmouth, and from thence I brought back with me Master Jordan Fantasma, here, and Nicholas de Chandos, that they might be able to testify by word of mouth what the bishop had also testified by his writ. And I kept my day at London, prepared to plead, and thence the Archbishop gave me a day on the Close of Pentecost. And meantime I went myself to the Bishop of Lincoln for Master Peter, who then was with him at Stafford, and I sent Sampson my chaplain for Master Steven de Binham, whom he found at Norwich. And thence I kept my day at Canterbury, prepared to plead with my clerks, witnesses, friends, and helpers; and there we pleaded for two days. From thence he gave me a day on the octaves of St. Peter and St. Paul, and I kept it at Wingham; and thence on the feast of St. Sixtus, and I kept it at Lambeth; and thence on the Decollation of St. John the Baptist, and I kept it at Canterbury; and thence on the feast of St. Luke the Evangelist. In the meanwhile I crossed the water that I might crave license from our lord the King to appeal to Rome; and having received the license, I appealed to Rome till Lætare Jerusalem. After this I sued for the Archbishop’s writ of appeal; but he refused to give it me forthwith, but he gave me a day to receive it at Canterbury, on which day I came and received my writ, but without seal, so that I might show it to my advocates and obtain their opinion whether it was according to law. And afterwards I sent his writ, by Sampson my chaplain, to Lincoln, to show it to Master Peter. And afterwards I sent it to Master Ambrose, whom the messenger found at Binham. And when the writ was corrected by my advocates, I brought it again to Canterbury, that it might be sealed; but after seeing it, they refused to seal it as it was, but they gave me another also without seal. Thence, after I had received this writ, I went to show it to the Bishop of Chichester, and when I had heard his advice I returned. And then I sent the writ by Sampson my chaplain to Master Peter. I then sent the same writ again to Master Ambrose at St. Alban’s; and when I had received their advice, and the writ being corrected, I went to the Archbishop at Wingham, and there my writ was sealed. And when I came back I sent John my brother to Winchester, in order that he might purchase the bishop’s writ, certifying the divorce to the Holy Father, and I myself went to the Bishop of Chichester, whom I found at Salisbury, in order that he might certify the divorce by his writ addressed to the Holy Father in the same manner as he had done to the Archbishop. And a second time and a third time did I send my brother to Winchester before I could have an available writ. Thereafter I got my clerks ready, and sent them to Rome, to wit, Sampson my chaplain, and Master Peter de Littlebury, and one man to attend them. And when they came back I received from them the writ of our lord the Pope, and brought it to the Bishop of Chichester and the Abbot of Westminster, to whom the same was addressed, in order that my plea might be brought into their court. After they had seen the apostolical precept, they fixed a day for me to plead at Westminster in eight days of the feast of St. Michael. And I kept my day, with my advocates and witnesses and friends and helpers, and there we tarried three days before we pleaded, on account of the King’s commands about which the abbot and the bishop were employed. And thence they gave me a day in eight days of St. Martin. In the meantime I sent John my brother for Godfrey de Marci, in order that he might attend as my witness, and he could not come, because he was ill, but he sent his son in his place. On the appointed day I came to London, prepared and ready to plead, because I thought that I should then obtain my judgment, and there we tarried five days, and then my adversaries appealed to the presence of the Holy Father himself till the feast of St. Luke the Evangelist. And I requested the instrument of appeal, and they gave me a day at Oxford on the feast of St. Andrew. And I kept my day, and tarried there for nine days before I could obtain my instrument; and having received it, but without seal, I carried it to Master Peter at Lincoln, in order that he might correct it. The writ being corrected, I carried the same to the Bishop of Chichester at Winchester, on the octaves of the Epiphany, in order that it might be sealed there. But the bishop would not seal it, because the Abbot of Westminster was not there; but afterwards it was sealed at Westminster on Lætare Jerusalem. Afterwards I went to the Archbishop of York for his writ deprecatory, addressed to the Holy Father, and to the Bishop of Durham for his writ to the Holy Father and the cardinals; and I found them both at York. And I returned to the Bishop of Lincoln for his writ to the same, and afterwards to the Bishop of Winchester for his writ; and I found him at Glastonbury. And when the time of appealing drew nigh, having prepared my clerks, I sent them to the Court of Rome, where they tarried sixty-two days before they could have my sentence. And now, if you would know how they fared on that journey, Master Jordan here will tell you, who was there himself.”

Hereupon the courtiers having entreated Master Jordan to relate what befell him at the Court of Rome, he complied with their request as follows:—

“As soon as I had received these commands from the knight my master here, together with the writs and allegations on our side, and twenty-five marks in silver for our expenses, I joined myself with Master Sampson, my lord’s chaplain, and one man to attend us, and having prepared ourselves with horses and an outfit suitable to the journey, we slept that night in London. And on the following day we rode to Rochester, and on the next to Canterbury, and thence half a day’s journey to Dover, where we took ship to Witsand. And thence, on the seventh day, because the ways were foul, we came to Paris, where for three days I frequented the English school, being desirous of embracing many of the scholars who were formerly my own. And thence we proceeded, but slowly, because of the forests and from fear of robbers, to Chalons; and thence, ten days’ journey amongst the hills, to the hospice of the Great Mount. And thence gladly we fared by the plains to Pavia; and so by easy journeys to Cremona, and Parma, and Biterba, and on the fifth day we arrived at Rome. I will not speak now of the greatness of that holy city, which I then beheld for the first time, but will proceed to relate what befell us there, according to your wish.

“At the first I laboured for three days in the Curia, to obtain letters confirmatory; and after I had advanced many reasons on this behalf, our lord the Pope spoke to me benignly, promising that the same should be granted. And thereupon I made a gift to him of a silver cup, of the value of six marks. But when I daily prayed for the delivery of these letters, our lord the Pope was unwilling, because he would first hear our adversaries, who had been detained by the way. And when I still further importuned him, he answered sharply, ‘Ye have had your answer,’ to which I replied quickly, ‘Yea, and a masterful one.’ Then he in great anger inquired, ‘Is it not also a just one?’ Whereupon, casting down my eyes, I replied again, ‘Lord, I know not.’ But he forthwith commanded me to keep silence and to withdraw.

“After this I went to Piacenza, and afterwards to Pavia. And in the meantime our adversaries arrived in Rome, having been taken and plundered at Chalons. Therefore I too returned to the city after visiting Bologna, where I engaged certain of the most learned doctors in the civil law in our behalf. And after I had returned the Court ordered that we should be prepared to plead on the third day from then; on which day, when we were all together before the Court, our lord the Pope said thus: ‘Ye shall only speak to the matter and not of things immaterial.’ And thereupon we made our allegations on both sides, and our answers thereto on both sides. And once our lord the Pope cut short our adversaries’ allegation, saying fiercely, ‘We want no long history!’ so that their advocate, dismayed, lost the sense of his argument. And again, when they complained that I had engaged all the best advocates for our side, he laughed loudly, saying, ‘There will never be found a lack of advocates in the Roman Court.’ And when I spoke in my turn, knowing the fastidiousness of our lord the Pope, I spoke briefly and to the point; but at the end I wept somewhat, when I related the evils that we had endured. Whereupon, turning towards the cardinals, he laughed, and whispered something to them, whereat they laughed also. And because our adversaries especially denied the authenticity of certain transcripts of briefs formerly received by the legate in England, pronouncing the opinion of the Roman Court for the divorce to be decreed, our lord the Pope commanded that they should be given to him; and when he had seen them, he gave them into the hands of the cardinals, who also examined them, and finally they commanded the clerks to search for the counter briefs, and afterwards compared them with our transcripts, declaring them to be authentic. And when we had concluded our arguments, and were all seated, our lord the Pope asked if we had any further allegations, and I then demanded judgment in our cause. But he commanded us to depart and write out our allegations, and deliver them to him the same day. And after I had done this, with the help of my advocates, there remained nothing to be considered of save the sentence itself, to procure which, in our favour, was plainly beyond our skill, unless also it was due to the justness of our cause. Nevertheless, during the following week we implored the Divine aid with prayer and fasting and continual almsgiving. And Master Sampson greatly assisted us at this time by his remarkable piety. For he not only remained fasting for five days, during all which time he perambulated the holy places and shrines of the city, commending our cause to the pilgrims and other devout persons there, giving alms also to all needy persons, whether they had craved them or no, so that the fame of his good works was noised abroad throughout the city; but further, when we attended the Court again to receive sentence, kneeling in the door, he embraced the feet of each cardinal as he entered, as though he would wash them with his tears, so that all present, and even our adversaries, pitied his miserable condition.

“At length, about the ninth hour, our lord the Pope came forth from the inner council chamber with the cardinals, and because I saw that the ushers, whom I had loaded with gifts, smiled graciously upon me, I took heart. And when the cardinals were all seated, and we stood forth on one side, and our adversaries on the other, as had been our custom, our lord the Pope commanded, ‘Stand ye together in the midst; for now there is no longer any strife betwixt you, since we have brought you into peace with one another.’ And when we had come together, our lord the Pope began to recall the nature of our suit, and how, after full examination of our allegations and other writings, sentence had been prepared in the accustomed manner. Yet I then took no note of his speech, because I was not able to compose my senses, standing like one in a dream, until the principal prothonotary of the Court arose, and began the reading of the sentence. But as soon as I heard the words, ‘to our beloved son, Richard de Anesti,’ then I was suddenly aware that we had gained our cause, for the sentence of the Court is ever wont to be addressed to the side that has prevailed. And when the sentence was read, we fell at the feet of our lord the Pope, and when we rose again, Master Sampson lay still at his feet like one dead, having fainted away through joy after his fasting. So we raised him up tenderly, and bore him away, and our lord the Pope ordered that we should receive the instrument to see, if it needed any correction; and having received his blessing, we departed joyfully.

“After this we received the command of our lord the Pope that we should not leave the city. Moreover, we owed forty shillings to the merchants of Rome, who demanded to hold our instrument and writings in pawn for the same. And being all of us suffering through illness, we cast lots which should return alone to England for succour and to bear our tidings. And the lot fell upon Master Sampson, who departed from the city secretly. After whose departure I daily implored the license and benediction of our lord the Pope, that I might depart also; but I could not obtain it because I had not yet visited him and the cardinals to bestow my gifts upon them, as the custom was. But because I was unable to do this for lack of means, and since my sickness increased daily, I borrowed forty shillings from a certain clerk of the Bishop of Lincoln, who was then attending the Court in the matter of the appeal of the Abbot and Convent of St. Alban’s against the jurisdiction of the said bishop. And having redeemed our instruments from the merchants, I changed my dress, and craving the license of the holy Apostles Peter and Paul, and receiving the apostolical benediction, in the midst of the crowd, I departed secretly from the city. And each day till I had reached the hospice of the mount I was in fear lest I should be brought back; but at length, with the Divine protection, I reached England in safety.”

At the conclusion of Master Jordan’s narrative, which had been listened to with deep attention by every one present, Richard de Anesti again resumed his story at the point where it had been left off.

“When my clerks had returned from Rome, as you have just now heard, they delivered to me the sentence which confirmed the former one of adultery, whereof one instrument was directed to the Archbishop, another to Richard de Luci, and the third to me, and with these I went to my lord Richard de Luci, whom I found at Rumsey; and there we awaited the return of the King, who was about to come back from Normandy. Thence I followed the Court for three weeks before I could make fine with the King; and because the King was vexed on account of his Holiness not having directed any brief to him, I sent a messenger on the following day to the Holy Father for a writ directed to the King (which my messenger afterwards brought to me on the Close of Easter, at Windsor). After I had fined with the King, my lord Richard de Luci, by the King’s precept, gave me a day for pleading at London, at Mid-Lent, and there was then a Council; and I came there with my friends and my helpers, and because he could not attend to this plea because of the King’s business, I tarried there four days, and from thence he gave me a day on the Close of Easter, and then the King, and my lord Richard, were at Windsor; and at that day I came with my friends and helpers, as many as I could have, and in the meantime I sent my brother for Ranulph de Glanvill, and because my lord Richard could not attend to this plea because of the great plea of Henry de Essex, the judgment was postponed from day to day till the King should come to Reading, and at Reading in like manner it was postponed from day to day till he should come to Wallingford. Afterwards, because my lord Richard was going with the King in his war against Wales, he removed my plea into the Court of the Earl of Leicester at London; and there I came. But because I could not get on at all with my plea, I sent to my lord Richard in Wales, to the end that he might order that my plea should not be delayed; whereupon, by his writ, he ordered Ogier, the King’s server, and Ralph Brito to do justice to me without delay. So they gave me a day at London. There I kept my day with my friends and helpers, and from thence my adversaries were summoned by the King’s writ, and by my lord Richard’s writ, that they should come before the King. And we came before the King at Woodstock, and there we remained for eight days, and at last, thanks to our lord the King, and by the judgment of his Court, my uncle’s lands were adjudged to me, being the sixth year since my suit began. Moreover, I had spent in these causes the whole of my substance, namely: for the expenses of my journeys and my living, and that of my messengers and others, £126 14s., besides eight palfreys and pack-horses that were killed in those journeys, £6 6s. 8d.; and in gifts to my advocates and helpers in the Archbishop’s Court, £21; and in the King’s Court I spent in gifts, both of money and horses, £13; and to ‘Ralph, the King’s physician, I gave £21; and to the King a hundred marks of silver, and to the Queen a mark of gold for my fine. And besides the money I had of my own, I borrowed, of certain Jews at several times, the greater part of that which I spent; and I paid £32 1s. 9d. for the usance thereof; and, in short, after I had enjoyed my uncle’s lands and goods for upwards of three years, I still owed fifteen marks of my fine to the King, and to Hakelot the Jew £27, the interest whereof had mounted up to £20 9s. Therefore, my lords, it seemeth to me that it is better for a man to have injustice done to him without much delay, than that he should lose, perchance, more than he has gained by due process of law.”

At the conclusion of Richard’s narrative of his famous law-suit, there was a renewal of the conversation upon judicial matters until the King’s return from hunting caused a general dispersal of the courtiers.

In the course of the next few days the Court left London once more, but Richard chose to remain, partly because of the attraction offered by his pleasant intercourse with old friends amongst the clerks of Westminster and the canons of St. Paul’s, and partly, also, because he was as yet unable to make any fine with the King; so that he was resolved to await the session of the Easter Exchequer before taking more active steps in his own business.

[1 ]This essay forms Chapters VI and VII of “Court Life under the Plantagenets,” 1890, pp. 81-113 (London: Swan Sonnenschein & Co.).

[2 ]Of His Majesty’s Public Record Office, London; F. S. A.; Director of the Royal Historical Society; Teacher of Early Economic Sources, in the University of London.

Other Publications: History of the Customs Revenue, 1885; Society in the Elizabethan Age, 1888; Antiquities and Curiosities of the Exchequer, 1891; The Red Book of the Exchequer, vols. I-III, 1897 (Rolls Series); and various articles in historical journals.