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and other actions, wherein the debt or damages were under forty shillings; and they also owed their origin to the practice of sub-infeudation which prevailed before the statute Quia emptores terrarum (West. 3), for the feudal system then in vogue made it incumbent on all freeholders of a manor to hold enquiry from time to time, lest their lord, or he of whom they held their lands, should lose any of the services, customs, or dues incident to their mode of tenure. They were bound to make suit and show obedience to their lord, and take care that nothing was done within the manor which was a nuisance or hurtful to his inheritance. All this made a court necessary, and such a court was a Court Baron. The tenants in fee within the manor were the suitors, and these being freeholders were the judges as well; and as long as there were two free tenants, a court baron could be held to enquire and present on behalf of the lord. Such courts, it need hardly be said, were ancient, as are all manors; for unless they existed before the statute Quia emptores, no length of time subsequent would win them any legal recognition. The court baron was parcel of its manor and inseparable from it. The free suitors sworn to present in court baron were called collectively the "homage." The suit of the free tenants was called "suit service," as founded in free tenure of land within the manor. If there were no free tenants in the manor, but copyholders only, then the seneschal was judge; otherwise, as has been said, the homage and not the steward were judges. Appeal from them was by writ of false judgment. The steward was their registrar; but " as ignorant "persons should not meddle in matters touching "the law," he had the duty, as one learned in the law, of keeping the homage right in such points. After entering on his roll the style of the court, it was the seneschal's part to make "oyez" or proclamation once. And then the suitors were called over and entered. After that came another "oyez," and the essoins or absences for good cause were recorded and plaints entered. The homage were then empanelled and sworn, whereupon the steward, if so minded, might make an exhortation to them, setting forth the great reasons why they and all the other tenants were there, as that they were themselves freeholders and all the others copyholders, and therefore owed suit, every one of them, to the court baron of their lord every three weeks, if so often held; or that then and there they might learn the laws, to know what things to ensue and what things to eschew, and so live and enjoy their possessions in peace, and see the country flourish and virtue abound; and to enable them the better to enquire and present as they ought, he had administered to them an oath, which bound them to present the truth and the whole truth, and to judge with good advisement and not in haste, negligently, or for favour, corruption of reward, fear or malice, and so forth.
The charge was the next portion of the steward's task, and this consisted in a short preliminary explanation of the law on matters to come before them. Thus, he might lay stress on their strict duty to enquire if any man who had not unlimited common surcharged the common with more beasts than he ought according to the quantity of his holding. Or, if a man having common appendant only, and not common appurtenant, put on the common animals not commonable: as swine, goats and geese. Or, if anyone dug in the common, except for gravel for the highway (and even then he was bound to fill the hole up afterwards), or committed any other trespass on the common, as by using it without the license of the lord in any other manner than to take his share with the mouths of the beasts. To dig turf, or build a house on, or make enclosure of, any part of the lord's Waste was, the steward might explain, highly enquirable, and so of other things. He might in conclusion tell them to enquire of all other matters which in their consciences they believed it convenient to do, and to bring in their verdict in writing at such an hour.
Distinct from the court baron, which was a court of common law, was the Customary Court of the copyholders, though usually held at the same time and place.
From the Rolls hereinafter set out, the mode in which the homage brought in their findings sufficiently appears. The style and other portions of the common form of the roll are in Latin in the originals, and the rest in English. Of old it was customary to write out the whole of our court rolls and judicial records in Latin. The same rule prevailed in regard to the formal pleadings in an action, and when, upon a trial, these were opened by the junior counsel or apprentice in law, a translation in English was given to the jury, if any; and it need hardly be said that English was the language in which the senior counsel or serjeantat-law laid the details of his case before the twelve good men and true, and commended it to their attention. On the Crosby Rolls of 1628 and 1634 no pleas are entered; for the trial of issues between parties in a manorial court had then fallen into desuetude. To take some other points from these rolls as illustrating the foregoing remarks :—
There are four essoins entered on the roll of 1628. An essoin was an absence from court on a failure to proceed, due to lawful cause. Chaucer, in The Parson's Tale, uses "essoyne" and "excusacion" as synonymous. After the name of the essoined follows the name of the man who presented the excuse to the court. The circumstances in which an essoin or a delay of appearance or proceeding was allowed were well settled on the two broad principles, that a man was not to be dragged to court at a sacrifice out of proportion to the matter before the court, and he was not, on the other hand, to be permitted to delay, and often therefore defeat, justice on every limping pretence.
After the list of free suitors comes the "homage," as the men sworn to enquire and judge were called. The number is sixteen, though two would have sufficed in law, as, according to the entry, their inquisition is expressly stated to be "taken for the lord," and two suitors may enquire and present for the lord of a manor, although twelve at least were always required to try an issue between party and party, and the parties could claim a trial by twelve as an indefeasible right, and a portion of the inheritance of every Englishman, by the common law of England.
The amount of each amercement or misericordia is small. There was the writ "Moderata misericordia" in the register, for a man who was amerced outrageously in court baron—a writ founded on the words of Magna Charta that " For a trifling offence "a free man shall not be amerced except in pro"portion to such offence, and for a great offence "according to the greatness thereof." And by the same statute it was provided that no amercements should be imposed save on the oath of good and lawful men. So that the seneschal could not affire or fix the amercements, but perforce left that duty to the affierors.
After the presentments, and amercements made in respect thereof, the rolls contain a list of byelaws, with pains or penalties for breach thereof, introduced with the formula—" And it hath been "ordained by the jurors, with the consent of the "seneschal, as follows."
How far a manorial court could go in its byelaws seems a matter of custom in each place. Thus in some manors a bye-law could be made that anyone who surcharged the common should pay the lord so much, but in such case it was incumbent on the lord, if the lawfulness of the penalty were disputed, to show that his tenants had from time "whereof memory of man goeth not to the con"trary" been accustomed to make such bye-laws in regard to the common or other land, and the lord's right to distrain for penalties under a byelaw had to be founded in immemorial usage. The enforcement of the bye-laws was the task of the "burleymen," which word seems a corruption of "bye-law men."
In the lists of annual officers, given at the foot of the rolls, there appears one bailiff, four burleymen, four aspectatores agrorum or field-wardens, four taxatores misarum or affeerers of amercements, two mosseti or wardens of the moss, two surveyors of the king's highways and two of the sandy coppes or sandhills, and two asseratores curia or ushers of the court.
In conclusion it may be added that the Rolls here copied are the property of Col. Nicholas Blundell, of Crosby Hall, and the thanks of the Society are due to him for the loan of them. The substance of the foregoing introductory remarks is taken from "Le Court Leete et Court Baron, collecte per John "Kitchin, de Graies Inne, un apprentice in ley" (ed. 1607), a work in Law French, first published in 1581.