CRIME AND JUSTICE Florilegium Urbanum
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Keywords: medieval Chester legal procedure lawsuits trial property disputes dower rights essoin moot court doomsmen
Subject: The arduous legal process
Original source: Chester City Archives, Portmote roll 2, mm.1-2
Transcription in: A. Hopkins, ed. Selected Rolls of the Chester City Courts, Late Thirteenth and Early Fourteenth Centuries, Chetham Society, 3rd series, vol.11 (1950), 1-4.
Original language: Latin
Location: Chester
Date: 1295


TRANSLATION

Pleas [heard on] 11 April 1295

A date is assigned to Thomas de Mamcestria and his wife Codusa, plaintiffs, Ralph de Derisbur, his wife Margery, and Alexander son of Alexander Hurel [defendants], concerning a plea of dower, on 2 May at the request of the parties.

Richard son of Michael le Tevene of Chester was summoned to answer Thomas de Mamcestria and his wife Codusa, concerning a plea that he let them have Codusa's fair dower rights in regard to the freehold that belonged to Richard son of John Ground, her former husband in Chester. In relation to which Thomas and Codusa charge that Richard [le Tevene] withholds from them a one-third share in a tenement with appurtenances in Chester, so that they receive nothing from it, the which Richard [Ground] endowed Codusa with at the church door when he married her. If Richard [le Tevene] wishes to deny this, Thomas and Codusa are prepared to prosecute. Richard comes and denies the force etc. when etc. He requests a view of the property against [the plaintiffs], and this is granted. A date was assigned to the parties, on 2 May, to undertake in the suit what justice requires to be undertaken.

On which day Thomas and Codusa appeared against Richard. And Richard comes and says that Richard Ground had no rights in the tenement in question other than for a term of years; in regard to which he produces a document in the name of John Ground, father of that Richard, which evidences the fact, and requests that this be enquired into. Thomas and Codusa reply that Richard Ground had sufficient right and estate in that tenement for Codusa to be capable of, and due, dower, and request that this be enquired into.

Pleas of the portmoot on 2 May 1295

Thomas de Mamcestria and his wife Codusa appeared by their attorney against Ralph de Derisbur and his wife Margery in a plea of dower. They seek from Ralph and Margery a one-third share in fifteen shillings of annual rent due from a half a shop and a stall, which they withhold from them. Ralph de Derisbur requests a view of the property and this is granted. The parties are assigned 16 May to undertake in the suit what justice requires to be undertaken.

Alexander de Hurel [appears] against Thomas and Codusa in a plea of dower by [his attorney] Aunger de Osberneby, who gives assurance under oath that he will have him to warrant here on 30 May to respond [to the charge].

Richard son of John le Tevene [appears] against the same by [his attorney] Richard son of Thomas de Kelsale, who gives assurance under oath etc.

Pleas of the portmoot on 16 May 1295

Ralph de Derisbur and his wife Margery [appear] against Thomas de Mamcestria and his wife Codusa in a plea of dower by [their attorneys] Roger le Murager and William Juvenis, who give assurance under oath that they will have him to warrant here on 30 May.

A day is assigned to Thomas de Mamcestria and his wife Codusa and to Alexander son of Alexander Hurel in the plea of dower, on 30 May, at the request of the parties, without essoin.

Pleas of the portmoot on 30 May 1295

Thomas de Mamcestria and his wife Codusa appeared by their attorney against Ralph de Derisbur and his wife Margery in a plea of dower. Ralph and Margery came and warranted their essoin. As per the custom of the city of Chester, it was not possible to proceed further with the action on that day, but a date was assigned to the parties on 4 July to undertake in the suit what justice requires to be undertaken.

On which day Thomas and Codusa appeared by their attorney. And Ralph came but Margery did not come, and the attorney of Thomas and Codusa requested judgement because Margery had defaulted. The allegation was made on the part of Thomas and Codusa that Ralph was Margery's attorney, received by Alexander Hurel. Ralph says that he was not her attorney. A day was assigned to the parties on 8 August, so that the court could in the interim determine from that Alexander whether Margery had appointed Ralph her attorney in the plea or not.

Alexander son of Alexander Hurel was summoned to answer to Thomas and Codusa in a plea of dower, that he them have the fair dower rights of Codusa. In relation to which Thomas and Codusa charge that Alexander withholds from them a one-third share in eleven shillings of annual rent due from a certain freehold lying between the land of Hugh de Brychull and the land of William de le Flint in Forthegate Street in Chester. And thereby the injustice, since Codusa has fair dower rights in regard to that freehold, which belonged to Richard Ground, her late husband in the city. With which Richard endowed her at the church door when he married her; of which she has nothing, so they say. If Alexander wishes to deny this, Thomas and Codusa are prepared to prosecute. A day is assigned on 11 July, at the request of the parties.

On which day Thomas and Codusa appeared against Alexander by their attorneys; he himself was essoined in the plea by Aunger de Osberneby, who gave assurance under oath that he will have him to warrant here on 15 August.

On which day Thomas and Codusa came and appeared against Alexander by their attorneys. He challenged the form of the writ, viz. in the place where it is written "in that town" instead of "in that city", and on that basis seeks a judgement. Judgement is deferred to 29 August.

On which day no court session was held, but the parties were adjourned to 5 September.

On which day the parties come and seek a judgement. Judgement is deferred to 26 September.

On which day Alexander comes and seeks a judgement. Henry le Fletcher and Adam de Dunham, attorneys of Thomas and Codusa, essoined them. A day was assigned to Alexander on 10 October; which date is to be conveyed to Thomas and Codusa by their essoiners.

On which day Thomas and Codusa appeared against Alexander. He himself did not come, but was essoined by William Juvenis, who gave assurance under oath that he will have him to warrant here on 24 October. And Thomas and Codusa are assigned that day.

On which day the parties came together and, at their request, the plea was adjourned until 31 October.

On which day Alexander comes and appears against Thomas and Codusa. They themselves did not come, but Henry le Fouler, attorney of Thomas and Codusa, had them essoined by Hugh Payn, who gave assurance under oath that he will have him to warrant here on 21 November. And Alexander is assigned that day.

On which day the parties came together and seek a judgement and a record [thereof]. Judgement is deferred until 19 December.

On which day Thomas and Codusa come by their attorneys and seek a judgement and a record. Alexander likewise comes and seeks judgement. Judgement is deferred to 16 January [1296] because the doomsmen have not yet reached a determination.

On which day Thomas and Codusa come by their attorneys and seek a judgement and a record. Alexander did not come but had himself essoined by Aunger, who gave assurance under oath that he will have him to warrant here on 30 January.

On which day Thomas and Codusa come by their attorneys and seek a judgement and a record; and Alexander likewise. Judgement is deferred to 13 February.

On which day Thomas and Codusa came and appeared against Alexander by their attorneys. Alexander did not come but had himself essoined by Aunger, who gave assurance under oath that he will have him to warrant here on 27 February. Thomas and Codusa are assigned that day.

On which day Thomas and Codusa appeared by their attorneys against Alexander and seek judgement. Alexander likewise seeks judgement. Judgement is deferred until 12 March.

On which day the parties came together. And the doomsmen say that a portmoot should not be held on that day, because it was St. Gregory's day, so the parties were adjourned to 2 April.

On which day Alexander comes and appears against Thomas and Codusa. Their names having been sufficiently called out, they did not come nor did they send anyone to essoin them. Alexander seeks judgement based on their default. It is decided that the charge against Alexander be dismissed. Thomas and Codusa are to be amerced for failing to pursue the prosecution.



DISCUSSION

By the close of the thirteenth century two courts were operating in Chester, a town of some importance as the capital of a Palatine jurisdiction. One was the court of the city sheriffs, named the Pentice after the two-storey building in whose upper floor (or penthouse) the court was housed, and focused on petty criminal proceedings. The more ancient was the Portmoot and, presided over by mayor and bailiffs, sometimes with the sheriffs present too, dealt with civil actions including those involving disputes over real estate, and with offences against the community, except for the breaches of the assizes of ale and bread dealt with in the Pentice; as the original court of the community it could also, if it chose, deal with minor crimes more commonly handled by the Pentice.

The case above illustrates the slow procedure often involved in a legal action – in fact, several related actions in which a widow seeks dower rights in various properties she claims to have belonged to her late husband, although only one is followed through over a period of a year. Just reading the terse but repetitive entries communicates a very little of the frustration that parties to a case must have experienced. It was the nature of the portmoot to be cumbersome, since its sessions were held only on Mondays (whereas the Pentice could be convened at need) and pleas involving freeholds were dealt with only on a fortnightly basis. The records given above are fairly typical of the bulk of the entries one finds on borough court rolls of this period.

A writ, obtained from the Chancery of the Palatine earldom, was required to initiate a dower action. That had evidently been introduced into court prior to the series of records we see here. Codusa was pursuing the several actions together because she could then fulfill the legal requirement of claiming that she had not been assigned any of her dower rights; having possession of some of the dower properties could have jeopardized her claim to others.

After charges were laid, the accused were given a chance to introduce exceptions that might invalidate the charges, such as that the late husband had not truly owned the property in which dower right was being claimed. They also had the opportunity to request the properties in question be viewed by the jury, and then to produce someone who would warrant their own right in the property. Another defence tactic, tried by Alexander Hurel, was to try to overthrow the charge against him on a legal technicality, in terms of inaccurate wording of the writ of right. If nothing else these tactics had the effect of delaying the proceedings – sending an attorney to vouch a warrantor was treated as an essoin, while the challenge to the writ required time for consideration on the part of the court – the difficulty of the doomsmen in deciding if this technicality should be allowed appears to have been responsible for repeated adjournments. Essoins were the most common reason for an adjournment, and were doubtless used as a mechanism to delay proceedings, although often may reflect a genuine inability of a party to come to court that day; but even the warranting of an essoin at the next session was considered sufficient business for one day. On one occasion the plaintiffs tried to turn the delays to their advantage, by asking for summary judgement when Ralph de Derisbur appeared without his wife, but then brought further delay on themselves by changing tack and claiming Ralph could represent his wife.

The case ended abruptly when Thomas and Codusa defaulted in appearance at one session, and the charge against Alexander Hurel junior was dismissed. After persevering so long, Thomas and Codusa had perhaps despaired of ever getting a judgement; but more likely they settled out of court with him, or had even been intimidated into dropping their prosecution.

Procedure in cases of dower was in fact swifter than procedure in other actions involving real estate, where an even larger number of essoins was permitted, except for cases of novel disseisin.

flourish

NOTES

"fair dower rights"
It was fairly standard throughout England that this comprised one-third of the property a man held in his own right when he married, and with which he was therefore capable on endowing his wife.

"married"
The text repeats dotavit, but this must be either a scribal or a transcription error for desponsavit. Bracton indicates that it is the husband who gives his spouse dower rights at the church door on their marriage day (in fact, just prior to the marriage ceremony). Pleading a dower case required the formulaic statements made in this case.

"view of the property"
I.e. that a jury view the property in dispute, to clarify what the property is. Views were normally granted, if the defendant phrased his request properly (asking that the entire property be viewed, not just the third that was subject to the action).

"term of years"
This was one defence that could be made against dower claim: that the property in dispute could not be subject to dower because the late husband did not have clear ownership of it.

"have him to warrant"
To confirm the legitimacy of the essoin made on the party's behalf.

"Alexander Hurel"
As one of the city sheriffs at this time he appears to have been capable of giving official recognition to a party's attorney.

"doomsmen"
The doomsmen, or lawmen, were a body or class of men serving, apparently hereditarily in at least some cases, as judges of a sort in town (or county or other local) courts in some parts of medieval England. A group of 12 iudices obligated to attend Chester's hundred court is mentioned in Domesday, and may be the same institution as the iudicatores of the 13th century Chester portmoot. A similar group of judgers is seen at Middlewich (also in Cheshire). This institution has been particularly associated with boroughs of the Danelaw, but may simply be a Scandinavian expression of something more fundamental: a class of "lawworthy" and "discreet" members of the community who were relied on to know local law and be able to advise the court on, if not all at least the trickier, legal issues or technicalities. They did not perform the same function as the jury; although that institution may have reduced the importance of the judgers in legal administration, judgers are still active on occasion in Chester and Middlewich into the 15th century. Historians have debated whether these doomsmen were somehow predecessors to the jurats who formed incipient town councils (e.g. note the court role of the Fordwich jurats); the evidence is simply not sufficient for us to know with certainty, but it seems unlikely there is a direct link.

"the charge against Alexander be dismissed"
Alexander inde sine die, that is, he didn't need to appear again in his defence.




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Created: August 18, 2001. Last update: December 21, 2011 © Stephen Alsford, 2001-2011