Nullus vicecomes, constabularius, coronatores, vel alii ballivi nostri, teneant placita coronae nostrae.
No sheriff[s], constable[s], coroners or other of our bailiffs are to hold the pleas of our crown.
The term `pleas of the crown’ covered a number of royal rights, but fundamental to them was the king’s jurisdiction over serious crimes (homicide, arson, rape etc.), and it was with this that Clause 24 was primarily concerned. In the period immediately after the Norman Conquest such crimes had usually been dealt with in the county court, where the sheriff presided, but the twelfth century saw a steady reduction in his powers. Justice was increasingly administered by professionals appointed from Westminster, and new controls were created, notably the office of coroner, to increase efficiency and to prevent corruption, with its attendant loss of revenue by the king, on the part of sheriffs and their subordinates. But there were still areas of uncertainty, particularly where theft was concerned, and sheriffs could still sometimes exercise jurisdiction over matters from which they had usually come to be excluded. In the last years of John’s reign, when the judicial system came under increasingly heavy pressure, their importance as royal agents not only allowed them to exploit their powers at the expense of those they governed, in ways which included dealing with matters arising from pleas of the crown, but they were also employed by the king as justices in judicial visitations which were largely money-raising enterprises. The result was a blanket prohibition on the employment of sheriffs, and all other local officials, in the hearing of crown pleas, one which was maintained thereafter.
Pleas of the crown were above all the serious crimes – homicide, arson, rape and the like – over which the king possessed an exclusive jurisdiction. In the years immediately after 1066 they were usually heard in the county court, presided over by the sheriff, but as the twelfth century progressed the latter’s powers were steadily whittled away, and in matters of law were largely entrusted instead to increasingly professional justices who were appointed at regular intervals by the central government to hold sessions in the shires – the so-called `eyres’. New offices were created, moreover, above all that of the coroner, to take over powers which the sheriff had once exercised locally, and to answer to the crown for some of the profits of justice which might otherwise have disappeared into the pockets of the sheriff and his staff. Inevitably this process was an uneven one, and although the sheriff’s jurisdiction where peace-keeping was concerned came to be largely confined to disorderly behaviour, he appears to have still been able to act against thieves into the early thirteenth century, while he was also sometimes tempted, or even required, to extend his powers in other ways at the expense of those he governed. The sheriffs acted as judges, very possibly in every county, in judicial visitations which were held throughout England in the summer of 1210, and which appear to have been far more concerned to bring in revenue for the king than to administer justice, and some of them were also later found to have exploited their office by dealing with, and profiting from, matters which would normally have been reserved for justices in eyre, had the latter still been operational (no eyres were held in England between 1209 and 1218) These acts of corruption and extortion on the part of sheriffs, together with their employment as financial agents masquerading as royal judges, were inevitably resented, and in Clause 24 resulted in a further, and sweeping, restraint being placed on their powers, and on those of all the other officials engaged in local government, one which took permanent effect.
Clause 24 in Magna Carta originated as the first part of no. 14 among the Articles of the Barons, where it followed a provision concerning assizes, contained a second section dealing with the revenues of the shires, and was followed by one article relating to the collection of debts owed to the king by deceased tenants-in-chief, and then by a short series of others (16-21) mostly concerned with the powers of royal officials. The cohesion of this sequence of articles, broken only by No. 17, dealing with the remarriage of widows,1 was to some extent disrupted in the Charter, when Article 13, which could have been plausibly related to the first part of 14 through the association of civil pleas with crown pleas, was separated from its successor to become Clause 19. But the function of Article 14 as a control upon officialdom was arguably given extra force by its separation into Clauses 24 and 25, which were then relocated to form part of a series of clauses (23-31) largely concerned with the king’s financial rights, and with their exploitation by sheriffs and their underlings.
The first section of Article 14 was not only moved numerically when it became Clause 24, it was also substantially rewritten, in ways which significantly altered its original content and purpose. Article 14 had forbidden the sheriff to involve himself with the pleas of the crown, that is, with matters of criminal justice, without the coroners. The Latin phrase translated as `involve himself’ - intromittat se – often implied meddling, an unwarranted interference, but could simply mean `deal with’, without pejorative associations, and that may have been its meaning here. The sheriff had a legitimate and often necessary role in the processes whereby crown pleas were in their early stages presented and recorded in local courts, and the Article may have been primarily intended to ensure that these preliminary stages were properly gone through, by insisting that the coroners were present at them. But the possibility still remained that the sheriff would go beyond the arresting of suspects and enrolling of appeals which such proceedings entailed, and that having made an arrest or heard an appeal he would assume a judicial role to which he was not entitled, by holding a court – especially a session of the county court, which he largely controlled - and acting as judge in it. Clause 24 aimed to prevent this, by categorically ordering that no sheriff, and no other official either, whether constable, coroner or bailiff, was to hold pleas of the crown in this way, instead they were to be the exclusive concern of the king’s justices..
The prosecution of serious crimes was fundamental to the holding of crown pleas, but the latter’s scope extended further than that, to all sorts of royal rights and responsibilities, which were continually expanded. Defining them as `rights which the king of England has in his land solely and over all men’, the early twelfth-century treatise Leges Henrici Primi listed as crown pleas such crimes as treason, serious theft, murder, counterfeiting coinage, arson and rape, along with the harbouring of those who committed these offences, and also the infringement of royal rights like treasure trove and forest law.2 By 1194, on the evidence of a list preserved by Roger of Howden of the points which the king’s justices were expected to investigate, those rights also included escheats, churches, wardships, the disposal of heiresses, the chattels of Christian usurers and breaches of the assize of wine,3 and they were greatly augmented later. What they had in common was that jurisdiction over them, and the financial issues of that jurisdiction, belonged to the king. In the years immediately after 1066 crown pleas were usually administered by the sheriff, who was often an important baron, when he presided in the county court with the bishop and the earl. The subsequent withdrawal or disappearance of the last two left the sheriff in solitary pre-eminence, wielding a power which soon came to seem excessive, and from around 1100 Henry I, in particular, applied himself to reducing it – less, probably, as a safeguard against miscarriages of justice than to prevent corruption, the diversion of royal revenues into shrieval pockets.4 To that end men of lower rank were nominated to the shrievalty, ad hoc commissions of justices were sent out to conduct sessions in the shires – one held by Ralph Basset in Leicestershire in 1124 has become notorious for its mass execution of thieves5 – and new offices were created for the performance of tasks previously undertaken by the sheriff. The precise responsibilities, not to mention the identities, of the local justices who appear in the surviving records of government during much of the twelfth century are hard to establish with any precision, but it seems clear that where the crown’s criminal jurisdiction was concerned they acted alongside, or instead of, the sheriffs, and in doing so set in motion a process which would eventually result in the latter’s losing that jurisdiction entirely.
The process was an uneven one, however. There was a strengthening tendency during the second half of the twelfth century for crown pleas to be regarded, and treated, as matters to be heard only before the king’s justices. In 1168 one Eudo, described as the man of Basilea Brito, was amerced of 10s. `because he pleaded a crown plea’, and the serjeant of Flegg, near Yarmouth in Norfolk, gave 13s. 4d. for his involvement in the same case,6 while two years later a royal serjeant in Lincolnshire was recorded as owing 6s. 8d. `because he did not claim a crown plea in the court of the brethren of the Temple’.7 Presumably his responsibilities included ensuring that local courts did not encroach upon the king’s jurisdiction. In neither case is it recorded what the crown plea in question was, however, and in fact it took some time for a final consensus to be achieved, defining the pleas of the crown and deciding who should hear them. The initial stages of the Assize of Clarendon, enacted in 1166 `for the keeping of the peace and the maintenance of justice’, were entrusted to both royal justices and the sheriffs,8 and though subsequent proceedings appear to have been envisaged as being conducted before the justices alone, the record of the Assize’s enforcement suggests that in at least half of England the necessary work was done by county officials, that is, by sheriffs and local justices.9
The named targets of the Assize were robbers, murderers and thieves, along with those who harboured them, and here the issue is further complicated by the fact that by the later years of Henry II’s reign theft, or some forms of it, was said to have been a plea not of the crown but of the sheriff. This may in fact have been a recent development, for there is evidence that in King Henry’s earlier years jurisdiction over homicide and theft belonged to the crown. In a royal charter for the royal chamberlain William Mauduit, given between December 1154 and August 1158, murder and theft were reserved for the local justice,10 while jurisdiction over these two crimes was specifically included in a comprehensive grant of powers of justice to Reading Abbey made in 1156 or 1157.11 But later in Henry II’s reign the treatise known as Glanvill, having listed the crimes which `belong to the crown of the lord king’ in terms closely resembling those named by the Leges Henrici Primi, declared that `The crime of theft [furti – the same word used in Reading’s charter] is not included because this belongs to the sheriffs ...’,12 and this was echoed by the Dialogus de Scaccario, which in describing how the chattels of convicted criminals were to be disposed of, distinguished between those of robbers, `also called open thieves’, and `thieves who steal in secret’ – the former became the king’s, but `the goods of thieves, however, go to the sheriff under whom they were arrested and punished ...’.13
Possibly only particularly serious cases of theft were reserved for the justices. Although the wording of clause 2 of the Assize of Clarendon is somewhat obscure, it would appear that in 1166 they were expected to hear accusations against thieves and robbers where the value of the stolen goods exceeded 5s. In the reign of Henry I capital theft had been equated with goods worth 8d., while in the thirteenth century the limit between petty and capital theft was set at 12d.. It seems very improbable that under Henry II that limit was suddenly raised by anything up to 750%, more likely that in order to avoid creating an intolerable workload for the king’s justices by requiring them to deal with every charge of theft which the Assize brought before them, what might be called conventional cases of capital theft, of a kind which might still lead to a man’s being hanged or mutilated but which in themselves hardly threatened the social fabric, were consigned to the jurisdiction of the sheriff. When in 1176 the Assize of Clarendon was revised and reinforced by the Assize of Northampton, the fact that what were characterised as petty (minutis) thefts and robberies committed in the recent rebellion against Henry II were specifically excluded from the new Assize’s remit, might also suggest that such a distinction formed part of government thinking, the more so as the offences so described were hardly `petty’, since they might involve thefts of horses and oxen, which later constituted capital crimes.14 That such cases were indeed left to the sheriff to dispose of is suggested by a story found in two collections of the miracles of St Thomas of Canterbury, both datable to the early 1170s, recording how a Bedfordshire peasant named Ailward was charged with theft and mutilated after failing in the ordeal, before being healed of his injuries by the saint. The goods he was alleged to have stolen were initially valued at only one penny, but his accuser then added to them, to bring the charge within the competence of a royal court, while in the proceedings which involved both accounts recorded the involvement of the sheriff - in one of them the accuser was described as ensuring that Ailward underwent the ordeal of water through his `having gained the favour of the sheriff and the judges’.15
The enforcement of the Assize of Northampton, in 1176 and afterwards, was entrusted to teams of royal justices, making methodical visitations of groups of counties in pre-arranged circuits. The financial issues of their itinerations, or eyres, as recorded on the exchequer pipe rolls in the 1180s, suggest that their jurisdiction, and manner of proceeding, in criminal cases were already largely identical with those of the more fully recorded eyres of the thirteenth century, the most important difference being that proof of guilt or innocence was made through the ordeal rather than by juries’ verdicts. Many accusations were made by appeals of felony, but then as later, the justices also depended heavily for information on preliminary presentments by juries, and were alert in detecting omissions and concealments – the burgesses of Doncaster had to pay twenty marks in 1180 `because they concealed a crown plea in their veredictum‘.16 Overall, the justices took cognizance of homicides and accidental deaths, and also of robbery, arson and rape. It is not clear if they also heard charges of theft, but probably they did, although they may not always have proceeded to judgment in such cases The chattels of men and women who fled rather than come into court and stand trial, some of whom must certainly have been suspected thieves, were included among the issues of these visitations, and the justices also concerned themselves with individuals and communities which had harboured thieves or allowed them to escape after arrest. Insignificant offenders could perhaps have been left for the sheriff to deal with later, but it must have been the justices who decided what constituted insignificance.
The king’s justices were increasingly in a position to exercise an overriding control of the whole system of law enforcement, as is shown by their having reviewed the inquests made upon dead bodies by the sheriff’s serjeants (a responsibility later transferred to coroners), penalised communities which had failed to raise, or pursue, the hue and cry, and in which the tithings fundamental to the workings of the frankpledge system were inadequately maintained, and amerced private courts which had abused their powers, notably by hanging suspects `unjustly’. They also scrutinized the conduct of officials, and punished deficiencies – the serjeant of a Lincolnshire wapentake who concealed an action of rape, the sheriff of Yorkshire who forced a thief to abjure the realm despite his acquittal through the ordeal of water.17 And they penalised infringements of the assize of wine, and investigated royal rights, and those who encroached on them – the marriage of an heiress, treasure trove, the goods washed ashore from a wreck at sea. Their competence was very wide, and it had become exclusive, in that the settlement of a crown plea without their permission was now a punishable offence - in 1185 Ralph FitzBernard was amerced of as much as 100 marks `because he made an agreement over a crown plea without the licence of the justices’, and though this was exceptional (Ralph was in fact pardoned a year later),18 sums between 40s. and five marks were levied in other cases. It could only be a matter of time before the ban on such settlements was extended from the king’s subjects to the king’s officers.
The eyres of the late 1170s constituted an important stage in the emergence of a cadre of professional justices in England.19 Legal matters were increasingly handled by men of perceived expertise, a development which left little space for the exercise of authority by relative amateurs, as sheriffs, who were essentially administrative officers, were often bound to seem. This applied to both civil and crown pleas, and it can hardly be coincidence that as the competence of the justices itinerant where the latter were concerned became well-nigh all-embracing, so a separate jurisdiction for the sheriff, largely confined to disorderly behaviour, began to be defined – according to Glanvill it covered theft, but otherwise only `brawlings, beatings, and even wounding’, and even these might be transferred to a royal court if the plaintiff alleged breach of the king’s peace. It is impossible to tell from the 1189 pipe roll whether the town of Northampton’s payment of £20, `because they held pleas which pertained to the sheriff by writs directed to the sheriff’,20 arose from civil or criminal litigation, but there was no such ambiguity about Peter de Brus’s proffer of 400 marks for the Yorkshire wapentake of Langbaurgh in 1207, in which he acknowledged that such crown pleas as emerged within the wapentake would be heard before justices itinerant, and that `for other pleas, indeed, which belong to the sheriff, they will answer before the sheriff.’
But if a lack of professional competence was one reason for the reduction of the sheriff’s jurisdiction over pleas of the crown in the second half of the twelfth century, another and deeper-rooted one was the fear of corruption on the part of the king’s officers in the shires, with the sheriffs at their head. The issues of crown pleas were the king’s, who stood to loose if they were siphoned off by the men handling them before they were accounted for to the exchequer, and the risk only grew as the king’s jurisdiction expanded. The sixth article of the Inquest of Sheriffs held in 1170 inquired concerning the chattels of those who had been convicted under the Assize of Clarendon, or who had fled in response to it, and it also required that `it be likewise inquired if anyone was unjustly accused under that assize, for reward or promise or hatred or in any other unjust manner; and whether anyone of the accused was released or convicted for reward or promise or love, and who took a reward for it ...’.21 The Assize had created an agency of government capable of being exploited for corrupt purposes by those who administered it, to the detriment of the king’s finances and the king’s peace alike. The opportunities for extortion and exploitation were probably largely controlled by a regular series of judicial visitations in the second half of Henry II’s reign, but the constraints upon official misbehaviour may have been relaxed in 1189/90, when following the accession of Richard I there was an almost complete replacement of sheriffs, with twenty-three out of twenty-eight shrievalties passing into the hands of new officials, all of whom had bought their offices and expected to use them to recoup their outlay.22 Then on 30 March 1194, after Richard’s return to England from crusade and captivity, there was another shrieval change-around, with nineteen sheriffs being replaced.23 It is against this background, and that of the disorder associated with Count John’s rebellion in 1193, that the instructions drawn up in September 1194 for the conduct of a nationwide eyre should be seen.
Following the list of articles under which the justices were to investigate and maintain the pleas of the crown came two administrative orders (the first of several) concerning the responsibilities of local officials. The first ordered the election in each county of three knights and a clerk as `keepers of the pleas of the crown’, soon known as coroners. Their task, that of recording crown pleas, was not new, but it had previously been carried out by the serjeant of a hundred or wapentake, who might be described as a king’s or a sheriff’s serjeant, and who in any case was probably ultimately answerable to the sheriff. In 1186 the serjeant of a Northamptonshire hundred had to pay ten marks because `he did not present a crown plea to the sheriff previously presented to himself’. Probably it was a violent or accidental death, something always prominent among the coroner’s concerns, and before 1194 relevant to the sheriff as well, since he became responsible for the arrest of suspected killers, and was also required to sell any tangible cause of an accidental death, like the horses recorded as killing children in Yorkshire and Devon in 1184, and to account for the proceeds at the next eyre. And following the creation of a new office came a regulation concerning an existing one, with the stipulation that no sheriff was to be a justice in his own county, or in any county where he had been sheriff since the first coronation of Richard I, on 13 September 1189.
Despite its apparent resemblance to Clause 24 of Magna Carta, this second order was less important for the sheriff’s jurisdiction than the first. There had apparently been plans for nationwide investigations of official malpractices during the summer of 1194, but these were abandoned, no doubt because such inquiries could instead be left to the eyre, and it was with this in mind that sheriffs and ex-sheriffs were forbidden to act as justices, as a way of ensuring that none of the men who had been sheriffs since the beginning of Richard I’s reign was in a position to influence the forthcoming proceedings, at which many complaints against shrieval high-handedness or corruption during the previous five years could be expected to be made. That the prohibition was intended to be a temporary one, made with a particular situation in mind, is suggested by its not having been repeated when a new list of crown pleas was drawn up for another eyre only four years later, in 1198.24 But the creation of the coroner took permanent effect, even though for some time the new office operated alongside the old one, with the sergeants continuing to fulfil their traditional functions for at least thirty years before they were completely superseded.25
The innovation probably had more than one purpose. It could relieve the administrative burden on English sheriffs at a time when they were under continual pressure to provide the men and supplies needed to maintain Richard I’s campaigns in Normandy, while perhaps at the same time making the operations of local government a little less unpopular by ensuring that some of the tasks previously undertaken by the sheriff and members of his staff were now more expeditiously performed. But the principal motive was probably financial, arising from the king’s desperate need to maximize all his revenues. The coroner investigated and `kept’, that is, recorded, certain pleas of the crown, and by doing so provided the means whereby the issues arising from them could be secured for the crown. Among the responsibilities transferred to the coroner, for instance, were the mandatory inquests held into accidental or violent deaths. Their proceeds, whether they arose from suspects’ chattels or from the amercements imposed on communities which failed to attend, could plausibly be regarded as more likely to be secured if they were recorded on the spot by an official specifically charged with doing so, than if they were lumped together with all the other responsibilities of the sheriff, even if they were not also in danger of disappearing into that official’s pockets.
The introduction of the coroner did not diminish the sheriff’s criminal jurisdiction, which by 1194 had probably long ceased to cover homicide, rather it clarified his role as an executive agent of the crown, working alongside the coroner to make arrests in the aftermath of the latter’s inquests – when King John granted two Somerset hundreds to Hugh of Wells in 1204, he specified that arrests or attachments arising from crown pleas were to be made by the coroners, while `when any prisoners are arrested in those manors and hundreds, justice upon whom pertains specially to our crown, they are to be delivered to the sheriff of Somerset or his officers, for them to hold and guard for as long as they ought to be in prison ...’.26 But that was to be the limit of the sheriff’s responsibilities. He secured prisoners, and he investigated crime in his county at the periodic circuit known as his tourn, but though he could arrest and imprison the suspects named there, he did not try them. In another charter from 1204, in which John disafforested the county of Devon, the king also ordered that the sheriff was to hold only one tourn each year, `unless for attaching crown pleas when they shall occur with the coroners and for safeguarding the peace, as long as on that visitation he takes nothing on his own behalf ...’. 27 Although the sheriff’s judicial authority where crown pleas were concerned had been steadily whittled away, his dealings with them were still such as to provide opportunities for corruption.
The evidence from John’s reign that sheriffs did hear pleas of the crown is very limited. In an appeal of homicide from Yorkshire heard coram rege in 1208, proceedings culminated in a duel for which William de Percy, then sheriff, and Walter of Boynton, a former sheriff, were appointed justiciarii ad hoc, but their contribution to proceedings probably amounted to little more than overseeing the fighting, if indeed there was any (the outcome is not recorded).28 There may well have been more legal substance to a Rutland case heard coram rege early in 1210, concerning an unnamed man who was pursued and arrested for killing four men in the house of Robert Mauduit’s mother. She was an important lady, the daughter of the earl of Huntingdon and Northampton, which may explain why knights of the county accompanied the coroners when they went to the scene of the crime. The killer acknowledged his guilt, and was remanded to the next session of the county court, in case he should accuse others of acting with him in the deed. But when the court assembled he did not do so, and was therefore sentenced to be hanged. `And since this was a crown plea and they held it and did judgment on it without an order from the king and [without] justices being present, the whole county is in mercy.’29
The case, and the offence, may not have been not quite as straightforward as they appear. Had the killer been hanged immediately after his public admission of guilt, no further investigation of the case would probably have been found necessary – Bracton, some twenty years later, allowed the summary execution of one who was `arrested over the body of the dead man with his knife dripping blood’, describing this as `an ancient constitution’.30 But remanding the killer to gaol in the expectation of further proceedings removed the case from the jurisdiction of the county court, which was therefore acting ultra vires in sending him to the gallows instead of presenting him before the king’s justices, and which exacerbated its offence by ignoring an order to the sheriff to produce the prisoner coram rege, The sheriff, Ralph de Normanville, was also in the king’s mercy, `as he handed that man over for judgment to be done on him without an order from the king, as that plea is a crown plea’. The potential seriousness of the offence is shown by Ralph’s amercement (the only one recorded as having arisen from this case) having been set at forty marks, though in fact he was pardoned and paid none of it.31 Strictly speaking, he had not held the plea himself – it was by judgment of the county court that the killer went to the gallows – but as president of the court he had failed to stop proceedings going forward when he could have done so, and therefore bore the ultimate responsibility.
In ordinary circumstances homicide was unquestionably a crown plea, as it had been for well over a century. The status of theft, however, may have been different, or at least uncertain. In a charter of March 1190 granting Isaac, the son of Rabbi Josce, the right to have disputes between himself and other Jews settled according to Jewish law, Richard I had specifically excluded pleas of the crown, and named theft (latrocinio) among them,32 and an identical exception was made by John in a charter of 10 April 1201 which extended his brother’s grant to all members of the English Jewish community.33 But that theft could still be included among the sheriff’s pleas during John’s reign is suggested by recurrent payments by the sheriff entered on the pipe rolls pro juditiis et justiciis faciendis, a phrase explained by the Dialogus de Scaccario as involving trials and justice.34 On the pipe rolls they often occur alongside payments to approvers, self-confessed criminals who were maintained by the king at a penny a day, on condition that they accused and convicted their associates by defeating them in judicial combats (it was the possibility that the Rutland killer might do this that led to his being remanded after his arrest and admission of guilt). The 1206 pipe roll, for instance, records trials and justice in twenty-one counties, or pairs of counties, and payments to approvers in nine of them, while in the following year twenty payments for trials and justice were entered on the pipe roll, with approvers appearing alongside them in eight cases.35
Later in the thirteenth century such proceedings would be associated with gaol deliveries, and presided over by ad hoc commissions of justices appointed for the occasion, but commissions of that kind are very rarely recorded under John. In 1207 three justices were ordered to assemble at Lincoln on 27 May to hear an appeal of robbery, and also to take assizes of novel disseisin.36 They may not in fact have heard the appeal, which was ended by a fine, but they must have tried the prisoners in the gaol, since two approvers were recorded on the pipe roll as having been paid a total of 22s. 4d. from the feast of Hilary (13 January), which at a penny a day would have covered their maintenance until exactly 27 May.37 The Lincolnshire entry on the 1207 pipe roll records payments to a total of nine approvers, and an outlay of 16s. on trials and justice, but the money may not all have been spent on a single session, for another approver was paid 6s. 10d. for his upkeep between 29 September and 21 December, and though it is possible that he succumbed to gaol fever, or simply escaped from prison, at the latter date, it is no less likely that it was then that he was brought out to confront those he had accused, and either failed to convict them, and was hanged, or overcame his former comrades and won the right to save his life by abjuring the realm. Other entries from 1207 suggest multiple sessions. Under Nottinghamshire and Derby, for instances, one approver was paid for 150 days, another for sixty-nine, two more for fifty-three, and one for 180. They could all have run their course on the same day, but that seems improbable, especially as the cost of the year’s trials and justice was a relatively high 43s.38 In Surrey two separate payments for trials and justice were entered, suggesting that there had been two sessions there.39 In 1203 the sheriff of Warwickshire accounted for five marks, `for a plot of land in front of Warwick gaol bought for the pleas of the gaol ...’.40 There may have been other occasions, especially when the central courts were not sitting, when royal justices delivered gaols, but in the absence of more than the very occasional commission to this effect, it seems highly likely that `pleas of the gaol’ were synonymous with the trials and justice recorded on the pipe rolls, with an open space being needed, as at Warwick, for the fighting of duels by approvers, and that they were usually the responsibility of the sheriff, who was still empowered to exercise jurisdiction over cases of theft.
Although it is possible that such a jurisdiction was coming to seem anomalous by the early thirteenth century, and may well have been as capable of abuse as any other of the sheriff’s powers, it seems improbable that that official’s ability to proceed against thieves by itself aroused feelings so strong as to generate a clause in Magna Carta. A much more important factor must have been King John’s reliance on the sheriffs as financial agents, and particularly from his employment of them as justices, in proceedings which seem to have had little purpose beyond the raising of money. The last normally-constituted eyres of the reign came to an end in the early summer of 1209, depriving the king of a valuable source of revenue, as well as of an agency of justice. It must have been to remedy this shortfall that in the summer of the following year, while John was in Ireland, two judicial visitations took place; they seem to have been interconnected, and their purpose was all too evidently to make money. For the first of them, apparently conducted only a few weeks before the second, the justices in seventeen out of twenty-four counties, as they were recorded on the pipe rolls, included either their sheriff or under-sheriff (and also a number of ex-sheriffs or men of comparable administrative experience, for instance a former constable of the Tower was a justice for London and Middlesex),41 and this figure is certainly incomplete, for another source reveals the sheriff of Berkshire as having also acted thus in his own county. Indeed, it may well be that their sheriffs were justices in every county.42 Shortage of suitable manpower may have been one reason for their being appointed, but another is likely to have been their knowledge of the resources of the shires thus visited.
It has been suggested that the first set of justices acted as `vacation judges to hear assizes and deliver the jails’,43 and this is given plausibility by what appears to be the only surviving record of their proceedings, which shows Matthew FitzHerbert, sheriff of Sussex, presiding over an assize of novel disseisin, and also by the amercements they imposed, which were of a kind, and on a scale, recognizably akin to those levied at conventional eyres.44 In each county the sheriff accounted for a lump sum made up of several individual debts, after which a few individual debts, almost always small, completed the entry. But the follow-up, attributed to unidentified `autumn justices’ who visited the counties shortly afterwards, was far more severe in its fiscal impact, in a way which suggests that this second visitation was deliberately intended to complement the first, by targeting the well-to-do men of the shires, concerning whom, and their resources, the sheriffs would have been in a good position to provide information. It is noteworthy that although a number of the men who acted as justices in the first visitation were penalised by the second, not one of the acting sheriffs who had been their colleagues suffered in this way – perhaps this was their reward for providing the autumn justices with advice about local conditions.
There were no lump sums accounted for by sheriffs after the second visitation of the summer of 1210, and no debts owed by communities, only fines and amercements on individuals, levied at bruisingly high rates. Sums of 100 marks or £100 were commonly demanded, while the largest sum exacted was as much as 500 marks.45 The offences were rarely defined with any precision - `trespass’ was by far the commonest. In a number of cases the men concerned were pardoned part of their fines or amercements – as much as a half in many cases - but the residue might nonetheless constitute a significant sum, considerably higher, indeed, than was usually exacted for any offence described as `trespass. Perhaps John thought that having demonstrated his ability to levy substantial sums in this way, he was bestowing a favour on the men thus targeted by not insisting on their paying the uttermost farthing. But the fact that these men still owed considerable amounts, and did so for little or no apparent reason, probably aroused both fear and deep resentment against the king, and also against the sheriffs, who in acting as royal justices had been actively engaged in imposing, and then also implementing, these latest exactions.
The sheriffs who acted as justices in 1210 had presumably been formally appointed, but there are indications that some of them were assuming judicial functions, and hearing pleas of the crown, purely on the strength of their office. In this they were doubtless encouraged by the temporary disappearance of the eyre, which might otherwise have either heard the cases involved, or penalised such infringements of its own jurisdiction. On 25 February 1213, in letters patent addressed to all his subjects in Lincolnshire and Yorkshire, John acknowledged that he had received many complaints of extortions and malpractices by his sheriffs and their underlings in those counties, which had moved him to appoint commissioners to investigate their alleged misdeeds and report on them to him. At the very end of a detailed list of transgressions, almost as an afterthought, John ordered that `You are also to let us know which bailiffs have pleaded pleas which belong to our crown’.46 They could have been acting like the sheriff of Rutland in 1210, by taking cognizance of serious crimes. But crown pleas was a term covering a wide range of activities, and provided ample scope for extortion as well as for usurpation of jurisdiction. The sort of proceedings which were giving offence can perhaps be seen in a very small number of presentments made at eyres held after John’s death, concerning actions by officials either in the last years of his reign or in the very early years of his son’s. One of them, reported at the 1218/19 Yorkshire eyre, did involve a felony.47 At some point between February 1216 and May 1218 one Osbert of Linton was killed in his house by unknown criminals. Herbert le Scot, appealed of the death by Osbert’s widow, was brought into the county court, where the men of four villages convicted him of that and of numerous robberies, whereupon the sheriff, Geoffrey de Neville, `said that he was sufficiently convicted of that death and that they should hang him’. The coroners asked nervously `if they could lawfully do this without the Justices of the lord king’, but Neville dismissed their fears, saying he had disposed thus of two criminals in Gascony (he had been seneschal there briefly in 1214), and so Herbert was hanged.
At the eyre the Claro jurors said that Herbert had been arrested with a horse, by implication one he had stolen, and had he been charged as a thief caught in the possession of stolen goods, the county court might have been justified in having him executed, since it could lawfully exercise jurisdiction in such cases. But no more in Yorkshire than in Rutland could a shire court do judgment upon an alleged killer who had not been caught literally red-handed, with or without the encouragement of the sheriff. At the time of the eyre Neville was once more in south-west France, while the county court was not fully represented when this case came to light, causing the justices to defer giving judgment upon it, and it is not known what decision they reached, but they are unlikely to have approved of what was done. Neville was a loyal supporter of King John, and the same was true of other officials said to have dealt with pleas of the crown, albeit of a different kind. Thomas of Erdington, a long-serving under-sheriff and sheriff of Shropshire and Staffordshire who died in 1218, was said in 1221 to have held crown pleas, `namely touching the hue and cry’,48 probably indicating that he had taken money from communities which had failed to raise the hue, or to pursue suspects after the hue had been raised, instead of leaving it to justices itinerant to impose appropriate penalties. In the same year similar allegations were made against some of King John’s former henchmen in Gloucestershire. When an unknown man was found dead on Compton heath, apparently from natural causes, Engelard de Cigogné, who was sheriff from 1210 to 1215, was said to have `held that plea’, and to have taken a total of twenty-two marks (£14. 13s. 4d.) from two vills – probably he acted as coroner, and amerced the vills for inadequate attendance, or presentments, at the inquest he held.49 And after one Robert of Tetbury had been arrested on an approver’s appeal and placed in the custody of the men of Tetbury, his subsequent escape led to Engelard’s taking 100s. from them, this being the standard amercement for such escapes. The justices at the 1221 Gloucestershire eyre called for judgment on him `as he held the plea’ – as Thomas of Erdington seems to have done, he had exceeded his powers by himself amercing failings which should have been dealt with by the king’s justices at the next eyre.50
In two presentments Engelard de Cigogné was associated with Gerard d’Athée, another of John’s captains, and also Engelard’s immediate predecessor as sheriff – they had made requisitions (prisis) `by reason of crown pleas’, and they had `taken ransom for all crown pleas’.51 It was not suggested that they had been holding unlawful courts at which killers and bandits were unjustly condemned and hanged. Again, their offence almost certainly lay rather in their exploiting the opportunities which their office gave them for making money out of the administrative practices associated with the pleas of the crown. They extorted money from communities and individuals for releasing them from their obligations, anticipated the king’s justices in penalising those who had not fulfilled their responsibilities, and probably also took bribes for releasing to bail suspects who should have been remanded to gaol. The sums they raised, where recorded, were generally larger then those usually exacted by royal justices, ranging from ten marks (£3. 13s. 4d.) to twenty-one marks (£14).
Taken together with John’s employment of sheriffs in the almost overtly exploitative eyres of 1210, the recorded conduct of the sheriffs of his reign suggest that it was the fear of extortion and corruption, at least as much as the likelihood of inadequate justice, which caused the barons to decide in 1215 that the only way such misconduct could be prevented in future was the simple one of prohibiting all involvement by royal officials in the holding of pleas of the crown. There was no geographical restriction on the clause’s implementation, as there had been in 1194, it was to apply throughout the realm, suggesting that sheriffs, in particular, were seen as likely to be too much the king’s men to be trusted anywhere with the jurisdiction in question. The status of theft may still have been indeterminate in 1215, but it undoubtedly soon joined the other crown pleas, and thereafter, since Clause 24 was carried over into all the subsequent reissues of the Charter, it remained outside the sheriff’s control.
It became Clause 8 of Magna Carta.
L.J. Downer (ed.), Leges Henrici Primi (Oxford, 1972), 109 (c.10.1)
W. Stubbs (ed.), Chronica Rogeri de Houedene, 4 vols. (Rolls Series, 1868-71), iii, 263-4.
For this process see R.C. van Caenegem, `Public prosecution of crime in twelfth-century England’, in id., Legal history: a European perspective (1991), 1-36, at 11-12; D.M. Stenton, English justice netween the Norman Conquest and the great Charter, 1066-1215 (1965), 65-7; J. Hudson, The Oxford History of the laws of England ii: 871-1215 (Oxford, 2012), 266-9.
G.M. Garmonsway (ed. and trans.), The Anglo-Saxon Chronicle (1960), 254.
PR 14 Henry II (1168), 29-30.
PR 16 Henry II (1170), 149-50.
W. Stubbs (ed.), Select charters ... from the earliest times to 1307 (9th edn., revised by H.W.C. Davis, Oxford, 1913), 170-3.
J.C. Holt, `The assizes of Henry II: the texts’, D.A. Bullough and R.L. Storey (eds.), The study of medieval records: essays in honour of Kathleen Major (Oxford, 1971), 85-106, at 101-6.
E. Mason (ed.), The Beauchamp Cartulary charters, 1100-1268, Pipe Roll Society, new series 43 (1980 for 1971-3), no. 172 (p. 101).
L. Delisle and E. Berger (eds.), Receuil des actes de Henri II, i (Paris, 1916), 133-4.
G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 3-4
E.Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 152-3.
Stubbs, Select charters, 179-81.
R.C. van Caenegem (ed.), English lawsuits from William I to Richard I, 2 vols. (Selden Society 106-7, 1990-1), ii, 507-14.
PR 26 Henry II (1180), 72.
ib., 55; PR 31 Henry II (1185), 70.
PR 31 Henry II (1185), 182; PR 32 Henry II (1186), 189.
See P. Brand, The origins of the English legal profession (Blackwell, Oxford, 1992), 14-17.
PR 1 Richard I (1189), 103.
Stubbs, Select charters, 176-7.
J. Gillingham, Richard I (Yale, 1999), 115-16.
Chronica Rogeri de Houedene iv, 61-2.
Details in R.F. Hunnisett, The medieval coroner (Cambridge, 1961), 1-8.
T.D. Hardy (ed.), Rotuli Chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot. Chart.), 129.
Curia Regis Rolls v, 1207-1209 (1931). Strictly speaking, Percy and Boynton were under-sheriffs, but they clearly exercised all the sheriff’s responsibilities in the county.
Curia Regis Rolls vi, 1210-1212 (1932), 10.
S.E. Thorne (ed.), Bracton on the laws and customs of England ii (Cambridge, Massachusetts, 1968), 386 (fols. 137, 137b).
PR 12 John (1210), 213.
TNA, C 52/21 m. 3. The entry is badly stained, but latrocinio can be read under ultra-violet light.
Rot. Chart., 93.
Dialogus de Scaccario, 130-1 (in iusticiis et iudiciis explendis).
Details from PR 8 John (1206) and PR 9 John (1207), passim.
T.D. Hardy (ed.), Rotuli litterarum clausarum, 1204-1224 (Record Commission, 1833), 83.
PR 9 John (1207), 15.
PR 5 John (1203), 28.
Details from PR 13 John (1211), xxxiv-xxxvj.
D.M. Stenton, Enlish justice between the Norman Conquest and the Great Charter, 1066-1215 (1965), 105-6.
Curia Regis Rolls vii, 1213-1215 (1935), 263-4.
PR 12 John (1210), 213. The purpose and impact of the proceedings by the `autumnal justices’ in 1210 are discussed in detail in the commentary on Clause 20.
T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835), 97.
D.M. Stenton (ed.), Rolls of the justices in eyre for Yorkshire, 1218-19, Selden Society 56 (1937), no. 744 (pp. 276-7).
D.M. Stenton (ed.), Rolls of the justices in eyre for Gloucestershire, Warwickshire and Staffordshire, 1221, 1222, Selden Society 59 (1940), no. 1262 (pp. 544-5).
F.W. Maitland (ed.), Pleas of the crown for the county of Gloucester, 1221 (1884), no. 93.
ib., no. 227.
ib., nos. 108, 156.
Please note: commentaries are presently available only for clauses marked with *; more commentary to be added in due course.