The insight into the state of the country in the late thirteenth century, given by the two publications of the Records Commission, Rotuli Hundredorum, and Placita de Quo Waranto, is so valuable that it may be permitted to glance at them. The preliminary to the first of these is the Act of the fourth of Edward I. (1276), the statute for assigning justices to the work. The statute, called “Rageman,” a term of doubtful etymology, enacted that justices should go through the land inquiring into, hearing, and determining all complaints and suits for trespasses within twenty-five years last past, as well by the king’s bailiffs as by all other persons whomsoever. These commissioners did their work with a thoroughness amazing when we consider the difficulty of travel in the times. The results are recorded in the Rotuli Hundredorum. On the evidence furnished by the Rotuli Hundredorum was passed the statute of Gloucester, in the sixth of Edward I. (1278). This Act put the burden of proof of lawful claim to franchises on the persons exercising them. The statute enacts that whereas prelates, earls, barons, and others of the kingdom claim to have divers franchises, persons may continue to exercise these franchises without prejudice to the king’s rights until the next coming of the king into the county, or the next coming of the justices in Eyre, or until the king otherwise order. The sheriffs are to make proclamation that all who claim to have any franchise by charter or otherwise shall come at a certain day to a place assigned, to state what franchises they claim and by what title.
In 1281 was issued, according to the annals of Waverley, a mandate “called by the people Quo Waranto, directed to certain justices, for inquiring respecting lands, tenements, rents, alleged to be alienated from the king, as well as regarding franchises held from him: by reason of which mandate archbishops, bishops, abbats, priors, earls, barons, and others holding franchises, as well religious as others, were subjected to trouble and expense, although the king got little profit thereby.”[12]
The statements found in the presentments of jurors in the Rotuli Hundredorum are, as might be surmised, somewhat in the nature of hearsay. They have not the value, as material for investigating the social condition of the time, of the more formal charges contained in the Placita de Quo Waranto. Thus we find, in the Rotuli Hundredorum, that the abbat of Westminster was presented by the jurors of three several wards of the City of London as having gallows at Tyburn: in other cases gallows are mentioned as erected by the abbat in Middlesex, two places only being specified. But when we come to the Placita de Quo Waranto, we find that the abbat had gallows in fifteen places in Middlesex in addition to one in the ville of Westminster. These places were, Eye (a district of Westminster), Teddington, Knightsbridge, Greenford, Chelsea, Brentford, Paddington, Iveney, Laleham, Hampstead, Ecclesford, Staines, Halliford, Westbourne, and Shepperton.[13]
This inquisition is not to be confounded with another, singularly called “Trailbaston,” relating to criminal matters, as the other related to civil affairs. “Trailbaston,” which may be rendered “Bludgeon-men,” has sometimes been supposed to be so called from the justices themselves; but it is more probable that, as we find the word in the earliest mention of the subject, the bludgeon-men were those against whom operations were directed, just as we might to-day speak of a “hooligan Act” if an Act were specially devoted to these gentry.
The first official mention of Trailbaston is found in Rotuli Parliamentorum, under date 1305, when it already bore the nickname “Ordination de Trailbastons.” Justices were then assigned to inquire as to murders and felonies committed during the last eight years. In 1306 the inquisition, as would seem, had not got to work, as the king ordered that if the justices assigned are not sufficient for the duty, “a parfaire les busoignes qe touchent les pledz de Traillebaston,” more are to be assigned to the work. Five days later he sent a list of twenty-one justices, and the thirty-eight counties allotted to them severally. The inquisition of Trailbaston was found to work mainly as a great engine of oppression. In 1377 the Commons petitioned that there may be no manner of Trailbaston held in the realm during the war nor for twenty years. It is alleged that both civil and criminal inquisitions had for object to bring money into the exchequer by means of fines.[14]
To return to the subject of the multiplicity of courts. It is to be supposed that, in the circumstances, there were frequently conflicts between courts as to their respective jurisdiction. Of this conflict we find curious instances in the chronicles. Thus, in 1249, a thief was caught on the land of the abbat of Tewkesbury, but was suffered by the abbat’s bailiffs to be taken to the court of the Earl of Gloucester. After trial by this court the thief was hanged. On learning this, the abbat was greatly incensed, seeing that the franchise of his church had been invaded. Shortly after another case arose. John Milksop stole thirty-one pence from Walter Wymund, of Bristol. As soon as Walter discovered his loss, he raised the hue and cry, followed Milksop, traced him to a wood, captured him, and brought him into the abbat’s court. The earl’s bailiff protested: the abbat complained to the earl, who ordered inquiry. As nothing came of this, a second order was issued, and twelve persons were chosen to investigate the question. The abbat, finding the inquiry going against him, protested against the manner of proceeding, and went in person to the earl, then at some distance. The earl suggested that the abbat should keep the accused in prison till the earl’s return home. The abbat objected that he had neither castle nor prison in which to keep the man for so long a time. Then the earl ordered a fresh inquiry to be made against his return, the abbat meanwhile to try the man in his own court, and to hang him on the earl’s gallows. Milksop was tried accordingly, could make no good defence, and was hanged. The chronicle does not tell the end of the dispute.[15]
In the twelfth century the district near Dunstable, where Watling Street meets Icknield Street, was so infested by robbers that hardly could “a lawful man” pass that way. The chronicler, whose etymology is not above suspicion, states that Dunstable came by its name from one Dunning, a famous robber who haunted the region. Henry I., towards the end of his reign—say about 1130—founded Dunstable Priory, making over to it all his rights, including a free gallows for hanging thieves outside the town of Dunstable, in a place called Edescote.[16] The prior’s right was clear; nevertheless, in 1274, Eudo la Suche threw down the prior’s gallows and put up his own.[17]
Another instance. In 1290 Bogo de Knowill, the king’s bailiff of Montgomery, complained to our lord the king that Edmund Mortimer had laid hands upon a king’s man who had committed murder, had imprisoned him, in spite of the bailiff’s demands, had refused to give him up, had tried him in his own court, and hanged him, to the hurt of the franchise of the town of Montgomery, and against the crown and its dignity, etc. The king declared that Mortimer had forfeited his franchise of Wygemore, but agreed to restore it on payment of a fine. But, in addition, Mortimer must hand over to Bogo, the bailiff, an effigy, in the name and place of the man who had been hanged, the bailiff to hang the effigy, and to let it hang as long as may be. After a while, Mortimer complained that the bailiff unjustly retained the franchise in the king’s hand. Whereunto Bogo replied that the effigy had not been handed over to him, wherefore he held the franchise aforesaid until, etc. And the king ordered that the franchise should be held till the effigy should be handed over. This is the last heard of Bogo, Mortimer, and the effigy.[18]
In such cases more was touched than the dignity of the lord of the franchise. The concession of a franchise to hang generally included the right to “catalla felonum,” the goods of felons and of fugitives. “These courts,” says Sir James Fitzjames Stephen, “were a regular source of income to the lord of the franchise.” Irregularities and tyrannies of these petty courts, quarrelling over the right to imprison and hang, may be assumed: we understand how it was that in popular risings the lawyers were always singled out for vengeance.