Courts

COURTS

The Chief medieval courts in Oxford, besides the assizes, were those of the town and of the chancellor of the university. (fn. 1) In the 12th century a few lay lords and several religious houses held courts for their tenants in Oxford, but except for the pie-powder court held by St. Frideswide's during the fair and the courts of the outlying manors (fn. 2) all the private courts disappeared during the 13th century. Some of the smaller courts were attended by the county sheriff, although they were presumably held by the lord's steward. (fn. 3) Tenants owing suit to a private court might sometimes have to attend the town court: in 1273 the bailiffs of Oxford complained that the steward of the honor of Wallingford did not make his men attend the Oxford court at the king's command for the execution of a writ. (fn. 4)

Although the religious houses which held property in Oxford had extensive jurisdiction there is evidence only for the courts of Abingdon abbey and of St. John's hospital. The abbot of Abingdon's court met in Thomas of St. John's house between c. 1110 and 1117. (fn. 5) The abbot's right to hold the court was confirmed by Henry I between 1121 and 1127. (fn. 6) St. John's hospital probably acquired a court with the manor outside the east gate between 1189 and 1199; (fn. 7) before 1253 Henry III freed the hospital from suit to shire and hundred courts, and granted it the right to chattels forfeited by its tenants and all amercements paid by them. (fn. 8) The rector of St. Mary the Virgin held a court for the tenants of his church c. 1190. (fn. 9) Only two laymen are known to have held courts in Oxford, Geoffrey de Clinton in the mid 12th century, (fn. 10) and Geoffrey of Childwick between c. 1205 and 1209; (fn. 11) both courts may have been attended by tenants from outside Oxford. Earlier Henry of Oxford, who held his lands with sac and soc and infangthief, (fn. 12) and Geoffrey de Clinton (d. by 1135) may have held courts.

The town court was first recorded c. 1130 when a grant of land was confirmed in the 'portmanmoot'. (fn. 13) Six further grants were made or confirmed in the portmoot in the later 12th century. (fn. 14) The court seems usually to have been held by the reeves, but in c. 1151 it was apparently summoned by the sheriff, who also attended c. 1183. The aldermen of the merchant guild attended c. 1185, and in 1190–1 the sole alderman, John Kepeharm, witnessed before the reeves and may have been the chief officer of the court. A gathering before the sheriff of the two aldermen and the townsmen in pleno placito domini regis in 1182 may have been the same as the portmoot, although the reeves seem not to have been present. (fn. 15) In 1183 or 1184 a grant was made in placitis regis qui appellantur Moregespeche, before the reeves and sixteen other buregesses. (fn. 16) In other towns the 'morning speech' was the meeting of the merchant guild, (fn. 17) but it is unlikely that a guild meeting would be called 'the king's pleas' and be held in the absence of the aldermen. It seems, moreover, from the names of the burgesses attending each, that the morning speech was different from the portmoot and that there were in late-12th-century Oxford at least two courts which recorded grants of land.

The growth of Oxford's privileges during the 13th century and the disappearance of the private courts increased the competence and jurisdiction of the town courts, particularly in property transactions. In 1258 the burgesses claimed the right of the Londoners to devise by will both acquired and inherited property, (fn. 18) and from that date wills devising property in the town were proved in the town court which then put the executors or legatees in seisin of the property. (fn. 19) The town courts were also much concerned with dower and marriage portions: a widow might claim dower in one-third of her husband's property held at the time of their marriage, but on remarriage could not have dower in a house where she had enjoyed 'free bench' for 40 days; she also retained considerable rights over her marriage portion. (fn. 20)

By the reign of Edward I there were two more or less clearly defined courts, one meeting on a Monday, the other on a Friday, both apparently called 'Curia Oxon'. (fn. 21) The Monday court, sometimes known as the portmoot, was the king's court, presided over by the bailiffs although the mayor was usually present. (fn. 22) It heard cases involving breach of the king's peace, trespasses such as assault, bloodshed, housebreaking, and theft, and actions involving real property, including rents; the property actions were sometimes initiated by writs. (fn. 23) It occasionally met on other days besides Monday in the late 13th century. (fn. 24) The Friday court was the mayor's court, presided over by the mayor and bailiffs. It dealt with breaches of the mayor's peace, including offences against market and craft regulations, with defamation, debts of less than 40s., and some cases involving real property, presumably when title was not at issue. (fn. 25) Both courts adjourned for major feast days and during assizes or eyres. (fn. 26) Wills were proved in either, but more usually in the Friday court. In 1294 a plea of custom and service, begun in the Monday court, was settled in the Friday court. (fn. 27) In 1302 the mayor successfully claimed cognizance of an action involving a breach of market regulations, which had been brought in the Monday court. (fn. 28)

Oxford usually seems to have followed the custom of London in allowing attorneys to foreigners only if they were defendants, but scholars, whether plaintiffs or defendants, were allowed attorneys in the mayor's court. (fn. 29) The abbot of Oseney and the prior of St. Frideswide's conducted nearly all their business in the courts by attorneys, admitted each Michaelmas to serve for a year. (fn. 30) Townsmen unable to be present in court also appointed attorneys, and a layman might be allowed a pleader (narrator). (fn. 31) As in other courts plaintiffs were required to find pledges to prosecute; foreigners and others who could not find pledges gave a gage. (fn. 32) Anyone unable to produce pledge or gage sued per fidem, presumably, as in 15th-century Rye, by oath on the mayor's or bailiff's mace. (fn. 33) Attorneys and pledges seem to have been semi-professional, the same men acting again and again in different pleas. (fn. 34) Foreigners impleaded other foreigners over land in the town, for the recovery of stolen goods found in the town, or for payment of debts contracted in the town. (fn. 35)

The procedure for the recovery of property for arrears of rent was similar to that initiated by writ of gavelet in 15th-century London. After numerous defaults by the defendant, the plaintiff recovered seisin for a year and a day, and could then take steps to recover seisin absolutely by the judgement called 'shortford'. (fn. 36) In pleas for recovery of rent or debt the plaintiff could prove his claim by two men, who seem to have been witnesses like those recorded at Bristol in 1344. A similar process seems to have been used in 13th-century London. (fn. 37) Another procedure used in debt and trespass cases was that of waging law. In the late 13th century special 'law days' were set aside for it. (fn. 38) Oxford seems to have observed the custom of London by which a man accused of trespass had to clear himself with six oath-helpers. (fn. 39) In 1285 two men accused of owing money or rent made their law with twelve oath-helpers each instead of the six required in London and in 15th-century Oxford. (fn. 40) In 1295 a debtor was allowed to swear by his own hand alone; (fn. 41) presumably he was a foreigner and unable to find oath-helpers. Perhaps as in London such a man had to swear in the guild hall and in the six nearest churches. (fn. 42)

During the late 13th century and early 14th the Monday court split into two as cases initiated by writ were distinguished from others. On All Saints' day 1294, for instance, pleas by writ were adjourned for fifteen days, other pleas for eight days. (fn. 43) In 1320 all pleas pending in the Monday court, except those by writ, were adjourned because of St. Frideswide's fair. (fn. 44) The court for pleas by writ, in which the aldermen as well as the bailiffs seem to have sat, (fn. 45) became known as the husting, the other Monday court remaining as the king's or (in the 15th century) the bailiffs' court. The name, and to some extent the procedure and jurisdiction, of the husting seems to have been introduced into Oxford by the charter of 1327, which confirmed to the burgesses the liberties and customs of London, including the weekly husting and pleas by writ of right patent. (fn. 46) After 1327 Oxford modelled its courts and procedure on those of London, (fn. 47) and the burgesses asked the Londoners expressly about the procedure for pleading cases of land by writ in the husting. (fn. 48) The subsequent development of the Oxford husting may have owed as much to London as to earlier Oxford practice.

Despite the provision of 1327 the husting was held only fortnightly, meeting on a Monday before the mayor and bailiffs in the guild hall. (fn. 49) Cases initiated by writ of right patent were pleaded in the form of the appropriate assize, usually novel disseisin. Both parties could appoint attorneys, and verdicts were given by a jury of twelve, which might also assess damages. (fn. 50) Instead of proceeding by writ of right patent in the husting the plaintiff in possessory actions could proceed by bill of intrusion, another procedure apparently borrowed from London. (fn. 51) The plaintiff made formal complaint. A jury viewed the tenement and came before the bailiffs and coroners at the guild hall on the following Saturday. The plea then proceeded as in an assize of novel disseisin.

The king's or bailiffs' court was held before the bailiffs for most of the Middle Ages, but by 1496 the mayor also sat. (fn. 52) In the earlier 14th century it met fortnightly, but by the mid 15th century weekly. (fn. 53) Although the court normally met on Mondays, it might be adjourned to another day, including a Friday, to deal with uncompleted business. (fn. 54) The court continued to deal mainly with trespasses and formal debts. Actions were usually settled by a jury of twelve, unless the parties reached a compromise; in 1323, however, the defendant in a trespass case made his law with three oath-helpers. (fn. 55) The court's business also included actions against town officers, (fn. 56) recognizance of Statute Merchant debts, (fn. 57) presentment of nuisances, (fn. 58) and enrolment of apprenticeship indentures and occasionally of wills. (fn. 59) In 1401 three cases of trespass contra formam involving breach of contract by a servant were heard, (fn. 60) and in 1405 arrears of rent were recovered by a plea of trespass and debt. (fn. 61) In the later 15th century there seems to have been a move to combine the bailiffs' court and the husting: the Monday courts were described alternately as the bailiffs' court and the bailiffs' court with the husting, but the business entered on the rolls continued to be that of the bailiffs' court; presumably husting material was enrolled separately. (fn. 62)

The mayor's court (called the king's court in 1419 and 1439, (fn. 63) perhaps in error) seems to have changed little in the later Middle Ages. It continued to be held weekly on Fridays, although in the 14th century it sometimes met on other days, including Mondays. (fn. 64) By the later 15th century its business seems to have been confined almost exclusively to informal debts with occasional recognizance of debts, a few actions of detention of chattels, and the enrolment of wills. (fn. 65) Business in the 14th and early 15th centuries included the appointment of bridge-keepers, (fn. 66) the enrolment of apprenticeship indentures, (fn. 67) the presentment of nuisances, (fn. 68) and breach of craft or market regulations. (fn. 69) Actions of debt were usually settled by wager of law, and others by a jury of twelve. (fn. 70) Official town business including elections of officers and admissions to the freedom seems to have been done indifferently in the mayor's or the bailiffs' court. (fn. 71) Deeds seem to have been enrolled before the mayor and bailiffs on any day in the 14th century, but by the late 15th century all deeds were enrolled on Mondays or Fridays. (fn. 72)

The Monday and Friday courts continued to be held in the guild hall until the 19th century. (fn. 73) The Monday court was almost invariably called a husting, although the business recorded in the rolls was that of the bailiffs' court; pleas of land, the business of the husting proper, were enrolled separately until 1651, final concords until the early 17th century, and deeds produced in the husting until 1689. (fn. 74) After the 16th century, however, very few land transactions were recorded, although the city's cognizance of pleas concerning freehold was maintained in 1835. (fn. 75)

From the Middle Ages until 1749 lists of husting suitors were drawn up annually. (fn. 76) By the 16th century all freeholders within the liberty owed suit, and the lists were kept up to date, (fn. 77) presumably because the serjeants received regular fees from non-attenders. (fn. 78) The lists thus form a record of the changing pattern of land ownership in the city, although the absence from the two surviving medieval lists (1465, 1469) (fn. 79) of any identifiable burgess suggests that at that date only non-freemen might have been listed. In the early 16th century the suit of freeholders seems to have been expected frequently, but by the 1580s only three or four times a year. (fn. 80) By the 18th century suitors paid 3s. 4d. a year for non-attendance. (fn. 81)

The frequency and business of the city courts increased sharply in the late 16th century and early 17th, chiefly because of the increase in population, but perhaps also because there was much less use by townsmen of the chancellor's court. (fn. 82) In the municipal year 1578–9 the Monday court dealt with only 34 new actions, and the Friday court 19, but by 1585–6 the number in both courts had doubled, and by 1637–8 the Monday court dealt with 144 new actions, the Friday court with 112. (fn. 83) The jurisdiction of the two courts continued to overlap: both dealt with city business such as the admission of freemen and the regulation of apprenticeship contracts, and with personal actions arising within the liberty, irrespective of the amount of debt or damages. The Friday court seems, however, to have dealt almost exclusively with actions of trespass on the case, covering a wide variety of issues, from disputes over apprenticeship to insult ing words, and including actions for the recovery of small debts. The Monday court alone dealt with property actions, but two-thirds of its business in 1578–9 was debt; where bonds or Statute Merchant agreements were involved some debts were fairly large. (fn. 84) In the early 17th century it was becoming common for debt actions to be turned into actions of trespass on the case, and be brought in the Friday court instead of the Monday court, apparently to avoid wager of law. (fn. 85) Actions involving privileged persons continued to be removed from both courts, but particularly from the Monday court, by bringing in the 'half seal' of the university; the removal in 1576 of a debt action against a senior councillor, John Wayte, caused a bitter town-and-gown dispute. (fn. 86) Actions were removed regularly to the Westminster courts by a variety of writs.

Juries of freemen, who were paid a small fee, (fn. 87) were used in both courts, but arbitration was not uncommon and evidently many actions were settled out of court. Professional attorneys were used in most actions; the city council controlled entry into their ranks, requiring new entrants to swear never to introduce 'foreign pleas' whereby the courts' jurisdiction might be avoided. (fn. 88) The town clerk acted as assessor in both courts, (fn. 89) and the other court officers were the serjeants, who were frequently at odds with the macebearer over fees for arrests in the two courts. (fn. 90) The mayor and bailiffs were supported in their supervision of the courts by the aldermen in the early 16th century, and as the business of the courts increased there were several attempts to ensure that aldermen and assistants attended. (fn. 91)

In the 18th century the business of both courts declined; by mid century the mayor's court was much more popular than the bailiffs', and dealt almost entirely with small debts. (fn. 92) By the 1830s, although many summonses were returned in the city courts few causes were heard, and many of those were removed to other courts. (fn. 93) The Monday court seems to have ceased in 1851. (fn. 94) In the mayor's court by that date the recorder had replaced the mayor as judge, with the result that causes were heard only once a quarter, during sessions; another drawback was that the procedure of the court, whether for small debts or large, was that of the superior common law courts before their reform. In 1864 the procedure of the mayor's court was reformed to bring it into line with county courts. (fn. 95) By the mid 19th century the Friday court seems to have been used chiefly for admissions of freemen, while the mayor's court for debts met on Thursdays. Its last recorded business was in the 1870s, (fn. 96) although summonses may have been entered as late as 1904. (fn. 97)

Among the London customs confirmed by the charter of 1327 was one permitting aldermen to hold view of frankpledge in their aldermanries twice a year; (fn. 98) no other evidence has been found of ward courts in Oxford during the Middle Ages. In 1405, at a view of frankpledge before the mayor, bailiffs, and two aldermen, presentments were made by a single jury for the whole town, (fn. 99) but some other early-15th-century views seem to have had a jury for each ward. (fn. 100) In 1405 the heads of several religious houses were presented for failing to do suit of court once a fortnight, presumably at the husting; other 15th-century presentments were for offences such as harbouring malefactors from Flanders, concealing bloodshed and breaches of the peace, receiving pelf, being a common thief, obstructing roads, and blocking or polluting watercourses. (fn. 101)

As a result of its acquisition in the 14th century of the assizes of bread and of ale, and of some control over peace keeping, the university held courts in the guild hall which by the 16th century were regarded as leets or views of frankpledge. (fn. 102) The town, however, continued to hold its own courts leet in the guild hall until 1839. (fn. 103) They were sometimes called a view of frankpledge of the four wards, but presentments were made by a single jury of 18 men. The courts usually met in October and were adjourned until November for the assessment of fines; the ward constables listed all the male inhabitants between the ages of 12 and 60, and there were fines for non-attendance. The presentments were the usual ones of nuisances, such as obstructions and dunghills, and failure to repair streets. A similar court for Northgate hundred was also held in October, usually in a public house in St. Giles's. (fn. 104)

Quarter and petty sessions for the city were held in the guild hall. (fn. 105) From 1390, when Oxford's justices were first mentioned, the bench included not only townsmen but also representatives of the university and sometimes prominent county figures. (fn. 106) The mayor was always a magistrate, as were, usually, the aldermen and several other councillors; the recorder and his deputy were magistrates from the early 17th century. The city and university magistrates sometimes acted separately over the licensing of ale-houses. (fn. 107) By the early 19th century petty sessions were held weekly, usually before magistrates drawn from the city alone. (fn. 108) The city's right to hold its own quarter sessions was confirmed in 1836. (fn. 109)

Town gallows were mentioned in 1177, and in 1375 they stood at Green ditch in the fields north of Oxford. (fn. 110) In the late 18th century the site was still used, although the gallows were no longer a permanent structure. (fn. 111) Executions also took place elsewhere, on a tree in Gloucester Green in 1658, outside Balliol College in 1680. (fn. 112) Criminals transferred to the assizes probably were executed at the castle gallows. Gallows belonging to Holywell manor stood at the east end of Holywell Street until the 18th century. (fn. 113) A pillory, recorded in 1311, stood in Cornmarket Street near North Gate; its removal in 1325 led to protests by the university, which seems to have regarded it as a symbol of its control over the market. (fn. 114) In the 15th century the university paid or contributed towards its upkeep, (fn. 115) but from the 16th century to the 18th the city paid for several new pillories, which usually stood in Cornmarket Street, from 1669 near the Cross inn. (fn. 116) The city also owned a cage, removed in 1574 from Cornmarket without the university's consent but replaced by 1581; it was a lead-roofed structure, and in the late 17th century stood under the pillory, whence it was probably removed in 1694. (fn. 117) Other punitive instruments included stocks, moved from south of Carfax to Cornmarket in 1749, a whipping post, usually in Cornmarket, and a cucking stool, moveable in 1579 but at Castle mill in 1647. (fn. 118)