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Bill Litigation and the Observance of Sundays and Major Festivals in the Court of King's Bench in the Fifteenth Century

Published online by Cambridge University Press:  28 October 2011

Susanne Jenks
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Extract

The attitudes of medieval people toward Sundays and Holy Days have always been of interest to historians. They have been studied from at least five different perspectives. Max Levy, for instance, explained how Sunday developed from a day that commemorated Christ's resurrection, but was originally a working day (dies dominica), to a day of worship, contemplation, and rest. Initially no (servile) work was allowed, but exceptions were accepted because of necessity, like harvest work, or because of good intentions, like concern for the common good or for a pious cause. Others looked at the stance of the Church, analyzing the protests against the non-observance of Holy Days as well as the objections raised to the observance of Holy Days from the clergy or from laymen, or concentrated mainly on the work ban and its implications for working life in the Middle Ages. Willard and Haskett studied the observance of Sundays and Holy Days in government departments like the Lower Exchequer or the Chancery to see to what extent the working of the English government was affected. Legal historians, however, have not shown much interest in how the courts observed Sundays and Holy Days, mainly because everything seemed to have been settled since the late thirteenth century. Paul Brand recently stated that it had “clearly become the general practice by the second half of the reign of Edward I for the Common Bench and King's Bench not to sit on Sundays,” or on All Saints Day (1 November), All Souls Day (2 November), the feast of the Purification (2 February), Ascensiontide, and the feast of the Nativity of St. John the Baptist (24 June), all of which fell within term time.

Type
Notes and Commentary
Information
Law and History Review , Volume 22 , Issue 3 , Fall 2004 , pp. 619 - 643
Copyright
Copyright © the American Society for Legal History, Inc. 2004

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References

1. Levy, Max, Der Sabbath in England. Wesen und Entwicklung des englischen Sonntags, Arbeiten, Kölner Anglistische 18 (Leipzig: Verlag von Bernhard Tauchnitz, 1933).Google Scholar Levy interprets the decreasing observance of Sundays as the result of declining religiousness and increasing secularization of the society. Cf. also Der Tag des Herrn. Kulturgeschichte des Sonntags, ed. Weiler, Rudolf (Wien/Köln/Weimar: Böhlau, 1998).Google Scholar

2. Rogers, Edith Cooperrider, Discussion of Holidays in the Later Middle Ages, Studies in History, Economics and Public Law 474 (New York: AMS Press, 1967)Google Scholar; cf. also Cheney, Christopher R., “Rules for the Observance of Feast-Days in Medieval England,” Bulletin of the Institute of Historical Research 34 (1961): 117–47.Google Scholar

3. Cf. for instance, Harvey, Barbara, “Work and Festa Ferianda in Medieval England,” Journal of Ecclesiastical History 23 (1972): 289–308CrossRefGoogle Scholar; Braun, P. E., “Die geschichtliche Entwicklung der Sonntagsruhe (Ein Beitrag zur Soziologie des Arbeiterschutzes),” Vierteljahrschrift für Sozial- und Wirtschaftsgeschichte 16 (1922): 325–69.Google Scholar

4. Willard, James F., “The Observance of Holidays and Vacations by the Lower Exchequer, 1327–1336,” The University of Colorado Studies 22 (1935): 281–87Google Scholar; Haskett, Timothy S., “The Juridical Role of the English Chancery in Late-Medieval Law and Literacy,” in Écrit et pouvoir dans les chancelleries médiévales: Espace Français, Espace Anglais. Actes du colloque international de Montréal, 7–9 septembre 1995, ed. Fianu, Kouky and Guth, DeLloyd J., Fédération Internationale des Instituts de Etudes Médiévales. Textes et Études du Moyen Âge 6 (Louvaine-La-Neuve: Turnhout Brepols, 1997), 317Google Scholar; Haskett, Timothy S., “The Medieval English Court of Chancery,” Law and History Review 14 (1996): 252CrossRefGoogle Scholar and Haskett, Timothy S., “Access to Grace. Bills, Justice, and Governance in England, 1300–1500,” in Suppliques et Requêtes. Le gouvernement par la grâce en occident XIIe-XVe siècles, Publications de l'École français de Rome (Rome, 2003).Google Scholar I am obliged to Timothy Haskett for providing me with a pre-print. For conduct of parliamentary business on a Sunday in 1362, see Ormrod, W. M., “The Use of English: Language, Law, and Political Culture in Fourteenth-Century England,” Speculum 79 (2003): 761.Google Scholar

5. Brand, Paul, “Lawyers' Time in England in the later Middle Ages,” in Time in the Medieval World, ed. Humphrey, Chris and Ormrod, W. M. (York: York Medieval Press, 2001), 81–82.Google Scholar Various other major Feast Days fell outside terms and the law terms were probably in part constructed to avoid them. “The ‘certain days’ which influenced the shape of terms were those major Feast Days of the Church on which no work could be done (including litigation) and while a court might simply not do business if one occurred by itself during termtime, it was better to suspend sessions altogether if there was a whole cluster of them” (Brand, “Lawyers' Time,” 75). Cf. also Lewis, Abram Herbert, Critical History of Sunday Legislation from 321 to 1888 A.D. (New York: D. Appleton & Company, 1888), 82–83Google Scholar: “In 1359 Islep, Archbishop of Canterbury issued the following: no courts public or private, ecclesiastical or secular, be kept, or any country work done on these days.”

6. Wilkins, David, Concilia Magnae Britanniae et Hiberniae, Ab Anno MCCCL ad Annum MDXLV, (London, 1737), 3:824.Google Scholar

7. neque legittimus per communem legem regni diete domine regine nunc Anglie pro die retorni aliquorum brevium seu preceptorum in aliquam curiam ipsius domine regine: Reports from the Lost Notebooks of Sir James Dyer, ed. Baker, John H., Seiden Society 110 (London: Alden Press, 1994)Google Scholar, no. 514 Crowther v. Johnson, 2:395–96. This rule was indeed followed; see for instance National Archives, PRO, Kew, Sussex, England (hereafter PRO) KB 27/806 Michaelmas 2 Edward IV m 28d: the return day of the attachias was a Friday, that of the capias the following Saturday, and that of the latitat the following Monday.

8. Brand, “Lawyers' Time,” 82.

9. The Reports of Sir John Spelman, ed. Baker, John H., Seiden Society 94 (London: Spottiswoode Ballantyne Press, 1977), 2:307.Google Scholar There were actually nine days between the quindene of Hilary (27 Jan. 1530) and the octaves of the Purification of the Blessed Mary (9 Febr. 1530), but only if the two Sundays and one major festival (Purification of the Blessed Mary) were not counted.

10. Twelve days separated the first day of the return day “quindene of Hilary” (27 Jan. 1530) and the first day of the return day “octaves of the Purification” (9 Feb. 1530). Fifteen days lay between 27 Jan. 1530 and the fourth day of the return day “octaves of the Purifica tion” (12 Feb. 1530). It seems the clerk applied the four-day rule here. Cf. A Handbook of Dates for Students of British History, ed. Cheney, Christopher R., rev. Jones, Michael, Royal Historical Society Guides and Handbooks 4 (Cambridge: Cambridge University Press, 2000), 101Google Scholar: “A plaintiff suing mesne process against the defendant or seeking a judgment against them by default had to appear on each of the first three days of the ‘return day’ (excluding Sundays) before being able to secure judgment for the next stage of process or by default on the fourth day (hence the standard ‘X. offered himself on the fourth day against Y’ of so many plea rolls entries).”

11. Cf. also Year Book Michaelmas 22 Henry VI no. 49 fol. 30b-33a (quoted from SEIPP's Abridgement no. 1443.108 http://www.bu.edu/Iaw/seipp/index.html (8 April 2003): “and if my servant go to church on the Sabbath day to serve God, and another take him or beat him, I will have my action against him, and yet he was at this time in secular service to God and in His service, and not my service, but the law adjudges him always in my service”).

12. Bolland, William Craddock, A Manual of Year Book Studies (Cambridge: Cambridge University Press, 1925), 101.Google Scholar For reference to an assize held in Brentwood on Sunday, 2 June 1381, see Musson, Anthony, Medieval Law in Context. The Growth of Legal Consciousness from Magna Carta to the Peasants' Revolt, Manchester Medieval Studies (Manchester: Manchester University Press; New York: Palgrave, 2001), 261 n. 150.Google Scholar

13. Cf. also Select Cases in the Court of King's Bench under Edward l, ed. Sayles, George O., Seiden Society 57 (London: Professional Books Limited, 1972), 2Google Scholar: lxxv n. 8 (pleas “coram domino rege” at Exeter on Sunday after Christmas, 1285) and lxxvi (“So far as the transaction of legal business was concerned, Sunday was not, as Coke would have it, a dies non juridicus …”); The Mirror of Justices, ed. Whittaker, William Joseph, intro. Maitland, Frederic William, Seiden Society 7 (London: Bernard Quaritch, 1895), 171 no. 111Google Scholar (“It is an abuse to hold pleas on Sundays or other forbidden days, or before sunrise, or by night, or in improper places”).

14. It was taken down by the Chancery clerks.

15. Brand, “Lawyers' Time,” 78.

16. This information is given only in connection with trespass cases.

17. A fictitious Bill of Middlesex was a bill for a trespass (never for a felony) committed in Middlesex, where the alleged trespass was purely fictional.

18. See for instance PRO, KB 27/612 Easter 2 Henry V m 27d (no date); PRO, KB 27/ 616 Easter 3 Henry VI m 21 (1 May); PRO, KB 27/620 Easter 4 Henry V m 59d (this term); PRO, KB 27/626 Michaelmas 5 Henry V m 31 (Saturday next after the Feast of Simon and Judas in this term).

19. In these cases only the term in which the bill was proffered is noted on the plea rolls, not a specific date.

20. That is those Bills of Middlesex that lead to a writ latitat. See, for instance, PRO, KB 27/774 Michaelmas 33 Henry VI m 83; PRO, KB 27/778 Michaelmas 34 Henry VI m 69; PRO, KB 27/783 Hilary 35 Henry VI m 49d.

21. See for instance PRO, KB 27/793 Trinity 37 Henry VI mm 29d, 125; PRO, KB 27/ 798 Michaelmas 39 Henry VI mm 24d, 51, 9Id; PRO, KB 27/802 Easter 2 Edward IV m 44. If a day to impari was granted the plea roll entries will only mention in which term the bill was proffered in court (see PRO, KB 27/775 Hilary 33 Henry VI m 24; PRO, KB 27/ 789 Trinity 36 Henry VI m 95; PRO, KB 27/790 Michaelmas 37 Henry VI m 78–78d).

22. See PRO, KB 27/775 Hilary 33 Henry VI m 22; PRO, KB 27/787 Hilary 36 Henry VI m 73d; PRO, KB 27/804 Easter 2 Edward IV mm 71, 76 (bills brought by the court's personnel); PRO, KB 27/778 Michaelmas 34 Henry VI m 101d; PRO, KB 27/788 Easter 38 Henry VI m 44d; PRO, KB 27/800 Easter 1 Edward IV mm 5, 6d (bills brought by prisoners of the King's Bench). For exceptions, where a specific day is mentioned, see PRO, KB 27/739 Hilary 24 Henry VI m 48d; PRO, KB 27/784 Easter 35 Henry VI m 23d; PRO, KB 27/785 Trinity 35 Henry VI m 39.

23. See PRO, KB 27/650 Michaelmas 2 Henry VI m 57d, where one defendant was hanged while two others claimed benefit of clergy and the names of two of the defendants got mixed up.

24. See, for instance, the custodial bill for trespass produced in court on Sunday, 29 May 1429. Trinity term did not start until the next day: PRO, KB 27/673 Trinity 7 Henry VI m 43d. For another example see PRO, KB 27/719 Hilary 19 Henry VI m 62d (custodial bill for trespass proffered on 1 Jan. 1441, a Sunday. Hilary term did not start until 20 Jan.).

25. In Easter term 1434 one Bill of Custody is enrolled twice. According to one entry, John Twyford proffered his Bill of Custody for debt against William Covele on Friday, 16 April 1434, while the other entry gives the date as Wednesday, 14 April 1434. The first record stops after the declaration and has a vacai written in the margin, while the second entry notes the outcome of the case. Since the only real difference between the entries is the date given, it is safe to conclude that the first entry was vacated because the scribe noticed his mistake in regard to the dates in time: PRO, KB 27/692 Easter 12 Henry VI m 5 (16 April 1434) and m 20 (14 April 1434). The same seems to have happened in the custodial bill brought by William Langerigge against Thomas Mathewe. It, too, is enrolled twice on the plea rolls. On membrane 32 the date of the presentation of the bill is given as 16 October 1464, while on membrane 36d it is given as 20 October 1464: PRO, KB 27/814 Michaelmas 4 Edward IV mm 32, 36d. Again, the scribe noticed this mistake in time.

26. PRO, KB 27/679 Hilary 9 Henry VI m 70.

27. According to the plea roll of Easter term 36 Henry VI, William Marchall proffered his custodial bill for debt against John Hancok on 31 April 1458: PRO, KB 27/788 Easter 36 Henry VI m 75d. We know that this date is wrong, simply because the month of April does not have 31 days. Moreover, the panella file shows that this very same bill was presented in Hilary 1458, and the endorsement of the custodial bill there tells us that two dies interloquendi were granted, the first for Wednesday after “quindene of Easter” (19 April 1458) and the second for Wednesday after “octave of Trinity” (7 June 1458), when the defendant defaulted: PRO, KB 146/6/36/2 Hilary 36 Henry VI. The endorsement of the bill in the panella file informs us that the defendant defaulted on 7 June 1458, while according to the plea roll, he defaulted on 15 May 1458. If we compare the information contained in the panella files and the plea rolls, we can say that the custodial bill must have been handed in on 3 February 1458 (see PRO, KB 146/6/36/2 Hilary 36 Henry VI for the capias that had to be returned into court on that day) and that a day to impari was granted until 19 April 1458. On that day the defendant appeared in court and the bill was enrolled in the plea roll for Easter term 1458. Whether John Hancok defaulted on 15 May or 7 June 1458 is unclear, but that he defaulted is indisputable. Moreover, the date given in the plea roll for the presentation of the custodial bill is definitely wrong, because the bill had already been produced in court in the previous term.

28. Hence, we can be certain that the date given in the following example is correct. William Wryght, a prisoner in the marshalsea. produced a Bill of Privilege for debt against William Warham of London on Tuesday, 9 July 1426. William Warham could not deny Wryght's claim and was consequently committed to the marshalsea because of this debt and because of other causes noted down by the sheriffs of London on the back of the habeas corpus cum causa writ (PRO, KB 27/661 Trinity 4 Henry VI m 77). The panella file for this term (PRO, KB 146/6/4/4) makes it clear that the habeas corpus cum causa had been issued on the basis of the bill, and the return day was given as Wednesday next after the “quin-dene of St John the Baptist” (10 July 1426). It is therefore likely that William Wryght proffered his bill on 9 July 1426, as said in the plea roll.

29. Cf. for instance the introductions to Select Cases in the Court of King's Bench under Edward III, vol. 5, ed. Sayles, George O., Seiden Society 76 (London: Bernard Quaritch, 1958)Google Scholar, vol. 6, ed. George O. Sayles, Seiden Society 82 (London: Bernard Quaritch, 1965), and Select Cases in the Court of King's Bench under Richard II, Henry IV and Henry V, vol. 7, ed. Sayles, George O., Seiden Society 88 (London: Bernard Quaritch, 1971)Google Scholar; Post, John B., “King's Bench Clerks in the Reign of Richard II,” Bulletin of the Institute of Historical Research 41 (1914): 150–63.Google Scholar

30. According to Marjorie Blatcher, the plaintiff who “set down his grievance in a bill” would deliver the bill to the court, which would issue a precept of attachment: Blatcher, Majorie, The Court of King's Bench, 1450–1550. A Study in Self-Help, University of London Legal Series 12 (London: Athlone Press, 1978), 112.Google Scholar

31. Select Cases in the Court of King's Bench under Edward II, ed. Sayles, George O. Seiden Society 74 (London: Bernard Quaritch, 1957), 4Google Scholar: lxxxv. For procedure by bill see Sayles, George O., The Court of King's Bench in Law and History, Seiden Society Lecture 1959 (London: Bernard Quaritch, 1959), 14–18Google Scholar and Sayles, Select Cases, Seiden Society 74. lxvii-lxxxvi.

32. Bills were not written in the Chancery like original writs but were “framed by a private lawyer” (Cecil A. F. Meekings, “A King's Bench Formulary,” Journal of Legal History 6 [1985]: 89); “drawn by counsel” (Baker, Spelman, 2:88) or “by clerks of the King's Bench” (Jenks, Susanne, “Bills of Custody in the Reign of Henry VI,” Journal of Legal History 23 [2002]: 209).CrossRefGoogle Scholar They did not have to be engrossed by a court official (Baker, Spelman, 2:88).

33. Plaintiffs were not required to identify themselves: Blatcher, The Court of King's Bench, 1450–1550, 120.

34. Cf. ibid., 121–22. However, there are some mistakes in her account.

35. Meekings, “King's Bench Formulary,” 90; Blatcher, The Court of King's Bench, 1450–1550, 126; Jenks, Susanne, Die Bürgschaft im mittelalterlichen englischen Strafrecht, Studien zur Europäischen Rechtsgeschichte 161 (Frankfurt am Main: Vittorio Klostermann, 2003), 74–75 with n. 320.Google Scholar

36. Dictionary of Medieval Latin from British Sources, Fascicule V, prepared by Howlett, D. R. (Oxford: British Academy Publications, 1997)Google Scholar, s.v. impetratio: a) purchase, suing out (of writs), esp. as commencement of action, b) obtaining of privilege or sim. by petition made to king, c) privilege or sim. so obtained.

37. See for instance PRO, KB 27/741 Trinity 24 Henry VI m 56d: dies impetracionis of the custodial bill for trespass was 24 June 1446 (Nativity of St. John the Baptist); PRO, KB 27/756 Easter 28 Henry VI m 32d: dies impetracionis of the custodial bill for trespass was Sunday, 10 May 1450; PRO, KB 27/831 Hilary 8 Edward IV m 20d: dies impetracionis of the Bill of Middlesex was Sunday, 12 February 1469. There may have been some (inofficial) document on which the dies impetrationis was recorded, because there are instances where litigants were able to give this date: see Jenks, “Bills of Custody in the Reign of Henry VI,” 219 n. 57.

38. One case refers to a dies impetracionis brevis originalis although it was a Bill of Middlesex: PRO, KB 27/731 Hilary 22 Henry VI m 3d.

39. Cf. Haskett, Timothy S., “Country Lawyers? The Composers of English Chancery Bills,” in The Life of the Law. Proceedings of the Tenth British Legal History Conference, University of Oxford 1991, ed. Birks, P. (London: Hambledon Press, 1993), 9–23.Google Scholar According to Tucker, Penny, “The Early History of the Court of Chancery: A Comparative Study,” English Historical Review 115 (2000): 790CrossRefGoogle Scholar, bills presented to the court of Chancery “were sometimes composed and perhaps even written by the plaintiff himself.”

40. PRO, KB 146/7/3/2 Trinity 3 Edward IV: Bill of Middlesex proffered by John Lound against William Lyndsey; attachias (with remnants of the seal) and capias (with remnants of the seal) written by Strete. This bill, which is written in the same hand as the precepts, is enrolled in PRO, KB 27/809 Trinity 3 Edward IV m 32. Cf. Select Cases in the Court of King's Bench under Edward II, ed. Sayles, George O., Seiden Society 74 (London: Bernard Quaritch, 1957), 4Google Scholar: lxxix: “a great many bills must have been written professionally.”

41. A different phrase (dies confeccionis huius bille) was used when a bill was proffered by the king, and he certainly did not have to pay for the bill. Cf. for instance PRO, KB 27/ 723 Hilary 20 Henry VI m 22 Rex.

42. See PRO, KB 27/761 Trinity 29 Henry VI m 29d and m 23d. The price in the mid-seventeenth century was Is 6d for a Bill of Middlesex: cf. Blatcher, The Court of King's Bench 1450–1550, 135.

43. PRO, KB 27/756 Easter 28 Henry VI m 32d: two custodial bills for trespass obtained on 10 May 1450 by Walter Colepepyr against William Kempe; PRO, KB 146/6/34/2 Hilary 34 Henry VI: custodial bill obtained on 25 Jan. 1456 by John Chovnyng against John Waltham.

44. Cooperrider Rodgers, Discussion of Holidays, 43 and 10: “In determining what legal activities were to be sanctioned on Holy Days, canonists, in their interpretation of church law, followed closely the regulations set down in the Corpus iuris civilis concerning holidays” (referring to Corpus iuris canonici II, 272–73 [Lib. II, tit. ix, c. 5]). For instance, “oaths pertaining to the establishment of peace might be administered at all times” (Cooperrider Rodgers, Discussion of Holidays, 44 [refering to Azo of Bologna, Summa aurea (Lyons, 1557), “de feriis,” fol. 46v, col. 2]). “In case of injury or theft, or disasters such as fire and shipwreck, where lapse of time might easily render the object of the proceedings useless, it was considered proper for investigations to be undertaken at once” (ibid.) and in “recognition of the fact that clients who came from a distance might be seriously inconvenienced by the intervention of a Holy Day of local significance, advocates were granted the right of offering them counsel” (ibid., 45, referring to The Court Baron, being precedents for Use in Seignorial and Other Local courts, ed. Maitland, F. W. and Baildon, W. P., Seiden Society 4 [London: Bernard Quaritch, 1891], 56–57).Google Scholar Breach of the Sabbath was dealt with in church courts. See Helmholz, Richard H., “Crime, Compurgation and the Courts of the Medieval Church,” Law and History Review 1 (1983): 9CrossRefGoogle Scholar; Wunderli, Richard M., London Church Courts and Society on the Eve of the Reformation, Speculum Anniversary Monographs 7 (Cambridge, Mass.: The Medieval Academy of America, 1981), 122–23.Google Scholar

45. Cf. PRO, KB 27/647 Hilary 1 Henry VI m 41 (return day of attachias 9 Feb. 1423; return day of capias 10 Feb. 1423); PRO, KB 27/718 Michaelis 19 Henry VI m 7 (return day of attachias 10 Nov. 1440; return day of capias 11 Nov. 1440).

46. If an attachias precept was to be returned on a Saturday, the following Monday whis chosen as the return day of the capias precept: cf. for instance PRO, KB 27/695 Hilary 13 Henry VI m 31 (return day of attachias 5 Feb. 1435; return day of capias 7 Feb. 1435); PRO, KB 27/714 Michaelmas 18 Henry VI m 64d (return day of attachias 7 Nov. 1439; return day of capias 9 Nov. 1439).

47. Cf. PRO, KB 27/732 Easter 22 Henry VI m 94d (return day of attachias 20 May 1444; return day of capias 21 May 1444, Ascension Day).

48. Cf. for instance PRO, KB 27/649 Trinity 1 Henry VI m 77d (return day of latitai 1 Nov. 1423, All Saints Day); PRO, KB 27/786 Michaelmas 36 Henry VI m 22d (return day of latitai 1 Nov. 1457, All Saints Day), m 29d (return day of latitai 2 Nov. 1457, All Souls Day).

49. See PRO, KB 27/787 Hilary 36 Henry VI m 77 (Bill of Custody brought by Thomas Wyghtfeld against John Stevenes and others, proffered on 13 Feb. 1458; return day of attachias: 7 February 1458 and of capias 9 February 1458) and PRO, KB 146/6/36/3 Pasche 36 Henry VI (latitai writ issued on 13 Febr. 1458). But see PRO, KB 27/708 Easter 16 Henry VI m 30, where the bill was proffered on 10 May 1438, one day after the return day of the latitai (9 May 1438). However, the words veneris and tres septimanas of the return day (die veneris proximo post tres septimanas Pasche) were written on an erasure. Most bills were proffered before the return day of the attachias (cf. PRO, KB 27/647 Hilary 1 Henry VI mm 29, 41, 54; PRO, KB 27/649 Trinity 1 Henry VI mm 22d, 76d, 77d; PRO, KB 27/683 Hilary 10 Henry VI mm 4Id, 64d; PRO, KB 27/718 Michaelmas 19 Henry VI mm 7, 56d, 64, 124), while some were proffered on the return day of the attachias (cf. PRO, KB 27/649 Trinity 1 Henry VI m 76d; PRO, KB 27/674 Michaelmas 8 Henry VI m 62; PRO, KB 27/ 732 Easter 22 Henry VI m 94d) or capias (PRO, KB 27/815 Hilary 4 Edward IV m 32d).

50. They are enrolled in the controllment rolls (PRO, KB 29).

51. See PRO, KB 145/7/2 Recorda 2 Edward IV for the Bill of Privilege for debt brought by Thomas Luyt, unius clericorum dominum regis in curia eiusdem regis corani ipso rege, against Robert Hunt.

52. Those Bills of Privilege, where the plea rolls only indicate that the defendants were attached to answer without giving the precise day when they were proffered, were most likely not dealt with in court on Sundays, simply because this day was never chosen as a return day.

53. See for instance PRO, KB 27/672 Easter 7 Henry VI m 44 (proffered on Sunday, 24 April 1429; return day of attachias 21 April 1429; return day of latitai 7 May 1429).

54. PRO, KB 27/746 Michaelmas 26 Henry VI m 5: A Bill of Privilege for debt was proffered by Thomas Luyt. a clerk of the King's Bench, on Monday, 16 Oct. 1447. The return day of the attachias precept was Tuesday, 17 Oct. 1447: PRO, KB 146/6/26/1 Michaelmas 26 Henry VI.

55. See for instance PRO, KB 27/641 Trinity 9 Henry V m 25: on Saturday, 21 June 1421, Thomas Douryssh, a clerk of John Dabnon, custos rotulorum curie regis, proffered a bill for debt against Richard Fernam. The return day of the attachias was 21 June 1421, the return day of the latitai was 14 Oct. 1421. PRO, KB 27/672 Easter 7 Henry VI m 44: A Bill of Privilege for debt was proffered by Philip Lowes, a servant of William Cheyne, chief justice of the King's Bench, against William Maundevile on Sunday, 24 April 1429. The return day of the attachias was 21 April 1429 while the return day of the latitat was 7 May 1429.

56. For Bills of Middlesex leading to latitat writs handed into court on a Sunday see: PRO, KB 27/647 Hilary 1 Henry VI m 54 (on Sunday, 7 Feb. 1423); PRO, KB 27/651 Hilary 2 Henry VI m 61d (on Sunday, 30 Jan. 1424); PRO, KB 27/698 Michaelmas 14 Henry VI m 13d (on Sunday, 16 Oct. 1435); PRO, KB 27/698 Michaelmas 14 Henry VI m 36 (on Sunday, 6 Nov. 1435); PRO, KB 27/700 Easter 14 Henry VI m 6d (on Sunday, 29 April 1436); PRO, KB 27/700 Easter 14 Henry VI m 7d (on Sunday, 6 May 1436); PRO, KB 27/714 Michaelmas 18 Henry VI m 64d (on Sunday, 8 Nov. 1439); PRO, KB 27/718 Michaelmas 19 Henry VI m 5 (on Sunday, 16 Oct. 1440); PRO, KB 27/718 Michaelmas 19 Henry VI m 7 (on Sunday, 6 Nov. 1440); PRO, KB 27/763 Hilary 30 Henry VI m 83d (on Sunday, 30 Jan. 1452); PRO, KB 27/769 Trinity 31 Henry VI mm 114d, 119d (on Sunday, 1 July 1453).

57. Bili of Middlesex leading to latitai proffered on 1 Nov. 1423, All Saints Day (PRO, KB 27/650 Michaelmas 2 Henry VI m 93d); on 14 May 1450, Ascension Day (PRO, KB 27/756 Easter 28 Henry VI m 38); on 24 June 1468, Nativity of St. John the Baptist (PRO, KB 27/829 Trinity 8 Edward IV m 33d).

58. Bill of Privilege proffered by John Dey, a servant of Hugh Holcot, a clerk of the King's Bench, on Sunday, 4 Febr. 1425, leading to a habeas corpus cum causa: PRO, KB 27/655 Hilary 3 Henry VI m 66d. Bill of Privilege proffered by Philip Lowes, a servant of the Chief Justice of the King's Bench, on Sunday, 24 April 1429, leading to a iatitat: PRO, KB 27/ 672 Easter 7 Henry VI m 44.

59. The phrase presens hie in curia must describe real physical attendance in court rather than just nominal presence, because of the absence of summons. Cf. the case of the clerk of the King's Bench who was assaulted in Fleet Street during term time (on 25 May 1318) in the presence of the court (in presencia curie) while being on his way to the court (versus curiam istam) in the king's business (pro negociis domini regis et aliorum diversorum expediendis). According to this record, the court was simultaneously in Fleet Street and Westminster Hall, which is impossible, of course. However, the presence of the court in Fleet Street could be claimed simply because representatives of that court were on the spot when the trespass happened (homines de curia in quorum presencia dicta transgressio facta fuit). They symbolized the court, especially as they were acting on behalf of the court during term time. Therefore, the presence of the court in Fleet Street on 25 May 1318 was real. It was not the curia in session in Westminster Hall whose presence was claimed here, but rather the presence of the court as an institution represented by its members during term time.

60. PRO, KB 27/641 Trinity 9 Henry V m 37.

61. Ibid.

62. Again the attendance must be real. When attorneys lost their privilege of suing by bill in the King's Bench in 1486, the reason given was that no attorney was in court of record nor was his attendance there necessary. This argument only works if physical presence in court was a prerequisite in these cases: Blatcher, The Court of King's Bench, 1450–1550, 117, citing Year Book 1 Henry VII, fol. 12 pl. 17 (SEIPP no. 1486.017).

63. PRO, KB 27/682 Michaelmas 10 Henry VI m 81: The word “privilege” is omitted.

64. PRO, KB 27/765 Trinity 30 Henry VI m 30.

65. Prisoners were not deemed to be coram rege but rather in custody in the King's Bench jail. They could be brought before the justices when needed. Hence, their physical attendance in court at the time the bill was presented was not absolutely necessary—and is therefore not even alleged by the records.

66. PRO, KB 27/698 Michaelmas 14 Henry VI m 36d.

67. There are a few exceptions: cf. PRO, KB 145/6/21 Recorda 21 Henry VI (Bill of Custody for debt brought by George Neffeld against Richard Freton; not enrolled in the plea rolls); and PRO, KB 145/7/5 Recorda 5 Edward IV (Bill of Custody for trespass brought by William Johnson against John Colyns; enrolled in PRO, KB 27/818 Michaelmas 5 Edward IV m 63). Bills of Custody brought by the king or by the court's personnel were filed in the recorda files (PRO, KB 145).

68. If Bills of Custody could only be obtained against defendants already in custody, one would expect that the issue date would have been noted down on the bill as proof in case defendants later claimed that they were at large when the bill was obtained. Cf. also Jenks, “Bills of Custody in the Reign of Henry VI,” 200–201, 209.

69. Cf. PRO, KB 27/647 Hilary 1 Henry VI m 67 (7 Feb. 1423); PRO. KB 27/673 Trinity 7 Henry VI mm 43d (29 May 1429), 105d (26 June 1429), L15d (26 June 1429); PRO. KB 27/674 Michaelmas 8 Henry VI m 68 (6 Nov. 1429); PRO. KB 27/676 Easter 8 Henry VI m 48d(14May 1430).

70. On Purification: PRO, KB 27/695 Hilary 13 Henry VI m 26d (2 Feb. 1435); on Ascension Day: PRO, KB 27/696 Easter 13 Henry VI m 56d (26 May 1435); PRO, KB 27/760 Easter 29 Henry VI mm 30d, 52d (3 June 1451); on the Nativity of St. John the Baptist: PRO. KB 27/705 Trinity 15 Henry VI m 46d (24 June 1437); PRO, KB 27/721 Trinity 19 Henry VI m 3d (24 June 1441); PRO, KB 27/737 Trinity 23 Henry VI m 93 (24 June 1445).

71. Revised Medieval Latin Word-List from British and Irish Sources, prepared by Latham, R. E. (repr. London: Oxford University Press., 1973)Google Scholar, s.v. profero.

72. PRO, KB 27/786 Michaelmas 36 Henry VI m 90d (profenmt hie in curia Hueras testamentarias).

73. PRO, KB 27/790 Michaelmas 37 Henry VI m 88 (dicit quod Johannes Rykhill per scriptum suum indentation, cuius unam partem sigillo eiusdem Johannis signatam idem Willelmus hic in curia profert cuius datum est….)

74. British Library, London, England (hereafter BL), Harleian MS 452 (Trinity 7 Henry VI), fol. 141 r; BL, Year Book Trinity 7 Henry VI (London: Tottel, 1555), fol. xli-xlii’ (By//): SEIPP no. 1429.068. The manuscript, the Black Letter Edition as well as Seipp's Abridgement all have “les Justices lesserà le defendant en bank tanque a ore,” which is translated in SEIPP no. 1429.068 as “The Justices left defendant in the Bench (Common Pleas?) until now.” The discussion on bail and mainprise, which follows in the manuscript and Black Letter Edition version, makes it unlikely that the Justices left the defendant in the Bench. It is more likely that they let the defendant to bail.

75. PRO, KB 27/705 Trinity 15 Henry VI m 107d (Bill of Custody) and m 29 Rex.

76. PRO, KB 27/755 Hilary 28 Henry VI m 25d.

77. See Jenks, “Bills of Custody in the Reign of Henry VI,” 206–8.

78. PRO, KB 27/698 Michaelmas 14 Henry VI m 33d.

79. Cases, where a nisi prius writ had been issued, seem to be different. See for instance PRO, KB 27/347 Hilary 1347 m 30d Rex (printed in Select Cases in the Court of King's Bench under Edward III, 6:54–56 and Harding, Alan, The Law Courts of Medieval England, Historical Problems: Studies and Documents 18 [London: George Allen & Unwin, New York: Barnes and Noble, 1973], 170–171)Google Scholar: “Roger was found guilty of the aforesaid trespass by the jury of the country on which Roger put himself regarding this before William of Thorp, the king's chief justice assigned to hold pleas before the king, at St. Martin-le-Grand, London, by the king's writ of ‘nisi prius,’ on Sunday after the Feast of the Purification of the Blessed Mary in the twenty-first year of the reign of the present king [4 Feb. 1347].”

80. See for instance PRO, KB 27/693 Trinity 12 Henry VI m 36d, where the jury was summoned for Monday next after one month after Michaelmas, which happened to be 1 Nov. 1434 (All Saints Day); PRO, KB 27/824 Easter 7 Edward IV m 28, where the jury is summoned for Monday next after one month after Michaelmas, which was 2 Nov. 1467 (All Souls Day); PRO, KB 27/706 Michaelmas 16 Henry VI m 2d, where the jury is summoned for Friday next after one month after Michaelmas (1 Nov. 1437); PRO, KB 27/666 Michaelmas 6 Henry VI m 117, where the jury was summoned for the day of the conversion of St. Paul, which happened to fall on a Sunday in that year (25 Jan. 1428) and PRO, KB 27/698 Michaelmas 14 Henry VI m 33d, where the jury was summoned for Thursday next after quindene of St. Hilary, which happened to be 2 Feb. 1436 (Purification). The only examples of summons for a Sunday that I know of are Bracton's Note Book. A Collection of Cases decided in the King's Courts during the reign of Henry the Third, Annotated by a Lawyer of that Time, seemingly by Henry of Bratton, ed. Maitland, Frederick William (London: C. J. Clay and Sons, 1887), 2Google Scholar: nos. 242, 248, and 261 (see Cooperrider Rodgers, Discussion of Holidays, 99 n. 129) and PRO, KB 27/437 Hilary 1347 m 30d Rex (see n. 79 above).

81. Though some of the cases where no jury was needed and that appear to have been tried in court on Sundays or Feast Days could have been done so only on parchment by an exchange of pleadings. For paper pleadings cf. Baker, John H., An Introduction to English Legal History, 3d ed. (London: Butterworths, 1990), 97.Google Scholar

82. Blatcher, The Court of King's Bench, 1450–1550, 120.

83. PRO, KB 27/669 Trinity 6 Henry VI m 8d (11 July 1428, tailor); PRO, KB 27/672 Easter 7 Henry VI m 44 (24 April 1429, servant of Chief Justice); PRO, KB 27/676 Easter 8 Henry VI m 48d (14 May 1430, servant); PRO, KB 27/698 Michaelmas 14 Henry VI m 36d (6 Nov. 1435, mercer); PRO, KB 27/673 Trinity 7 Henry VI m 115 (26 June 1429, esquire); PRO, KB 27/678 Michaelmas 9 Henry VI m 79 (12 Nov. 1430, esquire); PRO, KB 27/693 Trinity 12 Henry VI m 10d (13 June 1434, esquire); PRO, KB 27/746 Michaelmas 26 Henry VI m 115 (12 Nov. 1447, esquire); PRO, KB 27/748 Easter 26 Henry VI m 27d (21 April 1448, attorney).

84. PRO, KB 27/698 Michaelmas 14 Henry VI m 33d.

85. PRO, KB 27/705 Trinity 15 Henry VI m 38d (Bill of Custody for trespass proffered on 16 June 1437).

86. PRO, KB 27/737 Trinity 23 Henry VI m 95 (Bill of Custody for debt proffered on 20 June 1445).

87. PRO, KB 27/785 Easter 35 Henry VI m 93 (Bill of Middlesex leading to latitai proffered on 3 July 1457); PRO, KB 27/800 Easter 1 Edward IV m ld (Bill of Middlesex leading to latitai proffered on 26 April 1461).

88. PRO, KB 27/678 Michaelmas 9 Henry VI m 107d (Bill of Custody for trespass proffered on 26 Nov. 1430); PRO, KB 27/705 Trinity 15 Henry VI m 38d (Bill of Custody for trespass proffered on 16 June 1437); PRO, KB 27/718 Michaelmas 19 Henry VI m 113d (Bill of Middlesex leading to latitai proffered on 6 Nov. 1440); PRO, KB 27/723 Hilary 20 Henry VI m 5 (Bill of Middlesex proffered on 28 Jan. 1442); PRO, KB 27/785 Easter 35 Henry VI m 93 (Bill of Middlesex leading to latitai proffered on 3 July 1457); PRO, KB 27/787 Hilary 36 Henry VI m 29d (Bill of Custody for robbery proffered on 29 Jan. 1458); PRO, KB 27/810 Michaelmas 3 Edward IV m 26 (Bill of Custody for trespass proffered on 30 Oct. 1463).

89. Jenks, “Bills of Custody in the Reign of Henry VI,” 200.

90. The return day of judicial writs issued by virtue of an original writ out of Chancery was never a Sunday or a Holy Day.

91. No defendant tried to have a bill quashed with the argument that it was proffered on a Sunday or Holy Day, nor was this discussed in the fifteenth-century year books as far as I know.

92. Cf. PRO, KB 145/7/3 Recorda 3E4: Piacila coram domino rege in cancellano on Sunday, 3 April 1463.

93. Harding, The Law Courts of Medieval England, 113.

94. Cf. Haskett, Timothy S., “Conscience, Justice and Authority in the Late-Medieval English Court of Chancery,” in Expectations of the Law in the Middle Ages, ed. Musson, Anthony (Woodbridge: Boydell Press, 2001), 160Google Scholar: “Certainly, the petitioner is suffering. … But the respondent is himself in danger of his soul. It is no coincidence that the court of chancery grew to prominence under the guidance of men who were themselves bishops; their work in this court merged the pastoral concerns of the prelate and the governmental obligations of the chancellor.”

95. This justification was established at the end of the twelfth century. Cf. Jacques Le Goff, “Licit and Illicit Trades in the Medieval West,” in Goff, Jacques Le, Time, Work and Culture in the Middle Ages, trans. Goldhammer, Arthur (Chicago and London: University of Chicago Press, 1980), 64.Google Scholar

96. Cf. Blatcher, The Court of King's Bench, 1450–1550, chap. 2, for the different views when the decline in business in the common law courts started.

97. Communis opinio has it that procedure by bill was cheaper than by original writ, although we must admit that we do not know how much a bill cost in the fifteenth century. It may have been no more than 3s 4d, the amount usually awarded to plaintiffs in custodial bills if there was no need to summon the jury (cf. Jenks, “Bills of Custody in the Reign of Henry VI,” 219 n. 55). In 1395 two original writs cost 18d and two judicial writs 20d (PRO, KB 27/538 Michaelmas 19 Richard II m 17d Rex). Other information indicates that 6d had to be paid for an original writ in the fourteenth century (Carpenter, David A., “The English Royal Chancery in the Thirteenth Century,” in Écrit et pouvoir dans les chancelleries médiévales, 34 (quoting H. C. Maxwell-Lyte, Historical Notes on the use of the Great Seal of England [London: H.M.S.O., 1926], 331Google Scholar: “crown received a uniform fee of 6d in addition to any ‘fine’ for the grant of it”).

98. Even petitioners in Chancery seem to have stuck to the law terms. Eighty-seven percent of all Chancery bills between 1432 and 1443 were presented during the law terms (Michaelmas, Hilary, Easter, and Trinity) of the common law courts, which either shows that “petitioners preferred to keep to the law terms, or that Chancery was, indeed, not always open outside of those terms even for only the receipt of bills initiating judicial business”: Timothy S. Haskett, “Schedule of Submission and Speed of Process in the Court of Chancery,” in Timothy S. Haskett, The Medieval Court of Chancery (forthcoming). I am indebted to Timothy Haskett for providing me with a pre-print.

99. There is one case that seems to indicate that bills were written in Westminster Hall or at least in the vicinity of this place. In Michaelmas term 1429 Robert Porter appeared in court and begged the justices to send Thomas Malteby back to London. Thomas had to answer a plea of trespass in the King's Bench, but had been imprisoned on a plea of debt brought by Robert Porter in London. The judges informed Robert that he could sue in the King's Bench for the debt if he hurried, because they could not sent Thomas back to London to answer the plea there while the trespass case was pending. Robert did what he was told and presented a custodial bill on the same day (PRO, KB 27/674 Michaelmas 8 Henry VI m 56d). Given that Robert had to hurry to present his bill of custody in time, it seems likely that he did not have to go far in order to get the bill. This does not mean, however, that all bills were written in Westminster Hall. They could certainly also have been produced at St. Paul's or in the Guildhall, for instance, where the Serjeants resorted in the afternoon for consultation. See Baker, John H., “Counsellors and Barristers. An Historical Study,” Cambridge Law Journal 27 (1969): 207–8CrossRefGoogle Scholar (repr. Baker, John H., The Legal Profession and the Common Law. Historical Essays [London and Ronceverte: The Hambledon Press, 1986], 101–2).Google Scholar

100. See Brand, “Lawyers' Time,” 82 for evidence that litigants were not required to appear on a Sunday. Cf. also PRO, KB 29/46 (Hilary 1403) m 11: Memorandum quod die jovis proximo post ociabas sancti Hilarij isto eodem termino coram domino rege apud Westmonasterium venit Henricus By sett, clericus, in propria persona sua et pecijt in plena curia hie de Johanne Holcot, armigero, adtunc presente in curia, sufficientem securitatem de pace domini regis erga ipsum Henricum extunc portando et super hoc instanter dictum est eidem Johanni, quod inventat sufficientem securitatem pacis eidem Henrico et populo domini regis imposterum portande. Et quod non recedat a curia domini regis hic sine licencia antequam securitatem predictam informa predicta plenius invenerit qui quidem Johannes Holcot postmodum, videlicet die veneris, die sabbati, die lune et die martis extunc proxime sequentes hic in curia coram domino rege apud Westmonasterium ad securitatem predictam inveniendum solempniter et pluries vocatus non venit set sine licencia recessif in contemptum domini regis et despectum curie sue. Per quod consideratum est quod idem Johannes pro contemptu predicto capiatur.

101. On Sunday, 19 June 1463, William nunc dominus la Zouche came to Westminster coram Johanne Markham, milite, capitali Justiciarlo domini regis ad placita coram ipso rege tenendo assignato apud Westmonasterium to have a bond enrolled: PRO, KB 27/809 Trinity 3 Edward IV m 24.

102. For evidence of secularization during the late fifteenth and sixteenth century, cf. Wunderli, London Church Courts and Society on the Eve of the Reformation and Helmolz, Richard, “Assumpsit and Fidei Laesio,” Law Quarterly Review 91 (1975): 431.Google Scholar

103. For an example of a bill delivered to the Court of Common Pleas on a Sunday, see PRO, CP 40/802 Michaelmas 1 Edward IV m 235 (25 Oct. 1461).

104. A Handbook of Dates, 106.

105. Pugh, Ralph B., “The Duration of Criminal Trials in Medieval England,” in Law, Litigants and the Legal Profession, ed. Ives, E. W. and Manchester, A. H. (London and New Jersey: Boydell & Brewer, 1983), 108Google Scholar (cf. also 111, 114).

106. Palmer, Robert C., The County Courts of Medieval England, 1150–1350 (Princeton: Princeton University Press, 1982), 5Google Scholar: “No county normally met on Fridays or Sundays, although rare irregular sessions or sessions of the rere-county were held on those days.”

107. Cf. Wunderli, London Church Courts and Society on the Eve of the Reformation, 13: “Days on which the court was in recess are also baffling: they were not prominent saints' days. There seems not to have been a set court calendar, but rather court days seem to have been determined by the pressing work load, by the personal affairs and personal schedule of the judge, or by other London court calendars which precluded the commissary court from sitting.”

108. PRO, KB 27/833 Trinity 9 Edward IV m 31–3ld.