Page:English Historical Review Volume 35.djvu/110

 102 MERCHANTS' COURTS AT WINCHESTER January only. In the latest roll (35 Henry VIII) fictitious personages appear — John Do and Richard Ro in thirty cases ; Do and Fen, or Fen and Ro, in four ; John Fen and Richard Wren in three ; Richard Hart and Henry Smart in one. The defendant is ordered to be attached 'quia extraneus est '. Attachment does not imply arrest ; it is no more than an order to be present, and if security is found the defendant is free as long as he appears by his attorney or in propria persona ; even the master of St. Cross, John Incent, doctor of laws, who was also dean of St. Paul's, is * attached'. But if the defendant can find no security the record says * in custodia Ballivorum', or with grim brevity, ' plegius prisona*, and there is at least one case where a dericus is so treated ; or else he is distrained by some article of personal property, his horse usually. When a ' plegius ' is found the summons to attend is often ignored ; the small fine of 3<7. is imposed on the * plegius ' and mounts up by small increments, generally of 2(if., for every non-appearance of the defendant. The year 19 Henry VT would appear to have been one of lax administration ; there are three cases where the adjournments are ten, twelve, and fourteen respectively, and there is nothing in the roU beyond the repeated statement ' ipse et plegius suus in misericordia ' to show that either suffered for the neglect ; in the worst of cases the fine does not exceed 2s. Two courses are open to the defendant for his defence — he may demand a jury or wager his law. In the first case the common phrase is * partes placitaverunt ad patriam ' ; a * plegius de patria ' is required and the Serjeant of the court is directed to summon twelve men for a given day and hour. In many cases the jury fails to appear (in 1 1 Henry VI thirteen times out of thirty- four) and the Serjeant is ordered * sex tales apponere ' for a later date, that is, to provide a supplementary panel from which vacancies can be filled. In the latest roll, that of 36 Henry VIII, the number so provided is first ten, then eight, and finally, after a third failure to make a jury, six. The function of the jury is to obtain or to tender evidence of the debt or trespass and on their evidence the court makes its award (' consideratum est per curiam ') ; the jury, that is, is representative of the locality and expresses the knowledge of the locality on the merits of the case, judgement is the act of the court, the mayor, and bailiffs. Where the defendant wagers his law the number of com- purgators varies from one to eight, ' secunda ' to * nona manu *. Does the number depend on the status of the defendant or the magnitude of the debt ? The details given are not sufficient for us to answer with certainty, but it looks as if it were the latter. In 11 Henry VI three compurgators are required for debts of 9s. 2d., and for 20d. ; one for a debt of 23rf. When the debt is