assizes giving the Royal Court authority to decide land law issues which
had not been given justice in the county or lord's court. But he did not
ordain that all litigation respecting free tenements, e.g. right of
seisin, should take place in the king's court. Rather he gave protection
to mere possession of land, which could be justified because possession
was intimately associated with the maintenance of the king's peace.
These assizes included issues of novel disseisin [recent ejectment] of a
person's free tenement or of his common of pasture which belonged to his
freehold. Though the petty assize of disseisin only provided a swift
preliminary action to protect possession pending the lengthy and
involved grand assize on the issue of which party had the more just
claim or ultimate right of seisin, the latter action was only
infrequently invoked. The temptation of a strong man to seize a
neighbor's land to reap its profits for a long time until the neighbor
could prove and enforce his right was deterred. Any such claim of recent
dispossession [novel disseisin] had to be made within three years of the
disseisin.
An example of a writ of novel disseisin is: The king to the sheriff,
greeting. N has complained to me that R unjustly and without a judgment
has disseised him of his free tenement in [Houndsditch] since my last
voyage to Normandy. Therefore I command you that, if N gives you
security for prosecuting his claim, you are to see that the chattels
which were taken from the tenement are restored to it, and that the
tenement and the chattels remain in peace until Sunday after Easter. And
meanwhile you are to see that the tenement is viewed by twelve free and
lawful men of the neighborhood, and their names endorsed on this writ.
And summon them by good summoners to be before me or my justices on the
Sunday after Easter, ready to make the recognition. And summon R. or his
bailiff if he himself cannot be found, on the security of gage and
reliable securities to be there then to hear the recognition. And have
there the summoners, and this writ and the names of the sureties.
Witness etc.
Then an assize panel of recognition summoned concurrently with the
defendant and before he had pleaded, viewed the land in question and
answered, from their knowledge, these questions of fact: 1) Was the
plaintiff disseised of the freehold in question, unjustly and without
judgment? 2) Did the defendant commit the disseisin? Testimony of a
warrantor (or an attorney sent by him in his place) or a charter of
warranty served to prove seisin by gift, sale, or exchange. No pleadings
were necessary and the action could proceed and judgment given even
without the presence of the defendant. The justices amerced the losing
party with a monetary penalty. A successful plaintiff might be awarded
damages to compensate for the loss of revenue.
There was also a writ for issues of inheritance of land called "mort
d'ancestor". By law the tenure of a person who died seised of a tenure
in a lord's demesne which was hereditary [seisin of fee] returned to the
lord, who had to give it to the heir of the decedent. If the lord
refused and kept it for himself or gave it to someone else, the heir
could sue in the Royal Court, which used an similar assize panel of
twelve men to decide whether the ancestor was seised as of fee in his
demesne, if the plaintiff was the nearest heir, and whether the ancestor
had died, gone on a crusade but not returned, or had become a monk. Then
it could give possession to the heir. Since about 1150, heiresses
divided the land of their father if there was no son. The widow, of
course, retained her dower rights. As of 1176, the widow held her dower
from the heir instead of from the husband's lord. If the heir was a
minor, the guardian lord would be in actual control of the land. A
national policy was implemented that in the case of the death of a
freeholder, the rights of the family, his will, and his debts were to be
provided for before relief was paid to his lord.
Eventually royal justices acquired authority to decide the ultimate
question of right to land using the grand assize as an alternative to
the traditional procedures which ended in trial by combat. Issues of the
ultimate right of seisin were brought to the Royal Court by a contestant
in a local court who "put himself [or herself] upon the King's grand
assize". The assize consisted of twelve knights from the county or
neighborhood who were elected by four knights of the same county or
neighborhood (selected by the sheriff or the suitors) and who were known
as truthful men and were likely to possess knowledge of the facts,
either from personal seeing or hearing, or from statements which their
fathers had made to them from their personal knowledge. The avenue by
which a person who felt he had not had justice in the manor court on his
claim for certain freehold land appealed to the king was by writ of
right after the manor court's decision or by a writ praecipe during the
manor court's proceeding. An example of a writ praecipe is: "The king to
the sheriff greeting. Command [praecipe] N. to render to R. justly and
without delay one hide of land in a certain vill, which the said R.
complains that the aforesaid N. is withholding from him. If he does not
do so, summon him by good summoners to be before me or my justices on
the day after the octaves of Easter, to show why he has not done so. And
have the summoners and this writ. Witness." When the parties appeared in
court, the claimant states his suit such as: "I claim against this N.
the fee of half a knight and two carucates of land in a certain vill as
my right and my inheritance, of which my father (or grandfather) was
seized in his demesne as of fee in the time of King Henry the First, and
from which he took the profits to the value of five shillings at least,
in grain and hay and other profits; and this I am ready to prove by this
freeman of mine, H., and if any evil befalls him them by this other man
or by this third man, who saw and heard it". Then the defendant chose to
deny the claim word for word with proof by combat or to put himself upon
the grand assize of the king. If he chose trial by combat, the parties
or their champions fought. The party losing, usually by crying craven,
had to pay a fine of 60s. If the grand assize was chosen, the action was
removed to the Royal Court. A writ of grand assize was issued as
follows: "The king to the sheriff, greeting. Summon by good summoners
the following twelve, namely, A. B. ..., to be before me or my justices
at a certain place on a certain day, ready to declare on oath whether N.
or R. has the greater right in one hide of land (or other things
claimed) which the aforesaid R. claims against the aforesaid N., who is
tenant, and in respect of which the aforesaid N., who is tenant, has put
himself upon my assize and has sought a recognition to determine which
of them has the greater right in the things claimed. And meanwhile the
twelve shall view the land (or tenements from which the services are
demanded). And summon by good summoners N., who is tenant, to be there
to hear the recognition. Witness..." The claimant could object to any of
the twelve knights for just cause as determined by the court. Each of
the twelve gave an oath as to whether the plaintiff's or the defendant's
position was correct. This oath was not to speak falsehood nor conceal
truth according to knowledge gained by eyewitness or "by the words of
their fathers and by such words as they are bound to have such
confidence in as if they were their own". If any did not know the truth
of the matter, others were found until twelve agreed [the recognitors]
on which party had the greater right. Perjury was punished by forfeiture
of all one's goods and chattels to the king and at least one year's
imprisonment. If the tenant in court vouched another to warranty, such
as the lord to whom he paid homage, that warrantor would stand in his
place in the proceedings. If the warrantor lost, he would have to give
to his vassal equivalent land in exchange. Burgage tenure was not
usually decided by assize. Also, if the parties were relatives, neither
the assize nor the combat was available to them, but the matter had to
be decided by the law of inheritance.
Itinerant justices could conduct these assizes: petty and grand. In
1198, the hundred is empowered to act on all the business of the
session, including all recognitions and petty assizes ordered by the
king's writ, where the property in dispute was worth no more than 200s.
[ten pounds] a year. The four knights came to be selected by the suitors
of the county court rather than by the sheriff.
This assize procedure extended in time to all other types of civil
actions.
Also removable to the Royal Court from the county courts were issues of
a lord's claim to a person as his villein (combat not available),
service or relief due to a lord, dower rights, a creditor's refusal to
restore a gage [something given as security] to a debtor who offered
payment or a deposit, money due to a lender, a seller, or a person to
whom one had an obligation under a charter, fish or harvest or cattle
taken from lands unjustly occupied, cattle taken from pasture, rights to
enjoy a common, to stop troubling someone's transport, to make
restitution of land wrongfully occupied, to make a lord's bailiff
account to him for the profits of the manor.
The Royal Court also decided disputes regarding baronies, nuisance or
encroachments on royal land or public ways or public waterways, such as
diverting waters from their right course and issues of nuisance by the
making or destroying of a ditch or the destruction of a pond by a mill
to the injury of a person's freehold. Other pleas of the Crown were:
insult to the royal dignity, treason, breaches of safe-conducts, and
injury to the King's servants.
Henry involved the Royal Court in many criminal issues, using the
agencies of the county and hundred courts. To detect crimes, he required
royal justices to routinely ask selected representatives: knights or
other landholders, of every neighborhood if any person were suspected of
any murder, robbery, theft, etc. A traveling royal justice or a sheriff
would then hold an inquest, in which the representatives answered by
oath what people were reputed to have done certain crimes. They made
such inquiries through assizes of presentment, usually composed of
twelve men from each hundred and the four best men of each township.
(These later evolved into grand juries). These assizes were an ancient
institution in many parts of the country. They consisted of
representatives of the hundreds, usually knights, and villages who
testified under oath to all crimes committed in their neighborhood, and
indicted those they suspected as responsible and those harboring them.
What Henry's assize did was to insist upon the adoption of a standard
procedure everywhere systematically. The procedure was made more regular
instead of depending on crime waves. If indicted, the suspected persons
were then sent to the ordeal. There was no trial by compurgation in the
Royal Courts, which was abolished by Henry. If determined guilty, he
forfeited his chattels to the king and his land reverted to his
landlord.
If a man failed at the ordeal, the penalty prescribed by the assize of
Clarendon of 1166 was loss of a foot and abjuring the realm. The assize
of Northhampton of 1176 added loss of the right hand. A man who had a
bad reputation had to abjure the realm even if he had successfully
undergone the ordeal.
As before, a person could also be brought to trial by the accusation of
the person wronged. If the accused still denied the charge after the
accuser testified and the matter investigated by inquiries and
interrogation and then analyzed, trial by combat was held, unless the
accuser was over the age of sixty or maimed, in which case the accused
went to the ordeal.
The ordeal was abolished by the Lateran Council of 1215.
Criminal matters such as killing the king or sedition or betraying the
nation or the army, fraudulent concealment of treasure trove [finding a
hoard of coins which had been buried when danger approached], breach of
the King's peace, homicide, murder (homicide for which there were no
eyewitnesses), burning (a town, house, men, animals or other chattel for
hatred or revenge), robbery, rape and falsifying (e.g. false charters or
false measures or false money) were punishable by death or loss of limb.
All murders were now punished alike because the applicability of the
murdrum couldn't be determined since it was impossible to prove that the
slain man had been English.
Trespass was a serious and forcible breach of the peace onto land that
developed from the criminal law of felony. One found guilty of it could
be fined and imprisoned as well as amerced.
Housebreaking, harboring outlaws, and interference with the royal
perquisites of shipwreck and the beasts of the sea which were stranded
on the coast [such as whales and sturgeon] were also punishable in the
Royal Court.
The Royal Court had grown substantially and was not always presided
over by the King. To avoid court agents from having too much
discretionary power, there was a systematic procedure for bringing cases
to the Royal Court. First, a plaintiff had to apply to the King's
Chancery for a standardized writ into which the cause had to fit. The
plaintiff had to pay a fee and provide a surety that the plea was
brought in good faith. The progress of the suit was controlled at
crucial points by precisely formulated writs to the sheriff, instructing
him for instance, to put the disputed property under royal protection
pending a decision, to impanel an assize and have it view the property
in advance of the justices' arrival, to ascertain a point of fact
material to the plea, or to summon a 'warrantor' to support a claim by
the defendant.
The Royal Court kept a record on its cases on parchment kept rolled up:
its "rolls". The oldest roll of 1194 is almost completely comprised of
land cases.
Anyone could appoint an agent, an "attorney", to appear in court on his
behalf, it being assumed that the principal could not be present and
royal authorization given. A wife could represent her husband. The
principal was then bound by the actions of his agent. Gradually men
appeared who made a business of representing whoever would employ them.
The common law system became committed to the "adversary system" with
the parties struggling judicially against each other.
The Royal Court took jurisdiction over issues of whether certain land
was civil or ecclesiastical [assize utrum], and therefore whether the
land owed services or payment to the Crown or not. It also heard issues
of disturbance of advowson, a complex of rights to income from a church
and to the selection of a parson for the church [assize of darrein
[last] presentment]. Many churches had been built by a lord on his manor
for his villeins. The lord had then appointed a parson and provided for
his upkeep out of the income of the church. In later times, the lord's
chosen parson was formally appointed by the bishop. By the 1100s, many
lords had given their advowsons to abbeys. This procedure used twelve
recognitors selected by the sheriff.
As before, the land of any person who had been outlawed or convicted of
a felony escheated to his lord. His moveable goods and chattels became
the King's. If he was executed, his heirs received nothing because they
were of the same blood as the felon, which was corrupt: "corruption of
the blood". The loss of civil rights and capacities after a sentence of
death for felony or treason, which resulted in forfeiture of property
and corruption of the blood, was called "attainder".
The manor court heard cases arising out of the unfree tenures of the
lord's vassals. It also heard distraint, also called "distress", issues.
Distraint was a landlord's method of forcing a tenant to perform the
services of his fief. To distrain by the fief, a lord first obtained a
judgment of his court. Otherwise, he distrained only by goods and
chattels without judgment of his court. A distraint was merely a
security to secure a person's services, if he agreed he owed them, or
his attendance in court, if he did not agree that he owed them. Law and
custom restricted the type of goods and chattels distrainable, and the
time and manner of distraint. For instance, neither clothes, household
utensils, nor a riding horse was distrainable. The lord could not use
the chattels taken while they were in his custody. If cattle in custody
were not accessible to the tenant, the lord had to feed them at his
expense. The lord, if he were not the King, could not sell the chattel.
This court also determined inheritance and dower issues.
The court of the vill enforced the village ordinances. The hundred
court met twice a month and dealt with the petty crimes of lowly men in
the neighborhood of a few vills. The county and borough courts heard
cases of felonies, accusations against freemen, tort, and debts. The
knights make the county courts work as legal and administrative agencies
of the Crown.
The peace of the sheriff still exists for his county. The King's peace
may still be specially given, but it will cease upon the death of the
King. Law required every good and lawful man to be bound to follow the
hue and cry when it was raised against an offender who was fleeing. The
village reeve was expected to lead the chase to the boundary of the next
jurisdiction, which would then take the responsibility to catch the man.
Admiralty issues (since no assize could be summoned on the high seas),
and tenement issues of land held in frankalmoin ["free alms" for the
poor to relieve the king of this burden], where the tenant was a cleric
were heard in the ecclesiastical courts.
Before Henry's reign, the church, with the pope's backing, had become
more powerful and asserted more authority. Henry tried to return to the
concept of the king being appointed by God and as the head of the church
as well as of the state, as in Henry I's time, and to include the church
in his reform of the legal system, which would make the spiritual
jurisdiction and temporal jurisdiction conform to a common justice.
Toward this end, he published the Constitutions of Clarendon. But the
Archbishop of Canterbury, Thomas Becket, refused to agree to them,
although as Chancellor he had seen the beneficial effects on the kingdom
of Henry's legal measures. The disagreement came to a head in Henry's
attempt to establish the principle of "one law to all" by having church
clerics punished by the civil courts as before, instead of having
"benefit of clergy" to be tried and punished only in ecclesiastical
courts, even for secular crimes. Clerics composed about one-sixth the
population. The church courts had characteristically punished with
spiritual penalties of a fine or a penance, and at most defrocking. It
could not impose a death penalty, even for murder. When Archbishop
Becket was murdered and became a martyr, "benefit of clergy" became a
standard right, except for offenses in the king's forests. Appeals could
be made to the pope without the king's permission. The king could take a
criminal cleric's chattels, but not his life. However, though
theoretically bishops were elected by the body of bishops with the
approval of the king, as a practical matter, the king chose the bishops
and the abbots. It was a constant matter of dispute, in which the pope
would sometimes involve himself. Selection of archbishops was also a
frequent matter of contention between king and pope.
The church copied the assize procedure developed by the Royal Court to
detect ecclesiastical offenses. Trial was still by compurgation. Bishops
could request the Chancery to imprison an offender who had remained
excommunicant for forty days, until he made amends. Chancery complied as
a matter of course. This went on for six centuries.
The delineations of jurisdiction among these courts were confused and
there was much competing and overlapping of jurisdictions. However, the
court could appoint arbitrators or suggest to the parties to compromise
to avoid the harshness of a decisive judgment which might drive the
losing party to violent self-help.
The office of coroner was established about 1194 to supplement the
judicial investigations of crimes with local officers prior to the
arrival of the itinerant justices. Four knights who were residents of
the county and possessed sufficient land were elected by the county
court for life. Sometimes they had county and royal connections instead.
They received no pay. They determined if sudden deaths were accidental
or due to murder and the cause of death of prisoners. They also held
inquests on other crime such as bodily injury, rape, and prison break.
They attached [arrested] the accused and evaluated and guarded his
chattels until after the trial. If the accused was found guilty, his
possessions went to the King. The coroner sat with the sheriff at every
county court and went with him on his turns. This office and the
forbidding of sheriffs to act as justices in their own counties reduced
the power of the sheriffs. The responsibility of receiving the oath of
the peace is changed from the sheriff to knights, the duty of the
sheriffs being only to receive and keep the criminals taken by these
knights until the justices came to try them.
Also, at this time, the constitution of the grand jury of the county
was defined. First, four knights were to be chosen in the county court.
These were to select on oath two knights from each hundred. These two,
also on oath, are to add by co-optation ten more for the jury of the
hundred.
In London, if one of two witnesses for the defense died while an action
was pending, the survivor, after offering his oath, could proceed to the
grave of the dead witness, and there offer oath as to what the dead man
would have sworn if he had been alive. If a foreigner was bound to make
oath for debt or any misdeed, he could make it with six others, his own
oath being the seventh; but if could not find six supporters, he alone
could make the oath and take it in the six nearest churches.
In London, the method of capital punishment was being confined to
hanging, instead of also being in the form of beheading, burning,
drowning, stoning, or hurling from a rock. In cases of drowning, the
offender was first sewn up in a sack with a snake, a dog, an ape, and a
cock.
Chief Justiciar Ranulph Glanvill wrote a treatise on the writs which
could be brought in the Royal Court and the way they could be used. It
was a practical manual of procedure and of the law administered in the
Royal Court.
There are personal actions such as "debt" for specific chattel or
specific sum of money. This splits into two actions. The detinue award
is for the specific chattel or its value. The action of "replevin" is
available to the tenant to recover personal property which had been
wrongly distrained, usually cattle; the goods are "repledged" pending
action. Also, but rarely used, are "covenant" to protect termors for
leases of land for terms of years, and "trespass": a semi-criminal
action brought by a private party for an offense punishable by death (or
in the 1100s by mutilation) such as murder, rape, robbery, or mayhem,
that is done with force of arms and against the peace of the king. The
use of trespass grew as private actions for felony were supplanted by
public indictment. It occasioned outlawry in default of appearance.
These personal actions were initiated in common law courts by their
respective writs.
These are some of the cases of novel disseisin brought to the king's
court: