the basis for judicial procedure in determining land rights. Those
who held lands "in fee" from the king in turn subinfeudated their
land to men of lesser rank. The concept of tenure covered the
earl, the knight (knight's service), the church (frank-almoin
[free alms]), the tenant who performed labor services, and the
tenant who paid a rent (socage). Other tenures were: serjeanty
[providing an implement of war or performing a nonmilitary office]
and burgage. All hold the land of some lord and ultimately of the
King.
Henry was determined to protect lawful seisin of land and issued
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 he passed the ordeal but was
ill-famed in the community, he could be banished from the
community. The ordeal was abolished by the Lateran Council of
1215.
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.
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. Under the former assize, a man who had a bad reputation had
to abjure the realm even if he had successfully undergone the
ordeal.
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: