Book: Our Legal Heritage, 4th Ed.

S >> S. A. Reilly >> Our Legal Heritage, 4th Ed.




A widower had all his wife's lands by curtesy of the nation for
his lifetime to the exclusion of her heirs.

The Capital Messuage [Chief Manor] could not be given in dower or
divided, but went in its entirety to its heir.

Heirs were firstly sons, then daughters, then grandsons per
stirpes, then granddaughters per stirpes, then brothers, and then
sisters of the decedent. [By taking "per stirpes" instead of "per
capita", a person's share goes to that person's heirs if that
person predeceases the ancestor-decedent.] Male heirs of land held
by military service or sons of knights who were under the age of
twenty-one were considered to be in custody of their lords. The
lord had wardship over the heir's land, excluding the third that
was the widow's dower for her life. He had to maintain the heir in
a manner suitable to his dignity and restore to him when he came
of age his inheritance in good condition discharged from debts.
Male heirs of sokemen who were under the age of fifteen were in
the custody of their nearest kindred. The son of a burgess came of
age when he could count money, measure cloth, and manage his
father's concerns.

Female heirs remained in the custody of their lords until they
married. The lord was bound to find a marriage for his ward when
she became fourteen years of age and then deliver her inheritance
to her. She could not marry without her lord's consent, because
her husband was expected to be the lord's ally and to do homage to
him. But if a female heir lost her virginity, her inheritance
escheated to her lord. A woman with property could not do homage
because she could not perform military service, but she generally
swore fealty. She could receive homage from men.

Bastards were not heirs, even if their father married their mother
after birth.

Any adult inheriting land had to pay a "relief" to the lord of the
land. For a knight's fee, this was 100s. For socage land, this was
one year's value. The amount for a barony depended upon the King's
pleasure.

Heirs (but not widows) were bound to pay the debts of their
fathers and ancestors. A man who married a woman who had inherited
land could not sell this land without the consent of its heirs.

When a man dies, his wife shall take one-third and his heirs shall
take one-third of his chattels [movables or personal property].
The other third he may dispose of by will. If he had no heirs and
no will [intestate], all his chattels would escheat to his lord.
Any distribution of chattels would take place after all the
decedent's debts were paid from the property.

A will required two witnesses. The testator could name an
executor, but if he did not, the next of kin was the executor. A
will could not be made by a man on his death bed because he may
well have lost his memory and reason. Also, he could not give to a
younger son if in so doing, he would deprive his lawful heir. But
he could give a marriage gift to a daughter regardless of the
lawful heir.

Usury was receiving back more than what was lent, such as interest
on a loan of money. When a usurer died, all his movables went to
the King.

A villein may not buy his own freedom (because all that he has is
his lord's), but may be set free by his lord or by someone else
who buys his freedom for him. He shall also be freed if the lord
seduced his wife, drew his blood, or refused to bail him either in
a civil or criminal action in which he was afterwards cleared. But
a freed villein did not have status to plead in court, even if he
had been knighted. If his free status were tried in court, only a
freeman who was a witness to his being set free could avail
himself of trial by combat to decide the issue. However, if the
villein remained peacefully in a privileged town a year and a day
and was received into its guild as a citizen, then he was freed
from villeinage in every way.

A freeman who married a villein lost his freedom. If any parent of
a child was a villein, then the child was also a villein.

All shipwrecked persons shall be treated with kindness and none of
their goods or merchandise shall be taken from them.

If one kills another on a vessel, he shall be fastened to the dead
body and thrown with it into the sea.

If one steals from another on a vessel, he shall be shaven, tarred
and feathered, and turned ashore at the first land.

Passage on the Thames River may not be obstructed by damming up
the river on each side leaving a narrow outlet to net fish. All
such weirs shall be removed.



- Judicial Procedure -

Henry II wanted all freemen to be equally protected by one system
of law and government. So he opened his court, the Royal Court, to
all people of free tenure. A court of five justices professionally
expert in the law, traveled with the King, and on points of
difficulty consulted with him. Justices began to be more than
presiding officers; they, instead of those attending, rendered the
judgments. The chief court was in Westminster, where the
weightiest decisions were made. Other professional itinerant
justices appeared periodically in all counties of the nation to
hear certain criminal and civil cases and to hear citizens'
private civil suits [common pleas]. They came to perform many
other tasks, including promulgating and enforcing new legislation,
seeking out encroachments on royal rights, reviewing the local
communities' and officials' performance of their public duties,
imposing penalties for failure to do them or for corruption,
gathering information about outlaws and non-performance of homage,
and assessing feudal escheats to the crown, wardships to which the
king was entitled, royal advowsons, feudal aids owed to the King,
tallages of the burgesses, and debts owed to the Jews. The
decision-making of itinerant justices on circuits begins the
process which makes the custom of the Royal Court the common law
of the nation. The county courts, where the travelling justices
heard all manner of business in the counties, adopted the
doctrines of the Royal Court, which then acquired an appellate
jurisdiction. The itinerant justices came from the same small
group of royal justices who were on the Royal Court and the
Exchequer, which was headed by the justiciar. Difficult cases were
decided by the king and wise men of his council.

Tenants of manors and of escheats in royal hands, who had been
excused from the monthly county court, were required to appear.
Side by side with the reeve and four men of the rural townships
appeared the twelve legal men of each of the chartered boroughs
which owed no suit to the ordinary county court. In the formation
of the jury of presentment for criminal cases, each hundred sent
twelve legal men and each township four to make report to the
justices. Women did not serve on juries. Compurgation was not
used; accused persons were sent directly to the ordeal. In 1194,
twelve knights or legal men from each hundred answer before any
itinerant justice for their hundred in all criminal, civil, and
fiscal cases. All who are bound to attend before the itinerant
justices are, in the forest counties, compelled to attend the
forest courts.

The Royal Court was chiefly concerned with 1) the due regulation
and supervision of the conduct of local government, 2) the
ownership and possession of land held by free tenure ("free
tenement" was decided by justices to be one held for life or one
held heritably [a fee]), 3) the repression of serious crime, and
4) the relations between the lay and the ecclesiastical courts.

The doctrine of tenure applied universally to the land law formed
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
lawfulmen 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 recogniton 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 recogniton. 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 eye-witness 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 eye-witnesses), 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.

House-breaking, 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.

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