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Procedure in Land Cases University Press Scholarship Online Oxford Scholarship Online The Oxford History of the Laws of England: 871-1216 John Hudson Print publication date: 2012 Print ISBN-13: 9780198260301 Published to Oxford Scholarship Online: September 2012 DOI: 10.1093/acprof:oso/9780198260301.001.0001 Procedure in Land Cases John Hudson DOI:10.1093/acprof:oso/9780198260301.003.0023 Abstract and Keywords Matters of procedure dominate the first great treatise of the common law, the Tractatus de legibus et consuetudinibus regni Anglie, commonly known as Glanvill. When taken together with the early royal plea rolls, Glanvill allows a much fuller account than is possible for earlier periods; therefore this chapter concentrates on the situation in the period from Glanvill to Magna Carta, whilst noting some earlier developments. To set the scene, it examines a famous early case that, if not typical, is illustrative of the concerns that confronted litigants and justices at the time of the Angevin reforms. Keywords: legal procedures, common law, Angevin reforms Matters of procedure dominate the first great treatise of the common law, the Tractatus de legibus et consuetudinibus regni Anglie, commonly known as Glanvill. When taken together with the early royal plea rolls, Glanvill allows a much fuller account than is possible for earlier periods; therefore this and subsequent chapters do not seek to Page 1 of 56 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 11 November 2014 Procedure in Land Cases provide a full chronological survey of change between 1154 and 1216. Rather, they concentrate on the situation in the period from Glanvill to Magna Carta, whilst noting some earlier developments.1 However, to set the scene, let us examine a famous early case that, if not typical, is illustrative of the concerns that confronted litigants and justices at the time of the Angevin reforms. 1 RICHARD OF ANSTEY'S ACCOUNT Tales of judicial entanglement, epitomised in the nineteenth century by Dickens’ Bleak House and in the twentieth by Kafka's The Trial, have a distant twelfth-century relative in Richard of Anstey's account of his expenses incurred in his inheritance claim against his cousin Mabel.2 We have already examined the substance of the dispute, in the context of marriage law.3 The unique survival of Richard's account provides a detailed chronology and an itemisation of expenditure that totalled £344 7s. 4d. It begins in autumn 1158, with Richard having to send one of his men to Normandy, in order to obtain the king's writ, whereby he placed his opponents in plea. As this writ had been issued abroad, Richard then had to get another version from the queen, Eleanor of Aquitaine, who was in England.4 He (p.575) also found Ralph Brito, who was about to go to France, and asked him to obtain from the king a writ addressed to the archbishop of Canterbury; Richard says that he knew that the case, turning as it did on a disputed marriage, would pass to the archbishop's court. Next Richard took the queen's writ to Richard de Lucy, the justiciar, who gave him a day for pleading. Only then could Richard, with his friends and helpers, open his pleading, at the end of November 1158. The justiciar set a day for further pleading, but Ralph Brito returned with the king's writ, and the case passed to the archbishop's court at the start of 1159. Richard sought to assemble evidence, oral and written, as well as legal expertise, including the Italian Master Peter of Meleti.5 His opponents, he tells us, strove to delay proceedings, seeking a writ from Henry II exempting them from pleading until the king returned from abroad; to counter this Richard had to obtain a writ through his brother whose journey to the king involved expenditure of 3m. His opponents also employed the essoin, that is the excuse, that they were summoned to the king's army on his expedition to Toulouse, requiring Richard to travel to the king in southern France in orderto obtain a writ that the pleading proceed. He then sought the archbishop again and the case resumed, but on one occasion Richard had to essoin himself from an appearance because of illness; the essoiners’ journey cost Richard 10s. Richard did appear on numerous court days, but in the autumn of 1160 he decided that he should appeal to Rome, which necessitated him crossing the Channel to obtain a royal writ; he spent £4 5s. on this journey, and lost a palfrey that he had bought for 16s. Richard then obtained an unsealed writ of appeal [breve appellationis] from the archbishop, and sent it to Peter of Meleti and another scholar of the learned laws, Master Ambrose, to have it corrected. Next he took the writ back to Canterbury to have it sealed, but was refused. Rather, he was given another unsealed writ, which he showed to a further legal expert, the bishop of Chichester, and then to Peter and Ambrose. At last the archbishop agreed to seal the writ.6 Richard then gathered further evidence and dispatched his clerks to Rome. On 8 April 1161 the pope issued a ‘rescript’, outlining the Page 2 of 56 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 11 November 2014 Procedure in Land Cases case to the judges delegate to whom he entrusted it: Hilary, bishop of Chichester and Laurence, abbot of Westminster. Richard duly took the letter to them.7 A series of court days followed, together with considerable travel and expenditure. His opponents in turn appealed to the pope, and Richard had to send his clerks to the papal court, where they were for almost nine weeks before they could obtain (p.576) Richard's sentence, and they spent 11m. Eventually they came back with the desired ‘judgment concerning adultery’, in three texts, one to the archbishop, one to Richard de Lucy, and one to Richard of Anstey himself.8 Richard had to take the documents to the justiciar, and await the return of the king from Normandy. At last the justiciar, by the king's order, gave Richard a day for pleading at London at the start of March 1163. The king's business meant that matters were delayed still further. Richard sought further help, for example sending his brother to Ranulf de Glanville. Eventually the case came before the king at Woodstock in July 1163 and ‘at last, by the grace of God and of the king, and by judgment of his court, my uncle's land was adjudged to me; and there I spent £7 10s.’ Richard's account illustrates many aspects of procedure already discussed. Litigants had actively to seek justice, through travel and expenditure of time and money. Different courts might co-operate, but their various demands could extend cases. Litigants required support, from friends and relatives, and—particularly in ecclesiastical courts— from legal experts. Documentation was important, and scrutinised with care. Legal cases had to be made with skill, but favour also mattered. Hilary bishop of Chichester was both adviser to Richard and papal judge delegate. Meanwhile, the machinery of justice had to be greased. Richard notes that, amongst other gifts, ‘to Ralph the king's physician I gave 36½m; to the king 100m.; to the queen 1 gold mark’. Richard's case might have been a difficult and expensive one even had it arisen later; however, it helps to explain why royal provision of speedy and relatively cheap procedures would prove so popular with litigants in the remaining half century of our period. The present chapter concentrates on procedure in cases involving land and rights over some other immovables, such as mills and churches. Procedure in other types of dispute, for example those involving performance of services, debt, crimes, and status are left to other chapters.9 This arrangement stems in part from the greatly increased material. However, it also reflects contemporary development. Clearer procedural distinctions appear. Whereas an individual complaint or appeal regarding a wrong characterised most cases in earlier periods, presentment now was used in many criminal cases, whilst employment of writs came to characterise cases concerning free tenements.10 Glanvill, moreover, divides pleas into the Roman categories of civil and criminal.11 It is with much of his first (p.577) category that the present chapter is concerned. The chapter also follows Glanvill in concentrating largely on the king's courts, although some parallels or contrasts with seignorial or local courts will be noted. In general procedures in these latter courts probably did not change radically, although some modifications arose in part from the new royal procedures.12 The chapter also follows Glanvill in dealing first with cases involving ‘right’, second with Page 3 of 56 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy).
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