Oxford Scholarship Online

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

Page 1 of 56

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

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

cases involving only ‘seisins’.13 Within these two categories are distinguished cases started by different types of writ. This arrangement resembles what were later known as the ‘forms of action’ and may not entirely reflect how litigants thought about their cases.14 Rather, those bringing a case would consider first their desired outcome and second how they were to achieve that aim, the latter consideration involving assessment of the proof that they could offer. If the action did not involve a writ, the court would think about the nature of the claim and the proof offered or required. However, some writs specified the form of proof, and this must have encouraged courts to think in terms of certain types of action. Likewise, those issuing the writs generally reformulated the litigant's complaint into a set form of words; the production of standardised, replicable forms was a key characteristic of the new Angevin measures.15 Litigants or their legally minded advisors too must have started to think in terms of such forms, having already taken into account the proof that they wished to offer. Among the circle of royal justices the author Glanvill thought in terms of writs and consequent actions, because this was the basis upon which he arranged his text, most obviously in Book XIII concerning pleas ‘over seisins’. On occasion the justices and the court would say that the writ brought was inappropriate for the case, forcing the litigant to seek the correct one.

Nevertheless, at the time of Glanvill, and even at the end of our period, the rigidity of the system was limited.16 Historians have tended to write in terms of the ‘action of right’ and four ‘possessory’ or ‘petty’ assizes. In Glanvill, various writs deal with cases of right, and in Book XIII there are writs dealing with a greater variety of situations concerning seisin than is sometimes assumed.17 The (p.578) plea rolls show further procedures, only some of which developed into set writs and actions.18 Other cases, notably some concerning final concords, may have been started without a writ, by ‘plaint’, that is oral complaint.19 Procedure had not entirely hardened into a finite number of writs and procedures.

2 LITIGANTS Tenure, more than status, determined whether an adult man could successfully bring a land claim in the king's court.20 Certainly a man's villein status might determine the outcome of a land case, but this seems to be because status was taken as an indication of the nature of tenure.21 A free man just as much as a villein would lose if he wrongfully claimed that the disputed land was a free tenement when in fact it was held for a term of years, at the lord's will, or in villeinage. Both unfree and unfree, meanwhile, could bring claims about villeinage lands in manorial courts.

As for minors, Glanvill expressed a general preference that the outcome of pleas involving them should not be immutable.22 This might produce a preference for cases, especially those involving right, to be postponed until the minor came of age. According to Glanvill, a minor need not answer until he was of age, unless he himself had acquired seisin of the tenement and held it solely by his own right.23 What of a minor bringing an action of right? In such a case in 1200 tenants asked whether they need answer because the person by whom they were impleaded was under age. They obtained a writ from the king to Geoffrey fitzPeter, the justiciar, stopping the demandant from impleading them

Page 4 of 56

‘until he was of such age as he could and ought to plead according to the custom of England’. However, the boy's guardian, Hubert Walter, archbishop of Canterbury, said that it was not against the custom of the realm for the plea to proceed, and the case went forward.24 (p.579)

Minors could bring any of the assizes concerning seisins.25 Those who were of age could not essoin when faced with an assize brought by a minor.26 A minor had to answer in novel disseisin,27 but Glanvill specifies that in mort d'ancestor a minor could obtain postponement until he was of age, so long as his father or other ancestor had been seised of the disputed tenement on the day he died. If the minor had himself acquired seisin of the tenement the recognition could proceed.28 Glanvill also states that the sole case in which a guardian had to answer on behalf of a minor was when a wardship had fallen into that minor's hands and the ward then came of age and brought mort d'ancestor.29

Women brought and answered cases concerning their own lands, by themselves if unmarried or widowed, in conjunction with their husbands if married.30 If husband and wife brought a case together and one failed to pursue it, the case might be lost or the husband might make a payment to continue despite his wife's default.31 A man faced with a writ naming only him but concerning his wife's lands could have it quashed, or could vouch her to warranty.32 (p.580)

3 CASES CONCERNING RIGHT Early in his first book Glanvill listed the following pleas that had ‘arisen over the property of the thing at stake [super proprietate rei]’, to be dealt with in the king's court:

Plea concerning baronies; plea concerning advowsons of churches; question of status; plea concerning dowers of which women themselves have so far received nothing; complaint concerning a fine made in the lord king's court, which has not been observed; concerning homages that should be done and reliefs that should be received; concerning purprestures; plea concerning the debts of laymen.

Our main focus in what follows is Glanvill’s ‘plea concerning baronies’, the subject of his Book I, and his ‘pleas concerning justice [recto] concerning free tenements through writ of the lord king, where the courts of lords are proved to have defaulted concerning justice’, the subject of his Book XII.33

Types of claim The circumstances in which land disputes arose probably did not differ greatly from the Anglo-Norman period. Inheritance, especially in difficult situations such as remarriage, and other family arrangements, such as dower and maritagium, may have caused particular problems.34 Political instability, notably the fall-out from Stephen's reign, might be of long-standing effect. Possibly both an increase in land transactions, linked to a growth in the land-market, and the very effects of the Angevin reforms may have also stimulated litigation.35

The plea rolls and other evidence present most actions concerning right to land as being

Page 5 of 56

between rival claimants with no stated tenurial relationship.36 In a smaller number of cases a vertical tenurial connection is stated, with the demandant either claiming to hold of the tenant, or claiming to hold in demesne (p.581) and thereby rejecting the tenant's claim to hold of him. We have a list of those who placed themselves on the grand assize, recording cases in forms such as

X. the tenant places himself on the grand assize against Y. the demandant concerning Z. virgates of land in place N., and seeks which of them has the greater right concerning this, whether Y. in his demesne or whether X. from him or X. the tenant places herself on the grand assize against Y. the demandant concerning Z. virgates of land in place N., and seeks a recognition concerning this, whether Y. ought to hold from X. or she herself in demesne.37

Further, plea roll cases that do not mention such a vertical relationship may hide a tenurial link. Thus the record of a case from Richard's reign asks simply which of two parties has the greater right in certain land, but also mentions that the demandant through another writ was seeking 4s. of service from the tenants for that land.38 Lordship relationships clearly remained very important in landholding and in disputes.39

Bringing the claim The previous chapter considered Glanvill’s statement that ‘according to the custom of the realm no-one is bound to answer in the court of his lord concerning any free tenement of his without the order [precepto, that is, writ] of the lord king or his chief justice’.40 In this form the requirement for a writ applies only to the lord's court. The formulation may simply reflect the context in which Glanvill mentions the rule, or may signify that cases could be brought without writ in the king's court, if the king was willing.41

The demandant had to go in person or send an agent to obtain the writ to start the case.42 Later, requests would routinely be made at the chancery, and clearly (p.582) many writs were issued there in our period. However, writs were also being issued by the justiciar, or in the presence of justices of the Bench, sometimes on instructions of the justiciar. The concentration on the chancery may have developed for various reasons, including the increasingly complete separation of chancery from Exchequer, John's appointment of the former justiciar Hubert Walter as chancellor, and the justiciar's diminished role with the loss of the Continental possessions.43

Many writs could be classified as ‘of course [de cursu]’; these were in set form, varying only in the details of the case, and were issued ‘as a matter of course’, probably for a small payment to the scribe. Other writs, sometimes referred to as ‘writs of grace’, were also in quite standard form but used for some larger-scale cases, involving more land, services, or debt, or for bringing the case directly to the king rather than the next eyre. These might incur a higher charge, payable to the king. Finally some writs framed for specific cases may have been considered distinct from ‘writs of grace’ and have been still

Page 6 of 56

more expensive.44 The wording of writs had to be exact, as any flaw might lead to the claim failing. If the name of a litigant or of the disputed land was incorrect or if the writ failed to name the wife on whose right a man based his claim, the party whose writ contained the error could proceed no further until he had obtained a better writ.45

Various writs might lead to hearings of claims of right to land. There was the writ de recto addressed to the lord:

I command you to provide full justice [plenum rectum teneas] to N. concerning ten carucates of land in Middleton, which he claims to hold of you by the service of 100s. (p.583) a year for all service . . . which Robert son of William is withholding from him. And if you do not do it the sheriff of Devonshire shall, that I may hear no further complaint for default of right concerning this.46

The relatively simple formulation and the similarities to earlier writs may indicate that the writ de recto was one of the first royal orders to take on standardised form, perhaps in the early years of Henry II. It ensured the hearing of cases based on right to land under Henry I, many of which may have arisen from events in Stephen's reign, although by the time of Glanvill pleading could be based on right after the first coronation of Henry II.47 According to Glanvill, pleas arising from such writs ‘are accustomed to be conducted in the courts of lords, or of those who stand in their place, in accordance with the reasonable customs of those courts, which cannot easily be written down because of their number and variety’.48 From that court they might pass by the process of tolt to the county, and thence by pone to the king's court, as described in the previous chapter.49

Other circumstances might lead to the demandant obtaining a writ that brought the case directly to the king's court. If he was claiming to hold of a lord, and had a charter to support his claim, he might obtain a writ ordering the lord that he warrant the charter; if the lord did not do so he was to answer before the king's justices. Glanvill does not include such a writ, but it is clear that the procedure was being used by the mid- 1190s.50 The effect was to bring to the king's court a case that may often have been under way in a lord's court or the county, but in which the demandant was claiming that the lord was failing to do justice in not obeying the terms of the charter.

If a lord persistently refused to receive the homage and reasonable relief of an heir who was in possession of the land, the heir could complain to the king or his justices, and receive a writ de homagio capiendo [‘concerning taking homage’] addressed to the sheriff and commanding that the lord ‘justly and without delay receive the homage and reasonable relief’ of the demandant. Failure to do so (p.584) led to the sheriff summoning the lord to answer before the king or his justices.51 Occasionally we see a case that combines the issues of homage and of warranty of charter.52

The writ concerning homage begins, after the address clause, with the word Precipe,53 and it is with another writ with similar phraseology that Glanvill opened his discussion of procedure: ‘The king to the sheriff, greeting. Command N. that he justly and without

Page 7 of 56

Summons of tenant This writ Precipe opens as an order that land be restored, and on occasion the simple presentation of a writ by the demandant may have been enough to get his opponent to concede or compromise.55 However, the earliest manuscripts of Glanvill precede the writ with the heading ‘The writ concerning the first summons to be made’, indicating that it was in effect used as a summons to the king's court.56 The writ insists that the summons be made ‘by good summoners’, (p.585) because problems could arise at this point or later over their actions, for example with denial that the summons had ever been made.57 It is unclear how far the summons had to be in a set form of words. In some types of case, for example those concerning non-observation of a fine made in the king's court, the tenant or defendant had to provide sureties that he would appear.58

Answering the summons and judgment by default Ideally tenant, demandant, summoners, and sheriff should then appear before the justices on the day set.59 If the tenant failed to attend on that day, the demandant was to wait another three days in court. If the tenant still did not appear, and the summoners stated and offered to prove that he had been summoned, the court directed that a further writ of summons be issued. This would summon the tenant to appear on a day at least a fortnight later, although normally the date was considerably further away, except in cases heard by the eyre. He was to answer both concerning the original plea and his failure to obey the first summons. According to Glanvill, three summonses were to be sent in all, and if the summoned party failed to attend or send someone to answer the third, the land was to be taken into the king's hand; there was no preceding process of distraint by chattels. The tenant then had a fortnight to appear. If he failed to do so, seisin was to be adjudged to the demandant, and the sheriff was instructed by writ to seise him. The defaulting tenant could not reopen the issue ‘except over property through a writ de recto’.60

If the tenant did appear within the fortnight and wished to replevy the tenement, that is redeem it on sureties, he was ordered to come on a specified day, when he would have justice done to him. On that day, he could recover seisin under surety. He also recovered seisin if he could deny all the summonses, and any essoins, by waging his law, that is, by swearing an oath ‘twelve-handed’ (that is, with eleven oath-helpers) in respect of each day on which he had allegedly been summoned.61 (p.586)

Failure to respond to summons might also lead to default judgments against the tenant at later stages in the dispute.62 Default judgment might be applied against demandants too, perhaps leaving them no opportunity to reopen the case.63 Glanvill also specified that ‘sometimes both parties are absent, and then it is in the discretion [voluntate] of the lord

Page 8 of 56

Attorneys and representation Appointing an attorney saved a litigant repeated travel to court, and might also supply legal expertise. Glanvill devotes his Book XI to attorneys, those appointed by a litigant with power to win or lose a case.65 Appointment of a man as bailiff or steward, with power to dispose of lands or goods, did not suffice to make him an attorney in a royal court. Rather, appointment must be done by the litigant, present in court, and generally before the king's justices sitting on the bench. The opponent need not be present. More than one attorney might be appointed, in case one was unable to attend. In the king's court a litigant might also appoint an attorney for a plea in another court, and Glanvill gives a writ for such appointments. The litigant could remove the attorney at any stage of the case, and either conduct his own plea or put another attorney in place.66 Glanvill provides one exception to his insistence on appointment in court. A tenant or warrantor who was ill might appoint an attorney out of court, either with letters of authority or even without, provided in the latter case the attorney was known to have a close connection to the litigant. It is possible that the more formal process of appointment in the presence of the court had developed at the start of the 1180s, an older, less formal process surviving in instances when the litigant was ill and could not come to court.67 (p.587)

Who acted as attorneys? Glanvill wrote that ‘a father can put his son in his place and vice versa, one stranger may put another, and a wife may put her husband.’68 Records of appointment and of pleas show that many attorneys had no stated connection to the litigant, but that amongst those with an explicit connection were kin by blood or marriage, the subordinate of the head of a religious house, or one or two amongst a group of litigants.69 Women most commonly looked to their husbands as attorneys, but also— particularly if widowed—might appoint their brother or sister, son or daughter.70 The common pattern was occasionally reversed, as in a mort d'ancestor case in 1203 when the tenant made his wife and co-litigant his attorney.71

Occasionally a royal justice was used,72 or a man with a learned legal training,73 more often a man whose recurrence in the records suggests his specialisation as an attorney. In John's reign appear attorneys who served a single person in several cases, or who served several litigants.74 These latter are often found in other legal functions, for example acting as sureties for essoiners of baronial litigants. Their activities in some ways resemble those of later professional attorneys. Such men tended to be either office- holders in the courts of the Exchequer or to be lesser men who had no significant property or position in royal administration.

In the early thirteenth century begins clear evidence of representatives who were not formally empowered attorneys, but spoke in court on behalf of litigants.75 How much earlier this practice had existed is unclear. We hear of such pleaders in cases where the litigant has disavowed them, as they were allowed to do because the pleader had not formally taken the litigant's place in the case. Amongst those acting as pleaders was John

Page 9 of 56

Bucuinte, a man of some property who also appears as an attorney, legal counsellor, and serjeant. His opponents may have considered it appropriate that his surname appears to mean ‘oily (p.588) mouth’, whereas his supporters held him ‘a wise man in worldly things’. He is as close as we get to a professional lawyer in the secular courts of our period.76

Essoins The summoned party might also respond by sending an essoin, an excuse, for non- attendance.77 Essoins were very prominent in litigation and in the records of litigation; the treatment of them here, as in Glanvill, must be extensive. Their availability reflects the desire to have both parties appear in court, but their prevalence made litigation slow and they were open to abuse by those who would profit from delay, particularly those who were in possession of the disputed land or right.

Although there was royal legislation affecting essoins in local courts, records of pleas contain references to local customs concerning essoins, for example in Oxfordshire.78 Glanvill’s description, however, is limited to the king's court. Glanvill, in his characteristic dilemmatic fashion, specifies that some essoins arise from illness, some for other reasons. Illness he divides between instances on the way to court (de infirmitate veniendi in Glanvill, commonly de malo veniendi in the plea rolls) and those preventing the sufferer from even setting out to court (de infirmitate de reseantisa in Glanvill, commonly de malo lecti in the plea rolls).79 He also mentions essoins for being overseas, for floods, for being on royal service, for being on pilgrimage, and for being ill after arriving at the place where the plea was to be heard. The essoin of being in the king's service led to indefinite postponement, until it was established that the party had returned from such service. If the party had voluntarily undertaken royal service after being summoned to court, he was assigned a delay of at least forty days if he had gone overseas. If he had not gone overseas, the delay was at the will and pleasure of the justices, according to what they saw as expedient for the king, so long as ‘lawful procedure [ordo juris]’ was observed.80

Faced with an essoin de malo veniendi in response to the initial summons, the demandant could insist that the essoiner either provide lawful proof of the essoin, or find surety or pledge his faith that he would have the summoned party on the (p.589) set day as his warrant concerning that essoin.81 Three essoins of this sort were available according to Glanvill, although it appears that by the end of the century only one was allowed before the party must appear.82 Going back to Glanvill’s account, if the summoned party again essoined on the third day, the court was to direct him to appear on another set day, either in person or through an attorney. If it was the tenant who finally attended he had to prove each essoin by his personal oath, and then answer concerning the plea on the same day. If he failed to attend in person or by attorney, the tenement was to be taken into the king's hand, by a writ sent by the court to the sheriff in whose county that tenement was. The writ also specified that the tenant should again be summoned before the king's justices to hear their judgment in the matter. Another writ ordered the sheriff to seize and keep in custody the false essoiner, and yet another writ summoned the essoiner's surety to answer before the king or his justices.83

Page 10 of 56

As for essoins de malo lecti, Glanvill states that anyone who wishes ‘can do this on three successive occasions, so long as on the third day before each set day an essoiner presents his essoin in a proper place and in the presence of a suitable person’.84 If he did not come on the third summons, a writ was sent to the sheriff, ordering him to send four lawful knights from his county to ascertain whether the illness was bed-sickness [languor] or not. If it was bed-sickness, they were to set a date, a year and a day from when they viewed him, for the sick man or a competent representative to be before the king or his justices. Plea rolls indicate that he was usually instructed to appear at the Tower of London, where the constable of the Tower would give him a day before the king or justices.85 If it was not bed-sickness, they should set a day for him or a competent representative to come and answer the case. Thus bed-sickness allowed a distinctly longer delay in order to allow recovery.86

The plea rolls reveal various further regulations related to essoining. Essoins de malo lecti were primarily for cases brought by writ of right.87 They were not allowed (p.590) in cases relating to fines made in the king's court.88 The same type of essoin might be rejected because the plea concerned dower,89 and in some other cases an essoin was said not to lie because of the nature of the plea.90 However, essoins were again available at later stages in a dispute, for example when a tenant had requested a view of the disputed land or following the summoning of the grand assize.91

The demandant too might find it necessary to provide essoins, although some plea roll entries show him being refused an essoin de malo lecti because he was the demandant.92 If he failed to appear or essoin himself, the court would rule that the tenant, provided he or his representative was present, should be sent away with the plea ended indefinitely. Glanvill records different opinions as to the fate of the demandant. Some said he was to lose his costs and expenses and the first writ, but not the case, and could start the plea again. Others said that he should completely lose the case against his adversary, and because of contempt of the court he was to be in the mercy of the lord king. Others still said that he would be in the mercy of the lord king henceforward, and that it was in the king's pleasure whether and when he wished to admit or restore him to that plea.

Essoins were also available to others, including warrantors,93 recognitors,94 and essoiners themselves.95 Use and regulation of essoins reveal an effort to balance a desire that both parties have their say in court with awareness of the delay and cost caused by tenants avoiding appearance.96 Essoining involved both some costs, as essoiners probably received expenses, and also risks, should the essoin be declared false. The lists of those requesting lengthy postponement by essoin de malo lecti are much shorter than those for essoins de malo veniendi, and it has been pointed out that some of those who essoined de malo lecti died before they came to court; both aspects indicate that many essoins may have been genuine.97 However, essoins could also be used tactically. Delay ensured that (p.591) tenants maintained enjoyment of the disputed land or rights, and no doubt they also hoped that temporary enjoyment would become permanent, with their opponent running out of commitment to the case.98

Page 11 of 56

The view When both parties appeared in court, in person or by attorney, the demandant put in his claim to the tenement that he was seeking. The tenant might at this point seek a view of the land and its appurtenances, to establish the precise disputed tenement. This would only be allowed if he held other lands in the relevant vill. He was given another day to attend court, and again, according to Glanvill, had the opportunity for three essoins. A writ was sent to the sheriff of the county where the tenement was, ordering him to send free and lawful men to view the claimed tenement, and to have four of those men before the king or his justices on a specified day, to attest to the view.99

The demandant's claim If there was no view, or once the view had been taken, the demandant set out his plea and claim [loquelam suam et clamium] with a set form of words, almost certainly in French; for example,

I claim against this N. the fee of half a knight and two carucates of land in a specified vill as my right and my inheritance, of which my father was seised in his demesne as of fee in the time of King Henry I (or since the first coronation of the lord king), and from which he took profits to the value of 5s. at least in corn and hay and other profits. And I am ready to prove this by this free man of mine, H., and if any evil befalls him then by this other man or by this third man, who saw and heard it.100 (p.592)

Claims unsupported by offer of proof, that is without offer of trial by battle, were not to be made, and could lead to amercement.101 The claim was an expanded version of the writ that the demandant had brought, and should not differ in any detail from that writ; otherwise the case might be dismissed after the tenant had asked the court whether he need answer.102 Formality and complexity increased.103 Whereas Glanvill indicates that the demandant simply had to state that a specified relative had held the land in the time of Henry I or since the first coronation of Henry II, by the latter part of John's reign he had to trace the descent of the right to the land from this ancestor.104

Formal denial If he did not vouch a warrantor or place himself on the grand assize, processes to be discussed shortly, the tenant would take up the demandant's challenge that his witness would prove his right by battle. If he did so, Glanvill tells us, the tenant or some suitable person on his behalf, ‘must deny the right of the demandant word for word as he has set it out against him’.105 This formal denial did not involve a statement of the tenant's own claim to the land.106 The tenant could then ask the court that he might ‘imparl’, that is withdraw to hold discussions, before (p.593) returning to repeat his formal denial and promise to repeat it ‘where and when he ought’.107 Presumably the discussions might cover possibilities of compromise or concession as well as possible tactics and forms of argument in the court.

Pleading: exceptions, special issues, and juries

Page 12 of 56

Glanvill says no more about pleading in such cases, but it is possible that he conceals legal and factual arguments that did occur, or that would be made soon after the time when he was writing.108 Certainly the early plea rolls show various further possibilities open to the tenant. Thus the tenant might challenge the appropriateness of the demandant's claim, for example saying that the demandant was seeking land that the tenant allegedly held in dower whereas she in fact held it as maritagium.109 The lack of discussion in Glanvill of such pleading of exceptions in cases concerning right may suggest that the practice spread from the possessory assizes, partly perhaps via the grand assize.110

The tenant's exception, like a special issue raised by the demandant, might lead to a jury being assembled to swear concerning the specific issue of fact.111 The parties might agree to the jury.112 Alternatively, one party could obtain it through a proffer to the king, leaving his opponent having to accept the procedure. Or the court could insist that the parties accept a jury, possibly following the request of one party. The verdict of the jury would lead to judgment in the case.

Documents and record An exception might be supported with documents, and these might also be produced at other stages in a case.113 When in 1208 a certain Alice faced a claim that she held more in dower than she should have done, she responded by stating that she did not hold the land in dower but as her marriage-portion, and she produced two charters to back her up.114 Proffer of a document, or of the oral (p.594) record of the king's court, halted proceedings while it was decided if the proffered document or record was potentially relevant. If relevance was established and the document then produced and accepted as providing proof, the case in its present form would cease. A final concord, backed if necessary by the testimony of the justices before whom it had been made, or the oral record of the king's court could not be challenged and thus was decisive.115 A charter could be challenged, and the issue of the case thereafter would relate to the charter itself. Argument might turn on whether it was genuine, whether it was relevant, whether it was defeated by another charter, or whether seisin of the tenements mentioned in the charter had actually been delivered.116 The king or his justices might examine the documents and seals, or the issue of the charters might go to another form of proof, including the summoning of the witnesses to the charters.117

Warranty Rather than make a formal denial or plead an exception, the tenant might instead vouch a third person as warrantor. By the late twelfth century, warranty clauses were becoming common although not universal in charters recording gifts of land;118 it seems likely that warranty was a general obligation, the charter clause providing extra security for the tenant against a lord who wrongfully sought to (p.595) escape the obligation.119 The warranty obligation between lay lord and tenant normally rested on homage, although it also was owed by heir to widow regarding her dower, and by quitclaimer to beneficiary. Warranty clauses also appeared in gifts for churches.120 The routine nature of warranty may be suggested by its inclusion in grants by weak men to stronger ones and by

Page 13 of 56

vendors for purchasers, even when the sale was made by substitution.121 At the same time it was possible for a grantor explicitly to opt out of the obligation of warranty or of providing exchange should the grantee lose the land; agreement could overcome the normal rules of law.122

A problem arises from Glanvill’s text as to whether the obligation to warrant or exchange was heritable. Glanvill states that ‘it is different concerning him who holds his fee from another [de alio] as his inheritance and concerning which he does homage to him, since although he may lose that land, the lord shall not be bound towards him concerning exchange’.123 Earlier, in his section on warranty he mentions the obligation as arising when the tenant ‘has the [disputed] possession from gift, or sale, or in the giving of exchange, or from any cause of this sort’, but does not explicitly mention inheritance. In another section, however, he states that ‘heirs of donors are bound to warrant gifts and possessions given, as they have been reasonably made, to those to whom these gifts have been made and to their heirs’.124 Reconciling the passages is very difficult. The confusion may result from difficulties of the modern interpreter, for example regarding Glanvill’s use of the words de alio. Or it may be that Glanvill’s reservation concerns only exchange, not the obligation to warrant.125 Alternatively or additionally a lack of absolute certainty may have existed in the late twelfth century. A case in the county court of Buckinghamshire saw a man who had been vouched (p.596) to warrant a charter plead that the charter, which he accepted as his, stated only that he granted the land to the person vouching him; it made no mention of his gift or of warranty. The reason for stating that it did not mention warranty is obvious for a man denying that obligation; but why did he say it made no mention of his gift? Possibly he was saying that as his charter recorded only his confirmation of someone else's gift, not his own, he was not obliged to warrant. The county court came to no conclusion, and we do not know the outcome of the case when it came to a royal court.126 If there was, or had been, any doubt about general norms concerning the heritability of warranty obligations, such doubt may have encouraged the inclusion of explicit warranty clauses, binding the grantor and his heirs to warrant the grantee and his heirs.

Following voucher, a reasonable day was assigned for the tenant to have his warrantor in court.127 Essoins were available to tenant and warrantor. When the warrantor ‘at length’ appeared in court, he would either warrant the possession to the tenant or not. If he was willing to warrant, then the case proceeded between the claimant and the warrantor. If he was unwilling to come to court, the party vouching him might ask that, ‘by the counsel and grace of the court, he be compelled [de consilio et beneficio curie justiciabitur] to do this’, through issue of a writ to the sheriff. If the warrantor appeared in court in response to the party's vouching but defaulted concerning warranty, there was to be a plea between him and the party vouching, which might result in battle.128 This was so whether or not the party vouching had a charter of the warrantor, so long as he had a suitable and willing witness to prove (p.597) his case. The warrantor might then offer proof by battle or grand assize, come to a compromise if the court allowed, or vouch a further warrantor.129

Page 14 of 56

It was also possible that two lords might be vouched, if the parties claimed to hold of different lords. According to Glanvill, if the tenant's lord, after being allowed due essoins, failed to come to court in person or by attorney, the tenant was to answer and undertake the denial. If successful, he would keep the land and do service to the king, until his defaulting lord came to court and did there what he ought to do.130

Once both lords were present, the tenant's lord was either to warrant the contested land or deny it.131 If he warranted, he might then himself undertake the denial of the demandant's claim, or commit it to the tenant. If they were unsuccessful in the plea, the lord would lose his service and the tenant the land, with no possibility of making a new claim. If the tenant's lord came to court but failed him regarding warranty, there could be a plea between tenant and lord, provided the tenant could say that the lord had acted unjustly in that the tenant had performed due services. He was to produce witnesses and a person suitable for proving this, or some other proof as directed by the court. The demandant's lord could either claim the land for his fee or not, that is warrant or not. If he did warrant and claimed the land for his fee, he had the choice of relying on the proof that the demandant offered, or himself proving the right against the tenant. If unsuccessful, they both lost. As for the demandant's lord who would not warrant, Glanvill does not say that there was then the possibility of a plea between demandant and lord, but rather that the demandant was in the mercy of the king because of his false claim.

Whether one or both parties summoned warrantors, once it was established that the tenant's warrantor ought to warrant the possession, the tenant should not end up without a tenement; his warrantor, provided he had sufficient property, had to give him a suitable exchange if the case was lost.132 The vouched warrantor might be unwilling to do so, and the sheriff might then be ordered to see that the exchange was given.133 We also have evidence of warrantors being (p.598) ordered to make reasonable exchange, although this did not develop into a routine form of writ.134

On the other hand, the very act of refusal by the warrantor may have led the tenant to lose the disputed tenement itself to the demandant. If the person vouched proved that he was under no obligation to warrant, the tenant lost not just the disputed tenement but also, presumably, the claim to an exchange.135 Furthermore, even in the case of the warrantor who was obliged to provide the exchange, Glanvill adds the proviso that he should do so only if he had sufficient resources.136 Thus before vouching, thought had to be given to the obligations and wealth of the warrantor. All the same, vouching brought potential benefits even beyond the possibility of an exchange. A powerful warrantor, if not swaying the justices, might encourage an opponent to settle. In addition a warrantor might have possessed forms of proof not directly available to the person vouching, for example a final concord involving the demandant or an ancestor.137

Warranty was available to churches, and to lay persons holding heritably or, it seems, for life.138 Another type of tenant might, according to Glanvill, say that the disputed possession was not his own, but that he had it as ‘lent to him for use [commodatam], or deposited to be looked after, or let to him, or given as a gage, or allotted to him in any

Page 15 of 56

other way as another's’. The man from whom he had the possession should be summoned by another writ similar to the original, and then the plea would begin against him. If he then denied that the possession was his, the man who had alleged that it was should lose the land without any right to recover it, and be summoned to hear judgment concerning this. The demandant recovered seisin, whether or not he had come to court.139

Wager of battle If the tenant had neither vouched a warrantor nor placed himself on the grand assize, and if the case was not to be settled on the specific point of an exception or on a document or the record of a court, the tenant and demandant should then wage battle: that is, after making claim and denial and offering proof through an (p.599) appropriate named person, they should provide sureties that battle go ahead on a specified day.140 Thereafter, Glanvill tells us, the tenant and his champion were again allowed essoins.141

Making of proof: battle Following essoins, the demandant had to appear in court with one of those whom he had named in his initial plea as prepared to prove his claim; only if that person had thereafter died a natural death could another suitable witness be substituted.142 The tenant could fight in person, or through a champion, the latter being the more common course. Confidence in his case or in his champion, or concern that the opposition of the local community made other forms of proof risky, might all lead the tenant to opt for proof by battle.143

Glanvill notes that hired champions were often produced. The other party could challenge such men, and the accusation would be decided by battle between the contested champion and his accuser or the person who had seen the champion receive the reward. Defeat for the accused champion led to him losing ‘all his law of the land’, that is he would never again be allowed to act as a witness in court or make proof for anyone by battle. His employer lost the case in which the champion was to have represented him.144 Nevertheless, the plea rolls show certain men being used with sufficient frequency that they may be described as expert if not professional champions. Close to a professional was Simon Tyrel, to whom the abbot of St Augustine's, Canterbury, made a grant concerning his performance of the service of the duel for his life, in person or through someone else suitable. Simon was to receive 50s. when battle was waged on behalf of the church, 50s. more if he had to appear armed before the justices but did not have to fight, and 10m. if the battle had to be carried out. In fact, there is no evidence of Tyrel being involved in offers of battle by the abbot in the king's court, although he was in local courts. Interestingly, he also undertook numerous other legal activities, such as acting as an attorney.145 (p.600)

When the battle had been fought, judgment was declared. The defeated champion lost his law and, according to Glanvill, was liable to a penalty of 60s.146 If it was the tenant's champion who had lost, the tenant was to restore the disputed land, with the fruits and produce [commoditatibus] found on that fee at the time of seisin. A writ from the king

Page 16 of 56

Making of proof: the Grand Assize In Henry II's reign, royal courts made increasing and more routinised use of bodies of local men swearing on the basis of their knowledge as to the true situation concerning land and other rights. Particularly important in the present context was the grand assize, probably introduced at a council at Windsor in 1179. The grand assize was available in actions concerning right, including those started by writs precipe, de recto, or de homagio capiendo. Normally it was the choice of the tenant or his warrantor, not the demandant, but in cases started by de homagio capiendo the person bringing the action could put himself on the grand assize if he was in seisin.148 The assize could be used not just for land cases, but also, for example, for mills, advowsons, or services.149 It was to settle the case as conclusively as did battle.150

Glanvill gives the following as the procedure.151 First the tenant ‘put himself upon the lord king's grand assize’, having to do so before battle had been waged,152 and might precede his placing himself on the assize with a statement of his right.153 (p.601) After the tenant had placed himself on the assize, the demandant had to choose whether to do the same. If he chose against, he had to show why there should be no assize between them, for example that they were blood relatives. The tenant might admit or reject this objection. If he accepted it, no assize proceeded, and the matter was pleaded and ended through words in that court, by enquiry as to which party was genealogically the closer heir.154 However, as illustrated by the Court Rolls, the tenant might counter the exception, arguing that the closer heir or one of his ancestors had lost his right temporarily or forever, by gift, sale, exchange or any other kind of proper alienation, or had lost it through felony. The court might then allow the assize to proceed,155 or the allegations might lead to trial by battle.156

According to Glanvill, if the tenant denied the demandant's claim that they were of the same stock from which the inheritance descended, their common blood relatives were summoned to court.157 If they all affirmed the claim of kinship, this assertion was to be accepted unless one party strongly contradicted; then recourse was to be had to witness of the neighbourhood, which would be conclusive if it confirmed that of the blood relatives. The verdict of the neighbourhood was also decisive if the blood relatives could not agree. If the investigation confirmed the claim of kinship, the assize was not to proceed and the plea was to proceed through words. However, if the court and the king's justices took the contrary view, the result was defeat for the plea of the demandant who had maliciously tried to frustrate the assize by the claim of shared stock.

If there was no such objection from the demandant, the assize went ahead.158 Proceedings in the seignorial courts were brought to a stop: the tenant purchased a writ of peace, addressed to the sheriff, prohibiting the person in whose court the case was to

Page 17 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 be heard from holding the plea, unless duel had already been waged. This prevented the demandant from proceeding on the writ that had begun the plea. The tenant thereby had peace until the demandant went to the court and (p.602) purchased another writ addressed to the sheriff. This instructed the sheriff to summon four lawful knights from the neighbourhood of the disputed tenement to be before the king's justices on a set day, to choose twelve lawful knights from the same neighbourhood who best knew the truth, to recognise on their oath whether tenant or demandant had the greater right in the specified land. The sheriff was to have the names of the four knights written on the back of the writ, to summon the tenant to be at the choosing, and also to have there the summoners and the writ. Glanvill notes that it was in practice customary to have six or more knights summoned to make the selection, presumably in case any failed to appear, possibly also in case any were subject to objection. The tenant and the knights were then allowed essoins, although, Glanvill feared, this might allow as many essoins in the grand assize as in battle, in contradiction to what he had earlier said. However, ‘a constitution, ordained for good and equitable reasons’, allowed the court to proceed by having the four knights make their selection whether the tenant was present or not; it sounds as if experience may have led to subsidiary legislation. The tenant might, if present, have been able to object to some of the chosen twelve. Therefore in his absence it was best to choose more than twelve, in case he objected when he did appear.159 In an unusual aside, Glanvill comments that ‘exception can be made to these jurors in the same ways in which witnesses in courts Christian are justly rejected’. Delay was also avoided by the possibility that if not all four knights came, one of them might join with two or three others from the same county, if they could be found in the court, and make the selection. Glanvill stresses that the discretion of the court should be used to ensure the good running of the assize.

A writ was then sent to the sheriff, ordering that he summon the twelve chosen knights to be before the king or his justices at a specified place and date, to declare on oath which party had greater right in the land.160 The knights were to view the disputed land, and the sheriff was ordered to summon the tenant. On the specified day, the recognition was to proceed whether the tenant was present or not; the demandant was allowed to essoin himself, the case being postponed to another day.161 When the recognition was made, if it was found that none or only some of the twelve knights knew the truth of the matter, or if the jurors were split in their opinions, further jurors had to be found until twelve agreed in favour of one party.162 As with witnesses in cases tried by battle, the knights had to have knowledge of the matter in person by sight and hearing or by statements from their fathers in (p.603) circumstance in which they had to believe their knowledge as if their own. When twelve knights agreed, they then declared whether the demandant or tenant had greater right in the land. If the tenant, then the court awarded that he be sent away, quit from the demandant's claim forever, and the demandant was never to be heard again in court with effect on this matter. He would also be in the king's mercy.163 If, on the other hand, the court judged through the assize in favour of the demandant, the tenant lost the land, and was to restore it with all fruits and produce found on the land at time of seisin. The demandant was sent to the sheriff of the relevant county, to receive his seisin through a writ addressed to the sheriff.

Page 18 of 56

The royal legislation creating the grand assize had also specified the penalty for jurors who swore rashly.164 If confessing to or convicted of perjury, according to Glanvill, they were to be despoiled of all their chattels and movables, which should pass to the king; by his great mercy their free tenements were excepted. The perjurers were to be imprisoned for at least a year, and—in a fashion reminiscent of the defeated champion in trial by battle—were to lose their law forever, incurring the everlasting mark of infamy.

We have thus traced the procedure of grand assize to the final judgment and its execution. However, many more grand assizes were started than reached this point. A large proportion ended in compromise.165 In others, an exception to the assize was pleaded or a special issue raised. In particular, the demandant might point out a flaw in the gift upon which the tenant's seisin was based.166 Such a case might then be decided by a jury, which delivered a verdict on the particular issue. Glanvill, as we have seen, discusses the exception of kinship. His failure to mention other exceptions may suggest either that his account is not exhaustive or that in the late 1180s exceptions were less important than they would soon become.167 Whether or not it was inspired by a desire for rationality, the grand assize came to encourage rational argument over specific issues.

4 CASES CONCERNING ONLY SEISINS Let us now move on to procedures in the cases that Glanvill describes as ‘only over seisins’.168 All these procedures sought a speedy outcome, and involved (p.604) recognitions, as required in the initial writs laying down the specific issue or issues. Four receive particular attention: novel disseisin, concerning unjust seizure of a free tenement; mort d'ancestor, concerning inheritance; darrein presentment, concerning appointment to a benefice; utrum, concerning whether land was alms or lay fee, and hence under ecclesiastical or secular jurisdiction. However, Glanvill’s list is not so limited, and in Roger of Howden's manuscript of Glanvill the list is headed with an appropriate rubric: ‘Types of recognition are many and diverse.’169 Glanvill also mentioned use of recognitions on related issues, ‘whether with consent of the parties or by award of the court’.170 Only after this statement does he mention the recognition of novel disseisin, which then appears last in his book ‘concerning the various recognitions’. The phraseology of the writ of novel disseisin is distinctive, and unlike the other recognitions novel disseisin allowed no essoins. It seems likely, therefore, that both Glanvill and those responsible for the construction of the various assizes saw novel disseisin as somewhat atypical amongst these procedures.

It remains important that the types and forms of writ were restricted. Careful wording was necessary, not only in terms of names and places,171 but also in the legal specifications. Faced with a writ combining elements of mort d'ancestor and novel disseisin, the court at Westminster decided not to proceed but to speak with the king himself.172 It is also notable that when a writ was needed for cases involving nuisance, it was based very closely on that for novel disseisin. Again one sees the characteristic preference for a limited number of replicable forms.

Mort d'ancestor

Page 19 of 56

Mort d'ancestor Glanvill gives the following writ of mort d'ancestor:

The king to the sheriff, greeting. If G. son of O. gives you security about pursuing his claim, then summon by good summoners twelve free and lawful men of the neighbourhood of that vill, that they may be in the presence of me or my justices on a specified day, prepared to recognise by oath if O. father of the said G. was seised in his demesne as of his fee of one virgate of land in that vill on the day on which he died, if he died after my first coronation, and if that G. is his closest heir. And meanwhile let them view that land, and you are to have their names endorsed on this writ. And summon by good summoners R. who holds that land that he may then be there to hear that recognition. And you are to have there the summoners and this writ.173 (p.605)

Mort d'ancestor was applicable not just to land but also to rents and a variety of other types of right.174

The assize of mort d'ancestor was probably established at the Council of Northampton in January 1176. Certainly the surviving text of the legislation of that Council gives an extended account of relevant regulation, concluding as follows:

if the lord of the fee deny to the dead man's heirs that dead man's seisin, which they demand, the justices of the lord king are to have a recognition [percognitionem] carried out concerning this, through twelve lawful men, what sort of seisin the man had concerning this on the day on which he was alive and dead. And as shall be recognised, so they shall restore to his heirs. And if anyone acts against this and is convicted [attaintus] thereof, let him be in the king's mercy.175

The text is sufficiently close to Glanvill’s writ and description to suggest that the later procedure was being implemented in 1176, although on the Pipe Rolls, mort d'ancestor first becomes reasonably clear at the end of the decade.176

The Northampton text was concerned with the actions of the dead man's lord. Glanvill’s writ is not so specific, and the other party could be a rival for the land who had gained seignorial acceptance.177 The claimant had to be closely related to the deceased, that is within the range of those for whom the custom of inheritance was strong: sons, daughters, brothers, sisters, nephews, nieces. Other cases were left to actions concerning right, to be treated in the first instance by the lord's court, where customs over such inheritance cases may have varied. It is noteworthy that when the limited range of mort d'ancestor was supplemented in Henry III's reign by the actions of aiel, besaiel, and cosinage, available to some more distant relatives, Bracton mentions lords objecting about loss of jurisdiction.178

Setting aside those brought directly against the lord, one might expect many mort d'ancestor cases to be between close relatives, perhaps in complicated inheritance situations or as a result of family land arrangements. In fact, this is not so. Glanvill states that ‘consanguinity removes [adimit] this assize, that is, if he who is seeking and he who

Page 20 of 56

In practice, many cases turned not on whether the claimant was the closest heir, but, for example, on whether his ancestor had died seised as of fee in demesne or rather had held only for a term of years or in villeinage or had himself been a villein.183 Occasionally a case might fail because the ancestor had died before the first coronation of Henry II, the time limit mentioned in Glanvill’s writ and apparently applied throughout the reign of Henry and his sons.184 Claims based on seisin under Stephen, or even after Stephen's death and before Henry's coronation, were not acceptable. The point of limitation, however, made a method of recovery available for those who could not prove an ancestor's seisin in the time of Henry I, which in the 1170s may have been necessary in actions concerning right.185

Darrein presentment Glanvill gives the following writ of darrein presentment:

The king to the sheriff, greeting. Summon through good summoners twelve free and lawful men of the neighbourhood of that vill that they may be in the presence of me or my justices on the specified day, prepared to recognise by oath which patron [advocatus] presented the last parson who died, to the church of that vill, which is vacant, so it is said, and of which N. claims patronage [advocationem, advowson]. And you are to have their names endorsed on the writ. And summon through good (p.607) summoners R., who withholds that presentation, that he then be there to hear that recognition. And you are to have there the summoners and this writ.186

The writ was available to either of the parties claiming that they should present to the church.

We cannot be certain of the date of the establishment of the procedure of darrein presentment, but the end of 1170s seems likely. A cartulary copy of a final concord dated 16 April 1180 deals with a case of patronage to a church, ‘concerning which a recognition was summoned between the parties in the court of the lord king, concerning the presentation of the parson who most recently died in that [church]’.187

Utrum In his list of recognitions Glanvill introduces several with the word utrum, ‘whether’:

whether a tenement is ecclesiastical fee or lay fee; another whether someone was

Page 21 of 56

seised of a free tenement on the day on which he died as of fee or as of gage; another whether someone is under age or has full age; another whether someone died seised of a free tenement as of fee or as of wardship; another whether someone presented the last parson to a church by virtue of his fee that he has in his demesne or by virtue of wardship of someone.188

It is only the first of these to which historians now refer as utrum. Glanvill provides the following writ: The king to the sheriff, greeting. Summon by good summoners twelve free and lawful men of the neighbourhood of that vill, that they may be before me or my justices on the specified day, prepared to recognise by oath whether one hide of land, which N. parson of the church of that vill claims for the free alms of that his church against R. in that vill, be lay fee of that R. or ecclesiastical fee. And meanwhile let them view that land . . . the summoners and this writ [as mort d'ancestor, above].189 (p.608)

A process resembling utrum appears in the 1164 Constitutions of Clarendon. The purpose seems to be to deal in the chief justiciar's presence with a question of jurisdiction that was potentially blocking a case already being heard.

If a claim arises between a cleric and a layman, or between a layman and a cleric, concerning any tenement that the cleric wishes to draw [attrahere] to alms, but the layman to lay fee, it shall be ended by recognition of twelve lawful men, through decision of the chief justice of the king, whether the tenement is pertaining to alms or to lay fee, in the presence of the king's justice himself. And if it is recognised to pertain to alms, the plea shall be in an ecclesiastical court, but if to lay fee, unless both avow from the same bishop or baron, the plea shall be in the royal court. But if both avow the same bishop or baron concerning that fee, the plea shall be in his court. Thus that he who previously was seised is not to lose seisin because of the recognition that has been made, until it shall have been deraigned through the plea.190

This process differs in certain ways from Glanvill’s. By Glanvill’s time, the use of the recognition utrum is associated with the king's the court in its various forms, and we hear no more of such issues being heard in the court of the mutual lord of the parties.191 Furthermore, whereas the Constitutions had specified that cases be heard before the king's chief justiciar, the writs in Glanvill and the early Registers simply specify ‘the king's justices’, thereby including both the eyre and the central courts.

As we noted earlier, it is unclear how extensive was the range of lands over which the Constitutions granted jurisdiction to Church courts.192 Glanvill’s writ mentions land belonging to a parson's church, and this would certainly later be the use of the writ. Utrum was brought concerning small or fairly small tenements that a clerical party claimed to pertain to a local church, the tenement being said to belong to the church rather than to the churchman.193 It could decide more than jurisdiction over the case. Given that the writ named both parties, a decision as to the nature of the holding could

Page 22 of 56

The utrum writ was available in this period to clerics and to laymen, as Glanvill and the earliest Register of writs make explicit.197 On occasion two churchmen were involved, one claiming the land as lay fee.198 Under Henry III laymen ceased to be able to bring the writ, and it then became in effect the ‘parson's writ of right’, as the law-book Britton would call it in Edward I's time.199

Novel disseisin Glanvill gives the following writ of novel disseisin:

The king to the sheriff, greeting. N. has complained to me that R. unjustly and without judgment has disseised him of his free tenement in that vill after my last crossing to Normandy. And so I order you that if the aforesaid N. gives you security about pursuing his claim, then you are to have that tenement be reseised of the chattels that were taken on it, and the tenement itself with the chattels is to be in peace until the Sunday after Easter. And meanwhile have twelve free and lawful men of the neighbourhood view that tenement, and have their names endorsed on this writ. And summon them by good summoners that they be before me or my justices, prepared to make a recognition concerning this. And place through gage and safe pledges the said R. or his bailiff, if he himself cannot be found, that he may then be there to hear that recognition. And you are to have there the summoners and this writ and the names of the pledges.200

The assize of novel disseisin was probably established in 1166, but can be linked to earlier legislation and rested on earlier ideas. From the early years of Henry II come references to various pieces of legislation in the context of disseisins, but the content of which is uncertain. A letter written by John of Salisbury for Archbishop (p.610) Theobald records a claim that a man had occupied a church ‘against the custom of the whole Church and realm of the English, against the king's constitution and the ancient privilege [dignitas] of all nobles’, and mentions a royal writ ordering restoration to the other party of the church ‘of which he had been deprived after the king's departure, against his edict’. Another letter of John instructs that the addressee ‘restore to our beloved son Jordan, the treasurer, possession of the church of Froyle . . . from which, after the edict of our lord king, in contempt of the Roman Church, you ejected him violently and without judicial process’.201 Probably in 1162 Henry ordered the bishop of Norwich to restore certain possessions to St Benet of Holme, ‘and let it not remain undone on account of my assize’, and writs most likely of a similar period order actions ‘not to remain undone because of my assize’ or ‘because of my assize or my army’. The

Page 23 of 56

The most likely occasion for the establishment of novel disseisin was the council at Clarendon in 1166 or possibly late 1165.203 The silence of our text of the Assize of Clarendon is not a strong counter-argument; the text need not be a full record of proceedings. It is worth noting that whereas the Assizes of Northampton in 1176 give significant explanation of mort d'ancestor, the text obviously expects novel disseisin to be understood, perhaps indicating that the recognition had been an element of the procedure since Clarendon.204 1166 also provides the first Pipe Roll entries that may refer to the assize.205 This could just be because royal justices rather than sheriffs were now hearing cases. However, this still leaves 1166 as the beginning of novel disseisin as a procedure heard by recognition before the king's justices.206

The 1168 and 1170 Pipe Rolls reveals amercements of hundreds in Devon and Sussex for concealing disseisins, and the 1168 roll under Wiltshire names vills (p.611) that had concealed and then recognised disseisins. This might indicate that novel disseisin formed part of a general crackdown on disorder, enforced by royal justices and making use of presentment. However, the meaning of the Wiltshire entries is obscure, there are textual problems regarding the Sussex ones, whilst that for Devon could signify presentment for incursion on royal demesne.207 It seems best to take novel disseisin as, from its beginnings, an action brought by an individual plaintiff.

Those creating the procedure did so from a variety of ideas and materials. Laymen may have considered, and churchmen knowledgeable in canon law certainly stated, that a dispossessed landholder should normally be restored before the underlying claim to the land was treated. Thus the Leges Henrici had stated that ‘no-one is to plead disseised unless it concerns the disseisin itself’.208 Similarly the phrase ‘unjustly and without judgment’, characteristic of novel disseisin, had been used in various circumstances.209

By the early years of Henry II the influence of the learned laws was encouraging at least clerics to distinguish between possessio and proprietas, facilitating the notion that cases concerning the former could be settled swiftly whilst leaving open the issue of the latter.210 More thoroughgoing influence from learned law is possible, most notably from a Roman law interdict called unde vi. For example, the interdict and novel disseisin were only available to those who had, respectively, been in possession or been seised. Neither could be used concerning dispossession of movables, but both ordered that the successful plaintiff was to recover, along with the land, the movables that had been on it when he had been ejected. The interdict could not be brought by a slave or a colonus, novel disseisin only protected free tenements.211 If the assize was invented in the 1160s in the form in which we know it from Glanvill, the invention came at a time when learned lawyers whom Henry had gathered for his struggle with Becket may have (p.612) exercised particular influence. However, there were differences between the interdict and the assize. The interdict was not limited to dispossession within a limited time, the formulation of the writ used key phrases unknown to Roman law, and central to the

Page 24 of 56

procedure was the recognition, again without close parallel in Roman law. Rather, the writ, its phraseology, and the use of the recognition were available from English practice.212 The assize was constructed by royal advisers working from such ideas and practices, in an outstandingly successful exercise not of legal transplant but of judicial bricolage.

Whom did the constructors of the assize envisage as the perpetrator of disseisin? As with actions concerning right, the seignorial dimension was important. Lords might wish to disseise their tenants for various reasons, some relating immediately to their right to the land, others stemming from non-performance of services. Lords who had been restored to inheritances following loss in Stephen's reign might now wish to eject sitting tenants and put in their own followers. New prelates sought to restore to their demesnes lands that their predecessors had alienated. To the prelate their right may have seemed so clear as to remove the need of judgment before disseisin, whereas for the tenant the action was unjust. This issue was particularly prominent in the mid-1160s because of the actions of Archbishop Thomas Becket, who took back Canterbury lands from notable figures such as John Marshal.213

In addition, disseisins arose from distraint, the process whereby lords sought to enforce due services and which might end with them disseising tenants of the land for which those services were owed. This was a common setting for use of the assize at the time of the early plea rolls, more common than is immediately visible from the blank verdicts that characterise the reports on those rolls. It can also be argued that the form of the writ makes sense in the context of seignorial distraint. The lord could distrain justly and by judgment. He would remove the tenant's chattels, and would be obliged not to dispose of them. He might well act through his bailiff, as plea rolls reveal.214

However, none of these points, singly or cumulatively, proves that the initial purpose of the assize was limited to the regulation of seignorial distraint. At least in the late 1180s, Glanvill probably envisaged the assize being used by a lord against the tenant who had disseised him of his demesne, and certainly between (p.613) those not connected by tenure.215 The form of the writ need not indicate that improper seignorial distraint was the sole initial target. ‘Unjustly and without judgment’ need not refer only to lords’ courts.216 It makes equal sense regarding the disputant who seizes land without waiting for a judgment. The same disputant might well have removed chattels and fruits when they seized the land.217 Many a likely disseisor had a bailiff, and the provision that he might be summoned if his lord could not be found ensured that the essential speed of the process was maintained. The disputant who pursued his claim without seeking judgment, with the aim either of thereby winning his dispute or of at least being the tenant as the case continued, could well be an initial target of the assize, just as was the improperly distraining lord.218

The constructors of the assize chose to give it a broad remit by not specifying that the disseisin need be violent. According to Glanvill, ‘the defeated party, whether he be the appellor or the appellee, always is in the lord king's mercy on account of violent disseisin’.219 However, it is unclear whether this means that Glanvill considered all

Page 25 of 56

unjust disseisins violent, or just some.220 The framers of the writ had the option of including the word violenter, just as John of Salisbury had in one of his letters referring to breach of the king's early assize.221 Nor is there any mention of breach of the king's peace, although some heavy amercements in cases of novel disseisin may reflect their degree of force.222 Not a specific targeting of violent disseisins but rather a wider concern for good order, a worry that disseisin might be a stage in a spiralling dispute, most likely underlay the assize. (p.614)

Novel disseisin was not just used for the retrieval of lands. Probably from its inception, it was employed, with only a slight modification in the form of writ, for a variety of nuisances, such as the raising or lowering of a bank or the raising of the level of a mill- pond, acts seen as amounting to disseisin.223 It could also be used regarding common rights of pasture.224 Probably by the early years of Richard I's reign it came to be used for disseisin of rents.225 In 1209 we see novel disseisin being used in a case relating to a right of wreck.226 The availability of the process grew as the period within which the disseisin was classified as ‘novel’ increased. The first limitation of which we know was that laid down at Northampton in January 1176, extending back only to May 1175, the king's last crossing to Normandy. A roughly similar limit applied to Glanvill’s writ, again extending back to the king's last crossing. However, the period stretched thereafter, so that from June 1202 a limit of March 1201 continued to apply for the remainder of John's reign.227 Such extension was vital to the increasing predominance of novel disseisin in the thirteenth century.

Procedure Having described the emergence and the issues of the recognitions individually, their procedures can be considered collectively. Procedure does not seem to have varied according to whether the case was heard before the king, at Westminster, or at the eyre; the important notion was that of ‘the king's court’. Mort d'ancestor and novel disseisin were very common before both the eyre and the central courts. Darrein presentment cases were frequent in the central courts, not very prominent at the eyre. Although in 1215 Magna Carta darrein presentment was included among the recognitions to be heard by royal justices in every county four times a year, in 1217 it was omitted from the equivalent clause, and the Charter now specified that it was always to be taken and ended before the justices of the bench.228

As in actions concerning right, the plaintiff or agent had to go to get a writ to start the proceedings.229 If a disseisin took place during a general eyre, the plaintiff (p.615) might simply go to the itinerant justices to obtain a writ.230 The plaintiff took the writ to the sheriff and in the county court provided surety to prosecute the claim. The writs were sealed closed and were ‘returnable’, as described earlier.231

Next, recognitors were to be chosen, in the presence of both the plaintiff and the defendant, although the latter might be absent provided he had been summoned to the selection at least once. In practice more than twelve might be chosen, in case of challenges or essoins.232 If he attended, the defendant could reject some of the chosen

Page 26 of 56

After the choosing of the recognitors, in most of the recognitions the sheriff arranged for the defendant to be summoned before the king or his justices on the day set by the writ, to hear the recognition.235 In novel disseisin, the process was reinforced: the alleged disseisor, failing whom his bailiff, was attached, that is had to give two sureties, that he would attend. Failure to attend would lead to both disseisor and sureties being amerced.236

Delays remained possible, as even in novel disseisin recognitors were allowed essoins.237 In all the recognitions except novel disseisin, if the plaintiff was of full age, the defendant was allowed two essoins, although not essoins de malo lecti.238 In novel disseisin no essoin was allowed to the defendant, although some tried, out of ignorance or hope.239 When any essoins had been exhausted, the (p.616) assize was taken whether the defendant came or not.240 Unexcused default by the plaintiff led to loss of the case.241

When both parties or their attorneys, the recognitors, the summoners, and the sheriff with the writ, did appear before the justices, it remained possible that one side would give up their case or that a compromise be reached.242 In most assizes, the defendant might vouch a warrantor, although Glanvill tells us that ‘it is uncertain whether a warrantor should be waited for, of whatever kind he is or for whatever reason he ought to be warrant thereto, especially if the warrant is vouched on this in court after two essoins’.243 It may therefore have been wise to have one's warrantor present in court from the first, but plea rolls show warrantors being vouched and then coming, for example in mort d'ancestor.244 If the vouchee did not come to court, the assize appears simply to have proceeded. The defeated defendant then had an action against his defaulting warrantor, in order to obtain an exchange.245 In novel disseisin, according to Glanvill, ‘not even a warrantor is to be waited for’. He adds that

if anyone acknowledges such a disseisin in court but vouches a warrant thereto, the recognition is not to proceed, and he who acknowledged this falls into the lord king's mercy. And afterwards the warrantor shall be summoned, and there shall be a plea between him and the person who vouched him as warrant on this.246

When the plea went ahead, Glanvill makes no mention of a restatement of the plaintiff's claim. Rather, the justices asked the defendant whether he wished to (p.617) say anything whereby the assize should not proceed.247 He was being invited to make exceptions, as he would not be able later to challenge the recognitors’ verdict on the factual questions posed in the writ. His response to the justices’ invitation was aimed at stopping the recognition, but might also be intended to bring the recognitors’ attention to particular points. Some of the exceptions were common to all of the assizes, for example

Page 27 of 56

Further exceptions were possible, of which some were specific to particular assizes. In novel disseisin, a lord might say that he had disseised his man, but that it was not unjustly or without judgment.250 This in turn could lead the plaintiff to claim that the distraint and subsequent loss of land had been unjust, because he should hold from another lord.251 Or the defendant might plead that the plaintiff had given him the land.252 In mort d'ancestor, it might be pointed out that the deceased had a closer heir,253 that he had held only for life,254 or that the plaintiff was illegitimate.255 Or the defendant might say that he had received the land from the plaintiff, who had been seised after the death of the ancestor (p.618) concerned.256 A somewhat similar exception was common in darrein presentment. In order to be successful, the party had to demonstrate seisin of the advowson, that is that he had actually presented to the church. Yet the last presentment, unlike the most recent seisin of land, might well have been a considerable period before. This made particularly likely the exception that the advowson had been transferred since the last presentment.257

Exceptions aimed to bring the recognition to an end. The case was then normally decided by another form of proof relating to the specific issue of the exception, although on a few occasions the justices made a decision on a point of law.258 The party making the exception might support it with a document or documents. A charter might decide a case, but could also be challenged.259 A final concord of the king's court should be decisive.260 Those making exceptions might also rely upon the ‘record’ of other courts to justify their pleading. Thus a lord might produce his court to show that he had disseised a tenant justly and by judgment, or vouch to warranty his court to support another exception. Again, the record of such a court might be decisive, but could be challenged, leading to the need for another type of proof.261 Further possibilities were that both parties had to produce kin, to show that an assize of mort d'ancestor should not proceed because the parties were related, or that the defendant should produce kin of the plaintiff to establish that he was a villein.262 Here again, the plaintiff could respond with contrary evidence and argument, raising the possibility of another form of proof.263 These situations could lead towards trial by battle as they raised issues of right,264 but more commonly exceptions led, by agreement of the parties, to trial by jury on the specified issue.265 (p.619)

If no exception stopped the recognition, and if there were no further objections to specific recognitors,266 the recognition proceeded.267 The recognitors deliberated and may well have received guidance from the justices through precise questioning on specific points. The recognitors then gave their verdict, which might be presented in general terms or on a specific point, for example in mort d'ancestor that the dead man

Page 28 of 56

had not held in fee. Mention of a specific point may reflect questioning by the justices.268

In line with the verdict, judgment was then given. Thus in mort d'ancestor, the judgment would be that the winning party have or remain in seisin. If the plaintiff won, a writ was issued to the sheriff, ordering that he make the plaintiff have seisin without delay. In addition the plaintiff was to recover seisin of all chattels and movable goods that were found on the fee at the time of making seisin.269 In novel disseisin, from the late 1190s restoration of chattels and fruits came to be replaced by the assessing of damages.270 The desirability of damages may have increased with the lengthening of the period covered by novel disseisin, which meant that ‘fruits’ might have perished, been consumed, or sold.

A person who was found to have committed disseisin was amerced, commonly for an amount up to £1 but on occasion heavily.271 Defeated tenants in mort d'ancestor were amerced for unjust detention,272 and defeated plaintiffs for bringing false claims.273 (p.620)

Writs of entry Towards the end of the Angevin period emerged writs that focused on particular flaws in the grounds upon which the tenant had entry to seisin of a tenement.274 The writ of entry sur disseisin supplemented novel disseisin. Take the following situation: a plaintiff brought novel disseisin, but the alleged disseisor died before the assize was completed. Novel disseisin was only available against the disseisor. The writ of entry sur disseisin allowed the disseised to bring an action against the disseisor's immediate successor. An apparently chance entry on the Close Rolls for 1204 informs us that henceforth the writ of entry sur disseisin should be issued de cursu, that is routinely and for a low charge.275

Most other writs of entry focused on a previous alienation that should have ended or that had some defect.276 Thus the only writ of entry for which a clear precursor appears in Glanvill concerns land gaged for a term that had now passed.277 Other writs of entry that had appeared by 1215 were directed against alienees who had received lands from guardians of minors, or from husbands out of lands that should have passed to their widows as dower. Such writs arose to answer the type of questions sometimes posed to juries dealing with special issues in actions concerning right, whilst similar issues could arise in cases brought by mort d'ancestor and novel disseisin.278

Actions involving writs of entry show some emphasis on speed, for example with the essoin de malo lecti not being available.279 Also like the recognitions discussed above, writs of entry were always treated in the king's courts. Their later development may have been hastened by Magna Carta's prohibition of the much less specific precipe quod reddat, and certainly Henry III's reign would see (p.621) a very significant increase in their importance beyond their limited variety and use in our period.280

5 ENFORCEMENT AND SETTLEMENTS Judgment might need further clarification. It might have to be decided, for example by reassembling the recognitors, whether the lands recovered precisely matched those

Page 29 of 56

placed in view of the recognitors.281 In addition, judgments were reinforced in various ways. Ceremonies to mark the ends of disputes were still employed; clear evidence exists outside royal courts,282 while inside royal courts similar ceremonies may have occurred without being recorded on plea rolls. Other, partly ceremonial, methods of reinforcing judgments, in or outside royal courts, included the destruction of the writ used to bring the case, or its handing over to the victorious party or to the sheriff or royal justice depending on the court and authorities involved. Thus Albold Pulcin produced a document admitting that he had unjustly moved a claim against the church of Bury St Edmunds concerning land in which he had no right. He went to the court of St Edmund, and publicly confessed that he had had no right therein. In the abbot's presence, he pledged his faith in the hand of Henry the abbot's brother that he and his heirs would never again move a claim against the church or abbots concerning the land or its appurtenances. Because of this the abbot gave him 8m. and Albold gave to him the king's writ by which he had unjustly impleaded the abbot.283 Judgment in the king's courts was also reinforced by recording on plea rolls, and we hear of orders being given to search earlier rolls, as well as to find feet of fines in the treasury.284

Difficulty in enforcing judgments, and concern that disputes might re-emerge, was one reason why compromise settlements continued to be frequent, in royal as well as other courts.285 Thus a considerable majority of cases before the Lincolnshire eyre of 1202 in which the tenant placed himself on the grand assize ended in compromise, not judgment.286 A smaller proportion of novel disseisin (p.622) cases before the same eyre were settled by compromise, but there were a few instances where the parties were granted licence to agree,287 and others where the plaintiff chose not to proceed, perhaps suggesting an unrecorded settlement.288

6 REOPENING CASES We have already considered transfer of pleas from one court to another.289 What of the possibility of reopening a dispute following judgment in the king's court? Glanvill in his treatment of recognitions allowed losing parties to turn to the question of right by obtaining a writ de recto.290 An unusually full plea roll entry deals with a case between two men, Nicholas and Herbert, concerning which of them should hold a house from the earl of Leicester.291 Within the record of pleading we hear that

Herbert, after the view of the land and after his essoin, answered that he was not bound to answer Nicholas concerning this, since he had obtained that land against that Nicholas through judgment in the lord king's court. Nicholas answered that he had only recovered seisin through writ of novel disseisin, and so he was no less bound to answer him concerning right [jure].

Although earlier writs had sometimes ordered reseisin whilst allowing the possibility of further claims,292 the formulation in terms of seisin and right, and the routinisation of the process, were the product of the Angevin period.293 The development was helped by the partial absorption of the learned law distinction between possession and property, and it is significant that one of the first clear expression of the notion of such dual process

Page 30 of 56

Other methods of reopening a dispute were concerned with the process whereby an earlier decision had been made. One was to obtain a writ summoning the recognitors to appear and answer to the justices concerning their oath.296 Here the process might concern a variety of problems with the verdict, rather than necessarily the issue of perjury. However, a common concern was the honesty of the oath of those sworn to bring verdicts.297 The method for dealing with dishonest recognitors was formalised early in John's reign as the process of attaint. In return for a payment, quite often a considerable one, the losing party obtained the selection of a jury of twenty-four, who were to give their verdict on whether the recognitors had sworn a false oath.298 If this was their finding, the party bringing the action of attaint was adjudged to have won on the original issue.299 The record of a case of 1204 tells us that the false recognitors were to be arrested, their lands and chattels seized into the king's hand, their chattels sold, through the oath of lawful men, and then the proceeds brought by the sheriff at the Easter Exchequer.300 (p.624)

7 CHANGE AND CONTINUITY Administrative developments and the attitudes of royal justices meant that royal courts differed in crucial ways from other courts: whereas the latter sat for short periods and may have dealt with only a few cases in a session, royal courts sat for longer periods, hearing numerous cases and in particular an immense amount of routine business, notably essoins and appointment of attorneys.

It may well be that the king's justices, as outsiders, treated these and some other matters in a more standardised fashion, paying less attention to particular repute or circumstance. Significant here is a 1204 case heard in the county court of Somerset. When one party made the point that he and his father and brothers were natives and gentlemen of the county [patria], the sheriff, Alan of Whiton or Wihton, replied that he well knew their gentle status, but he could not desist but rather had to follow the order of the justices according to the form of the writ of the justices, which had been read in the county court. The party repeated his point, and said that the sheriff was an incomer. This seems to have annoyed the sheriff, who responded that he was from elsewhere and there he was of the same status as they were in their own county.301 Here we have a royal official—in this case a sheriff from outside the county—ruling out local considerations as irrelevant, and a similar attitude is displayed in Glanvill’s statement that ‘the court of the lord king is not accustomed to protect private agreements’.302

The influence of royal justices was further extended if they came to make judgments themselves rather than simply presiding over courts that were responsible as a whole for giving judgment. The evidence for the precise role of justices, both earlier in the twelfth

Page 31 of 56

Royal justices also brought their legal learning to the courts, and may have encouraged some tendency to greater technicality in proceedings. In the design of the recognitions and in the pleading of exceptions and consequent use of juries, we see a desire to focus on one point of fact or occasionally one point of law. There are also suggestions of greater strictness in the technical reading of documents.305 Such attitudes and developments may have increased the need of legal expertise on the part of litigants and their advisers and attorneys.

The control exercised by royal courts, the possibility of transfer of difficult cases and of successful complaints of default of justice or false judgment, probably rendered procedure in other courts somewhat more rigid and standardised. However, elements of flexibility in procedure in non-royal courts remain obvious, both in Glanvill and in records of pleas.306 Thus Glanvill states that in a court other than the king's, ‘if anyone says something of which he later repents, he can deny it against the whole court with an oath affirming that he did not say it, three-handed or with more or with fewer according to the custom of different courts.307 A case in the king's court in 1211 informs us that at an earlier stage in the dispute in the court of St Mary's, York, a claimant had been given a day to deraign her maritagium with twelve men, and the other party was to deny it with thirty-six, ‘as is the custom [mos] in the court’.308 Potential royal supervision at litigant's request did not lead to complete uniformity.309

There are further signs of continuity of procedure in the non-royal courts where most people came into contact with judicial proceedings. For example, we have seen that the royal court did not use distraint by chattels as a means of securing appearance in land cases.310 It seems that in other courts, the old pattern of multiple summons, distress, and essoin continued to be applied, (p.626) perhaps even with greater rigidity and standardisation because of the possibility of royal intervention.311 Meanwhile, in matters concerning tenements that were not classified as free, other courts could continue to function without the possibility of successful appeal to royal intervention, for the royal actions were limited to free tenements.

Page 32 of 56

Finally, having emphasised the routine element within royal justice, it is important to note continuing elements of flexibility even in the royal courts. The king or his justices were prepared to set in motion non-routine procedures, to bend norms, or to allow unusual settlement processes, especially in return for payment. In particular, tenants-in-chief, or tenants of honours that were temporarily in the king's hand, were in an anomalous position compared with sub-tenants; there was no superior to whom to look if the king failed to do justice.312 The king could not be forced to take up a case as warrantor.313 Writs could not be addressed to the king, so would-be tenants-in-chief could not use the writ de recto in claiming lands from him, and there were also difficulties with novel disseisin and mort d'ancestor. When tenants-in-chief did obtain the latter writs, they were expensive and did not produce the normal proceedings.314 Tenants-in-chief could use writs precipe, and the writ precipe in capite specially tailored for tenants-in-chief existed by the last years of John's reign. However, proceedings arising from such a writ again tended to be tortuous, ad hoc, and expensive.315 The political effect of the anomalous position of the tenant-in-chief will be clear when we consider Magna Carta in the final chapter; it is also very apparent as we shift our focus to substantive aspects of land law.

Notes: (1) See also above, ch. 21, for an outline chronology of Angevin reform.

(2) Lawsuits, no. 408E. See P. M., Barnes, ‘The Anstey case’, in A Medieval Miscellany for Doris Mary Stenton, ed. P. M. Barnes and C. F. Slade (NS 36 PRS, 1962), 1–24; P. A. Brand, ‘New light on the Anstey case’ (1983) 15 Essex Archaeology and History 68–83; ODNB ‘Anstey, Richard of’. Richard's memorandum details how loans from Jews helped to finance his suit.

(3) See above, 442–3.

(4) See above, 500, on Eleanor acting as regent.

(5) For written evidence from Henry of Blois, bishop of Winchester, see Lawsuits, no. 408A. Richard's memorandum records that he gave Peter of Meleti 10m. and a gold ring worth ½m.

(6) This letter appears to be Lawsuits, no. 408B, the complicated nature of which explains Richard's consultations.

(7) Lawsuits, no. 408C.

(8) Lawsuits, no. 408D. The adultery was that of William and Adelicia.

(9) See below, chs 24, 26, 27, 28.

(10) For qualification, see below, 578, on plaint in land cases, 745, on writs and personal wrongs. Note also, e.g. the occasional use of words such as appellum and appellans with reference to land cases; Lawsuits, no. 483; Glanvill, ii. 3, xiii. 38, ed. Hall, 24, 170, concerning respectively right and novel disseisin.

Page 33 of 56

(11) For further discussion of Glanvill’s use of these categories, see below, 712.

(12) See below, 624–6; also above, 569–73, on transfer of cases.

(13) Glanvill, xiii, 1, ed. Hall, 148. See below, 670–2, for his use of the Roman categories ‘property’ and ‘possession’, and their relationship to right and seisin.

(14) Note Milsom's critique of the emphasis that Maitland and others have placed on the ‘forms of action’, thereby prioritising choice of writ over form of proof; see Milsom, Legal Framework, 2, 66–7, 99, 128.

(15) See above, 535.

(16) See also below, 626, on the king's ability to vary procedure, often in return for payment, and particularly in relation to tenant-in-chief. See also above, ch. 1, on the extra- judicial pursuit of disputes.

(17) See below, 582–4, 604.

(18) See e.g. Flower, Introduction, 186–9, concerning lands, 201 concerning churches.

(19) See Select Cases of Procedure without Writ, esp. ci–cv, cxxxvi–cxli; the editors admit that such cases need not have been numerous compared with those brought by writ, particularly for cases before the eyre (see also p. xliv).

(20) For status, see also below, 774, on Jews and land claims; religion seems to have affected proof rather than the ability to bring a claim. Probably precluded from bringing claims anywhere were lepers and those not of sound mind; Pollock and Maitland, i. 480–1.

(21) See below, ch 28.

(22) Glanvill, xiii. 15, ed. Hall, 159.

(23) Glanvill, xiii. 13, ed. Hall, 157; Pollock and Maitland, ii. 439, 442–3.

(24) CRR, i. 279; for a subsequent hearing, including an argument relating to the relevance of the demandant's age and what his representative presented as the issue of the case (the form of his opponent's entry to the land), see i. 378. CRR, iii. 245, seems to be an instance where the justices order a brief postponement until a possible minor was of age; for a subsequent hearing, see iv. 86. Cf. decisions in the minority of Henry III, that tenants in socage had to reply when minors; CRR, viii. 226, 229, 337.

(25) Glanvill, xiii. 4–5, 12 (mort d'ancestor), ed. Hall, 151, 154. For a minor bringing mort d'ancestor, see e.g. CRR, iv. 276. See CRR, iv. 254, for darrein presentment brought by a minor being postponed because the defendant, the prior of Llanthony, produced charters of the claimant's ancestors to which he could not and should not answer until of age; cf. iii. 218, 262, for darrein presentment brought by a minor going ahead. For

Page 34 of 56

(26) Glanvill, xiii. 12, ed. Hall, 156; also e.g. CRR, ii. 128, 293.

(27) Glanvill, xiii. 38, ed. Hall, 169; Early Registers of Writs, Hib. 41, states that the minor is to answer concerning dower, novel disseisin, and everything that is not his free tenement.

(28) Glanvill, xiii. 13, ed. Hall, 156–7. Even if the minor's father had held, proceedings could go ahead as to whether he had held as of fee or of wardship; Glanvill, xiii. 13–15, ed. Hall, 157–8; if it was found that the father held only as of wardship, the minor should lose seisin. For a minor as defendant obtaining postponement in an assize of mort d'ancestor, see CRR, iii. 34. For a writ ordering postponement of the plea until the impleaded minor is ‘of such an age that he can and ought to plead according to the custom of the realm’, see Early Registers of Writs, Hib. 41. See Glanvill, xiii. 15–17, ed. Hall, 159–60, on procedure for determining whether a litigant was of age.

(29) Glanvill, vii. 9, xiii. 15, ed. Hall, 83, 159.

(30) See e.g. Lawsuits, nos 547 (woman and son acting together), 550, 603, 633; PKJ, iv. nos 4065–9; Pollock and Maitland, ii. 408–9. Note, though, that in his lifetime it was the husband alone who sued and was sued concerning his wife's future dower, even nominated dower; Pollock and Maitland, ii. 425.

(31) See PKJ, iii. no. 819. For King John protecting a woman against collusive default by her husband, see below, 786.

(32) Vouching wife to warranty: e.g. Lincs., no. 493. For failure of a writ to mention husband and wife, see e.g. also CRR, vi. 21–2; however, note also the flexibility shown in CRR, vii. 186. See also Pollock and Maitland, ii. 408.

(33) Glanvill, i. 3–4, ed. Hall, 4. Note also actions concerning villeins, and cases concerning excessive services or services not due in respect of a free tenement; Glanvill, i. 4, xii. 9, ed. Hall, 4, 140–1. On cases involving services, see also below, 636–41. For dower litigation, see below, 799–804. For advowsons, see Glanvill, iv, ed. Hall, 43–53, and for case material see Flower, Introduction, 199–211. Glanvill, iv. 3, 5, 6, ed. Hall, 45–7, emphasises the parallels between actions concerning advowsons and those concerning land.

(34) See e.g. CRR, i. 75; v. 241–2.

(35) Note Milsom, Legal Framework, 185–6.

(36) See e.g. CRR, i. 1–14. Note also S. F. C. Milsom, ‘Maitland and the grand assize’ (1997) 7 HSJ 151–77, esp. at 153 (for figures from the surviving plea rolls to the end of

Page 35 of 56

1203), 160.

(37) CRR, i. 1; the sex of the tenant is not significant. See also Milsom, ‘Grand assize’, 152– 3.

(38) CRR, i. 10.

(39) Note also below, ch. 24, which discusses possible diminution in seignorial control of land.

(40) See above, 557.

(41) See above, 578, on plaints.

(42) From the thirteenth century ‘original writs’ and ‘judicial writs’ are often distinguished. The former ‘originate litigation in royal or other courts, or evoke it to royal courts from other courts . . . These original writs are made out in the chancery and are generally attested me ipso [i.e. by the king alone]’. The latter ‘are issued by a court in the course of litigation, before or after judgment. They . . . are written by the clerks of the court, and are attested by a judge of the court’; quotations from Early Registers of Writs, lxiv–lxv. The latter type of writ might concern the securing of appearance in court, matters arising from pleadings or procedure after the parties had appeared, or the announcement or enforcement of a judgment or settlement. The distinction in our period, and particularly before the early 1200s, is less clearly definable; see Select Cases of Procedure without Writ, cxlvi–clii, and Early Registers of Writs, lxv–lxxx. This lack of clarity is largely with respect to the issuing body, although it also reflects the difficulty of telling whether a writ was issued at the start of litigation. Nevertheless, it remains true that certain writs could be distinguished in that they were used to originate litigation.

(43) See above, 502. See also V. H. Galbraith, Studies in the Public Records (London, 1948), 69–70, on the separation of the chancery from the Exchequer. Note that the writs ‘of the lord chancellor’ mentioned in the list of ‘those who placed themselves on the grand assize’ were from William de Longchamp at a time he was both chancellor and justiciar; CRR, i. 5–6, Select Cases of Procedure without Writ, cxlviii. Glanvill wrote in terms of demandants in the grand assize coming to the curia to purchase a writ, and the precise issuer may not have been of great consequence to him; see Glanvill, ii. 10, ed. Hall, 30; also Early Registers of Writs, lxv–lxxx; Select Cases of Procedure without Writ, cxlvii– cxlviii.

(44) See Brevia placitata, ed. G. J. Turner and T. F. T. Plucknett (66 Selden Soc., 1951), xlviii–liii; also Stenton, English Justice, 30. Note e.g. PKJ, i. no. 2729, essoin ‘concerning a plea of a writ that is not de cursu’; also above, 525, on the writ of entry sur disseisin; on debt, note below, 700.

(45) See e.g. CRR, v. 144; vi. 21–2. Note also the various cases collected by Flower, Introduction, 340–6, although in some of these greater flexibility was shown. The issuing body appears to have seen itself as responding to suitors’ requests, rather than ensuring

Page 36 of 56

(46) Glanvill, xii. 3, ed. Hall, 137.

(47) See also above, 511, for references from early in Henry II's reign to use of a breve de recto and to relevant litigation; below, 592, on Glanvill.

(48) Glanvill, xii. 6, ed. Hall, 139. For a writ of right leading to a duel in the lord's court, see e.g. RCR, i. 64 (the perhaps rather exceptional court of William de Longchamp, bishop of Ely). For proceedings in a lord's court arising from a writ of right, see also Memoranda Roll for the Tenth Year of the Reign of John, ed. R. A. Brown (NS 31 PRS, 1957), 87–8.

(49) See above, 571.

(50) For the writ, see Early Registers of Writs, Hib. 24. See S. J. Bailey, ‘Warranties of land in the reign of Richard I’ (1945–7) 9 CLJ 192–209, at 207–9, Milsom, Legal Framework, esp. 63–4, Hyams, ‘Warranty’, 483–90. Note also Lawsuits, no. 654; Three Rolls, 124; EYC, xi. no. 232. For royal instructions earlier in Henry II's reign ordering that a donor warrant a beneficiary, and laying down that the king's justices or the sheriff should do so if the addressee did not obey, see Royal Writs, nos 127, 128.

(51) See Glanvill, ix. 5–6, ed. Hall, 110; the heir who is not in seisin should, according to the same section of Glanvill, use mort d'ancestor. For cases, see e.g. RCR, ii. 29–30; CRR, i. 86; v. 197; v. 218. Such cases could go to the grand assize; below, 600. Note also the use in plea roll entries of the phrase ‘concerning the free tenement that he holds and claims to hold of him’; e.g. CRR, ii. 9–10. In this case, the demandant failed because he did not hold the land. The plea roll entry closed by recording that the failed demandant owed the king payment to have mort d'ancestor concerning the land; presumably he should have used mort d'ancestor from the start. See above, 580, on Glanvill assigning to the king's court cases concerning homages and reliefs. See further Milsom, Legal Framework, 129–30, 172–4; Hyams, ‘Warranty’, 487–9.

(52) Note CRR, iii. 203–4, 302.

(53) For the nine writs in Glanvill opening in this fashion, see Glanvill, ed. Hall, 179–80.

(54) Glanvill, i. 6, ed. Hall, 5; see also above, 516, on the development of the returnable writ. The writ corresponds to the entry ‘plea concerning baronies’ in his list of chapters, Glanvill, i. 3, ed. Hall, 4; on the meaning of that phrase, see also below, 633. Glanvill’s Book III makes it clear that the author did not consider the writ only appropriate for tenancies-in-chief; see also Holt, Magna Carta, 141–2 and n. 76.

(55) See e.g. PKJ, i. 7, where Lady Stenton suggested that the writ printed as PKJ, i. no. 3543 ‘had secured her dower for the lady and that she never had to follow it up’. Note also e.g. PR6J, xii–xix, xxiv–xxix, xxxii, for Pipe Roll renders that cannot be matched with plea roll entries; concession or compromise may be the explanation in at least some instances.

Page 37 of 56

(56) To distinguish it from other writs Precipe this writ is sometimes specifically called Precipe quod reddat because of its opening: the sheriff was to ‘command N. that he justly and without delay render to R. [Precipe N. quod juste et sine dilatione reddat R.]’ that of which R. was complaining that N. was deforcing him.

(57) See e.g. RCR, i. 127, for problems arising over summons and summoners.

(58) Glanvill, i. 31, ed. Hall, 19; note also Surrey, i. 27–8, 49.

(59) See Glanvill, i. 30, ed. Hall, 17.

(60) Glanvill, i. 7, 16–17, x. 3, ed. Hall, 5–6, 10–11, 117. Brand, Legal Profession, 35, cites cases suggesting a reduction by 1194 to one summons before seizure of land; such a change would fit the reforms’ general aim of providing swifter justice.

(61) Glanvill, i. 16, ed. Hall, 10. For further possible situations involving delay, see Glanvill, i. 21, ed. Hall, 12–13. For another use of oath-helpers, see below, 643.

(62) See also below, 597, on default and warranty.

(63) See below, 590, for Glanvill, i. 32, ed. Hall, 20–1; PKJ, iii. no. 81; CRR, i. 382. Note also CRR, i. 99–100, 111, where it was specified that the defaulters were to have such recovery as they ought to have; those defaulting were bailiffs who had been seeking homage and relief but, it seems, should only have been seeking services.

(64) Glanvill, i. 33, ed. Hall, 21; the king may have suspected collusive litigation or settlement without licence.

(65) Glanvill, ed. Hall, 132–6; the Book has a somewhat unfinished or unpolished feel compared with some others in his treatise. Glanvill uses the word responsalis for attorneys. Early plea rolls use the phrase positus loco suo, with attornatus taking over from 1200; see Brand, Legal Profession, 46.

(66) Glanvill, xi. 1–2, ed. Hall, 132–4; see also e.g. PKJ, iv. nos 4482, 4492–4.

(67) Glanvill, i. 12, iii. 4, xi. 5, ed. Hall, 8, 40, 135. Glanvill does not tell us whether the powers of such an appointee differ from those of an attorney appointed in court; see Glanvill, ed. Hall, 192, Brand, Legal Profession, 175–6, and note also Brand, Legal Profession, 44–6.

(68) Glanvill, xi. 3, ed. Hall, 134–5. Note the unresolved problem concerning an attorned husband's actions relating to his wife's maritagium or dower.

(69) See e.g. PKJ, iv. nos 4464–4564, a list of attorneys; Lawsuits, nos 546, 561, 590, 601, 602. An unusual case was when the men of Thanet appointed thirty of their number to pursue their case against the abbot of St Augustine's, Canterbury, late in the reign of Richard I; CRR, vii. 341–2, 343, Lawsuits, no. 649.

Page 38 of 56

(70) PKJ, iv. nos 4471–2, 4484, 4491, 4501, 4509, 4512, 4522, 4525, 4527, 4543–4, 4550, 4555. A woman might appoint her husband as her attorney in a case in which they were involved jointly; e.g. PKJ, iv. no. 4067.

(71) CRR, ii. 218. See also e.g. CRR, i. 163.

(72) Turner, Judiciary, 282–3.

(73) See e.g. PKJ, iii. xxxvii–xxxviii, on Master Matthew of Bigstrup.

(74) For such men, see Brand, Legal Profession, 50–4.

(75) For this paragraph, see Brand, Legal Profession, 46–8. Such men would later be called serjeants.

(76) See Brand, Legal Profession, 53–4; note also CRR, iii. 244 (John advising a party to put herself on a jury).

(77) On essoins and procedure for essoining, see esp. PKJ, i. 150–69; also Surrey, i. 36–8.

(78) See CRR, ii. 260, 296, the custom of Oxfordshire being that two lawful men view essoins; note also e.g. PKJ, i. no. 2362, on Cheshire. On legislation, see above, 517–18.

(79) Note that the two could be used successively; Glanvill, i. 20, ed. Hall, 12; also e.g. CRR, v. 224–5; PKJ, i. 157–8.

(80) Glanvill, i. 25–9, ed. Hall, 14–17; see also Lawsuits, no. 641 (p. 683) on the essoin for being overseas. Note also women essoining for sickness relating to childbirth; e.g. PKJ, iv. nos 3144, 3720, 3889. Cf. Dialogus, ii. 4, ed. Amt, 122–6, on the sheriff's essoins for absence from the Exchequer.

(81) Glanvill, i. 12, ed. Hall, 8; see also above, 517–18. The possibility of the demandant requiring such proof seems to have disappeared by the time of the first surviving plea rolls; Brand, Legal Profession, 35.

(82) PKJ, i. 156–7.

(83) Glanvill, i. 12–15, ed. Hall, 8–10.

(84) For a reduction by 1200 to only one essoin de malo lecti being permitted before knights were sent to visit, see Brand, Legal Profession, 35; a first essoin de malo veniendi was also allowed.

(85) See e.g. RCR, i. 28–9; CRR, vi. 356; PKJ, i. 161–3.

(86) Glanvill, i. 18–19, ed. Hall, 11–12; on the requirement to be in bed and not travel, see e.g. CRR, iii. 265; iv. 273; vi. 261–2. See PKJ, iii. no. 2220, for a sick man recovering and obtaining permission to come to court.

Page 39 of 56

(87) PKJ, i. 165, and no. 2466. On cases where de malo lecti did not lie, see also Bracton, fos 349b–350b, ed. Thorne, iv. 104–7.

(88) See e.g. PKJ, i. nos 2473, 2482, 2816, iii. nos 1782, 2092, iv. nos 2677–8, 2799, 3136; however, note iv. no. 2753.

(89) See PKJ, i. nos 2470, 3272; iii. no. 2223; however, note i. nos 2484, 2497.

(90) De malo lecti did not lie because the case concerned homage, e.g. PKJ, iii no. 1123, and note e.g. no. 1734; see also e.g. no. 1125.

(91) Glanvill, ii. 1, 12, 16, ed. Hall, 22, 31–4.

(92) Glanvill, i. 32, ed. Hall, 20–1; PKJ, i. nos 2070, 2359; Bracton, fo. 349b, ed. Thorne, iv. 104.

(93) When the tenant vouched another to warranty, both tenant and warrantor were allowed three essoins according to Glanvill, iii. 1, 4, ed. Hall, 38–40.

(94) See below, 602, 615.

(95) Glanvill, i. 22–3, ed. Hall, 13–14; note also e.g. PKJ, ii. nos 726, 1078, 1101–2.

(96) Note the provision for future recuperation, above, 586 n. 63; false essoin leading not to immediate loss of the case but to the disputed tenement being taken into the king's hand, above, 589; Pollock and Maitland, ii. 592–3.

(97) PKJ, iii. xv, although this footnotes no examples.

(98) The prevalence of essoins by tenants also suggests tactical use. Lawsuits, no. 641 (pp 676–7), shows both genuine and tactical essoins. Note the test of patience apparent in e.g. Lawsuits, no. 646.

(99) Glanvill, ii. 1–2, ed. Hall, 22. Surviving writs, and that in the earliest Register, begin by ordering the sheriff to cause the tenant to have the view; see PKJ, i. nos 3478, 3480, 3484, Early Registers of Writs, Hib. 56. The tenant presumably would attend the view, although the Register contains no writ specifically summoning either tenant or demandant. For the presence of the demandant, or perhaps his representative, at the view, see Bracton, fo. 376b, ed. Thorne, iv. 180; Bracton there also indicates that at least sometimes the tenant would be present.

(100) Glanvill, ii. 3, ed. Hall, 22–3; see also iv. 6, ed. Hall, 46, for advowson, vi. 8, ed. Hall, 62, for dower. Glanvill, ii. 3, ed. Hall, 23, allows witness by the son of a man who ‘in his last minutes enjoined him, by the faith binding son to father, that if he ever heard of a suit concerning that land, he should offer to prove this, just as what he saw or heard’. On possible change from reference to ‘the time of King Henry’ to ‘the day on which King Henry was alive or dead’, see P. A. Brand, ‘“Time out of mind”: the knowledge and use of

Page 40 of 56

(101) See Glanvill, x. 12, ed. Hall, 127–8. A plea of 1199 shows the demandant losing his case, with no chance of bringing another, because his witness, who would have had to fight on his behalf, remained silent when produced in court rather than offering to make proof; CRR, i. 71. See also Pollock and Maitland, ii. 605–7.

(102) See Glanvill, xii. 24, ed. Hall, 147; Glanvill’s phraseology may suggest an element of discretion on the part of the court. For cases, at least some of which arose from errors in the writ, see e.g. CRR, ii. 173; iii. 265; v. 64; cf. v. 96, 170, 207–8.

(103) For cases dismissed because of faults in the count, see e.g. CRR, ii. 12; iii. 184.

(104) See e.g. PKJ, iii. no. 995; Brand, Legal Profession, 38–9; Milsom, ‘Grand assize’, 158.

(105) Glanvill, ii. 3, ed. Hall, 23. The passage suggests the need for verbal precision, on which see also above, 313.

(106) For comment on the significance of this, see Sutherland, Novel Disseisin, 214–15; Milsom, ‘Grand assize’, 158.

(107) Brand, Legal Profession, 40.

(108) For an unusually full account of arguments, see Lincs., no. 260.

(109) CRR, v. 289–90.

(110) See Brand, Legal Profession, 40–2; below, 617. Note also e.g. CRR, iii. 83.

(111) See Pollock and Maitland, ii. 611–18; Milsom, Legal Framework, 96–7.

(112) Cf. the arrangements made by the parties in Lawsuits, no. 643.

(113) See e.g. CRR, iii. 12, warrantor produced final concord. See Lawsuits, no. 517, CRR, vii. 272, for collections of documents. Note also CRR, vii. vii–lvi, for a list of charters and other documents mentioned in the early plea rolls.

(114) CRR, v. 289–90.

Page 41 of 56

(115) See Glanvill, viii. 1–8, ed. Hall, 94–100, concerning only the parties to the final concord; note e.g. CRR, iii. 12, final concord involving the uncle of one of the parties and the father of the other party's warrantor. Final concords could also block claims by third parties, although those parties had a period of time in which they could bring their claims; see e.g. CRR, v. 204–5, Feet of Fines, Norfolk and Suffolk, no. 131 (third party is ‘chief lord of the fee’); CRR, ii. 5, 50, Feet of Fines, Norfolk and Suffolk, no. 307; note also e.g. CRR, i. 452; iii. 7, 76; v. 19, 195. In addition a third party might later plead that the fine did not block his claim because he had been unable to be present when the fine was made: see e.g. CRR, iii. 169; v. 181; or because he had been a minor when the fine was made: see e.g. CRR, vi. 335; or for some other reason: see e.g. CRR, iv. 119–20, v. 90, Fines, sive pedes finium (1195–1214), ed. J. A. Hunter (2 vols; Record Commission, 1835–44), i. 242-3. See also Pollock and Maitland, ii. 101-2. On the record of the king's court being incontrovertible, see above, 320, and note below, 600, on cases settled per finem duelli; also Lawsuits, nos 420B, 646. On the record of other courts, see Glanvill, viii. 9–11, ed. Hall, 100–3, above, 572, and note e.g. RCR, i. 376.

(116) See e.g. CRR, ii. 135–6, question of authenticity of charter in advowson case; below, 654, on livery of seisin.

(117) For the king, see e.g. Lawsuits, no. 360. For the examination of seals in the context of debt cases, see Glanvill, x. 12, ed. Hall, 127. For a case going to a jury and to witnesses named in charters, see CRR, v. 111, 277; for battle being offered in the context of the significance of charters, see e.g. CRR, iv. 149.

(118) See e.g. Hyams, ‘Warranty’, 474; Postles, ‘Seeking the language of warranty’; J. M. Kaye, Medieval English Conveyances (Cambridge, 2009), 45–9; for scarcity in some sets of charters, see e.g. J. G. H. Hudson, ‘Diplomatic and legal aspects of the charters’, in Earldom of Chester, ed. Thacker, 153–78, at 173–4, D. Postles, ‘Gifts in frankalmoign, warranty of land, and feudal society’ (1991) 50 CLJ 330–46, at 342. For circumlocutions not involving warranty language, see e.g. Lawsuits, nos 550, 638.

(119) Note e.g. Danelaw Documents, no. 105. Lords might still state that warranty was in return for services, perhaps attempting to provide one justification for refusing to warrant; see e.g. Danelaw Documents, no. 98, St Paul's, no. 175. For the king explicitly confirming obligation to warrant, see e.g. Cartæ antiquæ, 1–10, no. 95.

(120) Homage and warranty: note Glanvill, ix. 4, ed. Hall, 107. Dower and warranty: Glanvill, vi. 4–11, ix. 4, ed. Hall, 60–5, 107; see also Bailey, ‘Richard I’, 196–7, 202–3. Quitclaims: e.g. Lawsuits, nos 481, 524, 534, 616; note that on occasion the warranty is specifically against those through whom the quitclaimer had made his claim. Gifts to churches: e.g. Lawsuits, no. 455, Mowbray, nos 56, 57.

(121) See e.g. Beauchamp, no. 183; Lawsuits, no. 473. Note also Kaye, Conveyances, 52– 3, on vendors promising to refund the purchase price.

(122) See e.g. EYC, iii. no. 1685; also EYC, ii. no. 1168 (no exchange if grantee loses land

Page 42 of 56

(123) Glanvill, ix. 4, ed. Hall, 107. See also Hyams, ‘Warranty’, 471–2; Bailey, ‘Richard I’, 197–8, is in no doubt that the obligation was heritable.

(124) Glanvill, iii. 1, vii. 2, ed. Hall, 37, 74; see also below, 642.

(125) For the possible separability of these two elements, see above, 345.

(126) Three Rolls, 124; see Hyams, ‘Warranty’, 490–1; Bailey, ‘Richard I’, 195–6; Milsom, Legal Framework, 131–2. For another relevant case, see CRR, v. 105–6; from 1222, see Rolls of the Justices in Eyre for Gloucestershire, Warwickshire and Staffordshire, ed. D. M. Stenton (59 Selden Soc., 1940), no. 1459. Later the use of the verb dare, ‘to give’, was taken to imply warranty; see S. J. Bailey, ‘Warranties of land in the thirteenth century’ (1942–4) 8 CLJ 274–99, (1945–7) 9 CLJ 82–106, at 281–2. It is just possible that the present case is very early evidence for this view.

(127) For this paragraph, see Glanvill, iii. 1–3, ed. Hall, 37–9; also Bailey, ‘Richard I’, 201– 2, 204–5. Certainly by the time of Bracton, the warrantor might insist on attending the plea, even though not vouched, in order to protect his own rights; Bracton, fo. 393b, ed. Thorne, iv. 228; Bailey, ‘Thirteenth century’, 85. The major concern seems to have been collusive litigation. Note also a warrantor acting by letter to the royal justices; Reading, no. 390, with which can be compared Lawsuits, no. 642. Minors vouched to warranty could not do so until they were of age; in 1201 the king halted a case, CRR, i. 467, until the person vouched to warranty ‘was of such age that he could and ought according to the custom of England to warrant that land to him’. See also Early Registers of Writs, Hib. 41, although the relevant writ is missing.

(128) See CRR, i. 97, ii. 234. For relevant writs from earlier in Henry II's reign, see e.g. Registrum Antiquissimum, no. 189, EYC, iii. no. 1458. See also Glanvill, iii. 4, ed. Hall, 39– 40, on the problem of the defaulting warrantor. A solution to Glanvill’s problem may have been found by 1203, when an equivalent holding from the warrantor's other lands were taken into the king's hand. See also Bracton, fos 384–6, ed. Thorne, iv. 201–7.

(129) Note e.g. Lawsuits, no. 654; CRR, i. 315.

(130) Glanvill, iii. 6, ed. Hall, 41–2; note the strict procedures for obtaining the presence of the demandant's lord.

(131) For what follows, see Glanvill, iii. 7–8, ed. Hall, 42–3.

(132) Glanvill, iii. 1, ed. Hall, 39. For exchange being given in such circumstances, see e.g. Lawsuits, no. 542. On the significance of the exchange going to the defeated tenant rather than the successful demandant, see above, 346; from early in Henry II's reign, note Redvers, no. 50.

Page 43 of 56

(133) See CRR, i. 81; ii. 234, a case settled by final concord; also CRR, ii. 175; iv. 215. Cartæ antiquæ, 1–10, no. 95, relating to a specific settlement, laid down that the equivalence of the exchange should be set by oath of four lawful men of the provincia.

(134) See CRR, i. 39–40; iv. 185; in both cases it is just possible that the statement that the order was to the party might indicate an instruction to the sheriff to order the party to act, rather than a writ addressed directly to the party, but cf. the explicit mention of the sheriff in the cases cited in the previous footnote. Note also PKJ, i. no. 3505, and the comments in Early Registers of Writs, lxviii. See Bailey, ‘Richard I’, 205 n. 99; Hyams, ‘Warranty’, 487 n. 220.

(135) See CRR, i. 89–90.

(136) Glanvill, iii. 1, ed. Hall, 39.

(137) See e.g. CRR, iii. 12; also Bailey, ‘Thirteenth century’, 284.

(138) See Bracton, fo. 381, ed. Thorne, iv. 193.

(139) Glanvill, iii. 1, ed. Hall, 37–8.

(140) See e.g. PKJ, iii. no. 995.

(141) Glanvill, ii. 3, ed. Hall, 23.

(142) Glanvill, ii. 3, ed. Hall, 24. Glanvill allows the demandant's champion to substitute his son in his place. On death other than from natural causes, see below, 533. On the form of trial by battle, see above, 327–8.

(143) See esp. Lawsuits, no. 641 (p. 675).

(144) Glanvill, ii. 3, ed. Hall, 25; note that the disgraced champion retained the right to do battle on his own behalf in certain circumstances. For hired champions, note also e.g. Lincs., no. 260.

(145) Register of St Augustine's Abbey, ii. 456; R. C. Palmer, ‘The origins of the legal profession in England’ (1976) NS 11 Irish Jurist, 126–46, at 142–3. CRR, v. 57, is a Gloucestershire case in which a Simon Tyrel is offered as a champion. See also Flower, Introduction, 120–2.

(146) For this paragraph, see Glanvill, ii. 3–5, ed. Hall, 25–6. See above, 323, 328, for reference in a decree of William I to a £3 payment to the king by a Frenchman defeated in trial by battle.

(147) Decisions made per finem duelli may also have acted as a block against third-party claims, in a similar fashion to final concords; see above, 594 n. 115.

(148) See e.g. Three Rolls, 135–6, CRR, iii. 81; note also PKJ, iii. no. 997. See the

Page 44 of 56

(149) See Glanvill, ii. 13, iv. 6, ix. 6–7, ed. Hall, 32, 47, 110–11; e.g. CRR, i. 341; CRR, vii. 257–8, for a party asking for its use in a case concerning fishing rights; the request was rejected, but not on the grounds that it was in general inappropriate for cases involving such rights, and the case instead went to a jury on a specific point. Note also e.g. CRR, v. 151; vi. 277. On use of the grand assize by the tenant's warrantor, see above, 597.

(150) Glanvill, ii. 6, ed. Hall, 28.

(151) For this paragraph, see Glanvill, ii. 6, ed. Hall, 26–7.

(152) Glanvill, ii. 3, ed. Hall, 23.

(153) See e.g. CRR, iv. 187–8, 290, v. 38, 69, 134–5. See Lawsuits, no. 641 (p. 675), for the prior of Spalding paying the king 40m. for a grand assize in what was a tendentious case. For smaller payments to have or to hasten a grand assize, see e.g. Lincs., nos 87, 118, 303, CRR, iv. 34.

(154) Glanvill does not explain this process further. CRR, iv. 256–7, shows a court deciding that one such case should be decided by a jury of local men concerning a specific issue.

(155) See e.g. CRR, v. 75; the parties probably settled, CRR, v. 162. In CRR, iv. 193–4, neither party seems to have questioned that the assize should proceed, although they were related; the dispute involved an alleged gift within the family. Perhaps the demandant's attorney, John Bucuinte (on whom see above, 587–8), was well aware that cases of this sort relating to family gifts could proceed via the assize. For this case, note also CRR, iv. 181 (appointment of John Bucuinte in place of another attorney), 258, v. 14.

(156) Glanvill, ii. 6, ed. Hall, 27.

(157) Glanvill, ii. 6, ed. Hall, 27–8. The plea rolls do not indicate that this was a commonly used process.

(158) For this paragraph, see Glanvill, ii. 7–12, ed. Hall, 29–32. For a lord simply continuing to hear a case, even though the tenant had placed himself on the grand assize, see above, 565 n. 213.

(159) For the election of more than twelve knights, see e.g. RCR, i. 140–1.

(160) For this paragraph, see Glanvill, ii. 14–21, ed. Hall, 33–7.

(161) For the demandant repeatedly not attending, and eventually defaulting, see RCR, i. 334.

(162) Lack of later evidence suggests that this procedure soon died out, even if it was

Page 45 of 56

(163) See e.g. PKJ, iii. nos 777, 783; Lincs., no. 188.

(164) Glanvill, i. 19, ed. Hall, 35–6.

(165) See below, 621, for instances from Lincolnshire in 1202.

(166) Note also Milsom, Legal Framework, 96.

(167) See also above, 593.

(168) On seisin and right, see also below, 670–6.

(169) London, British Library, Royal MS 14 C. ii, fo. 266v.

(170) Glanvill, xiii. 2, ed. Hall, 149.

(171) See below, 617.

(172) CRR, i. 464–5.

(173) Glanvill, xiii. 3, ed. Hall, 150.

(174) See e.g. CRR, iv. 276 (rent), vi. 336 (common of wood).

(175) Assizes of Northampton, 4.

(176) See PR26HII, 14, 41, 80. Some earlier instances could be concealed under general phrases such as ‘in return for having a recognition’.

(177) Note the comments of Milsom, Legal Framework, 166–7, 176.

(178) Bracton, fo. 281, ed. Thorne, iii. 318.

(179) Glanvill, xiii. 11, ed. Hall, 155.

(180) Besides the examples in the next footnote, see e.g. PKJ, iv. no. 3749.

(181) See e.g. CRR, ii. 191–2, PKJ, iii. no. 1007, Lincs., no. 377; Bracton, fo. 261b, ed. Thorne, iii. 269. On proof by suit of kin, see above, 601. On disputes between sisters, see Waugh, ‘Women's inheritance’, 83.

(182) See CRR, ii. 223, between cousins; for the dispute, note also ii. 239, 282, iii. 317, Lincs., no. 113. It may be significant that this was a very large-scale case, concerning fourteen knight's fees. PR3J, 18, records the demandant owing 40m. for a writ of mort d'ancestor concerning fourteen and a half knight's fees.

Page 46 of 56

(183) See e.g. PKJ, iii. no. 959, Lincs., no. 416.

(184) See e.g. CRR, i. 227; iv. 217.

(185) See Biancalana, ‘Want of justice’, 486–7, 504; above, 583.

(186) Glanvill, xiii. 19, ed. Hall, 161. Note also Early Registers of Writs, Hib. 9–15. Glanvill’s writ does not mention that the last presentment must have taken place in time of peace, but this would be specified in later writs (see Hib. 9), and Glanvill, iv. 1, ed. Hall, 44, shows that the recognition had to declare who had last presented in time of peace.

(187) Cartulary of Oseney Abbey, ed. H. E. Salter (6 vols; 89–91, 97–8, 101 Oxford Historical Soc., 1929–36), iv. no. 439. On the circumstances of introduction, see above, 520. On issues related to darrein presentment, see Gray, ‘Ius praesentandi’, Tate, ‘Ownership, 305–13.

(188) Glanvill, xiii. 2, ed. Hall, 149.

(189) Glanvill, xiii. 24, ed. Hall, 163.

(190) Constitutions of Clarendon, 9.

(191) See A. Nicol, ‘Changes in the assize Utrum between the Constitutions of Clarendon and Bracton’, in Medieval Legal Records, ed. Hunnisett and Post, 17–24. Cf. development in Normandy; see esp. the charter of Norman bishops printed in L. Valin, Le duc de Normandie et sa cour (Paris, 1910), 280; TAC, 17, 57, ed. Tardif, 19–20, 46–9.

(192) See above, 567; also below, 669.

(193) An exception may be a writ issued by the justiciar in the context of a dispute between the abbey of Meaux and the archbishop of York; Chronica monasterii de Melsa, ed. E. A. Bond (3 vols; RS, 1866–8), i. 293. However, it cannot be told if this was a standard writ utrum.

(194) Note CRR, vi. 29.

(195) See Glanvill, xii. 25, ed. Hall, 164; the last part of Glanvill’s sentence is perhaps better translated ‘although it can be sought [peti] by the opposing party to be held from the church through due service’.

(196) See e.g. PKJ, iv. nos 4134, 4283; note also e.g. CRR, iv. 193, PKJ, iv. no. 4248.

(197) See Glanvill, xiii. 23, ed. Hall, 163, Early Registers of Writs, Hib. 21; cf. CA 49; note CC 52–55a. Note also the writs of prohibition to ecclesiastical justices and sheriffs against a plea concerning lay fee being held in an ecclesiastical court ‘because that plea concerns my crown and dignity’; Glanvill, xii. 21–22, ed. Hall, 146–7. For later discussion of whether utrum was available to laymen, note BNB, no. 1923; Bracton, fo. 285b, Thorne, iii. 329.

Page 47 of 56

(198) See e.g. Lawsuits, no. 615.

(199) Britton, iv. 7. 2, ed. F. M. Nichols (2 vols; Oxford, 1865), i. 207. The action was not available to a vicar; CRR, i. 325.

(200) Glanvill, xiii. 33, ed. Hall, 167–8.

(201) Lawsuits, nos 395, 386, respectively. See also Garnett, Conquered England, 339–42.

(202) Royal Writs, nos 21–3; White, Restoration, 208 n. 251. For concern about peace in the king's absence, see esp. The Letters of John of Salisbury, ed. and trans. W. J. Millor et al. (2 vols; Oxford, 1955–79), no. 121, from Archbishop Theobald to the king in mid-1160.

(203) See Sutherland, Novel Disseisin, 5–9; cf. e.g. Royal Writs, 283–94; Stenton, Royal Justice, 35–43. See above, 514–15, on the Assize of Clarendon. The 1166 Pipe Roll has under Rutland an amercement ‘for a disseisin against the king's assize’, which appears with old business, not under ‘new pleas and agreements’; PR12HII, 65. Unfortunately the entry cannot be traced back in previous Pipe Rolls, to confirm that it was not new in 1166. However, ‘disseisin against the king's assize’ need not refer to the procedures introduced with novel disseisin; see above, on letters of John of Salisbury.

(204) Assizes of Northampton, 4–5.

(205) PR12HII, 4, 7, 10, 14.

(206) See also Sutherland, Novel Disseisin, 8–9, for reason to believe that the measure was intended to be lasting. The absence of references in Pipe Rolls between 1172 and 1174 can be explained by the lack of eyres in those years and by the civil war of 1173–4.

(207) Devon: PR14HII, 133; DB, i. fo. 100v, records Lifton, Devon, as the king's. Wiltshire: PR14HII, 164–5. The Sussex entry twice appears as a concealed plea before being recorded as a concealed disseisin; PR14HII, 196, PR15HII, 58, PR16HII, 138, PR17HII, 130. For interpretations, see Royal Writs, 284–5; Stenton, English Justice, 36–42; Biancalana, ‘Want of justice’, 480–1.

(208) LHP, 53. 5, ed. Downer, 170; see also Hudson, Land, Law, and Lordship, 32–3, for other passages from the LHP and for the canonical background.

(209) See e.g., concerning disseisin, RRAN, iii. nos 286, 545, 886, Royal Writs, nos 90, 91, 92, 94, 96, 98; LHP, 74. 1, ed. Downer, 230 (concerning killing); Sutherland, Novel Disseisin, 26 n. 6, for further references.

(210) See M. G. Cheney, ‘“Possessio/proprietas” in ecclesiastical courts in mid-twelfth- century England’ in Law and Government, ed. Garnett and Hudson, 245–54; Tate, ‘Ownership’, esp. 284–95.

(211) See Sutherland, Novel Disseisin, 20–6, who suggests rather greater Roman

Page 48 of 56

influence than I here allow. Cf. the arguments of Tate, ‘Ownership’, 311–12, on possible Roman influence on darrein presentment.

(212) Note also the reference in the terms of limitation to disseisins since the king last crossed to Normandy, below, 614. This may be derived from earlier decrees prohibiting wrongdoing in the king's absence; see above, 610.

(213) Cheney, ‘Novel disseisin’; however, note Lawsuits, no. 420A, where Herbert of Bosham says that Becket's fault was to take the land back without having sought a royal judge [nullo fiscali judice requisito].

(214) Milsom, Legal Framework, 12–13, 18–19, ‘Grand assize’, 168, Natural History, xxi.

(215) See Glanvill, ix. 11–13, ed. Hall, 114–15; he does not specifically say that novel disseisin can be used against the man making a purpresture against his lord, but this is the implication.

(216) Note use of the phrase in the Inquest of Sheriffs, 12, with reference to the exactions of archdeacons and deacons.

(217) The Roman action unde vi also dealt with chattels of the disputed property; Sutherland, Novel Disseisin, 23. This need not be a sign of influence but does demonstrate that the issue of chattels could arise outside a seignorial context.

(218) This also makes sense of the fact that the assize was only availably against the disseisor, not against one who had received land from him by gift or inheritance; see also Sutherland, Novel Disseisin, 18–19. For awareness of the advantage of being in seisin, see e.g. Lawsuits, no. 581 (see above, 10).

(219) Glanvill, xiii. 38, ed. Hall, 170.

(220) Sutherland, Novel Disseisin, 27 n. 2, argues for the former as the correct interpretation. Glanvill’s mention of the plaintiff here is somewhat obscure. Plea rolls, for example Northants., routinely record the losing party being in mercy, but this need not be because of an association of disseisin with violence. Use of appellans and appellatus at Glanvill, xiii. 38, ed. Hall, 170, is not strong evidence for the specifically criminal nature of novel disseisin; see also above, 576 n. 10.

(221) See above, 610.

(222) On heavy amercements, see Sutherland, Novel Disseisin, 27.

(223) Glanvill, xiii. 34–6, ed. Hall, 168–9. See also e.g. PKJ, iv. nos 4071, 4138, 4295; J. S. Loengard, ‘The Assize of Nuisance: origins of an action at common law’ (1978) 37 CLJ 144–66.

(224) Glanvill, xiii. 37, ed. Hall, 169. For a case relating to rights in a wood, see Lawsuits,

Page 49 of 56

(225) See Sutherland, Novel Disseisin, 50–2.

(226) PKJ, iv. no. 4344.

(227) See Sutherland, Novel Disseisin, 10, 55–7, 215–16.

(228) See Flower, Introduction, 145–85; Lincs., 343 s.v. ‘Assize’; Sutherland, Novel Disseisin, 59–61; Magna Carta 1215, 18, Magna Carta 1217, 13–15. Subsequent practice will be discussed by Professor Brand, in his volume in this series.

(229) In this section for the sake of simplicity I use the term plaintiff to cover those bringing the various recognitions, and defendant to cover those answering, although in dealing with specific recognitions these are better covered by more precise terms, e.g. the tenant in mort d'ancestor and the disseisor in novel disseisin. Such looseness of usage might be taken to parallel Glanvill’s willingness to use words such as appellatus in the context of land actions; see above, 576 n. 10.

(230) Sutherland, Novel Disseisin, 64–5; note also Northants., nos 422, 592.

(231) See above, 516.

(232) See Glanvill, xiii. 7, ed. Hall, 152; Sutherland, Novel Disseisin, 65–6.

(233) See e.g. RCR, i. 377–8.

(234) See CRR, iv. 156; PKJ, i. no. 3525.

(235) Glanvill, xiii. 7, ed. Hall, 152.

(236) Glanvill, i. 31 (noting similar procedure in cases of breach of a fine made in king's court), xiii. 33, 38, ed. Hall, 19, 167, 170; see below, ch. 27, on criminal procedure.

(237) See e.g. RCR, ii. 19–20, PKJ, iv. no. 4269.

(238) See Glanvill, xiii. 25, ed. Hall, 164; Lincs., no. 496.

(239) See e.g. PKJ, i. no. 2004. The plaintiff might essoin himself in novel disseisin, but was unlikely to desire such a delay; Sutherland, Novel Disseisin, 66–7.

(240) See e.g. Lincs., no. 496; PKJ, iv. nos 4051 (where it is specified that the disseisor could not be found; no mention is made of any bailiff), 4062, 4140. Note also PKJ, iv. no. 4251, involving default by a warrantor. For the assize being taken in darrein presentment in the absence of one party, see e.g. CRR, iii. 9; however, note also CRR, i. 350, 399, where on the first occasion it may be that the absence of recognitors ensured that the absent party was allowed a second summons. Glanvill, xiii. 10, ed. Hall, 153, is worried about how the absence of a winning tenant could be punished.

Page 50 of 56

(241) See e.g. Lincs., no. 460, PKJ, iv. nos 4055, 4078; plaintiffs and any sureties were in mercy.

(242) See Glanvill, xiii. 11, ed. Hall, 154; e.g. Lincs., nos 37, 51, 172, 183, 410, 413, 423. For use of attorneys, see e.g. PKJ, iv. nos 4475, 4480, 4503, 4512, 4521. From 1227 alleged disseisors in novel disseisin were prohibited from appearing through an attorney, although their bailiff could still appear; Sutherland, Novel Disseisin, 44–7.

(243) Glanvill, xiii. 30, ed. Hall, 166.

(244) See e.g. Lincs., no. 317; cf. Three Rolls, 5.

(245) See Bailey, ‘Richard I’, 204–5, although note that the case evidence is thin.

(246) Glanvill, xiii. 38, ed. Hall, 169–70. See also Bailey, ‘Richard I’, 202. For later developments, see Sutherland, Novel Disseisin, 218-19. Note, though, an exceptional novel disseisin case, RCR, i. 153–4, where a termor is said to vouch his lessor as warrantor. The lessor came and warranted him, and said that the assize should not proceed because the plaintiff was a villein. His argument was proved and the plaintiff lost because of his status, ending up in mercy for a false claim.

(247) Glanvill, xiii. 11, ed. Hall, 153; see also e.g. Three Rolls, 68, for an early use of the formula ‘that the assize ought not to be made concerning this’. Note Sutherland, Novel Disseisin, 68.

(248) See e.g. Lincs., no. 293, 320, CRR, iii. 345. For an exception being ineffective, see e.g. PKJ, iv. no. 4059.

(249) See Glanvill, xiii. 11, ed. Hall, 154–5; note also the exclusion of burgage land from mort d'ancestor mentioned by Glanvill later in the chapter. For the exclusion of termors from novel disseisin, see Sutherland, Novel Disseisin, 32–3; for mort d'ancestor not being available to one holding only for annual rent, see PKJ, iii. no. 958. For prior proceedings, see e.g. CRR, i. 234; vi. 34–5.

(250) E.g. PKJ, iii. no. 951: the lord said that he had taken the land into hand for default of service and by judgment of his court, and he brought his court to warrant this; unfortunately the entry is unfinished. See Milsom, Legal Framework, 15–16, for court judgment being hidden by the blank verdict of a recognition that the tenant had not ‘thus’ disseised the plaintiff.

(251) See e.g. RCR, i. 48.

(252) See e.g. Lincs., no. 36. For complicated pleading involving maritagium and divorce, see CRR, v. 250–1.

(253) See e.g. PKJ, iv. no. 4343 (grandsons in male line to be preferred to daughter); CRR, ii. 101, 198, a case that may involve genuine doubt over the fate of a pilgrim.

Page 51 of 56

(254) See below, 629.

(255) Glanvill, xiii. 11, ed. Hall, 154, his exceptio bastardie; e.g. Lincs., no. 404, and note RCR, i. 56–7. See also above, 600–1, on the exception that the parties were of common stock.

(256) Glanvill, xiii. 11, ed. Hall, 154.

(257) See Glanvill, xiii. 20, ed. Hall, 161–2; again Glanvill uses the word exceptio. For the complexities that Glanvill’s passage may conceal, see Tate, ‘Ownership, 310–11. Note also the argument that the last presentment had been made as of wardship, not fee; Glanvill, xiii. 20–2, ed. Hall, 162–3. For a series of exceptions made in the context of an assize utrum, see PKJ, iii. no. 808.

(258) On the possibility of the court deciding points of law, see Sutherland, Novel Disseisin, 71. Note also RCR, i. 48.

(259) See e.g. CRR, iv. 265–6; Northants., no. 638, where the witnesses of the charter were summoned to give a verdict.

(260) See e.g. PKJ, iv. nos 4316, 4352; CRR, vii. 17–18. Note, however, CRR, iii. 126.

(261) See e.g. Lawsuits, no. 650; Three Rolls, 40; PKJ, iii. no. 932, iv. no. 4250; Lincs., no. 251 (where the summoned court did not provide the desired testimony); Sutherland, Novel Disseisin, 214; Milsom, Legal Framework, 13–14.

(262) See e.g. CRR, iii. 140; Lincs., no. 423; note also PKJ, iv no. 4072.

(263) See e.g. CRR, i. 187.

(264) See Glanvill, xiii. 11, ed. Hall, 154; also e.g. CRR, i. 156; Lincs., no. 1384; Northants., no. 809.

(265) See e.g. PKJ, iii. no. 943, iv. nos 4098, 4233. Note also Lincs., no. 405, where a factual point made by the defendant in mort d'ancestor was testified to by all sitting there. She went without day, and the demandant was told to obtain another writ, if she wished. See also Pollock and Maitland, ii. 617–18, on the recognitors being used as the jury.

(266) Note e.g. CRR, ii. 122; Bracton, fo. 185, ed. Thorne, iii. 71.

(267) Glanvill, xiii. 11, ed. Hall, 155–6. For their oath, see Bracton, fo. 185, ed. Thorne, iii. 72. Glanvill does not discuss whether a verdict in a recognition needed to be shared by all twelve recognitors. In Lincs., no. 392, a dissenting recognitor in a mort d'ancestor case was amerced; the case ended with an agreement, so we cannot tell whether the court would have accepted a majority verdict. If a large number of recognitors said that they did not know the truth, a new jury might be needed; note e.g. CRR, iii. 174, 247, 279.

Page 52 of 56

(268) See also Sutherland, Novel Disseisin, 73–4, citing evidence from the 1220s onwards. For jurors giving a verdict, but including a qualification (that ‘they heard it said that [the heirs involved in the claim] were born before their mother was married’), see PKJ, iv. no. 4143. It may well be that some verdicts made and perhaps presented in terms of a specific point were simply recorded in the plea rolls in general terms.

(269) See Glanvill, xiii. 7–9, ed. Hall, 152–3.

(270) See G. E. Woodbine, ‘The origins of the action of trespass’ (1924) 33 Yale LJ 799– 816, at 806–7; Flower, Introduction, 473–9; Sutherland, Novel Disseisin, 52–4. For the earlier procedure, see Glanvill, xiii. 38–9, ed. Hall, 170. Note also Lawsuits, no. 363, for calculation of damages in Henry II's first years.

(271) See e.g. CRR, ii. 133, 141, 145; Lincs., nos 1510–23.

(272) See e.g. PKJ, iii. nos 10, 766, 810, 856, iv. nos 4100, 4159–60, 4231, 4251, 4365, 4374; Assizes of Northampton, 4. It is difficult to tell whether amercement for unjust detention was standard, or whether there was some principle determining the cases in which it was applied.

(273) See e.g. Lincs., nos 42, 123, 155, 193.

(274) On writs of entry, see also Pollock and Maitland, ii. 62–75; Milsom, Legal Framework, 93–102; P. A. Brand, Kings, Barons, and Justices: the Making and Enforcement of Legislation in Thirteenth-Century England (Cambridge, 2003), 151–4; J. Biancalana, ‘The origin and early history of the writs of entry’ (2007) 25 LHR 513–56.

(275) Rot. lit. claus, i. 32b; G. D. G. Hall, ‘The early history of entry sur dissesisin’ (1968) 42 Tulane LR 584–602; see above, 582, on writs ‘of course’.

(276) See e.g. RCR, i. 341, ii. 37, 85; Milsom, ‘Grand assize’, 171–2; note also Lincs., lxxi-ii, Early Registers of Writs, xlii-iii, Hib. 25, 26.

(277) Glanvill, x. 9, ed. Hall, 125; note that this is within the part of his treatise that Glanvill categorised as dealing with actions concerning right rather than seisins. For a more developed version of the writ, see Early Registers of Writs, Hib. 25; note also PKJ, i. nos 3487, 3506, 3538.

(278) Milsom, Legal Framework, 96, 99–102, ‘Grand assize’, 174; Biancalana, ‘Writs of entry’, 519–28, and e.g. CRR, ii. 219, 220, for issues in mort d'ancestor. Note also Lady Stenton's comments in her introduction to PR6J, xxx–xxxi, on writs precipe and writs of entry.

(279) This was certainly said to be the case by 1220; CRR, ix. 143.

(280) See above, 559–60, below, 851; Holt, Magna Carta, 139. For questioning of the link with Magna Carta, see Brand, Kings, Barons, and Justices, 154. Professor Brand will

Page 53 of 56

(281) PKJ, i. no. 3525.

(282) E.g. Lawsuits, no. 467, the leaving of marks on mill-locks and a fulling mill.

(283) Lawsuits, no. 519; see also e.g. Lawsuits, nos 525, 616; ‘Burton Chartulary’, 48–9.

(284) See CRR, i. 208; note also Brand, ‘“Multis vigiliis”’, 95–6.

(285) Note e.g. Lawsuits, nos 385, 453.

(286) Lincs., nos 22, 76, 82, 117, 133–4, 139, 145, 148, 157, 186, 196; cf. nos 61, 188, for judgments.

(287) Lincs., nos 37, 84, 183, 423.

(288) Lincs., nos 24, 34, 93, 311, 371.

(289) See above, 569–73.

(290) See e.g. Glanvill, xiii. 9, ed. Hall, 153. Glanvill provided no answer for his own question as to how long after restitution this might be done.

(291) CRR, vi. 290–2. Note also below, 635 n. 49, on recovery of gavelkind tenements that had been lost through default. See e.g. PKJ, iii. no. 822, for a party who had had to give up an action of mort d'ancestor being allowed the possibility of seeking a writ of right.

(292) See e.g. Royal Writs, nos 52–61.

(293) See e.g. Lawsuits, no. 641 (p. 679), Rot. de ob. et fin., 48–9. See also CRR, iii. 216, for parties in a darrein presentment case in effect choosing to short-circuit dual process following an indecisive verdict by the recognitors. The parties agreed to place themselves on twelve lawful men ‘both concerning seisin and concerning right [recto]’.

(294) Lawsuits, no. 393. On seisin and right, possession and property, see below, 670–6. Note also Sutherland, Novel Disseisin, 39–40, who suggests possible influence of Roman law interdicts on the development of dual process.

(295) Note Glanvill, xiii. 20, ed. Hall, 161; see above, 618, on the particular problem of seisin of advowsons.

(296) See e.g. Northants., no. 508; CRR, iii. 97–8. Note Early Registers of Writs, CC 175a; Sutherland, Novel Disseisin, 74–5. The developed process would be known as certification; see e.g. Bracton, fo. 289, Thorne, iii. 338–9.

(297) See esp. Lawsuits, no. 568.

(298) See above, 525; e.g. CRR, ii. 97–8, 113, 236; Select Cases of Procedure without

Page 54 of 56

Writ, lxxxvii–viii. See PKJ, iii. no. 147, for four knights being responsible for the election of the twenty-four. Glanvill does not discuss attaint, although at ii. 19, ed. Hall, 35–6, he does deal with the penalty for those who swore rashly in the grand assize. Cf. Early Registers of Writs, Hib. 22. On proffers for juries of twenty-four, see e.g. Lincs., no. 120; CRR, iv. 230; 1m. to 3m. seem to have been common proffers, although CRR, iii. 129, mentions one palfrey or 5m.

(299) See e.g. PKJ, iii. no. 909.

(300) CRR, iii. 98; see e.g. CRR, iii. 134–5, for the attainted jury being imprisoned and their chattels seized into the king's hand. Pollock and Maitland, ii. 542, suggests that some attainted jurors were less severely penalized.

(301) CRR, iii. 129–30. For Alan as sheriff, see PR3J, 23, PR4J, 84, PR5J, 150, PR6J, 175. PR4J, 185, may be connected to the present case.

(302) See Glanvill, x. 8, 18, ed. Hall, 124, 132; see also below, 692.

(303) Brand, ‘“Multis vigiliis”’, 82–5; Hudson, Land, Law, and Lordship, 266 n. 47, for difficulties of evidence.

(304) PKJ, iii. no. 1002.

(305) See above, 595–6, on warranty, where the argument for strict reading seems to have come from the warrantor, not the justices.

(306) Note that cases of false judgment might still be decided by battle rather than by argument concerning law or fact, possibly reducing the pressure for standardisation; Glanvill, viii. 9, ed. Hall, 101.

(307) Glanvill, viii. 9, ed. Hall, 100. See also above, 588, on county custom concerning essoins.

(308) CRR, vi. 118.

(309) Note also e.g. Lawsuits, no. 643, for parties coming up with their own, ad hoc, settlement methods. Note also extra-legal considerations affecting decisions in seignorial courts; e.g. Jocelin, Chronicle, ed. Butler, 44–5. In general, see above, ch. 1.

(310) See above, 585.

(311) See below, 638, for information from novel disseisin cases in 1204; also e.g. Lincs., no. 1384; Northants., no. 809; CRR, i. 59.

(312) See also in general J. E. A. Jolliffe, Angevin Kingship (London, 1955).

(313) See Holt, Magna Carta, 161–2. Promises that the king and his heirs shall warrant are rare in royal charters; CRR, iv. 270, preserves an exceptional example from the first

Page 55 of 56

(314) See Holt, Magna Carta, esp. 82–3, 90–1, 106, 128–39; also 140–1 for a writ de recto from the king to the sheriff, concerning land claimed to be held from the king.

(315) See Holt, Magna Carta, 143–7, 150–4, 173–4; D. A. Carpenter, ‘Justice and jurisdiction under King John and King Henry III’, in his The Reign of Henry III (London, 1996), 17–43, at 21–2; Early Registers of Writs, Hib. 4; on the dating of this Register, above, 526, below, 864.

Access brought to you by: University of Cambridge

Page 56 of 56