|
|
English Legal History
2/23/2009
Outline
|
|
I. OUTLINE OF EVENTS OF REIGN OF HENRY II
|
|
|
|
II. ADMINISTRATIVE CHANGES DURING THE REIGN OF
HENRY II
|
|
|
|
III. CHANGES IN REMEDIES AVAILABLE
|
|
|
|
IV. THE MILSOM THESIS REVISITED
|
|
|
|
tHE aSSIZES OF hENRY ii rEVISITED
|
|
1154—Treaty of Winchester (1153), Henry becomes king
1155–57—Pacification, repelling threats from Scotland
& Wales
1164—Constitutions of Clarendon
1170—Martyrdom of Becket
1172—Compromise of Avranches
1173–74—Rebellion of Henry’s sons
1189—Death of Henry
|
|
1.
|
Restoration of a system that had falled down under Stephen-beginning w/
the Pipe Roll of 2 Henry II.
|
|
2.
|
Regularization on the civil side of the writs. What had been of grace became of course
and this means you don’t have to pay as much for it. Evidence of this for the writ of right in
mid-reign for the writ of right. It
was probably always the case with novel disseisin and mort d’ancestor.
|
|
3.
|
Identification of various types of actions and developemnt of pleading.
|
|
4.
|
The returnable writ — the administrative order becomes an invitation to
a judicial proceeding in the central royal courts. Evidence of this from
the beginning of the reign; may already have happened in Henry I’s reign.
|
|
1.
|
Writ of right (Mats. p. IV–19)
The king to Earl William,
greeting. I command you to do full right
without delay to N. in respect of ten carucates of land in Middleton which
he claims to hold of you by the free service of one hundred shillings a
year for all service (or by the free service of one knight’s fee for all
service, or by the free service appropriate when twelve carucates make up
one knight’s fee for all service; or which he claims as pertaining to his
free tenement which he holds of you in the same vill or in Morton by the
free service, etc., or by the service, etc.; or which he claims to hold of
you as part of the free marriage portion of M. his mother, or in free
burgage, or in frankalmoin; or by the free service of accompanying you with
two horses in the army of the lord king at your expense for all service; or
by the free service of providing you with one crossbowman for forty days in
the army of the lord king for all service): which Robert son of William is
withholding from him. If you do not
do it the sheriff of Devonshire will, that
I may hear no further complaint for default of right in this matter. Witness, etc.
Writs in this form appear in the reign of Henry I:
Henry, king of England,
to Walter of Bolebech, greeting. Do
at once full right to the abbot of Ramsey about the land of Cranfield
which Ralf, son of William, unjustly witholds from the abbey. And unless you do it, Ralf Basset shall
cause it to be done, that I may hear no complaint about this for default of
right and this should not be left undone because of your crossing [to the continent]. Witness Nigel de Albini. At Winchester.
Once more Glanvill: [6]
These pleas [i.e., the writ of right patent] are tried 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. [7] Proof of default of right in these
courts is made in the following way: when the demandant complains to the
sheriff in the county court and produces the writ from the lord king, the
sheriff will, on a day appointed to the litigants by the lord of the court,
send to that court one of his servants, so that he may hear and see, in the
presence of four or more lawful knights of that county who will be there by
command of the sheriff, the demandant’s proof that the court has made
default of right to him in that plea; the demandant will prove this to be
the case by his own oath and by the oath of two others who heard and
understood it and who swear with him. With this formality, then, cases are
transferred from certain courts to the county court, and are once again
dealt with and determined there; and neither the lords of those courts nor
their heirs may contest this or recover jurisdiction for their courts in
respect of the particular plea.
|
|
2.
|
Constitutions of Clarendon c.
9 (assize utrum) (Mats. pp. III- 52)–1164 c.9:
If a claim is raised by a
cleric against a layman or a layman against a cleric, with regard to any tenement
which the cleric wishes to treat as free alms, but the layman as lay fee,
let it, by the consideration of the king’s chief justice and in the
presence of the said justice, be settled through the recognition of twelve
lawful men whether the tenement belongs to free alms or lay fee. And if it is recognized as belonging to
free alms, the plea shall be in the ecclesiastical court; but if to lay
fee, unless both call on the same bishop or baron, the plea shall be in the
king’s court. But if, with regard to
that fee, both call upon the same bishop or baron, the plea shall be in his
court; so that, on account of the recognition which has been made, he who
first was seised shall not lose his seisin until proof has been made in the
plea.
|
|
3.
|
Assize of Clarendon
(criminal)—1166 (Mats. pp.
IV–1f.). For our purposes today the
most important provisions are cc. 1, 2 and 14:
1. In the first place the
aforesaid King Henry, on the advice of all his barons, for the preservation
of peace, and for the maintenance of justice, has decreed that inquiry
shall be made throughout the several counties and throughout the several
hundreds through twelve of the more lawful men of the hundred and through
four of the more lawful men of each vill upon oath that they will speak the
truth, whether there be in their hundred or vill any man accused or
notoriously suspect of being a robber or murderer or thief, or any who is a
receiver of robbers or murderers or thieves, since the lord king has been
king. And let the justices inquire
into this among themselves and the sheriffs among themselves.
2. And let anyone, who shall be found, on the oath of the aforesaid,
accused or notoriously suspect of having been a robber or murderer or
thief, or a receiver of them, since the lord king has been king, be taken
and put to the ordeal of water, and let him swear that he has not been a
robber or murderer or thief, or receiver of them, since the lord king has
been king, to the value of 5 shillings, so far as he knows.
14. Moreover, the lord king wills that those who shall be tried by the law
and absolved by the law, if they have been of ill repute and openly and
disgracefully spoken of by the testimony of many and that of the lawful
men, shall abjure the king’s lands, so that within eight days they shall
cross the sea, unless the wind detains them; and with the Wrst wind they
shall have afterwards they shall cross the sea, and they shall not return
to England again except by the mercy of the lord king; and both now, and if
they return, let them be outlawed; and on their return let them be seized
as outlaws.
|
|
4.
|
Assize of Northampton (mort d’ancestor)—1176 (Mats.
pp. IV–4). Confirmation and changes
in the assize of Clarendon (c.1); mort d’ancestor (cc. 4–5) (p. IV–5):
4. Item, if any freeholder
has died, let his heirs remain possessed of such “seisin” as their father
had of his fief on the day of his death; and let them have his chattels
from which they may execute the dead man’s will. And afterwards let them seek out his lord
and pay him a “relief” and the other things which they ought to pay him
from the fief. And if the heir be
under age, let the lord of the fief receive his homage and keep him in ward
so long as he ought. Let the other
lords, if there are several, likewise receive his homage, and let him
render them what is due. And let the
widow of the deceased have her dow[er] and that portion of his chattels
which belongs to her. And should the
lord of the fief deny the heirs of the deceased “seisin” of the said
deceased which they claim, let the justices of the lord king thereupon
cause an inquisition to be made by twelve lawful men as to what “seisin”
the deceased held there on the day of his death. And according to the result of the inquest
let restitution be made to his heirs.
And if anyone shall do anything contrary to this and shall be
convicted of it, let him remain at the king’s mercy.
5. Item, let the justices of the lord king cause an inquisition to be made
concerning dispossessions carried out contrary to the assize, since the
lord king’s coming into England immediately following upon the peace made
between him and the king, his son.
|
|
5.
|
Grand Assize (Mats. p. IV–13)—?1179
(if it is to be associated with the council at Windsor):
This [grand] assize is a royal
benefit granted to the people by the goodness of the king acting on the
advice of his magnates. It takes
account so effectively of both human life and civil condition that all men
may preserve the rights which they have in any free tenement, while avoiding
the doubtful outcome of battle. In
this way, too, they may avoid the greatest of all punishments, unexpected
and untimely death, or at least the reproach of the perpetual disgrace
which follows that distressed and shameful word which sounds so dishonourably
from the mouth of the vanquished.
This legal constitution is based above all on equity; and justice,
which is seldom arrived at by battle even after many and long delays, is
more easily and quickly attained through its use. Fewer essoins are allowed in the assize
than in battle, as will appear below, and so people generally are saved
trouble and the poor are saved money.
Moreover, in proportion as the testimony of several suitable
witnesses in judicial proceedings outweighs that of one man, so this
constitution relies more on equity than does
battle; for whereas battle is fought on the testimony of one witness, this
constitution requires the oaths of at least twelve men.
|
|
6.
|
Assize of darein presentement
(Glanvill bk. 4 and Mats. p. IV–27)—after 1179?—this one
needs more work. A recent doctoral dissertation goes over the evidence and
comes to the conclusion that both the traditional date and the traditional
explanation for its introduction are probably correct. The traditional
explanation is that the 3d Lateran Council which was held early in 1179
authorized the bishop to appoint a priest to a vacant church if the patrons
were litigating about it for a peiod of more than six months. The assize
allows the person who made the last presentation or his heir to make the
presentation. It moves much more quickly than the writ of right of
advowson, which had almost certainly been in existence before it.
The king to the sheriff,
greeting. Summon by good summoners
twelve free and lawful men from the neighbourhood of such-and-such a vill
to be before me or my justices on a certain day, ready to declare on oath
which patron presented the last parson who is now dead to the church in
that vill, which is alleged to be vacant and of which N. claims the
advowson. And you are to see that
their names are endorsed on this writ.
And summon by good summoners R., who withholds the presentation, to
be there then to hear the recognition.
And have there the summoners and this writ. Witness, etc.
|
|
7.
|
Assize of Novel Disseisin (Mats. p. IV–30)—date unknown, ?1158 X ?1166, ?after 1179; cf. Assize of Northampton
c. 5.
The king to the sheriff,
greeting. N. has complained to me
that R. unjustly and without a
judgment has disseised him of his free tenement in such-and-such a vill
since my last voyage to Normandy. Therefore I command you that, if N. gives
you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement
are restored to it, and that the tenement and the chattels remain in
peace until the Sunday after Easter.
And meanwhile you are to see that the tenement is viewed by twelve
free and lawful men of the neighbourhood, and their names endorsed on this
writ. And summon them by good
summoners to be before me or my justices on the Sunday after Easter, ready
to make the recognition. And summon R., or
his bailiff if he himself cannot be found, on the security of gage and
reliable sureties to be there then to hear the recognition. And have there the summoners, and this
writ and the names of the sureties.
Witness, etc.
|
|
8.
|
No man need respond concerning a
free tenement without a writ from the lord king (Mats. pp. IV–19, IV–24)—date unknown. If it is legislative, it is early in the
reign.
When anyone claims to
hold of another by free service any free tenement or service, he may not
implead the tenant about it without a writ from the lord king or his
justices.
It should be known, moreover, that according to the custom of the realm,
no-one is bound to answer concerning any free tenement of his in the court
of his lord, unless there is a writ from the lord king or his chief
justice.
|
|
1.
|
Like Milsom, we would suggest:
|
|
|
a.
|
that modest reforms may have unintended consequences (for there is no
doubt that what Henry II did did destroy the system),
|
|
|
b.
|
that the shift from customary law to appellate review involves the
elimination of the lord’s discretion,
|
|
|
c.
|
that Maitland fundamentally misunderstood not the thirteenth century meaning
of the real actions for his possession/ownership distinction comes right
out of Bracton, but the twelfth century meaning of them, in particular, the
importance of the clues that we get as to who was the defendant, and
|
|
|
d.
|
that the key to the whole operation is the
introduction of the regulatory assize of novel disseisin which deprives the
lord’s court of its ability to discipline a sitting tenant and necessitates
the introduction of the writs of entry allowing the lord to sue the tenant.
|
|
|
Key to Milsom’s argument is his understanding of the case of the
countess Amice, a cui ante divortium case before the writ was
invented.
|
|
2.
|
The advances and criticisms of Milsom come in five areas::
|
|
|
|
a.
|
Milsom posits what a “truly feudal world” must have looked like on the
basis of evidence dating from the end Henry II’s reign to the beginning of
Henry III’s, i.e., evidence dating from the period in which Milsom argues
that the change was already taking place.
Much of the recent work has sought to go back to the “truly feudal
world” and has come to the conclusion that it may not have been “truly
feudal.” Charter evidence and the
history of tenures would suggest, for example, that Milsom may have
exaggerated the element of discretion in the lord’s acceptance of the
tenant’s heir. The evidence is
certainly not all in, but here are some pieces of it:
|
|
|
|
|
|
|
|
|
|
|
|
i.
|
In Normandy
in the 10th and 11th centuries ideas about inheritance were quite well
formed.
|
|
|
|
ii.
|
There are very few examples of male heirs being passed over. The commutation of personal service for
money payment comes quite early in England. It may have been possible even from the
beginning. The key question is not
the ability of the heir to fight but loyalty.
|
|
|
b.
|
There is much that we do not understand about the writ of right. As Palmer points out tolt process exists
from the time of Henry I, though P. may be right that it is not used to
dislodge a sitting tenant. There are
also writs of right from the time of Henry I (as we have seen). Whether Palmer is right about the nature
of the compromise of 1153 is more controversial, since there is no direct
evidence for it. I find it at least
a plausible suggestion.
|
|
|
c.
|
Novel disseisin is more complicated than Milsom makes it out to be. The criminal process for it early in the
reign is well known, and most historians still date the civil writ earlier
than does Milsom. This is not to say
that the lord isn’t frequently the defendant, just that he isn’t always the
defendant.
|
|
|
d.
|
Writs of entry are more complicated than Milsom makes them out to
be. It is quite possible that a
number of different things ultimately end up under the same heading. These things certainly include Milsom’s
downward looking claims, and the nature of these claims is similar to those
raised by the special mise to the grand assize. But the writ of entry sur disseisin won’t
fit, and some of the others may not fit as well.
|
|
|
e.
|
The church may have played a bit more of a role in all of this than
Milsom let on. In particular, it may
have been responsible for the possessoary-proprietary distinction that
ultimately emerged. In the second
place, the origins of novel disseisin may rest in the Becket controversy.
|
|
|
The end result of the
recent work would be to suggest that the shift was more gradual and more
complicated than Milsom makes it out to be.
Curiously enough this reinforces Milsom’s basic argument because it
weakens even further the notion that Henry II’s assizes could have been
designed to achieve the result that they ultimately achieved.
|
|