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English Legal History
2/10/2009
Outline
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I. THE PIPE ROLL OF 31 HENRY I
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THE GROWTH OF INSTITUTIONS (PIPE ROLL 31
HENRY I)
AND THE LEGAL SYSTEM SEEN AT THE DEATH OF HENRY II (GLANVILL)
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(All of these texts are in the Mats., starting on p. III–45, but
it may be easier to follow them here.)
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1.
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Coinage and units used in the Pipe Roll of 31 Henry I
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a.
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pound (£)
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=
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20 shillings = 240 pence (pennies) (d)
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b.
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Shilling (s)
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=
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12 pence
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c.
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Mark (m)
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=
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13 shillings 4 pence (2/3 of a pound = 160 pence)
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Warwickshire. Geoffrey de Clinton renders account of 44s. 8d. blanch
from the old farm. He has paid it into the treasury. And he is quit.
And the same man renders
account of the new farm. In the treasury £100 4s. 4d. by weight. And he owes
£32 9s. 4d. blanch.
And the same Geoffrey renders
account of 310m. [= £204 12s.] of silver for an
office in the treasury at Winchester.
In the treasury 100m. of silver. And he owes 210m. of silver.
[skipped two entries]
Osbert of Arden renders
account of £10 for the pleas of William Hubold. In the treasury 40s. And he
owes £8.
And the same sheriff renders
account of 100s. from old pleas and murders. In
pardon by the king’s writ to the earl of Warwick 100s. And he is quit.
William Fitz-Ralph renders
account of 113s. 4d. and one war-horse that he may have the land of his
father. In the treasury 30s. And he
owes £4 3s. 4d. and one war-horse.
Robert Fitz-Ralph renders
account of £4 for his portion of his father’s land. In the treasury 20s. And he owes 60s.
Norfolk.
Benjamin renders account of £4 5s that he may keep the pleas that belong to
the king’s crown. In the treasury 56s 8d. And he owes 28s 4d; and
[guarantees] to make a profit of 500m for the king. ...
Yorkshire and Northumberland. Roger de
Flamenvilla renders account of 20m silver from pleas of G[eoffrey] de Clinton
and his companion at Blyth.
And the same sheriff [of Yorkshire, Bertrand de Bulemer] renders
account of 31m silver from 9 “judicators” (judicatoribus) of the county from the same pleas.
And the same sheriff renders
account of 335m silver, 5s 6d from the lesser judges and jurors of the county
(de minutis judicibus et juratoribus
comitatus) from the same pleas.
William fitz Rannulf, sheriff,
renders account of 20m silver from the same pleas.
William de Albamara renders
account of 154m silver from the same pleas from his land of Holderness.
Robert Fossard renders account
of 10m silver from the same pleas and of 40m silver that he be reseised of
his land.
Godereda, daughter of
Gospatric son of Aldret, owes 10m silver for right of the land of her father.
...
Walter Espec renders account of
200m silver from pleas of the stag. In the treasury 50m silver. And he owes
£100 pounds. ...
And the same renders account
of one gold ring of 5–penny weight from a certain finding. He has paid to the
treasury. And he is quit.
Grento of York renders account
of 10m silver for a plea of the land of his wife.
Nigel of Doncaster renders
account of 20m silver for the forfeiture of his sons who killed a man. In the
treasury 5m silver. And he owes 15m silver. ...
William fitz Hugh renders
account of 10m silver that he may hold in peace the land of Sulinga.
In the treasury £5 [sic this would
be 7m 6s and change]. And he owes 4m. ...
Turbert fitz Gamel renders
account of 40m [this must be 50] silver that the king might make him have
seisin of his land from William de Albamara. In the treasury
Pleas of W. Espec and Eustace fitz John
The judges and jurors [judices et juratores] of Yorkshire owe £100 that they may no longer be judges
and jurors. ...
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2.
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Summary of the Pipe Roll of 31 Henry I
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a.
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sheriff’s farm
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sheriff
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b.
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profits of justice from justiciarii (eyre and local),
judices, minuti homines, juratores
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itinerant justices, local royal courts, ?presenting bodies
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c.
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payment for writs by individuals
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civil cases
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(Similarly, most this is in the Mats., but I’m going to be
skippping around and it may be easier to follow it here.)
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1.
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A piece of Roman law: (1.3, p. IV-9):
“Pleas concerning baronies; pleas concerning advowons of churches; the question
of status; pleas of dower, when the woman has so far received none;
complaints that Wnes
made in the lord king’s court have not been observed; pleas concerning the
doing of homage and the receiving of relief; purprestures; debts of laymen.
All these pleas concern solely claims to the property (proprietas) in the disputed subject-matter: those pleas in
which the claim is based on possession (possessio),
and which are determine by recognitions, will be discussed later in their
proper place”
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2.
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Suppose your client claims a virgate of land in Puddle Parva in
1200. What more do you need to know
and how would you go about suing for it?
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a.
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Free vs. serf — this system is not available to the unfree. (See IV-9:)
“When anyone complains to the lord king or his justices concerning his fee
or free tenement, and the case is such that it ought to be, or the lord
king is willing that it should be, tried in the king’s court, then the
complainant shall have the following writ of summons:”)
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b.
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Of whom do you claim to hold? Of
whom does the tenant claim to hold?
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i.
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The
king
(p. IV-10): “The king to the sheriff, greeting. Command N. to render to R., justly and without
delay, one hide of land in such-and-such a vill, which the said R.
complains that the aforesaid N. is withholding from him. If he does not do so, summon him by good
summoners to be before me or my justices on the day after the octave of
Easter, to show why he has not done so.
And have there the summoners and this writ. Witness Rannulf Glanvill, at Clarendon.”
Writ of right in capite (Baker
(from ‘the’ register of writs, i.e. late 14th century), p. 614, B.i): “The
king to the sheriff of N greeting.
Command A. that justly and without delay he render
to B. one messuage with the appurtenances in D., which he claims to be his
right and inheritance and to hold of us in chief, and whereof he complains
that the aforesaid A. unjustly deforces him. And if he will not do so, and if the
aforesaid B. shall give you security for pursuing his claim, then summon
the aforesaid A. by good summoners that he be before our justices at
Westminster [on such a day] to show why he has not done it.. And have there the summons and this
writ. Witness, etc.”
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ii.
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Two
different lords
(3.6, p. IV–19): “Moreover, a case is often delayed by the absence
of lords; for example, when the demandant claims that the tenement in
question belongs to the fee of one lord, and the tenant says that he
himself holds it as of the fee of another lord. In such a case both lords shall be
summoned to court, so that the case may be heard and determined in due form
in their presence, lest in their absence some injustice may seem to be done
them.” (If tenant claims to hold of one lord and demandant of the other,
both lords must be summoned and appear. As Derek Hall notes the assumption
here seems to be that the case is being heard in the royal court.)
(12.8 p. IV–20) “The writ [speaking of the writ of right] must be directed
to him of whom the demandant claims to hold, not to anyone else, not even
the chief lord. But what if the demandant claims to hold of one lord and
the tenant hold of another? In such a case he to whom the writ is directed
may not hold that plea, because becuse he may not unjustly and without a
judgment disseise another of the seisin of his court which he is deemed to
have; therefore recourse must necessarily be had to the county court, and
the plea will proceed there or in the chief Curia … .”
Writ of right quia dominus remisit
curiam, Hall, Registers CCC (“substantially of the middle 1260’s”), p.
36: “‘The king to the sheriff greeting.
Command B. that justly and without delay he render
to A. so much land with appurtenances, in such a vill, which he claims to
be his right and his inheritance and whereof he complains that the said B.
unjustly deforces him. And if etc.,
and the said A. shall have given you security to prosecute his claim, then
summon by good summoners, the aforesaid B. that he be before our justices
at Westminster
on such a day to show why he has not done this. And have there the summoners and this
writ. [Witness, etc.] because the chief lord of that fee has remitted to us
his court thereof.’ And thus that
clause is always set down after the date of the writ.”
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iii.
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The same lord
(12.3, p. IV–20, Baker p. 613 (A.i)): “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.”
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c.
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What is the substantive claim that you can bring in a writ of right?
(the count, 2.3, p. IV–11): “When both parties appear again in court after
the three reasonable essoins and the view, the demandant sets out his claim
and suit as follows: ‘I claim against this N. the fee of half a knight and
two carucates of land in such-and-such a vill as my right and my
inheritance, of which my father (or grandfather) was seised in his demesne
as of fee in the time of King Henry the First (or since the Wrst coronation
of the lord king), and from which he took proWts to the value of Wve
shillings at least, in corn and hay and other proWts: and this I am ready
to prove 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.’ (He can name as
many as he likes but only one of them shall wage battle.) Or the claim may be in other words, thus:
‘And this I am ready to prove by this free man of mine, H., whose father in
his last minutes enjoined him, by the faith binding son to father, that if
ever he heard of a suit concerning this land, he should offer to prove it
as something seen and heard by the dying man.’”
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d.
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Why would a litigant want to bring something else if he could?
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i.
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essoins
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ii.
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tenant’s choice of battle or the grand assize
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e.
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In what circumstances can he bring something else?
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i.
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mort d’ancestor
(13.2–12, pp. IV–26): “The king to the sheriff, greeting. If G. son of O. gives you security for
prosecuting his claim, then 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 whether O. the father
of the aforesaid G. was seised in his demesne as of his fee of one virgate
of land in that vill on the day he died, whether he died after my Wrst coronation, and
whether the said G. is his next heir.
And meanwhile let them view the land; and you are to see that their
names are endorsed on this writ. And
summon by good summoners R., who holds that land, to be there then to hear
the recognition. And have there the
summoners and this writ. Witness,
etc.”
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ii.
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novel disseisin
(13.32–39, p. IV–31): “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.”
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iii.
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Glanvill also hints at other
situations in which something less than the writ of right might be
appropriate:
(13.27, p. IV–30): “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 whether N. holds one
carucate of land in that vill, which R. claims from him by my writ, in fee
or as a gage pledged to him by R. (or by R.’s ancestor H.). (Or thus: whether the carucate of land in
that vill which R. claims from N. by my writ is the inheritance or fee of
N., or a gage pledged to him by R. or by R.’s ancestor H.). And meanwhile let them view the land; and
you are to see that their names are endorsed on this writ. And summon by good summoners N., the
tenant of that land, to be there then to hear the recognition. And have there the summoners and this
writ. Witness, etc.”
and
this writ. Witness, etc.”
Glanvill 10.9 (Hall ed., p. 125):
“The king to the sheriff, greeting.
Command N. to restore, justly and without delay, so much land (or,
certain specified land) in such-and-such a vill to R., of a term which is
now past, as R. alleges; and to accept payment from him (or, which he
alleges he has redeemed by payment).
If he does not do so, summon him by good summoners to be before me
or my justices at a certain place on a certain day to show why he has not
done so. And have there the
summoners and this writ. Witness,
etc.” This can lead to a recognition whether gage or fee.
Entry in the per
and cui (Baker, Bii, p. 614 (adapted): “The king to the sheriff of N.
greeting. Command A. that justly and
without delay he render to B. one messuage with the appurtenances in D.
which he claims to be his right and inheritance and into which the same A.
has not entry except through C. to whom the aforesaid B. demised it for a
term which has expired. And if he
will not do so, and if the aforesaid B. shall give you security for
pursuing his claim, then summon the aforesaid A. by good summoners that he
be before our justices at Westminster [on such a day] to show why he has
not done it. And have here the
summoners and this writ. Witness,
etc.”
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3.
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We need one more piece from Glanvill
before we try to solve the puzzle:
(12.6–7; p. IV-21): “These pleas,” Glanvill says speaking of the writ of
right, “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. 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.”
This procees known as tolt; I another place Glanvill tells us that once the case is in the county court
either party may remove it to the central royal court by a writ known as
pone (6.7, p. 61, Hall ed.).
3.1 (p. IV-18): “The presence of the third party ... is required ... if the
tenant says [the land] is his, but that he has in respect of it a warrantor
from whom he got it as a gift, or by sale, or in exchange, or some other
such way.” In the situation where the
warrantor defaults escambium (p.
IV–19).
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4.
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What are these things originally?
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a.
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Mort d’ancestor — look at the Assize of Northampton (pp. IV–4 to IV–5)
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b.
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Novel disseisin — look at the words
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c.
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Writ of right — must be the thing that makes the land heritable
originally
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d.
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If this is right then writs of entry, which are only hinted at in
Glanvill, are a whole ’nother story, for which I can give you just the
barest outlines: They may be the
product of a development like the following:
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e.
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Novel disseisin means that the lord can no longer justice his tenants.
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f.
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Glanvill 2.6: Special mise (p.
146–7): taking an issue away from the grand assize by allegation that the demandant
is of the same blood as the tenant. If tenant admits it, the case is
pleaded verbally and goes to battle.
If tenant denies it, the case is pleaded verbally and goes to
inquest. There are a lot of these early in John’s reign being used for
claims like those that we looked at above, where the question was whether
the tenant held in fee or gage or whether he held for a term of years that
had expired.
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g.
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The distinction between upward looking claims and downward looking
claims.
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5.
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Unburdened with knowledge of Roman law, it seems relatively clear that
what we are dealing with here originally is three types of claims that may
be made against a lord. Burdened with a knowledge
of Roman law we see them as dealing with ownership and possession. Glanvill
hints at this and Bracton develops it to a fare thee well. But the writs of
entry are a problem in this scheme and like so much else in history it’s
the last development that gives the clue to the whole puzzle.
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