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LEGAL HISTORY: ENGLISH LEGAL
HISTORY Professor Donahue May 3: 11:00 a.m.—May 17:3:30–4:30 p.m. |
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INSTRUCTIONS This is
a take-home exam. It will be
distributed on May 3 (the last class) at 10:50 a.m. You may, if you wish, also pick it up in my secretary’s office
(Hauser 518) any time after the last class.
The exam should be returned to my secretary, Kate Farrington, in
Hauser 518, any time before 4:30 p.m. on May 17. (If you can’t find her, put the exam under my door (Hauser
512).) (Please note that
this is different from the usual procedure.
You do not turn in the exam to the Registrar’s Office.) You may
not discuss this exam with anyone between 11:00 a.m. on May 3 and 4:30 p.m.
on May 17. If you have not picked up
the exam, you may, of course, discuss the course with anyone who has also not
picked up the exam. This is
an open-book exam. You may use any
materials that you want. The exam is
not, however, intended to be a library exercise. You should be able to do it with just the materials assigned
for the course and your class notes. There is
no limit on words, but conciseness will be rewarded and verbosity
penalized. One way to be concise is
not to recite at length material that was contained in the lectures. By and large, I know that material, and in
a take-home exam I can assume that you do too. What I am interested in is your ideas, how you put the material
together. If you find yourself
writing more than five double-spaced typewritten pages on either question,
you’re probably writing too much. There are two questions on the exam. The first question has two parts, and you are to answer only one of them. The second question also has two parts, and you are to answer one or the other of them based on which part you have chosen in the first question. The questions will be given approximately equal weight. |
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LEGAL HISTORY: ENGLISH LEGAL HISTORY, PART I |
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Answer either Question I.A. or Question I.B. |
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A. |
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Write a commentary on the following passages. Like many historical documents, these
assume a basic understanding of the rules and institutions of the
period. Your own thought about these
documents (this is not necessarily the way in which you should organize the
essay) should begin by outlining what those unspoken assumptions are. Then think about the prior and subsequent
history of the institutions to which the documents refer. Next ask yourself what this document tells
us about “the law” in the period 1198 X 1209. Finally, ask yourself how the institutions that are expressed
or implied in the documents are related to broader social, political and
economic developments. Write a
coherent essay embodying the results of your analysis. (Other documents concerning this case are
contained in the course materials; you might want to take a look at them. Your essay, however, should focus on what
is given here.) |
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ROLLS OF THE KING’S COURT (c. 8
November 1199) |
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Norfolk. Walter de Grancurt complains that Hugh de Polstead, when
Juliana his granddaughter and his heir was in the custody of the same Hugh by
the lord of Canterbury and he before him and the other justices faithfully
promised that he would not marry her without the assent of this Walter and of
his progeny, he [Hugh] of his own will made her a nun unjustly. Hugh came and defended that she was never
made a nun by him but he says that the steward of the count of Perche
[Normandy], as is said, sent for her to his house, and he doesn’t know what
he did with her. Walter says that
this Hugh against the will of the same Juliana and while she was under age
[in margin: before the archbishop] made her take up the habit of religion so
that he might obtain the portion of the inheritance of this Juliana along
with her first-born sister whom he took to wife. Hugh proffered a charter of the count of Perche and of M[____]
his countess which testified that they had given the same Hugh Avis the
first-born with her inheritance and that this Juliana before this count and
countess and many others asked if she could with their permission take up the
habit of religion. And Walter says
that this could not be because she never crossed [the Channel] nor spoke with
the count or the countess. A day was
given, one month after St. Hilary [13 February] to hear their judgment. Geoffrey the
count of Perche was lord of the honour of Haughley [Suff] from 1187 to his
death in 1202. King John then gave
the honour to Geoffrey, the count’s bastard son, who died in 1205. Thomas count of Perche tried to regain the
honour but died at the battle of Lincoln in 1217 while fighting for Louis of
France. Thenceforth the honour was in
the king’s hands. I.J. Sanders, English Baronies (Oxford 1960)
121. See Materials, p. IV–12 (no. 73). |
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ROLLS OF THE KING’S COURT
(Easter, 1206) |
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Norfolk. Hugh de Polstead and Avis his wife by Hugh de ‘Ylleg’’ demand against Walter de Grant Curt one carucate of land with its appurtenances in Burnham, of which Ascelina de Candos, whose daughter and heir the aforesaid Avis is, died seised as of her maritagium given by William de Grancurt and in which he intruded himself by force and arms while Ascelina lay in the infirmity of which she died, and he held it thus violently after her decease and by that intrusion[1] he took from it chattels which were on that land to the value of twenty marks, and that Ascelina thus died seised of that land as of her maritagium and that Walter so intruded himself in that land he [sic] offers to deraign by consideration of the court. And Walter defends his right, and he says that Avis has a sister who is not named in the writ and therefore he does not wish to reply without her unless the court shall have considered, and since there was mention in the writ of intrusion and he does not know if the sister wanted to follow. It was considered that he reply because Hugh and Avis offer the lord king forty shillings for having a jury by lawful men [on the question] whether this Ascelina died seised of that land as of a maritagium given her by the aforesaid William and whether this William [?sic] intruded himself in that land by force and while she lay in the infirmity of which she died,or not, and the offering is received. And Walter offers forty shillings for the same, that knights and other lawful men who better, etc. And let there be a recognition one month after Easter Monday at London and let the jury come, and let William de Gimingham [Norfolk] and Juliana his wife, the sister of the aforesaid Avis be summoned to come to follow the jury if they will. And the sheriff so much and so many, etc. Walter gives twenty shillings; William gives twenty shillings. |
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ROLLS OF THE KING’S COURT
(Easter, 1206) |
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Norfolk. The jury comes to recognize if Ascelina de
Candos, mother of Avis, wife of Hugh de Polstead, was seised on the day on
which she died of one carucate of land with its appurtenances in Burnham as
of her maritagium which was given
to her by William de Grancurt, father of the aforesaid Ascelina,and if Walter
de Grancurt with force and arms intruded himself on that land while this
Ascelina was in her sickness of which she died and though that intrusion
remained on that land after the decease of this Ascelina. The jurors say that William de Grancurt
gave the aforesaid land to Hugh de Candos in maritagium with the aforesaid Ascelina, and she held that land as
her maritagium all her life; and
while she lay in her infirmity of which she died, fifteen days before her
death Walter came with a multitude of people and put himself on that land and
thus he held it from then to now. It
was considered that Hugh de Polstead and Avis his wife and William de
Gimingham and Juliana his wife have seisin of that land of which Avis and
Juliana are the heirs of this Ascelina.
And Walter is in mercy. |
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ROLLS OF THE KING’S COURT
(Trinity, 1206) |
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Norfolk. William de Gimingham for himself and
Juliana his wife offers himself on the fourth day against Hugh de Polstead
and Avis his wife about a plea why they intruded themselves in a rent of five
shillings with its appurtenances in Burnham about which they were ?arguing [deadvocaverunt] in the court of the
lord king and which was taken in the hands of the lord, as is said. And Avis wife of Hugh did not come or
essoin herself, and she had a day in the bench two weeks after Holy Trinity,
and she did not come then, etc.
Wherefore it is considered that she be attached to be present on the
octave of St. Michael to reply, because the sheriff returned that she was not
found, and to show, etc. The same day
is given to Thomas de ‘Gedding’’ Hugh’s attorney in the bench. |
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FEET OF FINES FOR THE COUNTY OF
NORFOLK, 1201-1215 (May, 1209) |
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This is the final concord made in the court of the lord
king at St. Edmunds two weeks after Easter in the 10th year of the reign of
King John before Gerard de Camville, William de H[untingfield], Master
Eustace de Faucunberg, James de Potterne, Walter de Creeping, Robert de Aumari,
William de Furneaux, itinerant justices, and other faithful men of the lord
king there present, between William de Gimingham and Juliana, his wife,
demandants, by the same William placed in the place of the same Juliana for
gain or for loss, and Hugh de Polstead and Avis, his wife, tenants, by Walter
de Groten’, put in their place for taking the chirograph, about forty acres
of land with its appurtenances in Burnham about which there was a plea
between them in the aforesaid court, to wit: that the aforesaid Hugh and Avis
recognize all the aforesaid land with its appurtenances to be the right of
the same William and Juliana as Juliana’s reasonable part which comes to her
of the free tenement which belonged to Hugh de Candos, father of the
aforesaid Juliana and Avis, and of Ascelina, wife of the aforesaid Hugh, and
they remitted and quitclaimed for themselves and their heirs to the aforesaid
William and Juliana and the heirs of this Juliana forever. And be it known that the aforesaid William
and Juliana and Hugh and Avis will divide the entire tenement among
themselves which used to belong to the aforesaid Hugh and Ascelina, his wife,
in Burnham and in [Burnham] Deepdale in the lands, services, rents, liberties
and advowsons of churches, to wit: that to the aforesaid William and Juliana
remains all the service of Eloise de Vendeval, to wit, twelve pence; half of
the service of Robert, son of Hugh, to wit, a fifth part of one knight and of
the service of John, son of Ralph, to wit, thirty pence; all the service of
Hugh over Hill and Alexander Pingincus, to wit, twelve pence and for scutage
of a mark, three obols; all the service of John, the priest, to wit, four
pence, [half] of the service of Roger Sprigy, to wit, thirty pence and for
scutage of a mark, three pence; all of the service of Richard, son of ?Luthe,
to wit, two pence; of the service of Robert de Brancaster [Norfolk], to wit,
twelve pence; of the service of William, son of Roger, to wit, twelve pence,
and for scutage of twenty shillings, three pence; of William Despan for
scutage of twenty shillings, three pence; of the service of William
?Sisladin, to wit, three pence, and for scutage of twenty shillings, one
farthing; of the service of Steven Francigenis, to wit, twelve pence, and for
scutage of a mark, two pence one obol; of the service of Matthew le Curteis,
to wit, three pence, and for scutage of twenty shillings, three farthings;
and of the service of Philip de Norton [Norfolk], to wit, two shillings, and
for scutage of a mark, four pence, one obol; of the service of William
Russell to wit, ten pence; Reginald, Henry and Walter, the sons of the
merchant of Deepdale, with their entire tenement and their entire household;
Matilda, daughter of Sisich, with her entire tenement and her entire
household; Ralph, son of Nonyve with his entire tenement and his entire
household; William, son of Richard, with all his entire tenement and his
entire household; Ralph, son of Yrich, with his entire tenement and his
entire household; of Goda, the widow, four pence from one acre of land which
she holds of William and Juliana in the same vill; Elfled Peps with his
entire tenement and his entire household; Simon Turk with his entire tenement
and his entire household; Simon Rust with his entire tenement and his entire household;
Richard Snais with his entire tenement and his entire household; Liviva,
daughter of the priest, with her entire tenement and her entire household;
Clement Popi, with his entire tenement and his entire household; Hugh, son of
Brun, with his entire tenement and his entire household; Robert Salle with
his entire tenement and his entire household; William ?Coyiun with his entire
tenement and his entire household; Robert Rei with half of his tenement and
half of his household; Ulviva, his mother, with half of her tenement and half
of her household; Elviva, Liviva and Avis, daughters of Blench, with half of
their tenement and half of their household; Matilda, daughter of Stirger,
with half of her tenement and all of her household; Hoimund, son of Adelwold,
with his entire tenement and his entire household; Goda, who was the wife of
Harvey Dusing, with her entire tenement and her entire household; Matilda,
daughter of Mannessune, with her entire tenement and her entire household;
Alice, daughter of Algar, with her entire tenement and her entire household;
Wlfwan, daughter of Robert, with her entire tenement and her entire
household; Alice daughter of Goldwin, with her entire tenement and her entire
household; Roger, son of Thedwar, with his entire tenement and his entire
household; Robert le Neuman with his entire tenement and his entire
household; Sunnild Purre with her entire tenement and her entire household;
Simon, son of Lefwin, with his entire tenement and his entire household;
Walter Bus with his entire tenement and his entire household; William Haid
... with his entire tenement and his entire household; the entire croft of
the chief messuage with half of the two parcels which abut on the aforesaid
croft toward the west; half of ‘Wlfuriches’ croft toward the west; half of
the meadow which abuts on the aforesaid croft toward the north: and a half of
the moor which abuts on the aforesaid croft toward the north; half of the
entire field which is called ‘Turf’, to wit, half of the ploughland of ‘Oldesties’
toward the west, half of the four acres next to the ploughland of ‘Oldesties’
toward the north, and half of eight acres which abuts on the aforesaid four
acres toward the south, half of the pasture of ‘Linghill’ toward the south,
half of the ploughland of ten and a half acres on ‘Linghill’ toward the west,
half of the fifteen acres which lie nearer the vill of Docking [Norfolk]
toward the north, half of three perches which abut on the aforesaid fifteen
acres toward the north, half of ‘Blacchill’ next ‘Turfdic’ toward the west,
half of the pasture which abuts on ‘Doccingat’ toward the west, and half of ‘Guthruneswong’
toward the north, and a half of the ploughland which lies next to the road to
Docking toward the west, and a half of the ploughland of ‘Hevekerescrundl’
toward the west, half of the pasture next ‘Hevekerescrrhe water at the church of
St. Andrew toward the west; half of the three furlongs of ‘Hildeslawes’
toward the west; half of ‘?Docconnicwong’ toward the west; half of ‘Tornhill’
toward the north; and a half of ‘Blacters’ toward the north; half of ...
Uweshel’ toward the west; half of ‘Crocumdal’ toward the west; a half of ‘Foxloth’
toward the west; half of ‘Blacchill’ toward the west; half of ‘Thirsedol’
toward the west, half of one parcel of land at ‘Sidesternegat’ toward the
west; all the land which belonged to Acke, the entire croft which belonged to
Ralph Hulloc; half a rod of land and four feet at ‘Harnesho’ toward the west;
half of the advowson of the church of St. Margaret Burnham; half of the
advowson of the church of All Saints in the same vill; half of the mill at
the river with half of the liberty of the water and with all the other
appurtenances of the same mill; a quarter of the whole market of Burnham with
a half of the other liberties pertaining to the aforesaid lands; half of the
entire mill at Winegot with half of the croft of the same mill toward the
west; half of the meadow and marsh on both sides of the water of same mill
toward the north. Let it be known
that the aforesaid William and Juliana granted to the aforesaid Hugh and Avis
and the heirs of Avis, Hubert de Deepdale with his entire tenement and his
entire household and in exchange for this Hubert the aforesaid Hugh and Avis
granted to the aforesaid William and Juliana, Reginald Cod with his entire
tenement and his entire household.
Furthermore let it be known that [if] the aforesaid two mills, which
are of the same fee, should at any time fall down, by the default of William
and Juliana, it shall be allowed to Hugh and Avis to repair the aforesaid
mills out of the common of the aforesaid mills and [if] by the default of
Hugh and Avis the aforesaid mills fall down, it shall be allowed to the
aforesaid William and Juliana to repair the aforesaid mills out of the common
profit of the aforesaid mills. To
have and to hold to this William and Juliana and the heirs of Juliana of the
capital lords of this fee by the service which pertains to the aforesaid
lands. |
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B. |
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Write a commentary on the following quotation. Begin by explaining what the text seems to
mean. Then trace, briefly, the prior
and subsequent history of the institutions to which it refers. Be sure to include in your account a
sketch of the relationship of the institutions you are expounding to broader
social, political and economic developments.
The end result should be a coherent essay. It need not be organized the way this question is written, but
it should include some treatment of each of the suggested issues. |
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BERDEN v. BURTON et
al. |
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A man brought a writ of trespass against Davy Houlgrave and Thomas de Burton and twelve others for his house burnt and broken, his servants beaten and maltreated, twelve oxen and a hundred sheep taken and driven off, and other goods and chattels taken and carried away, and other wrongs etc., to his damage etc. The defendants appeared and denied etc. As to coming with force and arms, not guilty. As to the breaking of the houses, they say that they found the doors open. And because a rent-charge issuing from the same manor was granted to one A., ancestor of Davy, one of the defendants, by the ancestor of the person whose estate the plaintiff had in the same manor, they therefore entered and took the distress. And they asked judgment whether an action would lie for this entry etc., and they put forward a deed of the grant of the rent etc., as if by compulsion of the court, for BELKNAP, C.J. said that the justification pleaded would have been worthless otherwise. And as to this matter the plaintiff offered to aver that the defendants broke his doors, without this, that they found them open, and a day was given in the octave of Michaelmas. And as to the animals taken and driven off, the defendants showed how the plaintiff had an action of replevin pending for the same animals and the same taking (for he counted on the same day and the same place). And they asked judgment whether as to this action of trespass etc. concerning the animals. And, as to the animals, the writ of trespass was abated at once, and the writ of replevin was to remain in full force. And yet the replevin action was brought only against two of the defendants. But BELKNAP, C.J. said that all the others would be discharged by the bringing of replevin against the two men, and he also said that a writ of trespass shall abate in favor of a writ of replevin, but not the contrary, for replevin is in a form of a higher nature and is another kind of action etc. And as to the battery of the servants, the defendants showed how after the taking they drove off the animals, as well they might, and some of the servants who were within [the manor] came after them, and they did not know whether this was in order to replevy the animals or to effect a rescue. And then by certain words which passed between them they clearly realized that their coming was for the purpose of effecting a rescue, and the defendants used force against them. And they asked judgment whether for such an interference an action would lie etc. And it was adjourned, as stated above. And as to the arson of the houses, the defendants showed how after the distress, which was taken in the morning, some of the servants came after the defendants, and others remained inside the manor; thus the burning which was done was by reason of the negligence of the servants inside, who should have watched the fire. And they asked judgment whether etc. And he also showed the court that he came at the third hour with the constable of the town without any more people. Holt (for the plaintiff). We say that they came with a great assembly and multitude of armed men and entered the manor and in the morning before sunrise, broke the doors and then entered the hall and threatened the servants, with the result that the servants were in fear of death and let the fire lie unattended and did not dare to return. Thus it was the fault of the defendants that the manor burned. And we ask judgment etc. Burgh. Now we ask judgment on the writ, for you notice how they have alleged by their writ how we burned their house in fact, and now they have pleaded nothing on that point but show how we were the cause of the burning, in which event they ought to have had an action on their case and not this action. And we ask judgment etc., upon their admission etc. BELKNAP, C.J. I also believe that the writ is improperly framed, for you ought to have brought your special writ upon your case, since it was not their intention to burn them, but the burning happened by accident. Even though it stemmed from their act, still it was done against their will. It is as if you broke my close and entered therein, and my animals went away through this opening and fled, so that I lost them forever; while you know nothing of this, I shall never have a writ of trespass against you alleging that you drove off my animals, but I really think that I shall have a general writ of trespass for breaking my close, with no mention of the driving away of the animals, and everything will be accounted for in the damages for the breaking of the close, for by the breaking of the close all the damage occurred and has been fully effected. And, furthermore, if you break my houses, and you go away, and then other strangers carry off my goods without your knowledge, I shall have a writ of trespass against you for the breaking into my houses etc. and recover everything in damages, as above. But, if you should be knowledgeable or plotting or willingly present when the trespass is done, you shall be adjudged a principal feasor, for in trespass no one is an accessory etc. And then Holt said that they came in the morning with certain assemblies of people, as above, and broke the doors and entered and took some straw and fired it in order to see around them, and the straw, while afire, threw sparks on the ground. Thus they burned etc. BELKNAP, C.J. Now you are speaking to the point, for by the firing of the straw the houses were burned; thus they are as principal feasors. And then a day was given, as above. And in this case it was also agreed that if your house be next to my house and my house is burned and your house as well by the accident of my house, you shall never have a writ against me alleging that I have burned your house, but rather a special writ upon your case. And, also, if I lie in your house and place a candle on the wall, and the candle falls on the straw, so that your house is burned, you shall have a special writ. And later the parties reached an agreement etc. |
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END OF PART ILEGAL HISTORY: ENGLISH LEGAL HISTORY, PART II
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Answer either Question II.A. or Question II.B. If you
chose to answer Question I.A., you should answer Question II.B. If you chose
to answer Question I.B., you should answer Question I.A. |
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A. |
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The text of the Statute of Uses (27 Hen. VIII, c. 10 (1536)) follows: “Where, by the common laws of this realm, lands, tenements, and hereditaments be not devisable by testament, nor ought to be transferred from one to another but by solemn livery and seisin, matter of record, writing sufficient made bona fide, without covin or fraud; yet nevertheless divers and sundry imaginations, subtle inventions, and practices have been used whereby the hereditaments of this realm have been conveyed from one to another by fraudulent feoffments, fines, recoveries, and other assurances craftily made to secret uses, intents, and trusts, and also by wills and testaments sometime made by nude parole and words, sometime by signs and tokens, and sometime by writing, and for the most part made by such persons as be visited with sickness, in their extreme agonies and pains, or at such time as they have scantly had any good memory or remembrance; at which times they being provoked by greedy and covetous persons lying in wait about them, do many times dispose indiscreetly and unadvisedly their lands and inheritances; by reason whereof, and by occasion of which fraudulent feoffments, fines, recoveries, and other like assurances to uses, confidences and trusts, divers and many heirs have been unjustly at sundry times disherited, the lords have lost their wards, marriages, reliefs, herriots, escheats, aids for making their sons knights and to marry their daughters, and scantly any person can be certainly assured of any lands by them purchased, nor know surely against whom they shall use their actions or executions for their rights, titles and duties; also men married have lost their tenancies by the curtesy, women their dowers, manifest perjuries by trial of such secret will and uses have been committed; the king’s highness hath lost the profits and advantages of the lands of persons attainted, and of the lands craftily put in feoffments to the uses of aliens born, and also the profits of waste for a year and a day of felons attainted, and lords their escheats thereof; and many other inconveniences have happened, and daily do increase among the king’s subjects, to their great trouble and inquietness, and to the utter subversion of the ancient common laws of this realm; for the extirpating and extinguishment of all such subtle practised feoffments, fines, recoveries, abuses and errors heretofore used and accustomed in this realm, to the subversion of the good and ancient laws of the same, and to the intent that the king’s highness or any other his subjects of this realm shall not in any wise hereafter by any means of inventions be deceived, damaged or hurt by reason of such trusts, uses, or confidences: it may please the king’s most royal majesty that it may be enacted by his highness, by the assent of the lords spiritual and temporal and the commons in this present parliament assembled, and by authority of the same in manner and form following; that is to say, that, where any person or persons stand or be seised or at any time thereafter shall happen to be seised of and in any honours, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments, to the use, confidence or trust of any other person or persons, or of any body politic, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will, or otherwise, by any manner means whatsoever it be, in every such case all and every such person and persons and bodies politic that have or hereafter shall have any such use, confidence or trust in fee simple, fee-tail, for term or life or for years, or otherwise, or any use confidence or trust in remainder or reverter, shall from henceforth stand and be seised, deemed, and adjudged in lawful seisin, estate, and possession of and in the same honours, castles, manors, lands, tenements, rents, services, reversions, remainders and hereditaments, with their appurtenances, to all intents, constructions, and purposes in the law of and in such like estates as they had or shall have in use, trust or confidence or in the same; and that the estate, right, title, and possession that was in such person or persons that were or shall he hereafter seised of any lands, tenements, or hereditaments to the use, confidence, or trust of any such person or persons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them that have or hereafter shall have such use, confidence, or trust, after such quality, manner form and condition as they had before, in or to the use, confidence or trust that was in them. [Other sections make specific application of this principle and establish a number of exceptions. The act closes with three sections adequately summarized in their titles:] “§ 12. Wills made before 1 May 1536 shall be effectual as before the statute. “§ 13. No fines for alienation, reliefs or herriots payable to the king till after 1 May 1536 under the statute. “§ 14. No fines, reliefs or herriots to private persons on the executing of any estate under this act before 1 May 1536.” Write a general essay on the place of the statute of Uses showing not only the role that it played in the overall development of the land law but also how it fits into the constitutional and social history of medieval and early modern England. |
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B. |
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When we discussed the development of the personal actions in the central royal courts, we said that it was more difficult to fit this development into the overall social and constitutional framework of medieval and early modern English history than it was to fit the development of the land law into the same framework. Write an essay arguing that the development of the personal actions can no more be divorced from the social and constitutional framework within which it occurred than can the development of the land law. |
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THE END
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Please send comments to Rosemary Spang
URL: http://courses.law.harvard.edu/faculty/cdonahue/courses/ELH/elhlaw/prevexams/exam02s.ELH.html
last modified:
10/10/11
Copyright © 2002 Charles Donahue, Jr.
[1] In later law an “abator” was sometimes distinguished from an “intruder” in that the latter was a stranger who got onto the land after the ancestor had died and before the heir could take seisin, while the former was a relative who did the same thing. The distinction does not seem to be being made here.