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English Legal History
2/17/2009
Outline
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I. GLANVILL AND JUSTINIAN’S INSTITUTES, PROLOGUE
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II. SOME NOTES ON VOCABULARY
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III. WRITS IN REAL ACTIONS
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GLANVILL AND THE POLSTEAD SAGA
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Glanvill Prologue 1: “Not only must royal power be
furnished with arms against rebels and nations which rise up against the king
and the realm, but it is also fitting that it should be adorend with laws
for the governance of subject and peaceful peoples; so that in time of both
peach and war our glorious king may so successfully perform his office
that, by crushing the pride of the unbridled and ungovernable with the
right hand of strength and tempering justice for the humble and meek with
the rod of equity, he may both be always victorious in wars with his
enemies and also show himself continually impartial in dealing with his subjects.”
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Justinian Prologue 1: “The imperial majesty should be
armed with laws as well as glorified with arms, that there may be good
government in times of both war and of peace, and the ruler of Rome may not
only be victorious over his enemies, but may show himself as scrupulously
regardful of justice as triumphant over his conquered foes.”
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Glanvill Prologue 2: “No-one doubts how finely, how
vigorously, how skilfully our most excellent king has practised armed
warfare against the malice of his enemies in time of hostilities, for now
his praise has gone out to all the earth and his mighty works to all the
borders of the world. Nor is there any dispute how justly and how
mercifully, how prudently he, who is the author and lover of peace, has
behaved towards his subjects in time of peace, for his Highness’s court is
so impartial that no judge there is so shameless or audacious as to presume
to turn aside at all from the path of justice or to digress in any respect
from the way of truth. For there, indeed, a poor man is not oppressed by
the power of his adversary, nor does favour or partiality drive any many
away from the threshold of judgment. For truly he does not scorn to guided
by the laws and customs of the realm which had their origin in reason and
have long prevailed; and, what is more, he is even guided by those of his
subjects most learned in the laws and customs of the realm whom he knows to
excel all others in sobriety, wisdom and eloquence, and whom he has found
to be most prompt and clear-sighted in deciding cases on the basis of
justice and in settling disputes, acting now with severity and now with
leniency as seems expedient to them.”
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Glanvill Prologue 3: “Although the laws of England are
not written, it does not seem absurd to call them laws—those, that is,
which are known to have been promulgated about problems settled in council
on the advice of the magnates and with the supporting authority of the
prince—for this is also a law, that ‘what pleases the prince has the force
of law.’ For if, merely for lack of
writing, they were not deemed to be laws, then
surely writing would seem to supply to written laws a force of greater
authority than either the justice of him who decrees them or the reason of
him who establishes them.”
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Glanvill Prologue 4: “It is, however, utterly impossible
for the laws and legal rules of the realm to be wholly reduced to writing
in our time, both because of the ignorance of scribes and because of the
confused multiplicity of those same laws and rules. But there are some
general rules frequently observed in court which it does not seem to me
presumptuous to commit to writing, but rather very useful for most poeple
and highly necessary to aid the memory. I have decided to put into writing
at least a small part of these general rules, adopting intentioanally a
commonplace style and words used in court in order to provide knowledge of
them for those who are not versed in this kind of inelegant language. To
make matters clear, I have distinguished the kinds of secular cause in the
following manner:”
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Glanvill, 1.1: “Pleas are either civil or cirminal. Some
criminal pleas belong to the crown of the lord king, and some to the
sheriffs of counties. The following belong to the crown of the lord king:”
Glanvill 1.3: “ 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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1.
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A note on the word
“assize.” It is derived from the
Latin word adsedere, “to sit
down.” From that it comes to mean the
place where men assemble and sit down. From that it comes to mean what is
decided when great men come to assemble and sit down, as in “the assize of
Clarendon.” From that it comes to
men the body that is authorized to make recognitions or judgments under
those decisions, as in “the grand assize” or “the assize” that decides a
case of novel disseisin. Later the king’s justices will be authorized to go
to the county seats and “take the assizes,” i.e., hear the cases under the
petty assizes that are pending in that counting. These sessions of the
assizes justices become regular, and are known as “the assizes.” Hence, the meaning of the word ultimately
returns to its origins, an assembly of men sitting down.
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2.
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A note on the word “seisin.”
The noun “seisin” is rarely used before 1164. The verb “seise” is regularly used in the
first half of the 12th century, and it does not mean “seise” in the literal
sense. Rather, a lord is said to seise his tenant of a particular piece of
the land. In the second half of the 12th century a man who is so seised is
said to have “seisin.” Similarly, a
lord who deprives his tenant, rightfully or wrongfully, of his land is said
to “disseise” him. Glanvill and
even more Bracton tend to use the
word “seisin” as a synonmym for the Roman “possession” and to contrast it
with “right” which they take as synonymous with the Roman proprietas or dominium, i.e., “ownership,” but it seems clear that this was
not the original meaning of “seisin” nor of
“right.”
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3.
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A note on the vocabulary
of warranty. Warranty is an obligation of the
lord to defend the title of the tenant whom he has seised. If he cannot
defend the title, he must provide the tenant with an exchange tenement (escambium).
The obligation to warrant arises out of homage,
the ceremony in which the tenant puts his hands in the lord’s and swears to
be his man. The obligations of hommage may not have been inheritable at the
beginning of the 12th century. They clearly were inheritable by the end of
the century, i.e., the lord’s heir has no choice but to take the homage of
the tenant’s heir.
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4.
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A note on the
vocabulary of alienation.
Throughout the 12th century and well into the 13th most alienations were by way of subinfeudation rather than substitution.
This meant that the alienor remained obliged to the lord to perform the
services that the land owed, and the alienee rendered service to the
alienor. In substitution, which becomes common in the late 13th century and
which is required after the statute Quia Emptores in 1290, the alienee
takes the place of alienor in rendering the services directly to the lord.
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(i.e., actions concerning freehold interests in land). In such actions
the plaintiff is called the “demandant” and the defendant the “tenant”:
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1.
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The Writ of Right:
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a.
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in capite—Where the demandant
claims to hold of the king in capite,
i.e., “in chief” as a tenant-in-chief with no mesne lord
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b.
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quia dominus remisit curiam—Where the
demandant claims to hold of a lord “who has remitted his court” (e.g.,
because he does not have a court or because he has already decided that he
does not want to hear the case).
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NOTE: Both (a) and (b) are probably derived from Glanvill’s “writ of first summons” Mats. p. IV–9. They do not become common until after Magna
Carta, cl. 34 of which says “The writ called precipe shall not be issued for anyone concerning any tenement
whereby a freeman may lose his court.”
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c.
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patent—Mats.
p. IV–19. Issues to the lord of whom the demandant claims to hold. As Glanvill sees it, the next thing
that happens is that the lord’s court defaults, and the demandant goes to
the sheriff who sends four knight who watch the
lord’s court default and who take the plea and bring it into the county
court. (The process is known as as tolt.) We suggested yesterday in class that the
reason why the lords’ courts regularly default is that the lord is bound to
warrant the tenant. Elsewhere Glanvill
suggests that any land plea can be brought to the central royal courts from
the county courts by a writ called pone
(literally “place,” i.e., this plea that is before you into our court). An
action on the right is tried by battle, or the grand assize, at the
tenant’s option.
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2.
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The Petty Assizes (what follows
is almost certainly not the chronological order, but rather the order in
which we will take them up in class)
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a.
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Mort d’Ancestor-a recognition whether the immediate
ancestor (father, brother, uncle) of the demandant died seised of the land,
and that the demandant is the heir. The “real defendant” is probably the
lord.
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b.
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Novel Dissesin—a recognition whether the demandant was disseised
“unjustly and without judgment” since the king’s last crossing to Normandy. The “real
defendant” is probably the lord.
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c.
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Utrum—a “recognition,” i.e.,
determination, whether (utrum)
land at issue in the case is held in lay fee, in which situation the case
belongs in the secular courts, or free alms, in which situation the case
belongs in the church courts.
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d.
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Darein Presentement-a recognition who made the “last presentment” to a church,
the advowson (right to present a rector of a church to the bishop) of which
is issue.
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All of these lead to the convening of a jury of 12 called “the assize,”
which answers the specific question posed in the writ.
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3.
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Writs of Entry-”downward looking” claims in which the demandant claims
that the tenant, having entered the land rightfully, is no longer entitled
to remain there. Typical writs of entry are ad teminum qui preteriit (the tenant is a termor whose term has
expired), dum infra aetatem (the
tenant received the land from the demandant’s guardian while the tenant was
underage and now he is of age), cui
ante divortium (the tenant received the land from the demandant’s
husband before she and he were divorced). They develop in the beginning of
the 13th century rather than in the 12th, though ancestors of them may be
seen in Glanvill. In all cases a
jury answers the question posed.
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1.
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Compton (Surrey)
and Chiddingfold:
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5:P96—fine: Walter de Windsor to H. de P. for Compton
32:M04—novel disseisin, C. de P. vs. Hugh de H.,
Chiddingfold
37:M05—Cecilia owes for her assize, Chiddingfold
42:P06—Cecilia essoins against H. de H. plea of rent, R.
de H. loses his court
47:T06—R. de H. and D. de L. claim their court,
Chiddingfold
48:T06—Hugh de W., writ of entry dum infra aetatem, Compton
ASIDE: Bodleian Register R no. 780. “render
to A. who is of full age, as it is said, ten acres of land with
apppurtenances in N. into which the said B. has no entry save by G. to whom
the aforesaid A. demised them while under age etc.”
53:M06—Cecilia essoins vs. H. de W. by her atty.
54:M06—Cecilia brings in Michael clericus, Compton
58:M07—Michael essoins, Compton
64:P08—Michael and C. essoin, Wm. makes atty., Compton
65:P08—Cecilia makes atty., warranty, Compton case ends
Tentative conclusion: Hugh and Cecilia get in trouble
because they got their ticket from the wrong management.
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2.
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Burnham (abbreviated). This is a wonderful case for anyone who is
interested in marital property.
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15:P99—? covenant
16:M99—suggests that the writ is ostensurus quare he made her a nun
18:M99—Walter G. tells his story
45–6:P06—More of the story comes out
49–52:T06,M06—Mighty unclear but clearly the sisters are
suing each other
55:H07—the countess of Perche demands her court
71:P09—Compromise
Tentative conclusion: The marriage settlement goes awry
because the lord’s arrangements for Juliana cannot be enforced after the
break with Normandy
in 1204.
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3.
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The Prittlewell case (we’ll do this with marital
property next week)
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28:M04—Hugh Butler mort d’ancestor vs. C. de P., she
essoins
29:M04—H. de P. essoins v. H. Butler in plea of homage
30:M04—H.B. vs. C. de P. the assize comes, she vouches
H. de P.
35:H05—H. de P. essoins
38:M05—H. de P. makes fine, ?
same case
Note: 35:H05—bp. of Norwich claims his court, Cecilia calls
H. to warrant.
Tentative conclusion: Cecilia de Polstead vouches Hugh
Jr. to warranty because Hugh Sr. has given away her dower land to his
butler.
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