OUR LEGAL HERITAGE

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No one, including the lord of a manor, may take land from anyone
else, for instance, by the customary process of distress,
without a judgment from the Royal Court. This did not apply to
London, where a landlord leasing or renting land could take
distress in his fee.

No one, including the lord of a manor, shall deprive an heir of
the land possessed by his father, i.e. his birthright.

A tenant may marry off a daughter unless his lord shows some just
cause for refusing to consent to the marriage. A tenant had to
pay an "aid" to his lord when the lord's daughter married, when
the lord's son was knighted, or when the lord's person was
ransomed.

A man [or woman] may not will away his land, but he may sell it
during his lifetime.

The land of a knight or other tenant of a military fee is
inherited by his eldest son. The socage land of a free sokeman
goes by its ancient custom before the Norman Conquest.

If a man purchased land after his marriage, his wife's dower is
still one-third of the land he had when they married, or less if
he had endowed her with less. But he could then enlarge her
dower to one-third of all of his lands. The same rule applied if
the man had no land, but endowed his wife with chattel or money
instead.

Dower law prevented a woman from selling her dower during the
life of her husband. But he could sell it or give it away. On
his death, its possessor had to give the widow the equivalent
worth of the property.

A widower had all his wife's lands by curtesy of the nation for
his lifetime to the exclusion of her heirs.

The Capital Messuage [Chief Manor] could not be given in dower or
divided, but went in its entirety to its heir.

Heirs were firstly sons, then daughters, then grandsons per
stirpes, then granddaughters per stirpes, then brothers, and
then sisters of the decedent. Male heirs of land held by
military service or sons of knights who were under the age of
twenty-one were considered to be in custody of their lords. The
lord had wardship over the heir's land, excluding the third that
was the widow's dower for her life. He had to maintain the heir
in a manner suitable to his dignity and restore to him when he
came of age his inheritance in good condition discharged from
debts. Male heirs of sokemen who were under the age of fifteen
were in the custody of their nearest kindred. The son of a
burgess came of age when he could count money, measure cloth,
and manage his father's concerns.

Female heirs remained in the custody of their lords until they
married. The lord was bound to find a marriage for his ward when
she became fourteen years of age and then deliver her
inheritance to her. She could not marry without her lord's
consent, because her husband was expected to be the lord's ally
and to do homage to him. But if a female heir lost her
virginity, her inheritance escheated to her lord.

Bastards were not heirs, even if their father married their
mother after their birth.

Any adult inheriting land had to pay a "relief" to the lord of
the land. For a knight's fee, this was 100s. For socage land,
this was one year's value. The amount for a barony depended upon
the King's pleasure.

Heirs (but not widows) were bound to pay the debts of their
fathers and ancestors. A man who married a woman who had
inherited land could not sell this land without the consent of
its heirs.

When a man dies, his wife shall take one-third and his heirs
shall take one- third of his chattels [moveables]. The other
third he may dispose of by will. If he had no heirs and no will
[intestate], all his chattels would escheat to his lord. Any
distribution of chattels would take place after all the
decedent's debts were paid from the property.

A will required two witnesses. The testator could name an
executor, but if he did not, the next of kin was the executor. A
will could not be made by a man on his death bed because he may
well have lost his memory and reason. Also, he could not give to
a younger son if in so doing, he would deprive his lawful heir.
But he could give a marriage gift to a daughter regardless of the
lawful heir.

Usury was receiving back more than what was lent, such as
interest on a loan of money. When a usurer died, all his
moveables went to the King.

A villein may not buy his own freedom (because all that he has is
his lord's), but may be set free by his lord or by someone else
who buys his freedom for him. He shall also be freed if the lord
seduced his wife, drew his blood, or refused to bail him either
in a civil or criminal action in which he was afterwards
cleared. But a freed villein did not have status to plead in
court, even if he had been knighted. If his free status were
tried in court, only a freeman who was a witness to his being
set free could avail himself of the duel to decide the issue.
However, if the villein remained peacefully in a privileged town
a year and a day and was received into its guild as a citizen,
then he was freed from villeinage in every way.

A freeman who married a villein lost his freedom. If any parent
of a child was a villein, then the child was also a villein.

All shipwrecked persons shall be treated with kindness and none
of their goods or merchandise shall be taken from them.

If one kills another on a vessel, he shall be fastened to the
dead body and thrown with it into the sea.

If one steals from another on a vessel, he shall be shaven,
tarred and feathered, and turned ashore at the first land.

Passage on the Thames River may not be obstructed by damming up
the river on each side leaving a narrow outlet to net fish. All
such wears shall be removed.

Judicial Procedure

Henry II wanted all freemen to be equally protected by one system
of law and government. So he opened his court, the Royal Court,
to all people of free tenure. A court of five justices
professionally expert in the law sat in permanence, traveled
with the King, and on points of difficulty consulted with him.
Other professional justices, on eyre [journey], appeared
periodically in all shires of the nation. They came to perform
many tasks besides adjudging civil and criminal pleas, including
promulgating and enforcing new legislation, seeking out
encroachments on royal rights, reviewing the local communities'
and officials' performance of their public duties, imposing
penalties for failure to do them or for corruption, gathering
information about outlaws and non- performance of homage, and
assessing feudal escheats to the Crown, wardships to which the
King was entitled, royal advowsons, feudal aids owed to the King,
tallages of the burgesses, and debts owed to the Jews. assessing
feudal escheats to the Crown, wardships to which the King was
entitled, royal advowsons, feudal aids owed to the King,
tallages of the burgesses, and debts owed to the Jews; The
decision-making of justices in eyre begins the process which
makes the custom of the Royal Court the common law of the
nation. The shire courts, where the travelling justices heard
all manner of business in the shires, adopted the doctrines of
the Royal Court, which then acquired an appellate jurisdiction.
The three royal courts and justices in eyre all drew from the
same small group of royal justices.

Henry erected a basic, rational framework for legal processes
which drew from tradition but lent itself to continuous
expansion and adaptation.

The Royal Court was chiefly concerned with 1) the due regulation
and supervision of the conduct of local government, 2) the
ownership and possession of land held by free tenure, 3) the
repression of serious crime, and 4) the relations between the
lay and the ecclesiastical courts.

The doctrine of tenure applied universally to the land law formed
the basis for judicial procedure in determining land rights.
Those who held lands "in fee" from the King in turn
subinfeudated their land to men of lesser rank. The concept of
tenure covered the earl, the knight (knight's service), the
church (frank-almoin [free alms]), the tenant who performed
labor services, and the tenant who paid a rent (socage). Other
tenures were: serjeanty [providing an implement of war or
performing a nonmilitary office] and burgage. All hold the land
of some lord and ultimately of the King.

Henry was determined to protect lawful seisin of land and issued
assizes [legal promulgations] giving the Royal Court authority
to decide land law issues which had not been given justice in
the shire or lord's court. These included issues of disseisin
[ejectment] of a person's free tenement or of his common of
pasture which belonged to his freehold. The writ praecipe
directed the sheriff to order the overlord of any land seized to
restore it immediately or answer for his failure in the royal
court. Though this petty assize of disseisin only provided a
swift preliminary action to protect possession pending the
lengthy and involved action [grand assize] on the issue of which
party had the more just claim or ultimate right of seisin, the
latter action was only infrequently invoked. The temptation of a
strong man to seize a neighbor's land to reap its profits for a
long time until the neighbor could prove and enforce his right
was deterred. Any such claim of recent dispossession [novel
disseisin] had to be made within three years of the disseisin.

An assize [now a judicial body] of recognition viewed the land in
question and answered these questions of fact: 1) Was the
plaintiff disseised of the freeholdin question, unjustly and
without judgment? 2) Did the defendant commit the disseisin?
Testimony of a warrantor (or an attorney sent by him in his
place) or a charter of warranty served to prove seisin by gift,
sale, or exchange. No pleadings were necessary and the action
could proceed and judgment given even without the presence of
the defendant. The justices amerced the losing party with a
monetary penalty. A successful plaintiff might be awarded
damages to compensate for the loss of revenue. Eventually royal
justices acquired authority to decide the ultimate question of
right to land using the grand assize and the alternative of an
assize instead of the traditional procedures which ended in
trial by battle.

There was also a writ for issues of inheritance of land. By law
the tenure of a person who died seised of a tenure in a lord's
demesne which was hereditary [seisin of fee] returned to the
lord, who had to give it to the heir of the decedent. If the
lord refused and kept it for himself or gave it to someone else,
the heir could sue in the Royal Court, which would decide whether
the ancestor was seised as of fee in his demesne, if the
plaintiff was the nearest heir, and whether the ancestor had
died, gone on a crusade but not returned, or had become a monk.

Issues of seisin were brought to the Royal Court by a contestant
in a local court who "put himself [or herself] upon the King's
grand assize". Then his action would be removed to the Royal
Court. The assize would consist of twelve knights from the
district who were elected by four knights and who were known as
truthful men and who were likely to possess knowledge of the
facts.

The tenant could object to any of the twelve knights for just
cause as determined by the court. Each of the twelve gave an
oath as to whether the plaintiff's or the defendant's position
was correct. If any did not know the truth of the matter, others
were found until twelve agreed [the recognitors] in favor of one
side. Perjury was punished by forfeiture of all one's goods and
chattels to the King and at least one year's imprisonment.

Alternately, the tenant-defendant could still chose trial by
duel. A duel was fought between the parties or their champions.
The losing party of a duel had to pay a fine of 60s.

However, if the parties were relatives, neither the assize nor
the duel was available to them, but the matter had to be decided
by the law of inheritance. Nor was burgage tenure usually
decided by assize.

This assize procedure extended in time to all other types of
civil actions.

Also removable to the Royal Court from the shire courts were
issues of a lord's claim to a person as his villein (duel not
available), service or relief due to a lord, dower rights, a
creditor's refusal to restore a gage [something given as
security] to a debtor who offered payment or a deposit, money due
to a lender, a seller, or a person to whom one had an obligation
under a charter, fish or harvest or cattle taken from lands
unjustly occupied, cattle taken from pasture, rights to enjoy a
common, to stop troubling someone's transport, to make
restitution of land wrongfully occupied, to make a lord's bailiff
account to him for the profits of the manor.

A person who felt he had not had justice in the manor court could
appeal to the King for a writ of right after the manor court's
decision or for a writ praecipe during the manor court's
proceeding.

The Royal Court also decided disputes regarding baronies,
nuisance or encroachments on royal land or public ways or public
waterways, such as diverting waters from their right course and
issues of nuisance by the making or destroying of a ditch or the
destruction of a pond by a mill to the injury of a person's
freehold. Other pleas of the Crown were: insult to the royal
dignity, treason, breaches of safe-conducts, and injury to the
King's servants.

Henry involved the Royal Court in many criminal issues, formerly
decided in the shire and hundred courts. To detect crimes, he
required royal officers to routinely ask selected
representatives: knights or other landholders, of every
neighborhood if any person were suspected of any murder,
robbery, etc. A traveling royal justice or a sheriff would then
hold an inquest, in which the representatives answered by oath
what people were reputed to have done certain crimes. They made
such inquiries through assizes of presentment, usually composed
of twelve men from each hundred and four men for each township.
(These later evolved into grand juries). These assizes were an
ancient institution in many parts of the country. They consisted
of representatives of the hundreds, usually knights, and
villages who testified under oath to all crimes committed in
their neighborhood, and indicted those they suspected as
responsible and those harboring them. What the assize did was to
insist upon the adoption of a standard procedure everywhere
systematically. The procedure was made more regular instead of
depending on crime waves. If indicted, the suspected persons
were then sent to the ordeal. There was no trial by compurgation,
which was abolished by Henry. If determined guilty, he forfeited
his chattels to the King and his land reverted to his landlord.
If he passed the ordeal but was ill-famed in the community, he
could be banished from the community. Later the ordeal was
abolished.

As before, a person could also be brought to trial by the
accusation of the person wronged. If the accused still denied
the charge after the accuser testified and the matter
investigated by inquiries and interrogation and then analyzed, a
duel was held, unless the accuser was over the age of sixty or
maimed, in which case the accused went to the ordeal.

Criminal matters such as killing the King or sedition or
betraying the nation or the army, fraudulent concealment of
treasure trove [finding a hoard of coins which had been buried
when danger approached], breach of the King's peace, homicide,
murder (homicide for which there were no eye-witnesses), burning
(a town, house, men, animals or other chattel for hatred or
revenge), robbery, rape and falsifying (e.g. false charters or
false measures or false money) were punishable by death or loss
of limb. House-breaking, harboring outlaws, the royal
perquisites of shipwreck and the beasts of the sea which were
stranded on the coast were also punishable in the Royal Court.

The Royal Court had grown substantially and was not always
presided over by the King. To avoid court agents from having too
much discretionary power, there was a systematic procedure for
bringing cases to the Royal Court. First, a plaintiff had to
apply to the King's Chancery for a standardized writ into which
the cause had to fit. The plaintiff had to pay a fee and provide
a surety that the plea was brought in good faith. The progress
of the suit was controlled at crucial points by precisely
formulated writs to the sheriff, instructing him for instance,
to put the disputed property under royal protection pending a
decision, to impanel an assize and have it view the property in
advance of the justices' arrival, to ascertain a point of fact
material to the plea, or to summon a 'warrantor' to support a
claim by the defendant.

The Royal Court kept a record on its cases on parchment kept
rolled up: its "rolls". The oldest roll of 1194 is almost
completely comprised of land cases.

Anyone could appoint an agent, an "attorney", to appear in court
on his behalf, it being assumed that the principal could not be
present. The principal was then bound by the actions of his
agent. The common law system became committed to the "adversary
system" with the parties struggling judicially against each
other.

The Royal Court took jurisdiction over issues of whether certain
land was civil or ecclesiastical [assize utrum], and therefore
whether the land owed services or payment to the Crown or not.
It also heard issues of disturbance of advowson, a complex of
rights to income from a church and to the selection of a parson
for the church [assize of darrein [last] presentment]. Many
churches had been built by a lord on his manor for his villeins.
The lord had then appointed a parson and provided for his upkeep
out of the income of the church. In later times, the lord's
chosen parson was formally appointed by the bishop. By the 1100s,
many lords had given their advowsons to abbeys.

As before, the land of any person who had been outlawed or
convicted of a felony escheated to his lord. His moveable goods
and chattels became the King's.

The manor court heard cases which arose out of the unfree tenures
of the lord's peasantry.

The honorial court, part of the manor court, heard distraint,
also called "distress", issues. Distraint was a landlord's
method of forcing a tenant to perform the services of his fief.
To distrain by the fief, a lord first obtained a judgment of his
court. Otherwise, he distrained only by goods and chattels
without judgment of his court. A distraint was merely a security
to secure a person's services, if he agreed he owed them, or his
attendance in court, if he did not agree that he owed them. Law
and custom restricted the type of goods and chattels
distrainable, and the time and manner of distraint. For instance,
neither clothes, household utensils, nor a riding horse was
distrainable. The lord could not use the chattels taken while
they were in his custody. If cattle in custody were not
accessible to the tenant, the lord had to feed them at his
expense. The lord, if he were not the King, could not sell the
chattel. The action of replevin was available to the tenant to
recover property which had been wrongly distressed. This court
also determined inheritance and dower issues.

The court of the vill enforced the village ordinances. The
hundred court dealt with the petty crimes of lowly men in the
neighborhood of a few vills. The shire and borough courts heard
cases of felonies, accusations against freemen, tort, and debts.
The knights make the shire courts work as legal and
administrative agencies of the Crown.

Admiralty issues (since no assize could be summoned on the high
seas), and tenement issues of land held in frankalmoin ["free
alms" for the poor to relieve the King of this burden], where
the tenant was a cleric were heard in the ecclesiastical courts.

The church copied the assize procedure developed by the Royal
Court to detect ecclesiastical offenses. Trial was still by
compurgation. Bishops could request the Chancery to imprison an
offender who had remained excommunicant for forty days, until he
made amends. Chancery complied as a matter of course. This went
on for six centuries.

The delineations of jurisdiction among these courts was confused
and there was much competing and overlapping of jurisdictions.
However, the court could appoint arbitrators or suggest to the
parties to compromise to avoid the harshness of a decisive
judgment which might drive the losing party to violent
self-help.

The office of coroner was established in the last years of
Richard's reign to determine if sudden deaths were accidental or
due to murder.

Chief Justice Ranulph Glanville wrote a treatise on the writs
which could be brought in the Royal Court and the way they could
be used. It was a practical manual of procedure and of the law
administered in the Royal Court.

Chapter 7

The Times 1215-1272

Baron landholders' semi-fortified stone manor houses were
improved and extended. They were usually quadrangular around a
central courtyard. The central and largest room was the hall,
where people ate and slept. If the hall was on the first floor,
the fire might be at a hearth in the middle of the floor.
Sometimes the lord had his own parlor, with a sleeping loft
above it. Having a second floor necessitated a fireplace in the
wall so the smoke could go up two floors to the roof. Other
rooms each had a fireplace. Often the hall was on the second
floor and took up two stories. There was a fireplace on one wall
of the bottom story. There were small windows around the top
story. Windows of large houses were of opaque glass supplied by
a glass-making craft. The glass was thick, uneven, and greenish
in color. The walls were plastered. The floor was wood with some
carpets. Roofs were timbered with horizontal beams. Many roofs
had tiles supplied by the tile craft, which baked the tiles in
kilns or over an open fire. Because of the hazard of fire, the
kitchen was often a separate building, with a covered way
connecting it to the hall. It had one or two open fires in
fireplaces, and ovens. Sometimes there was a separate room for a
dairy.

Furniture included heavy wood armchairs for the lord and lady,
stools, benches, trestle tables, chests, and cupboards. Outside
was an enclosed garden with cabbages, peas, beans, beetroots,
onions, garlic, leeks, lettuce, watercress, hops, herbs, nut
trees for oil, some flowers, and a fish pond and well. Bees were
kept for their honey.

Nobles, doctors, and lawyers wore tunics to the ankle and an
over-tunic almost as long, which was lined with fur and had long
sleeves. A hood was attached to it. A man's hair was short and
curled, with bangs on the forehead. The tunic of merchants and
middle class men reached to the calf. The laborer wore a tunic
that reached to the knee, cloth stockings, and shoes of heavy
felt, cloth, or perhaps leather. Ladies wore a full length tunic
with moderate fullness in the skirt, and a low belt, and tight
sleeves. Her hair was concealed by a round hat tied on the top
of her head. Over her tunic, she wore a cloak. Monks and nuns
wore long black robes with hoods.

The barons now managed and developed their estates to be as
productive as possible, often using the successful management
techniques of church estates. They kept records of their fields,
tenants, services owed by each tenant, and duties of the manor
officers, such as supervision of the ploughing and harrowing.
Annually, the manor's profit or loss for the year was calculated.
Most manors were self-supporting except that iron for tools and
horseshoes and salt for curing usually had to be obtained
elsewhere. Wine, tar, canvas and millstones were imports from
other countries and bought at fairs, as was fish, furs, spices,
and silks. Sheep were kept in such large numbers that they were
susceptible to a new disease "scab".

Manors averaged about ten miles distance between each other, the
land in between being unused and called "wasteland". Statutes
after a civil war proscribing the retaking of land discouraged
the enclosure of waste land.

Some villeins bought out their servitude by paying a substitute
to do his service or paying his lord a firm (from hence, the
words farm and farmer) sum to hire an agricultural laborer in
his place. This made it possible for a farm laborer to till one
continuous piece of land instead of scattered strips.

Looms were now mounted with two bars. Women did embroidery. The
clothing of most people was made at home, even sandals. The
village tanner and bootmaker supplied long pieces of soft
leather for more protection than sandals. Tanning mills replaced
some hand labor. The professional hunter of wolves, lynx, or
otters supplied head coverings. Every village had a smith and
possibly a carpenter for construction of ploughs and carts. The
smith obtained coal from coal fields for heating the metal he
worked. Horse harnesses were home-made from hair and hemp. There
were water mills and/or wind mills for grinding grain, for malt,
and/or for fulling cloth.

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