Common Law

II. The Reign of King Stephen (1135-1154) When King Henry I died in 1135, he left only a daughter (Matilda), but a daughter to whom the English magnates had sworn loyalty and undertaken to acknowledge as queen.[50] Henry I’s nephew, Stephen, was in fact acknowledged as king in 1135, and, because of mismanagement, there ensued a war between Matilda (reinforced by husband, who was a French count) and Stephen. The war was indecisive, but at one time or another both Stephen and Matilda had seemed to be victorious. Henry, Matilda’s son and thus grandson to Henry I, eventually took over his mother’s fight; because of a compromise in 1153, Henry became king (Henry II) at Stephen’s death in 1154. It was during Henry II’s reign (1154-1189) that the common law began. Note that the common law is designated “common” because it was a law common to all of England and administered by a central court, as distinguished from the customary law that varied, albeit often only in minor ways, from county to county, lordship to lordship, or manor to manor. Moreover, the common law began as the result of political occurrences, not from jurisprudential considerations.

II.A. The Treaty of Winchester (1153) The Treaty of Winchester was the formal conclusion of the war between King Stephen and Henry, Matilda’s son and the future Henry II. The treaty was arranged because the armies refused to join battle, so that Stephen and Henry were effectively in stalemate. This treaty occupies an important position in the origins of the common law, because it set the pattern by which the king undertook an obligation for the maintenance of certain tenures and thus interfered for the first time in a regular way between his tenants-in-chief and their tenants. For the first time the holding of such land became a concern for the king, instead of being a contractual matter between the lord and his tenant to be handled in the lord’s own feudal court, a court structured as a communal court. The treaty itself shows none of this, but the terms must be understood to understand what happened. [The Treaty of Winchester has been treated traditionally as a compromise solely between Stephen and Henry, not also a pattern for a broader social compromise. The evidence for the broader social compromise is admitted, but interpreted rather as an undertaking of immediate restoration of the disinherited, which both Stephen and Henry found it more convenient simply to ignore.] Stephen, king of England, to the archbishops, bishops, abbots, earls, justiciars, sheriffs, barons, and to all his liegemen of England, greeting. Know that I, King Stephen, have established Henry, duke of Normandy, as my successor in the kingdom of England, and have recognized him as my heir by hereditary right; and thus I have given and confirmed to him and his heirs the kingdom of England.[51] The duke in return for this honour and gift and confirmation which I have made to him, has done homage to me, and given me surety by oath. He has sworn that he will be my liegeman,[52] and that he will guard my life and honour by every means in his power[53] according to the agreements made between us which are described in this charter. I also have given an oath of surety to the duke, that I will guard his life and honour by every means in my power, and that I will maintain him as my son and heir in all things, and that I will do all I can to guard him against all men. William, my son, has done liege homage and given surety to the duke of Normandy, and the duke has granted him to hold from him all the lands which I held before I acquired the kingdom of England, whether in England or in Normandy or in other places.[54] He is also to hold whatever came with the daughter of the earl of Warenne, whether in England or in Normandy, and whatever pertains to those honours.[55] And the duke will put William, my son, and the men of that honour into possession of all the lands, villages, and boroughs and revenues which the duke has now in his demesne, and especially those which pertain to the honour of the earl of Warenne, particularly the castle of Bellencombre, and the castle of Mortemer: the agreement being that Reginald of Warenne shall, if he wish, keep the castle of Bellencombre and the castle of Mortemer, giving the duke hostages in respect of it; but if Reginald does not wish to do this, then other liegemen of the earl of Warenne agreeable to the duke shall keep the said castles likewise giving the duke good hostages. The duke shall return to him the other castles, which belong to the count of Mortain, at my pleasure, when he can, for safeguard and with safe hostages, it being understood that all hostages shall be returned without dispute to my son when the duke comes into possession of the kingdom of England. The duke has

agreed[56] to the increment which I have given to my son, to wit, the castle and the town of Norwich with 700 pounds-worth of land, it being understood that the revenue of Norwich itself is included within those 700 pounds-worth; and the whole county of Norfolk, except what pertains to churches and prelates and abbots and earls, and excluding particularly the third penny which pertains to Hugh Bigot as earl, and excepting in all things the rights of the royal justice which are reserved. Also, in order to increase my thanks and to strengthen my love towards him, the duke has given to my son, William, all those things which Richer of Laigle had from the honour of Pevensey. And besides this castle and town of Pevensey, and the service of Faramus, apart from the castle and Dover and what pertains to the honour of Dover, the duke has confirmed the church of Faversham with its appurtenances and will confirm all the other things given or returned by me to other churches by the advice of holy church, or through my own intention. The earls and barons of the duke, who were never my men, in consideration for the honour which I have done to their lord, have sworn homage to me, saving only the agreements made between me and the duke;[57] and the others who in previous times had done homage to me, have performed fealty to me as to their lord. If the duke goes back from his promises, these shall altogether break their service to him until he corrects his errors; and my son also, following the counsel of holy church, shall act likewise in similar circumstances. My earls and barons have done liege homage to the duke saving their fealty to me so long as I live and have the kingdom with a similar understanding that if I go back from my promises they shall altogether break their service to me until I correct my errors. [Provisions for the keeping of royal castles, so that they would be turned over after Stephen’s death.] The archbishops, bishops, and abbots of the kingdom of England, by my order, have sworn fealty to the duke. And those who shall henceforth be made bishops or abbots in the kingdom of England shall do the same. And the archbishops and bishops severally have undertaken that if either of us departs from these agreements, they will visit him with the justice of the Church until he has corrected his errors and returned to the proper observation of this pact. 1. What role do homage and fealty play in this treaty? In what way does the giving and taking of homage embody the reality of making Henry “heir by hereditary right”? 2. Could it be said that King Stephen’s son William was to retain only those lands that Stephen had held on the day King Henry I had died in 1135? What about the lands that came to William with the daughter of the earl of Warenne? Indeed, why is the language so strange (“whatever came with the daughter” instead of “whatever she owns”?) If people held land only as the consequence of a personal relationship, and the relationships between these people were basically military, such that they gave homage and thus owed knightly service for their tenures, would a woman be able to do homage? Would she be a good and acceptable fighting man? And if not, what is the status of an heiress (remembering that Matilda was supposed to have become queen of England)? Explain, then, what William was getting, considering also the statement that Stephen’s land in 1135 was to come to William now from Henry purportedly by a grant from Henry. II.B. The Broader Compromise (1153) Contemporary accounts of the Treaty of Winchester report something more than appears in the royal settlement. One outstanding problem derived from the inconclusive nature of the war. Many people had lost their land by adherence to the wrong side, and the land had been granted to a follower of the temporarily dominant side. What to do with them, considering that they were skilled military people (whom you do not want roaming dissatisfied through the land)? Torigni: “It was also sworn that possessions which had been snatched away by intruders would be recalled to the ancient and legitimate possessors whose they were in the time of the excellent King Henry [I].”[58] Gesta Stephani: “So it was provided and firmly established that, arms having been completely laid down, peace should be restored everywhere in the kingdom, the new castles should be demolished, the disinherited should be recalled to their own,[59] the rights and laws commanded to all according to pristine custom.” 1. Do you see any evidence in the Treaty of Winchester itself for these assertions about those who had been “disinherited”? In regard to the treatment of Henry; of William? 2. Given that one of the problems observed was that men had broken their undertakings of loyalty made by homage, it is relatively unlikely that anyone at that time would have wanted wholesale severance of homage bonds. Could the settlement regarding the disinherited have been exactly like that to be made between Stephen and Henry? And if, then, those whose ancestor had held a particular piece of land in 1135 would be preferred to a current tenant’s heir when the current tenant died, what are the incentives

on the part of the future claimant to come to some kind of lesser arrangement prior to current tenant’s death? on the part of the current tenant? on the part of the lord from whom both current tenant and future claimant hold? And what if the current tenant has a marriageable daughter and the current tenant has land legitimately held elsewhere, so that he would not be impoverished by the loss of the tenement?

II.C. The Writ of Right Since the lord would have given the tenement to the current tenant in the way normal for a fee, that is, “to x and his heirs,” the lord would be inclined strongly to keep the promise he had made to x. Since his own strength depended on his keeping his obligations to his men (and vice versa), the outside claimant would be in a difficult position when he tried to take advantage of the settlement of 1153 when the current tenant died. It was, nevertheless, the king’s undertaking. The king thus provided a writ (a written order) in relatively standard form. This writ, the writ of right, could be purchased and remained with the claimant, often for years, whereas later classes of standardized writs were sent directly to the sheriff and immediately executed. The writ of right remained anomalous in the possible length of time between issuance and use, but this is precisely what this kind of outside claimant would want to have, ready for use at the proper time some distance, near or far, in the future. [The writ of right has traditionally been viewed as a first royal attempt to undermine magnate control. Early expressions of a later rule seemed to indicate that the king demanded that claims for land be initiated only by a royal writ: a licensing requirement for litigation for what historians thought were property pleas being held in feudal courts that functioned as dispassionate fora for litigation.] The following example of a writ of right comes from Glanvill, 12.3. The king to Earl William, greeting. I command you to hold[60] 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 knight’s fee 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. 1. Glanvill was written circa 1188, and this writ is somewhat more advanced than what one would have found in the 1150s and 1160s. The principle difference is the deforciant clause (“which Robert son of William is withholding from him.”) No writ of right has been found before about 1170 that has a deforciant clause, so that in no writ of right that has been found is there any evidence that the lord to whom the writ is addressed has a tenant already on the land. That, of course, would be the situation if the tenant had just died. It also shows the reluctance of the king prior to about 1170 to interfere between lords and their already accepted tenants by homage. 2. As soon as we know anything about what could be done in cases begun by writ of right, we find that one could base one’s claim on an ancestor’s tenancy in 1135 (when Henry I had died), but not on any ancestral tenancy or personal tenancy during Stephen’s reign. Of what significance is this? To whose benefit was this, the followers of Stephen or the followers of Henry? Was this illustrative of Henry’s hatred to Stephen, that he would not even allow proof deriving from Stephen’s reign? Henry’s official memory of what had happened in Stephen’s reign would frighten Stephen’s supporters: better to wipe the slate clean so that these people started with an equal opportunity to prove themselves good men to their new lord. 3. What is the venue for this writ? Why? II.D. The Assize of Northampton, cc. 4-5 (1176) This is an assize (enactment) which instituted the assize (writ and legal action flowing from the writ) of mort d’ancestor. It is at this point that we can begin to speak of the common law. The writ of right was provided originally for only certain people in certain narrow circumstances. This enactment provided a broad access to the king’s court. Within three years there are many cases coming into the king’s court; in 1179 the king modifies certain procedures and institutes the grand assize (to be treated later); and there is a proliferation of common form writs authorizing the king’s court to hear cases. In 1176, justices began to be more than presiding officers: they instead of those attending rendered the judgments. Moreover, there begins to be a small nucleus, perhaps only three or four, specialists in hearing cases, whether at Westminster or on circuit in eyre (from a word meaning “journey”); in 1194 that nucleus will expand to more than a dozen. If we now know the major impetus for the provision of the standardized writ of right, what is the purpose to the assize of mort d’ancestor? Remember the appearance of the deforciant clause in 1170? How would lords have felt about the king interfering when they had already committed themselves to a new

tenant? Either they would have to ditch the new tenant and appear perfidious, or else they would have to satisfy both new tenant and outside claimant, incurring unwanted expense. This was one reason among many why many magnates backed Henry II’s oldest son’s attempt to displace his father. Henry II won the war of 1173-74 against his son, the Young Henry. The Assize of Northampton overall sought to settle the kingdom down, to implement the peace struck between Henry and his rebellious subjects. Although Henry won decisively, he dealt generously, as was characteristic of him, with those who had followed his son, who had been, before the war, crowned king at Henry’s own order and received the homage of the English magnates. Loyalty to one’s lord was not to be punished too severely, although one wanted to discourage further uprisings. 4. [a] Likewise, if any freeholder has died, let his heirs[61] remain possessed of such “seisin” [lawful possession] as their father had of his fee on the day of his death; and let them have his chattels from which they may execute the dead man’s will. And afterwards let them seek out his lord and pay him a relief [payment to obtain the benefit of the lord’s promise to the dead tenant to give the land to x and his heirs] and the other things which they ought to pay him from the fee. [b] And if the heir[62] be under age, let the lord of the fee receive his homage[63] and keep him in ward so long as he ought. Let the other lords, if there are several, likewise receive his homage, and let him render them what is due. [c] And let the widow of the deceased have her dower and that portion of his chattels which belongs to her.[64] [d] And should the lord of the fee[65] deny the heirs of the deceased the seisin of the said deceased which they claim, let the justices of the lord king thereupon cause an inquisition to be made by twelve lawful men as to what seisin the deceased held there on the day of his death. And according to the result of the inquest let restitution be made to his heirs. And if anyone shall do anything contrary to this and shall be convicted of it, let him remain at the king’s mercy.[66] 5. Likewise, let the justices of the lord king cause an inquisition to be made concerning disseisins carried out contrary to the assize,[67] since the lord king’s coming into England immediately following upon the peace made between him and the king, his son. 1. A close reader will have noticed that there are several oddities in comparing clause [a] and clause [b]. Clause [a] speaks of “heirs” whereas clause [b] speaks of only the “heir”. Clause [b] orders the lord to receive homage; clause [b] does not mention homage. Does it help to figure out this provision if you realize (1) that women could not give homage and (2) that since about 1150 heiresses divided the land of their father, whereas if there was a son he succeeded to the whole tenement, excluding both younger brothers and all sisters? Can one conclude that clause [a] concerned heiresses whereas clause [b] concerned minor male heirs? 2. I think it is true that prior to this time lords did not take the homage of minors until they were old enough to perform knightly service, so that until majority the land was well and truly in the lord’s hand and there was no real tenant, because only homage made a man a tenant. Now, on the death of military tenant who left only minors, the lord was only a guardian and indeed had a tenant, although the lord continued to have disposition of the income in a beneficial manner for himself. Prior to 1176, then, the widow’s dower, that portion of her husband’s land that would remain with her to support her, was held from the husband’s lord. After 1176, the dower was held from the heir, although the guardian lord would in fact be in control. This change would seemingly have necessitated clause [c]. Thinking about all this, together with the fact that a fee (a military tenure) was granted “to x and his heirs,” what did it take to buy the loyalty of a good knight? Clause [c] seems to be the beginning of the various standardized writs concerning dower. 3. Clause [d] provides a writ for the situation of heirs concerned here. It utilized a panel of twelve men to answer set questions to determine land tenancy. The ASSIZE OF MORT D’ANCESTOR asked if the deceased had held the land in demesne (in his own hands and not granted out to another) as of fee (heritably), whether the deceased had died since a certain time (at first, since the king’s coronation), and whether the claimant was the nearest heir (but not only heir, but an heir who could claim the deceased as father, mother, brother, sister, aunt or uncle). If the panel returned affirmative answers on all these points, the claimant would be put into the tenement; if not, as that the deceased was the grandfather of the claimant even though the claimant was heir, the claimant’s case failed. 4. This is the first major (although not the first) use of a sworn panel of men as a normal method of trial in litigation. This sworn panel was not a jury in their parlance, but an assize. The difference, for them, was that a jury concerned only a single point and the single point was determined by pleading. An assize concerned several points, and they were determined at the beginning of the case by the standardized writ. An assize panel could be converted into a jury by pleading. The sworn panel

(assize or jury) was different from a modern jury because the panel was supposed to know the answers before they came before the justices: they were not supposed to be, like modern jurors, impartial judges of evidence put before them at trial. 5. From all this, who was the normal defendant? 6. Chapter 5 concerns disseisins, that is, removals of tenants from their tenancies. This procedure also utilized a sworn panel of men; it at least developed rapidly into the assize of novel disseisin. It obviously concerned current tenants who were ejected. If one analyzes the provisions, therefore, one finds that chapters 4 and 5 concerned (a) heiresses, (b) minor male heirs, (c) widows, (d) ejected current tenants. The one kind of person not here singled out for protection was the adult male heir, the person whom one would have thought would have been the most obvious candidate for protection. Considering the political situation between 1173 and 1176, why is this? Is it that Henry II, as benevolent monarch, was reaching out to help the poor and defenseless in society? How gullible are you? Note that although the adult male heir was not mentioned here, he was also protected by the assize of mort d’ancestor when we see the assize in practice; this analysis only concerns what was foremost in the drafters’ minds. [Traditional analysis would have the provision of the assize of mort d’ancestor as the transfer of jurisdiction over property pleas from feudal courts (seen as simply lower jurisdictions) into the king’s court as a further attempt to undermine magnate power, to increase royal authority, and to augment royal income with the profits from adjudications. The assault on magnate authority, however, was tempered because mort d’ancestor was only possessory: it left adjudications about right (ultimate title) in the feudal courts.]

II.E. The Assize of Novel Disseisin This is the earliest example of the writ of NOVEL DISSEISIN we have; it comes from Glanvill, 13.33 (circa 1188). [Novel disseisin, in traditional analysis, was only a possessory protection of property rights, not connected with major political events. Its origins were uncertain, perhaps as early as the 1150s, probably by 1166, even though it was admitted that no exemplar predated Glanvill. Since it was thought thus that novel disseisin predated mort d’ancestor, novel disseisin appeared as a preliminary undermining of feudal power by protecting knightly possession of their property rights, preparatory to the introduction of mort d’ancestor and the possessory protection of inheritance rights. The transformation of royal justices into judgment-giving officials was not a part of the theory, nor was the discretionary quality of feudal justice.] 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 [Houndsditch] 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 Sunday after Easter. And meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, 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 securities to be there then to hear the recognition. And have there the summoners, and this writ and the names of the sureties. Witness etc. 1. Who was the envisaged defendant? Who might have disseised with a judgment but did not? Who could be expected to have a bailiff (estate manager)? Why does the writ not mention a certain amount of land like all other writs (such as, 10 carucates, or 15 acres, etc.), but only mentions “his free tenement” as if that is enough? Why does it seem possible that the sheriff can restore the chattels? That seems to assume that the chattels have (a) been removed, but (b) will be readily available for restoration. Does this assume a renegade bandit who decides to take over land? Does it assume a relative who disputes title? Does it assume a lord? Does the following writ help at all: Robert earl of Leicester to all his men, both French and English, greeting. Know that I hold in the manor of Knighton 10 pounds-worth of land from the bishop and from the church of Lincoln. This I hold in heredity for myself and my heirs in return for our homage and by the service of 1 knight. If, moreover, any one of us fails to do or to observe the homage, the bishop of Lincoln will compel him through that land according to the judgment of his court and the statute of the realm. These are witnesses . . . .

The standard method of court process was by summons (three times), distraint by chattel (three times), and then distraint by the fee (taking the fee and excluding the tenant until he came in to court to answer). Does not the writ of novel disseisin look like it is being conceptualized primarily against a lord who has distrained by the fee either unjustly or without the judgment of his court? Thus this remedy as well as mort d’ancestor would seem to have been conceptualized in a world that thought about problems with land as being primarily concerned with vertical relationships (lord/men) instead of horizontal relationships (buyers/sellers; tenants/marauders). 2. A version of this process, or at least some kind of protection against disseisins has been found from relatively early in Henry II’s reign, although certainly not in the form with a panel of sworn men. What relevance might this have had to the compromise deriving from the Treaty of Winchester? 3. Two overarching questions: A. What role, then, did political situations have in the birth of the common law? B. Of what importance are standardized writs? Examine the writ for the assize of novel disseisin and ask how legal categories are generated. What would the justices think about the words “free tenement”? In the mid-twelfth century tenements had been ranged on a spectrum between free and unfree. Now everything hinged on a determination about whether a tenement was free or unfree. The justices finally decided that a free tenement was one held for life (the original duration of a knight’s fee before about 1100) or heritably, for which precise and non-servile services were due. Words in standard writs required definition for the determination about the scope of protection and thus generated legal categories. [50] Note that a woman could receive homage from men, but could not give homage to men. Giving homage (before around Magna Carta in 1215) meant willingness and ability to fight as a knight: a woman could not do it. Thus, when she inherited, her husband did homage for her land. Nevertheless, she could receive homage for men, because receiving homage meant nothing about fighting, only about lordship. [51] Henry, like anyone else, could enter an estate in one of two ways: inheritance or grant. This provision joins the two. Henry was not the bodily heir of Stephen, but Stephen here makes him his heir. There was no adoption process in England, but (since there is no lord here superior) if all the magnates agree, nothing could prevent Stephen making a non-son his heir. Henry is supposed to take by “hereditary right”. Is that only an assertion that he is inheriting from Stephen? Is it also an assertion that he is taking it hereditarily? Then Stephen also grants the kingdom to Henry and his heirs (“to x and his heirs”). [52] When a man does homage to two different lords (for two different fees), the lord to whom he owes primary loyalty is his liege lord, to whom he is then liegeman. [53] Once again note the simplified statements about the consequences of homage. [54] Thus Stephen’s bodily heir retains everything that Stephen had held in 1135, on Henry I’s death: 1135 becomes a touchstone for appropriate title. [55] Stephen’s son will also retain lands that came with his wife, so that this implies retaining nothing from the kingship: only lands normally acquired. [56] Thus Henry made the grant his own and would be honor-bound to stand to it. [57] The reservation on the homage made puts superior this agreement, so that the agreement here forms something like a fundamental understanding about the future course of England. [58] That is, in 1135. [59] Does this necessarily mean that there would be a massive restoration of lands? That had not occurred with Henry himself: Stephen retained England until he died, but that was was considered a primary restoration of one of the disinherited. [60] There is some controversy about how the Latin word “teneas” should be translated. Most translate it by “do”: “do full right”. That translation supposes a neutral court that is adjudicating right in an unbiased manner, in which the lord is not intrinsically involved in a land claim. “Hold” implicates that the lord to whom the writ is addressed and who would preside over any case in his court was part of a contractual relationship with the claimant, as in “stand or hold to your duties toward your man.” [61] Note that this concerns a singular freeholder who has plural heirs (Latin does not distinguish between heirs and heiresses, so that it is here translated simply as “heirs”). That situation arises, under primogeniture, only when a freeholder dies without sons: the inheritance is thus divided among the daughters, whose husbands would do homage for their

wives’ land. [62] Note that the document here switches to only one heir, the situation when the freeholder died leaving a son or sons: only the eldest would inherit. [63] This commands that a lord take homage from a minor. It is probable that before this the lord waited until the child’s majority. In the interim, in the time of wardship, the land was held by the lord for his own benefit; at times wardship was called “escheat” as if the land had lapsed back to the lord, waiting to be granted out again. [64] Probably before this, when the heir was underage and the inheritance was held by the lord as “escheat” in wardship until the heir’s majority (or afterwards also), the widow probably held her dower from the lord as a consequence of the fee that had been granted to her deceased husband. Thus, when the lord was required to receive the homage of a minor, the question about the treatment of the widow would inevitably arise: this clause made it clear that the widow was not going to be excluded; traditional standards about treatment of the widow was continue, even if now she would seem necessarily to be holding from the underage heir. In some ways, even the traditional situation would continue, because the lord had the heir in wardship and thus exercised the heir’s rights over the heir’s tenant: his mother or mother-in-law. What had changed was the homage taken as a minor. [65] This is thus not conceptualized as just any hereditary claim, but a vertical claim. The lord, from whom the heir’s father held, had refused to accept the heir. Moreover, seisin meant “lawful possession”, and the decisive test for seisin at this point was intrinsically related to whethe the lord had accepted the tenant. No one else could give a tenant seisin; no one else could put a tenant out of seisin. [66] Remaining at the king’s mercy meant that the person was subjected to a monetary penalty discretionary in amount. [67] While this provision surely pertains to tenants who have been disseised and thus to the history of the assize of novel disseisin, it is unclear as to whether this is evidence for the assize of novel disseisin as a standard remedy. The earliest real evidence we have for a standard writ of novel disseisin, and thus for a structured legal remedy, is in the treatise Glanvill, from ca. 1188. What “the assize” of “disseisins carried out contrary to the assize” refers to is unclear. It could conceivably refer to the settlement between Henry II and Henry the Young King.