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VI. Elaboration


VI.A. Magna Carta

Although everyone has heard of Magna Carta and it did indeed have a monumental influence on constitutional history, the clauses of Magna Carta seem less than enthralling. From our perspective, it is instructive to note the kind of things the barons were interested in and what that indicates about the way in which they perceived what had happened in their lifetime.

King John (1199-1216) was brother of King Richard the Lionheart (1189-1199) and son of Henry II (1154-1189). John had been unsuccessful in several areas. He had lost the English hold over the northwestern French territories that had long been attached to England; many of his barons who held land in both England and Normandy and/or Anjou were thus put in the painful choice of choosing which lands they wanted to continue holding. This territorial restriction on the extent of his realm meant that John spent more time in England, and he spent much of his time in his law courts: he seemed to like and to be fairly good at dispensing justice. Because of the widening royal jurisdiction and the increased measure of time available, however, John's authority was much more heavily felt than royal authority hitherto: many resented that fact. Finally, John had fallen into a bitter dispute with the pope about who should be archbishop of Canterbury. John himself was excommunicated and England put under interdict, so that all religious services stopped in England -- priests worried that people were getting out of religious habits. John could have coped with any one of these problems fairly well; certainly the interdict and excommunication lasted for years without providing a major problem for the monarch. Eventually, however, all the problems coincided and forced John into a compromise with the pope, but not before his barons had demanded and obtained from him the grant that was Magna Carta.

This version of Magna Carta, selections of which appear below, is the original 1215 version. It was re-issued with emendations in 1216, 1217, and 1225; it was periodically re-issued thereafter by succeeding monarchs, but in the 1225 version.

The form of Magna Carta is that of a grant of liberties, much like a grant of land. There are several questions that should be uppermost in your mind in reading these selections.

What were the barons concerned about?

Did they want to reverse what had happened with the common law?

Is there any evidence that they recognized what had happened?

What is the best way to formulate the intention of the barons?


John, by the grace of God king of England, lord of Ireland, . . . to his archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, reeves, ministers, and all his bailiffs and faithful men, greeting. Know that, through the inspiration of God, for the health of our soul and [the souls] of all our ancestors and heirs, for the honor of God and the exaltation of Holy Church, and for the betterment of our realm, by the counsel of our venerable fathers [11 named ecclesiastics], of our nobles [16 named nobles], and of our other faithful men --

1. We have in the first place granted to God and by this our present charter have confirmed, for us and our heirs forever, that the English church shall be free and shall have its rights entire and its liberties inviolate. . . . We have also granted to all freemen of our kingdom, for us and our heirs forever, all the liberties hereinunder written, to be had and held by them and their heirs of us and our heirs.

2. If any one of our earls or barons or other men holding of us in chief dies, and if when he dies his heir is of full age and owes relief, [that heir] shall have his inheritance for the ancient relief: namely, the heir or heirs of an earl [[sterling]]100 for the whole barony of an earl; the heir or heirs of a baron [[sterling]]100 for a whole barony; the heir or heirs of a knight 100s at most for a whole knight's fee. And let whoever owes less give less, according to the ancient custom of fees.

3. If, however, the heir of any such person is under age and is in wardship, he shall, when he comes of age, have his inheritance without relief and without fine.

4. The guardian of the land of such an heir who is under age shall not take from the land of the heir more than reasonable issues and reasonable customs and reasonable services, and this without destruction and waste of men or things. And if we entrust the wardship of any such land to a sheriff or to any one else who is to answer to us for its issues, and if he causes destruction or waste of the wardship, we will exact compensation from him . . . .

7. A widow shall have her marriage portion and inheritance[99] immediately after the death of her husband and without difficulty; nor shall she give anything for her dower or for her marriage portion or for her inheritance -- which inheritance she and her husband were holding on the day of that husband's death. And after his death she shall remain in the house of her husband for forty days, within which her dower shall be assigned to her.

8. No widow shall be forced to marry so long as she wishes to live without a husband; yet so that she shall give security against marrying without our consent if she holds of us, or without the consent of her lord if she holds of another.

Query: of whom does a widow hold? Which widows would hold of the king? Unlike with other tenancies, in which the widow held of the heir, widows of tenants who held of the king (tenants in chief) held their dower directly from the king, not from the heir. This seeming divergence in the thirteenth century can be taken as evidence of the situation of all widows vis-a-vis their lords before 1176: the situation with normal tenancies had changed; the relation between tenants-in-chief and the king had remained the same.

16. No one shall be distrained to render greater service from a knight's fee, or from any other tenement, than is thence owed.

17. Common pleas shall not follow our court, but shall be held in some definite place.

18. Assizes of novel disseisin, of mort d'ancestor, and of darrein presentment shall be held only in their counties [of origin] and in this way: we, or our chief justice if we are out of the kingdom, will send two justices through each county four times a year; and they, together with four knights of each county elected by the county court, shall hold the aforesaid assizes in the county, on the day and at the place of the county court.[100]

20. A freeman shall be amerced for a small offence only according to the degree of the offence . . . .

21. Earls and barons shall be amerced only by their peers, and only according to the degree of the misdeed.

32. We will hold the lands of those convicted of felony only for a year and a day, and the lands shall then be given to the lords of the fees.

33. All fish-weirs shall henceforth be entirely removed from the Thames and the Medway and throughout all England except along the sea-coasts.

34. Henceforth the writ called precipe shall not be issued for any one concerning any tenement whereby a freeman may lose his court.

36. Nothing henceforth shall be taken or given for the writ of inquisition concerning life and limbs, but it shall be issued gratis and shall not be denied.

38. No bailiff shall henceforth put any one to his law by merely bringing suit [against him] without trustworthy witnesses presented for this purpose.

39. No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

40. To no one will we sell, to no one will we deny or delay right or justice.

61. Since moreover for God, for the improvement of our kingdom, and for the better allayment of the conflict that has arisen between us and our barons, we have granted all these [liberties] aforesaid, wishing them to enjoy those [liberties] by full and firm establishment forever, we have made and granted them the following security: namely, that the barons shall elect twenty-five barons of the kingdom, whomsoever they please, who to the best of their ability should observe, hold, and cause to be observed the peace and liberties that we have granted to them and have confirmed by this our present charter; so that, specifically, if we or our justiciar or our bailiffs or any of our ministers are in any respect delinquent toward any one or transgress any article of the peace or the security, and if the delinquency is shown to four barons of the aforesaid twenty-five barons, those four barons shall come to us, or to our justiciar if we are out of the kingdom, to explain to us the wrong, asking that without delay we cause this wrong to be redressed. And if within a period of forty days, counted from the time that notification is made to us, or to our justiciar if we are out of the kingdom, we do not redress the wrong, or, if we are out of the kingdom, our justiciar does not redress it, the four barons aforesaid shall refer that case to the rest of the twenty-five barons, and those twenty-five barons, together with the community of the entire country, shall distrain and distress us in every way they can, namely, by seizing castles, lands, possessions, and in such other ways as they can, saving our person and the persons of our queen and our children, until, in their opinion, amends have been made; and when amends have been made, they shall obey us as they did before. And let anyone in the country who wishes to do so take an oath to obey the orders of the said twenty-five barons for the execution of all the aforesaid matters, and with them to distress us as much as he can, and we publicly and freely give anyone leave to take the oath who wishes to take it and we will never prohibit anyone from taking it. Indeed, all those in the land who are unwilling themselves and of their own accord to take an oath to the twenty-five barons to help distrain and distress us, we will make them take the oath as aforesaid at our command. And if any of the twenty-five barons dies or leaves the country or is in any other way prevented from carrying out the things aforesaid, the remainder of the aforesaid twenty-five barons shall choose as they think fit another one in his place, and he shall take the oath like the rest. In all matters the execution of which is committed to these twenty-five barons, if it should happen that these twenty-five are present yet disagree among themselves about anything, or if some of those summoned will not or cannot be present, that shall be held as fixed and established which the majority of those present ordained or commanded, exactly as if all the twenty-five had consented to it; and the said twenty-five shall swear that they will faithfully observe all the things aforesaid and will do all they can to get them observed. And we will procure nothing from anyone, either personally or through any one else, whereby any of these concessions and liberties might be revoked or diminished; and if any such thing be procured let it be void and null, and we will never use it either personally or through another. And we have fully remitted and pardoned to everyone all the ill-will, anger and rancour that have arisen between us and our men, clergy and laity, and as far as pertains to us have completely forgiven all trespasses occasioned by the same quarrel between Easter in the sixteenth year of our reign and the restoration of peace. And, besides, we have caused to be made for them letters testimonial patent of the lord Stephen archbishop of Canterbury, of the lord Henry archbishop of Dublin and of the aforementioned bishops and of Master Pandulf about this security and the aforementioned concessions. Wherefore we wish and firmly enjoin that the English church shall be free, and that the men in our kingdom shall have and hold all the aforesaid liberties, rights and concessions well and peacefully, freely and quietly, fully and completely for themselves and their heirs from us and our heirs, in all matters and in all places for ever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these things aforesaid shall be observed in good faith and without evil disposition. Witness the abovementioned and many others. Given by our hand in the meadow which is called Runnymede between Windsor and Staines on the fifteenth day of June, in the seventeenth year of our reign.


1. Chapter 39, which would be become chapter 29 in later versions of Magna Carta, is the forerunner of the fifth amendment due process clause of the United States Constitution and many similar provisions in state constitutions. In that way, that chapter is significant for much later history. But prior to 1215 there was another similar undertaking, made in 1191, to solve some problems that arose while King Richard was out of the country and people got upset about the behavior of some of his officials. What is the difference between the 1191 provision that follows immediately here and chapter 39 of Magna Carta:

[1191] "It is conceded that bishops, abbots, earls, barons, knights and free tenants shall not be disseised of lands and chattels by the will of the justices or the ministers of the lord king, but that they shall be dealt with by the judgment of the court of the lord king according to the lawful customs and assizes of the realm or by the mandate of the lord king."

Does that difference give you any hint about what the barons, overall, were up to with this document? Note that this is prior to the time at which lords lost their disciplinary authority. This provision does not take away or even challenge the disciplinary authority of the king over his tenants-in-chief. It only objects to the king's ministers and justices exercising that same discretion. Note how, however, this indicates some growth already in 1191 of a respect for rigid rules.

2. Concerning chapters 16-40: what attitude does this indicate toward the common law? Why were the barons not interested in eliminating the legal institutions that had deprived the feudal courts of authority?

3. What about the first chapters? What interests were foremost for the barons? Making the terms under which they held their tenements from the king certain was making these tenancies like all other tenancies, which had been regulated by the various writs you have studied.

4. What can you make out from the enforcement chapter, chapter 61? Is this institutionalized civil war? To what extent does it look like a feudal court? To what extent does it look like a parliament? What precisely is the difference between this court and a feudal court? Would it be normal for a feudal court to distrain its lord, rather than only the tenants? What is the closest analogue available for restraining the king in the same manner that the feudal courts were restrained? Could one find a court superior to the king to regulate the relationships between the king and his men? What is next best?

5. Are we dealing with a change in fundamental assumptions about propriety and the nature of justice? Do the barons think anymore solely in terms of relationships and discretion? What it looks like, more than anything else, is that the barons had completely adapted to a new way of thinking about land-holding and about justice. They were demanding that the king treat them like the king's court had made the barons treat their own tenants. Instead of trying to turn the clock back to a time when they had discretionary control over their tenants [and it may be, since what had happened was that norms had turned into rules and produced anomalies, with remedies provided for the anomalies, that no one could really remember accurately the way the world had been], they were trying to make the king accept the new situation.

In many ways today it might well be argued that greater freedom lies in making inroads on property rights [that is, restricting an individuals use of his own property in ways that pollute, taxing all forms of inheritance (inherited wealth not having been earned by the inheritors) for the greater good of the community], at origins the establishment of property rights was a marked increase in individual freedom. Instead of having to rely on one's lord and cultivate that relationship above all, men were more free (not really free) to stay outside local battles and stand on their own. That increase in individual liberty went hand-in-hand with the appearance of the English state. If a state, in the modern sense, is a political community in which bureaucratic institutions have acquired final decision-making power and have produced sufficient benefits for a substantial sector of the population such that individuals have re-defined themselves so that existence without that administrative apparatus seems inconceivable and decisively undesirable, so that their loyalty has shifted from local institutions of family, lords, or religious institutions, then, for the time between 1176 and 1215, one can maintain that something like a state was forming. By 1300 one can say it with conviction, and the common law served as the core of that development, providing a source of allegiance separate from the loyalty to the king and a common interest for all the substantial people in the realm, around which parliament would form in and after 1258.

Magna Carta, then, was a great document in liberty. A few of its clauses even today sound like individual rights provisions. More important was the way in which Magna Carta embodied the ideas that the government was expected to abide by certain standards and that justice is not substantively defined but also defined by the adherence to rigid rules. Finally, since Magna Carta also embodies the way in which the development of individual freedom was tied up with the growth of state power, one should perceive likewise that state power is essential to individual liberty, without diminishing the modern perspective that overwhelming state power often threatens individual liberty.



VI.B. Elaboration


VI.B.1. The writ of aiel (aiele)

Huse v. Huse (CRR, 16:183; date, 1239; court of common pleas)

Matilda [daughter of Henry Huse] seeks against Matthew [Huse] 1 carucate of land with appurtenances in Elinges, concerning which Cecily Huse, grandmother of the abovesaid Matilda,[101] whose heir she is, was seised in her demesne as of fee[102] on the day she died.

And . . . Matthew comes and denies her right etc. And Matthew says that it does not seem to him that he ought to respond to this writ, because it was purchased against the law and custom of England, because that writ cannot be a writ of right, because, if it were a writ of right and were upheld, so would the magnates of England lose their courts concerning their fees. [See Magna Carta above, c. 34.][103] Nor can it be a writ of mort d'ancestor, because it speaks of the time and seisin of the grandmother of the same Matilda. Nor can it be the writ which is called nuper obiit, because she seeks nothing as her portion from the abovesaid land. Nor can it be a writ of entry, because she touches on nothing either in her writ or in her count concerning the entry of Henry the father. And he seeks judgment if he ought to respond to this writ. And, saving this for himself, he will say something else if the court shall have considered.

Afterwards, it was considered that he respond . . .


1. This is the beginning of the writ of aiel, which is something like an assize of mort d'ancestor, but on the death of a grandmother or grandfather. The form of the writ was as follows:

The king to the sheriff, greetings. Command (Precipe) B. that justly and without delay he render to A. 100 acres of land with appurtenances in N. of which C. the grandfather of the aforesaid A., whose heir he is, was seised in his demesne as of fee on the day on which he died, as he says. And if he does not and the aforesaid A. shall have given you security etc., then summon etc. the aforesaid B. to be before our justices at the first assize when into those parts etc. And there etc. Witness etc.

Is this writ more like an assize of mort d'ancestor or a writ of entry?

2. What is the problem? Why cannot a litigant simply come into court and set out whatever complaint he has? The jurisdiction of the king's court was not omnicompetent like that of the county courts. The king's court required jurisdiction to be granted for each individual case, and the chancery, which issued the original writs, could issue only certain writs. The standardized writs thus set the parameters of the common law.

3. Note that if one wanted to claim as heir to a greatgrandfather who had just died, a further writ was provided: the writ of besaiel (meaning, "great grandfather"]. For other more distant relatives, whether more ancient than great grandfathers or cousins, the writ of cosinage was provided. The following case is thus one of cosinage.


VI.B.2. The writ of cosinage

Gatesden v. Prioress of St. Giles (CRR, 16:301; 1239; common pleas)

John of Gatesden seeks against the prioress of St. Giles of Flamstead 1 carucate of land with appurtenances in Hemelhampstead concerning which William of Gatesden, cousin of the same John whose heir he is, was seised in his demesne as of fee on the day he died, as he says.

And the prioress comes and seeks thereof the view.

Let her have it.

Day is given her at 3 weeks from the birth of St. John the Baptist. And meanwhile etc.




VI.B.3. The Statute of Marlborough, c. 29 (date 1267)


It is provided also that if the alienations for which a writ of entry used to be given are made through so many degrees that writ cannot be had in the form previously used, the plaintiff shall have a writ for recovering seisin without mention of the degrees, into whosesoever hands the things shall have come through such alienations, by original writs to be provided for the purpose by the king's council.


1. You will remember the per and cui rule? Does this abolish it? Completely? This statute, read closely, only pertains to situations that run beyond the old writs: these will now be taken care of by a writ of entry not in the "per" or in the "per and cui" but in the "post". "Post" means after, and the writ will run "into which he has not entry except after the demise made." The barons wanted this writ. Why? Writs of entry in the per or per and cui provided a remedy against those protected from lordly action by novel disseisin and mort d'ancestor. Once aiel and besail and cosinage were provided in 1239, people who were more distant from Secundus than was Tertius were likewise protected from lordly action. That meant that claimants had to pursue them with writs of right; in pleading the lords would be put in the same situation of perhaps having to provide escambium unjustly. The situation could only be remedied by extending the writs of entry. Lords thus demanded that the king do so: that demand was one of the demands of the barons in the Barons War, finally carried here into statutory form after the barons were put down. Note, however, that the rule lived on. If the fact situation could be expressed with a writ in the per or in the per and cui, it had to be. Only if the situation exceeded the rule could one get a writ in the post. Technicality thus piled on technicality, which lawyers for centuries learned.



VI.C. Introduction to the Whilton Dispute


Danevill v. fitzGerold (CRR, 7:200; 1214; common pleas)


Dorset. The assize comes to recognize which patron presented in time of peace the last parson, who is dead, to the church of Langeton, which is vacant, the advowson of which Peter Danevill claims against William fitz Gerold and Matilda, his wife.

[William and Matilda] come and say that the assize ought not proceed thereof, because they well acknowledge that Robert Danevill, father of the abovesaid Peter and grandfather of the same Matilda, presented the last parson, to wit, Eudo Martel. But afterwards it pleased him to promote his first born son, Richard, such that the same Richard went to the earl Delisle and sought a certain girl from the earl's chamber as wife. And the earl did not want to do so, because he was in doubt if the inheritance would accrue to him or not until his father came into the court of the earl Delisle and withdrew himself [se demisit] from all his land and asked the earl to take his son's homage thereof. And the earl took his homage for the whole. And the same Richard and his wife with Robert father of the same Richard remained together for many years. Eventually it happened that they could not agree further to live together. And Richard came and committed to his father half the abovesaid land to sustain himself, and Richard retained half the abovesaid land and the chief messuage. For that reason the same William and Matilda say that they ought to have that presentment, since the same Matilda descends from the first born brother.

And Peter by his attorney says that the abovesaid Robert did not divest himself from the abovesaid land, but indeed he handed over to the abovesaid Richard his son a part of his land and retained to himself the chief messuage with the advowson of the church. And he (Peter) held what his father held. And therefore he seeks the presentment.

It is considered that William and Matilda have their presentment to the church.




1. What kind of writ is this? What rules apply with this writ? We have already covered this, in Section IV.D. Refer back to that section for treatment of the assize of darrein presentment.

2. After recognizing the kind of writ, in a case moderately complicated like this one, you must first draw out the family lines so that you can understand what relationships are being talked about. I have done it for you, but you have to realize that you cannot understand cases like this until and unless you have the family relationships absolutely clear. It is essential here to understand that here a second son is claiming against the heir of the elder brother.

3. Consider the story of William and Matilda. Do they describe a grant by subinfeudation or by substitution? Was the lord involved? What was the most important part of the transaction to put Richard in a situation where the earl would consent to the marriage of his ward to him? By the surrender and the regrant the son became the actual tenant of the land to whom the lord would be committed; there would be no doubt then that the son would have the land, because it no longer depended on inheritance. In fact, the elder son (and his child) is in an exceptional position here because he takes by grant what would still have accrued to him by inheritance. The lord is thus not marrying off his ward irresponsibly, but to a person whose wealth is assured.



4. No one really knows, but what do you suspect: was this a merely formal transaction, a "legal" action instead of a social one, an action without practical effect but at law? Did the balance of power shift between Richard and his father? By the analysis pursued here, the answer is a strong "yes".

5. Is there any investigation as to whether or not Richard exercised his new right to possession? Why not? The lord's acceptance is determinative. Note that still the primary test for whether one is seised, lawfully possessed, is lord's acceptance.

6. The parties disagree here. Peter claims that his father had not divested himself of the land. Note that there is no resort to the sworn panel of men to obtain a verdict. Why not? In claiming that, however, he is saying that the father died seised in demesne as of fee. If that is the case, would the land have descended by inheritance to the second son or to the first son? Has Peter made out any claim that has worth legally? This is a nice case, because it comes in 1214, while King John is still alive. King John seized the throne in deprivation of an elder brother's heir, so that the court was at times unwilling to accept the principle of representation in inheritance (that a person's heirs will have the rights in inheritance that that person would have had were he still alive.) Peter tries to take advantage of the fact that legally he is in the same position as was King John, but it does not help him.

7. The immediate lesson here is that when a father, still in 1214, wanted to promote one of his sons, he had to give up if he was going to give. After the surrender and regrant, he was no longer the tenant; he could not act in such a way as to disinherit his son or to take away the fee. His control was essentially gone, although he had come to some kind of agreement, probably assured by the lord, that he would stay on the tenement for the rest of his life.



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[99] The inclusion of "inheritance" here is important. Previous provisions mentioned dower and marriage portion, not inheritance. Consider the problem. In a feudal society, when a husband did homage for his wife's inheritance, the lord had fulfilled his obligation to his man by providing for the heiress, but the husband was the one who had done homage and to whom the lord was thus committed with the land. As lords lost their disciplinary powers homage became more just a legal ceremony. Husbands did homage for the inheritance of the wife "for the wife": the law began to consider that the land was actually the wife's regardless of the homage, so that it would go down to her heirs if they were different from his. Right around the time of Magna Carta examples can also be found of women giving homage, a sure sign that homage was now a legal ceremony, not predicated on actual fighting ability. That process had been begun in 1176, when a lord had to take a minor male's homage.
[100] This turned out to be impractical. The circuit justices held their own court separate from the county courts for the holding of the assizes.

[101] Since the claimant is claiming on the seisin of grandmother, this case cannot be mord d'ancestor, in which one can only claim from father, mother, brother, sister, aunt, or uncle.

[102] Remember that "seised in her demesne as of fee" means lawfully possessed (with the appropriate test for "lawfully) in her own hands and not granted out to another, and heritably.

[103] This writ is a precipe writ and thus brings the case immediately into the king's court and not into a feudal court. Thus if it were a writ of right the specification of the venue would deprive the lord of his court.
VII. The Right to Enter (to be read in conjunction with Whilton, assize and attaint)

These documents are yearbook reports. The examples of late twelfth century assizes of novel disseisin that we had before were records from the plea rolls: official court records. These are reports, quasi-transcripts of legal argument in court taken down (we think) by apprentice lawyers. One can thus have two different accounts of the same case: the record and the yearbook report.

Before approaching these materials, reflect on why, in the Whilton Dispute, Felicia's guardian put her onto the land and what that gave her. We will call that "contact seisin," (not a term known to medieval law or other legal historians) because it comes alive in a properly entitled person on contact with the land. These three cases are about what happened with contact seisin, which is essentially the obverse of the right to enter.

Lawyers beware! This is the "right to enter", which is the right to intrude oneself onto the land of a wrongful possessor. You will want to keep this different in your mind from the "right of entry" which is the reversionary interest retained in the grantor in a grant of the form: "to A and his heirs, but if the land is used for other than agricultural purposes, then the grantor may enter and resume his previous estate." In the right of entry, the entry is made on a person who has voidable but valid title; with the right to enter, the possessor does not have valid title. Moreover, the right of entry arises because of a specific reservation by the grantor; the right to enter arises because the land has been wrongfully taken out of the hands of those who should have possession.


VII.A. Anon v. daughter of Richard (1334)

Lib. Ass. 8 Edward III, pl. 25, f. 17

Assize of Novel Disseisin


The complaint was made concerning a messuage and it was found by verdict that one Richard leased the messuage to one A. to have and to hold to him for all his life, the reversion[1] to him and his heirs without rendering anything per year. The which Richard was indicted for felony and taken and imprisoned.[2] And he granted to the plaintiff the reversion while he was in prison for such intent that he would aid him at his delivery [from gaol.] And the tenant attorned[3] by payment of 1d. Then Richard was arraigned for this felony, and the plaintiff aided him at his deliverance.[4] And when he was found a clerk,[5] he aided him at his purgation. Afterwards, the tenant at term of life died, and Richard entered immediately, and he enfeoffed this woman against whom the assize is brought; she was his own daughter. And he delivered seisin to her, and the plaintiff came to the house. And because he was not able to enter by the door, he entered by the window. And when half his body was inside the house and the other half outside, he was pulled back out. Wherefore he now brings this assize.

The assize was asked if Richard was in prison at the suit of the plaintiff or in his prison or in his custody when he granted etc., or if he did it by duress. The assize says no.

Wherefore it was adjudged that the plaintiff recover etc.

See however that the woman was in by feoffment, but the other entered on the delivery of strong seisin.

See the manner of attornment etc., M8E3 Dures 17.


2. How had the plaintiff gained title: by feoffment or inheritance? How had the defendant gained title?

3. Lawyers are supposed to be dignified people. What do you think of this lawyer crawling through a window and caught half-way in? Why did he not use the door? (This is a serious question.) What did the daughter do in pulling him out?

4. What right, then, does a grantee of a reversion have, once the tenant has attorned? Why is the attornment necessary? What has happened here is a transformation in what it takes to be seised. Of course, one had to be seised if one wanted to bring an assize of novel disseisin. The plaintiff in crawling in the window had been on the tenement, somewhat possessed. Since he was somewhat possessed and he had the right to be possessed, his possession was deemed lawful, that is, he was so seised that he was disseised when the daughter dragged him out of the window. Attornment to the reversioner after the grant to him of the reversion thus gives the reversioner sufficient right that he can actualize his seisin by entering the land.


VII.B.: Richard & Roburga v. W.G. (1365)

Lib. Ass. 39 Ed. III, pl. 11, f. 234


In an assize of novel disseisin brought by one Richard and Roburga his wife against one W.G., it was found by verdict that one H.G. and J. his wife (as of the right of J.) had been seised etc., until disseised by one M. and that H. and J. often had claimed the lands (and made to show their right) and wanted to enter but did not dare and were unable to. And it was found that M. died seised of this estate, after whose death G. entered as son and heir, on whose possession H. and J. often claimed the lands and showed their deed in the vill where the lands were; they wanted to have entered but did not dare and were unable to. And it was found that G. died seised of this estate, after whose death one Edwild as guardian of Roburga entered, on whose possession H. and J. wanted to have entered, on whose possession H. and J. wanted to have entered and they showed their deeds in the same vill and neither dared nor were able to enter. And the assize was asked if he had made any disturbance on H. and J.; the assize says that he did not, but says that for fear of putting foot on the tenements H. and J. dared not enter. And it was found that afterwards J. died, after whose death H. claimed as above and afterwards died. After whose death W.G. entered as son and heir of J. And on this, the verdict was adjourned to Westminster.

And because it was found by verdict that H. and J. never put foot [on the land] even though it was found that they claimed on the possession of M. and likewise on the possession of G. and on the possession of Richard and Roburga, still this cannot be adjudged entry if they did not put the foot and sufficiently enter it and were not ousted -- or otherwise that it had been found that for fear of death they did not dare enter. And likewise it was found that G. and also Roburga entered, both the one and the other, by descent of heritage, such that it was not congeable for W. who was the heir of J. to oust them. Wherefore it was adjudged that Richard and Roburga recover, and likewise their damages etc. Wherefore etc.



H.G. = J.(original disseisees) M (original disseisor)



G

Edwild (guardian

W.G. (disseisor now) of Roburga)


Roburga (plaintiff)


1. The first thing one must do in any report, is ask what action the plaintiff is bringing; nothing will make sense until you understand what writ the case is brought under. Then note the date; this case is 30 years later than number VII.A.

2. This action was brought against W.G.; why was it important that H and J had never put foot on the land again? What if it had been established that the reason they did not do so was fear of death, and not just a good shaking up? What, then, does seisin mean? If the original disseisees (H.G. and J.) had ever interrupted the possession of the descendants of M, they would have been able to pass on to W.G. sufficient seisin that W.G.'s entry on the land would have been protected even against the assize of novel disseisin. But uninterrupted possession through two descents was too strong a title to allow a mere entry to disturb Roburga. W.G. could, of course, bring a writ of entry sur disseisin in the post and then a writ of right; he should be able to prevail. But he cannot simply enter the land.

3. Nevertheless, the justices are willing to contemplate the possibility that if the original disseisees had been afraid for their very lives, that they could have sufficiently interrupted the descents merely by getting into sight of the land and claiming it in front of witnesses. This is amazing: it means that seisin can leap into them without physical contact under at least one kind of situation.

4. Thus, once the assize of novel disseisin begins to look into title at all (title in terms of inheritable claim), then there is an incentive for claimants to enter the land simply to be disseised, so that they can then bring the assize of novel disseisin. The justices then had to decide what kind of contact with the land was sufficient to bring such ancestral seisin to life. With the Whilton dispute, in the 1270s, it seemed that people wanted to be in possession for a substantial time. By the 1330s, the lawyer could be disseised even though he was only half-way in the window. By the end of the fourteenth century, if the claimants were in fear of their very lives, they did not even have to come in physical contact. Nevertheless, the justices had to decide and then increasingly they expanded the situations under which a claimant could rightfully intrude on a wrongful possessor.




VII.C. Anon (1499)

YB. M 15 Hen. VIII, no. 12

Court of common pleas


The problem of individuals asserting their title by entering onto land so that they would be disseised and could thus bring novel disseisin was sufficiently serious that parliament passed statutes of forcible entry, one in the late fourteenth century that simply forbade illegal forcible entries, later ones that spawned a specific action to control such entries.

In a writ concerning entry on the statute of the 8th year [of Henry VI: 1429-30], the plaintiff supposed that the defendant with force and arms entered in a house and 16 acres of land.

The defendant says that a stranger was in seisin and enfeoffed him (and he gave color[6] to the plaintiff) by force of which he entered peaceably, without this that he entered with force.

And the plaintiff made title and traversed the bar.[7]

And the issue was found with the plaintiff.

And it was held by all the justices that the force will not be inquired of, because inasmuch as the title was found against the defendant, he will be convicted of force, and likewise the converse, if the bar be found with the defendant the force will not be inquired of.

And thus note, that the defendant ought to traverse the force if he entitles himself, and it will not be inquired of at the suit of the party, because whether the title is found with one or against one, it will make an end of everything, because if the title of the plaintiff not be good, even if the defendant entered with force, the plaintiff has no cause of action. But in this case the one who has entered with force will be indicted and of this will be fined to the king. And if the defendant entered peaceably or his entry was not congeable,[8] he can say that he did not enter against the form of the statute. And in such a way the force will be inquired and also the disseisin. But if he makes title as above, which is found against him, then this will be deemed his folly.


1. This is a case on the statute of forcible entry; it is in the nature of a writ of trespass, which you have not yet had. What is "giving color"? What does it mean that "the plaintiff made title and traversed the bar"?

2. According to this case, what are one's pleading options, and what are the rights of a person properly entitled, although not in seisin? This remedy is designed expressly to regulate those who were entering land so that they could be disseised and thus bring novel disseisin. Rightful tenants subjected to this kind of annoying entry were thus given a way of striking back at those who entered wrongfully. Thus the right to enter arose from novel disseisin inquiring into title to determine if one was so seised that he could be disseised; when the standards for thus having seisin spring up into one entering the land became attenuated, this remedy was brought forward to protect proper tenants and make people with defective claims more hesitant to enter.


VII.D. Trespass to test title: Henale v. Cartere

CP40/1090, m. 115 (1536)

court of common pleas

You should be immediately aware that this case is not a "real action," that is, an action conceptualzed as a property action for land. Rather it is a pesonal action aiming at damages for a wrong done. We have not covered these actions yet. From the early fourteenth century litigants used such actions to see how a local jury would decide a property issue by putting it to the jury as a trespassory case that depended on the jury's assessment of title to the land on which the trespass occurred. The remedy was only damages, but a successful suit would leave the loser in no doubt about the countryside's opinion on the matter of title; it would also leave the victor completely capable of using the land further. The most prudent course for the loser in such a situation was to withdraw and assert his title, if he was still convinced of its validity, by a real action. In the sixteenth century, for awhile, trespass to test title [my term] appeared a genuine rival to novel disseisin. Be aware that this is not the Texas action of "trespass to try title," because the remedy here is only damages.


Kent. Reginald Carter late of Cranbrook, fuller, in the abovesaid county was attached to answer Walter Henale concerning a plea why with force and arms he broke the close of the same Walter at Cranbrook and trampled and destroyed his hay to the value of 40s there recently growing by walking with his feet, and he inflicted other enormities on him to the grave damage of the same Walter and against the now king's peace etc. And whereof the same Walter by Thomas Hendeley his attorney complains that the abovesaid Reginald on 20 April 1535 with force and arms etc., broke the close of the same Walter at Cranbrook and trampled and destroyed his hay to value etc., recently growing there by walking with his feet, and other enormities etc., to the grave damage etc., and against the peace etc., wherefore he says that he is worse off and has damage to the value of 100s. And thereof he produces suit.

And the abovesaid Reginald by John Selyard his attorney comes and defends force and injury when etc., and as to coming with force and arms he says that he is not guilty and of this he puts himself on the countryside. And the abovesaid Walter similarly. And as to the residue of the abovesaid trespass above supposed to be done, the same Reginald says that the abovesaid Walter ought not have his action abovesaid against him, because he says that the abovesaid close as well as the place in which it is supposed the abovesaid trespass happened and at the abovesaid time at which it is supposed that the abovesaid trespass happened was a garden containing in itself a half acre of land with appurtenances in the abovesaid Cranbrook lying on the eastern part of a certain pond there called Sharpys Pond, whereof a long time before the time at which etc., a certain William Sharpy was seised in demesne as of fee, and being thus seised thereof a long time before the abovesaid time at which etc., he died seised thereof. After his death the abovesaid garden with appurtenances descended to a certain Joan now the wife of the same Reginald as to daughter and heir of the abovesaid William, whereby the abovesaid Reginald and Joan entered into the abovesaid garden and were thereof seised in their demesne as of fee in the right of the same Joan.[9] And the abovesaid Walter[10] claims the abovesaid garden by color of a certain charter of demise made thereof to him for the term of his life by the abovesaid William in his life, whereas[11] nothing of the abovesaid garden ever transfered into the possession of the same Walter by that charter before he entered in the same garden before the time at which etc., on the possession of which certain Walter thereof the same Reginald afterwards, to wit at the abovesaid time at which etc., reentered, and he broke the close abovesaid in it and trampled and destroyed the abovesaid hay to the value abovesaid then growing there by walking with his feet as well he might. And this he is prepared to verify, wherefore he seeks judgment if the abovesaid Walter ought to have his abovesaid action against him etc.

And the abovesaid Walter says that he ought not be precluded from his abovesaid action by anything alleged above, because he says that a certain John, abbot of the monastery of Battle in Sussex, was seised of the abovesaid garden in demesne as of fee in the right of his abovesaid monastery and being thus seised thereof a long time before the time at which etc., to wit _____ day ______ in 1535 at Cranbrook abovesaid demised that garden to the same Walter to have and occupy to himself and his assigns from the feast of St. Michael archangel then next following until the end of a term of 99 years then next following and fully completed, by virtue of which demise the same Walter entered into the abovesaid garden and was thereof possessed until the abovesaid Reginald on the say and year abovesaid specified in his abovesaid count before, with force and arms abovesaid broke the abovesaid close in the same and trampled and destroyed the abovesaid hay to the value etc., there then growing by walking with his feet just as he above complained against him, without this that the abovesaid William Sharpey died seised of the abovesaid garden as the abovesaid Reginald alleged above. And this he is ready to verify, wherefore because the abovesaid Reginald acknowledged the abovesaid trespass above, he seeks judgment and his damages on the occasion of that trespass to be adjudged to him etc.

And the abovesaid Reginald as before says that the abovesaid William Sharpey died seised of the abovesaid garden as he alleged above. And of this he puts himself on the countryside. And the abovesaid Walter similarly. Therefore it is ordered to the sheriff to make to come here at the quindene of John the Baptist 12 [good and law-worthy men] . . . .

[There was no jury verdict in this case; a similar case on m. 304 of the same plea roll has a jury verdict, rendering a judgment of 15s in damages and 43s in costs.]


Notice that the vital matter put to the jury, about whether William died seised or not, was part of the defendant's alleged title. Although the plaintiff could put forward his title, the matter really rested on the the defendant's reason for entering the land.

Note also that there is still a problem with this remedy, in that peaceable people who want to claim their title effectively are still put in a position where they must provoke the tenant by entering on the land. Even though such actions are obviously not socially desireable, the law had spawned this necessity to enter to claim title; using trespass vi et armis (with force and arms) to test the title before the countryside was the tenant's option. The claimants had to provoke him into bringing it.VII. The Right to Enter (to be read in conjunction with Whilton, assize and attaint)


These documents are yearbook reports. The examples of late twelfth century assizes of novel disseisin that we had before were records from the plea rolls: official court records. These are reports, quasi-transcripts of legal argument in court taken down (we think) by apprentice lawyers. One can thus have two different accounts of the same case: the record and the yearbook report.

Before approaching these materials, reflect on why, in the Whilton Dispute, Felicia's guardian put her onto the land and what that gave her. We will call that "contact seisin," (not a term known to medieval law or other legal historians) because it comes alive in a properly entitled person on contact with the land. These three cases are about what happened with contact seisin, which is essentially the obverse of the right to enter.

Lawyers beware! This is the "right to enter", which is the right to intrude oneself onto the land of a wrongful possessor. You will want to keep this different in your mind from the "right of entry" which is the reversionary interest retained in the grantor in a grant of the form: "to A and his heirs, but if the land is used for other than agricultural purposes, then the grantor may enter and resume his previous estate." In the right of entry, the entry is made on a person who has voidable but valid title; with the right to enter, the possessor does not have valid title. Moreover, the right of entry arises because of a specific reservation by the grantor; the right to enter arises because the land has been wrongfully taken out of the hands of those who should have possession.
VIII. The Writs of Entry

VIII.A. Rex v. B (circa 1280s)

BL Add. 31826, fol. 63.

A writ of entry ad terminum qui preteriit


The king brought a writ of entry against B. and claimed a manor with the appurtenances as his right and heritage in which he did not have entry unless by the lease which Eleanor, Queen of England, made thereof to one William his father at term of life etc.

And they denied tort etc.

Bereford.[1] We are not held to answer to this writ, because we understand that there is a common law in England; and on the common law thus there is a common writ of form. And we understand that the king wants himself to proceed by the common law and by a writ of common form. And this writ is not of common form, inasmuch as it makes no mention of any reversion,[2] whereof we ask judgment of this writ.

Thornton. We understand that there is made sufficient mention of the reversion, inasmuch as we have shown -- and this by writ -- that the tenements which are now in demand were given to your ancestors, after which term by the form of the gift the reversion is supposed [to be] to the heir of the donor. Wherefore it seems to us that we have sufficiently made mention of the reversion in our writ.

Kellawey.[3] We ask judgment of this writ altogether, for the reason that, whereas you claim in your writ the manor of Cherbaston, we cannot render your claim, because the manor that we hold is called Kerbauston. And we ask judgment of your writ.

Gyselham. This exception ought to be put before view of the land. And by asking your view you have affirmed our writ. And we ask judgment if he is now able to come to such an exception to abate our writ.

Kellawey. Sir, if we ought now to vouch in this plea and our warrantor come and ask by what [he should be bound], and we put forward his deed or the deed of his ancestor, he would demand judgment of our bad voucher, because we had vouched him to warrant such tenements in Cherbaston and we have never had anything in Cherbaston. Wherefore we ask judgment of this writ, etc.


1. Could one have any kind of writ, with any variations one wanted? Note that Bereford and Thornton, here pleaders, were to become quite important. Bereford became chief justice of the court of common pleas; Thornton, chief justice of the court of king's bench. Two exceptions are drawn to this writ; what are they? Note that Bereford's assertion about there being a common law might seem impertinent to the king, but it did not affect his career: he became a chief justice. It was true that there was a common law and that the king was expected to follow it, even though it might here have been bent somewhat.

2. What is the significance about the defendant having already asked the view? "View" was the defendant's chance to have pointed out to him, on the land, the precise land being claimed. One asked for the view during the case, and it required an adjournment from one term to the next. It was only available if the defendant had more than one tenement in a vill or the plea was only for a portion of the tenement.

3. What is the role of precedent? What kind of argument is Kellawey's last argument? Common law at this point did not rely on precedent at all, but on analogy.

4. This is all there is to this report. We do not know if Kellawey's argument was successful or not. Reporters did not particularly care about the trial; they often also did not report the straightforward pleading that appeared finally in the record. What does this indicate about the reporters? The reporters seem to have been apprentice lawyers who sat in in court to listen to the experts. They were only interested in the arguments, not the outcome. Once they knew what could be pleaded, the resolution of what the factual situation actually was, was uninteresting: they only needed to learn how to plead.


VIII.B. Geoffrey v. Poynant (1290-1294)

BL Add. 31826, fol. 71b

A writ of entry ad terminum qui preteriit

Henceforth, the pleaders are designated as being pleaders for the plaintiff [P] or for the defendant [D]; justices are indicated as [J]. These designations do not appear in the documents.


One John Geoffrey and Gilbert brought a writ of entry against William Poynant on the seisin of one Ralf and said "in which he has not entry etc., if not by the lease which the same Ralf made thereof at a term which has expired etc."

William defended etc., and said that he had entry not at term but rather in fee and by the deed of that same Ralf.[4] And he put forward a deed which attests this. And we ask judgment.

Kingsheved [P]. Sir, we tell you that he entered into these tenements at a term of 10 years. And see here his deed which attests this, wherefore we want to aver that after he entered these tenements he never changed his estate.

Mettingham. [J] Let us first be at one concerning his writings.5 You grant well that the deed which William proffered is the deed of your ancestor, and you, William, grant well that the writing concerning the term which they put forward is your deed such that you cannot deny that you entered in his tenements at term, but that you say that, within your term, Ralf made you a deed of feoffment and by that you think to bar them from action.[6]

Covintry [P]. By this deed that they put forward they cannot bar us, because we tell you that William entered into the tenements at term such that the free tenement and the right reposed in the person of the lessor,[7] wherefore we tell you that after the bailment at term he never came into the countryside whereby they could deliver the seisin of those tenements, nor did they send any man;[8] wherefore on that deed never was any seisin delivered to him, rather he all the time continued his estate of a term -- the fee, free tenement, and right reposing all the time in the person of the lessor. And we ask judgment if without livery of seisin to him any estate can accrue to him by this deed.

Mettingham [J]. Much more in this case can you void a quitclaim[9] than a feoffment. Because I think that he in whose person the free tenement and the right rest can enfeoff and can then demand nothing against that feoffment, but you cannot deny that in the person of Ralf on the day of the feoffment rested the fee and the free tenement and the right whereby he could enfeoff. Now, every quitclaim supposes in itself that he is seised to whom the right is quitclaimed, because I can void the quitclaim which I have made if I can aver that at the time of the making of the quitclaim and afterwards I remained seised.

Covintry [P]. Sir, he must show how seisin was delivered to him, because I think that if I make my deed to you of one carucate of land and you by virtue of this deed put yourself in the tenements without livery of seisin from me, that I will recover against you by a writ of novel disseisin.[10]

Mettingham [J]. If you had bailed me a tenement at term and afterwards you come here before justices and acknowledge the tenements to be my right, I think that you will be foreclosed forever, and so the seisin will not be delivered to you by writ, nor by letter.[11]

Mutford [D]. There is no need in this case for us to answer to the livery of seisin, because livery of seisin is only a corporeal comprehension[12] and the fee and the right and the free tenement accrues by the feoffment. Wherefore, the livery of seisin in this case would only be a corporeal comprehension, which we have by way of the term,[13] which is acknowledged.

. . .

Mettingham [J]. Because we have understood -- and this is law -- that each thing not corporeal can pass by way of deed which attests this, and because fee and right and free tenement are things not corporeal, and moveable and not immoveable, they ought to pass by way of deed.[14] And you have acknowledged the deed which attests this. So this court adjudges that John Geoffrey and Gilbert take nothing by their writ, but be in mercy etc., and William adieu etc.



VIII.C. Anon (1310)

SS. 20:118 (YB 3 Edward II)

A writ of entry cui in vita

A. brought the cui in vita against H. saying "into which he had no entry save by [X], to whom her husband, whom [in his life she could not contradict], demised."

Herle [D]. Her husband never was seised so that he could make a lease.

Malberthorpe [P]. You do not answer us, for your answer is of double meaning: either that he was never seised[15] or that he was seised in our right, so that by the common law he could make no lease.[16]

Herle was driven to plead over.

Herle [D]. Whereas she says that her husband leased to [X], he never leased to him, ready etc.

Malberthorpe [P]. That amounts to this: that [X] never entered by him. Therefore, you ought to give us a good writ.

Herle [D]. I am pleading not to your writ, but to your action:[17] for it is your husband's lease that gives you action and this lease we traverse. Judgment.

Malberthorpe [P]. Our husband leased to [X].

Issue joined.[18]

So note that in a writ of entry one can traverse the entry without giving a good writ.


Why does one worry about pleading in a way that might carry different meanings? Would that not just get ironed out at trial? Not at all. All the argument was supposed to be done during pleading, so that the job at trial was supposed to amount only to submitting the previously specified question to the jurors, who were supposed to have already figured out their answer, since they were notified of the question by the writ venire facias. By the 1290s other things were happening at trial before the jurors, as with informal submission of evidence, but without rules of evidence or much supervision. Pleaders only took down this kind of procedure once or twice over more than a century, so we know almost nothing of what went on before the jury.


IX. The Statutes of Edward I


The origins of the common law came between 1176 and 1215. For decades thereafter the common law grew, whether by chancery action, judicial action, or legislative activity. By the second half of the thirteenth century the social and legal anomalies produced by piecemeal growth had become serious. The problems were such as to focus attention on the central government. Parliament became an institution in 1258, acting to answer petitions from people experiencing difficulties with the law, legislating general answers to difficulties, responding to demands for taxation. Parliament, it should be noted, was centered on the king's council, although the enduring elements that would soon constitute Parliament were king, the magnates (soon the House of Lords) and representatives of both the counties and boroughs (soon the House of Commons). The king was absolutely essential to Parliament, and Parliament exercised only the king's authority. Those who were elected, were selected to enter into that sphere of governance that the king had constituted to help him exercise his powers of governance. That he would solicit such help was the contribution of feudalism: a strong lord acted with the consultation and advice of his men. Still, there was no notion of popular sovereignty, that the ultimate responsibility for governance was in the people and they conferred their authority to govern to their representatives. They were subjects, not citizens. There is important substance in those different terms. The following are some of the more important statutes of King Edward's Parliaments.


IX.A. Quia Emptores (="Because Purchasers") [8 July 1290]

EHD, 3:466


Because purchasers[1] of lands and tenements belonging to the fees of magnates and others have often in times past entered into their fees to the prejudice of those magnates and others, in that their free tenants have sold their lands and tenements to the purchasers to be held in fee by them and the heirs of their feoffors and not of the chief lords of the fees, whereby the same chief lords have very often lost escheats, marriages and wardships of lands and tenements belonging to their fees, a thing which seemed to those magnates and other lords exceedingly hard and hard to bear and tantamount in this case to manifest disinheritance, the lord king in his parliament at Westminster after Easter in the eighteenth year of his reign, namely on the quindene of St. John the Baptist, at the instance of the magnates of his kingdom, granted, provided, and enacted that henceforth it is to be lawful for each free man to sell at will his land or tenement or part thereof, so, however, that the feoffee shall hold that land or tenement of the same chief lord and by the same services and customs his feoffor previously held them by.2 And if he sells some part of those lands or tenements of his to anyone, the feoffee shall hold it immediately of the chief lord and be charged at once with as much service for that portion as pertains or ought to pertain to the same lord in accordance with the amount of land or tenement sold; and so in this case, that part of the service which is exactable by the feoffor shall fall to the chief lord, since the feoffee ought to be intendant and answerable to the same chief lord, according to the amount of land or tenement sold, for that portion of the service so due. And it is to be understood that by the aforesaid sales or purchases of lands or tenements, or any part of them, those lands or tenements can in no way, in part or wholly, come into mortmain,[3] by art or artifice, contrary to the form of the statute ordained on this some time ago etc. And it is to be understood that the present statute is applicable only to lands sold to be held in fee simply and that it applies to the future; and it will begin to take effect at the next feast of St. Andrew etc.

.

1. Was the perceived problem resulting from grants by substitution or by subinfeudation? What was the damage being caused?

2. Worry about what have been called the "feudal incidents" (wardship, marriage, relief, etc., instead of service) is interesting, in that the heart of the relationship has been eaten out, so that what lords are concerned with in the feudal relationship with land (not with other patronage relationships) is increasingly with those incidental matters that had served to secure the relationship.

3. What does this statute do? Can one subinfeudate anymore? What will happen as knightly families die out? Do you see why historians point to Quia Emptores as the last possible date at which one can talk about the decline of land-oriented feudal relationships? Does this give rise to sales of land, free alienation, relatively as we know it?

4. What is mortmain? why is it a problem here?

5. The statute is said to apply only to land given "in fee simply"; remembering that a fee is heritable, read the following statute, "De Donis", to figure out what a fee not given simply is.


IX.B. De Donis (="Concerning Gifts")[Statute of Westminster II, c. 1, 1285]

EHD, 3:428-29


First, concerning tenements which are often given upon condition, that is, when someone gives his land to some man and his wife and the heirs begotten of the same man and woman with the added condition expressed that, if the man and woman should die without heir begotten of them, the land so given should revert to the donor or his heir; also in the case when someone gives a tenement to somebody and to the heirs issuing of his body:

it seemed, and still seems, hard to such donors and heirs of donors that their wish expressed in their gifts has not heretofore been observed and still is not observed. For in all these cases, after offspring begotten and issuing from those to whom the tenement was thus conditionally given, these feoffees have hitherto had power to alienate the tenement so given and to disinherit their own issue contrary to the wish of the donors and the form expressed in the gift. And further, when on the failure of the issue of such feoffees the tenement so given ought to have reverted to the donor or his heirs by the form expressed in the deed of such a gift, notwithstanding the issue, if any there were, had died, they [the donors] have heretofore been barred from the reversion of the tenements by the deed and feoffment of those to whom the tenements were thus given upon condition, which was manifestly against the form of their gift. Wherefore, the lord king, perceiving that it is necessary and useful to provide a remedy in the aforesaid cases, has enacted that the wish of the donor, according to the form manifestly expressed in his deed of gift, is henceforth to be observed, in such wise that those to whom the tenement was thus given upon condition shall not have the power of alienating the tenement so given and thereby preventing it from remaining after their death to their issue, or to the donor or his heir if issue fail either because there was no issue at all or because if there was issue it has failed by death, the heir of such issue failing. Neither shall, henceforth, the second husband of such woman have anything by the curtesy[4] after the death of his wife in a tenement so given upon condition, or the issue of the woman and second husband have hereditary succession, but instead immediately after the death of the man and woman to whom the tenement was so given, it shall revert after their death either to their issue or to the donor or his heir as is aforesaid. And because in a new case a new remedy must be provided, the following writ [formedon] is to be made as required:

Command A. to render to B. justly etc., such and such a manor with appurtenances which C. gave to such and such a man and such and such a woman and the heirs of the bodies of that man and woman, OR which C. gave to such and such a man in free marriage portion with such and such a woman and which after the death of the aforesaid man and woman ought, by the form of the aforesaid gift, as he says, to descend to the aforesaid B., the son of the aforesaid man and woman OR which C. gave to so and so and the heirs of his body and which after the death of the same so and so ought by the form etc., to descend to the aforesaid B., the son of the aforesaid so and so.

The writ whereby the donor has his recovery when issue fails is in common use in the chancery. And it is to be understood that this statute applies to the alienation of a tenement contrary to the form of a gift made after this, and does not extend to gifts made before it. And if a fine is levied hereafter on such a tenement, it is not to be legally binding, and the heirs or they to whom the reversion belongs will not be bound to lay their claim even if they are of full age, within England, and not in prison.


The problem:

People had started giving grants not only in the form "to x and his heirs" but also in the form "to x and the heirs of his body begotten." This was not strange, in that it bore a great resemblance to the traditional marriage portion or maritagium, only now it was given also to sons in an attempt to found a cadet line. The courts had to figure out what to make of that different formulation. In the form "to x and his heirs" the heirs received nothing, because x could sell the land leaving the heirs with nothing to inherit. Thus "and his heirs" only designated what x received by the grant: it took those words to convey to x a fee simple. But if "and his heirs" meant nothing for the heirs, then what could the justices construe that "and the heirs of his body begotten" meant? They concluded that it had to operate similarly, giving the heirs nothing, but only designating what x received. The exact construction was that those words would give x a fee simple conditional, that is, x got possession and, if he had children, then his estate became a fee simple. Once he had had children, then, he could alienate the land. The heirs got nothing.

Before the statute, then, a grant in the form "to x and the heirs of his body" kept a reversion in the grantor with a fee going to x that would become a fee simple in x on the birth of issue, such that x could then defeat the reversionary interest of the grantor merely by granting away the fee simple.


The statute deplored that result. It speaks in terms of "issue." Modern law regards the term "issue" as decisively different from "children": children refers to a person's sons and daughters, whereas issue refers to the whole of the descendant class, including not only sons and daughters but also grandchildren, great-grandchildren etc. Regardless, to the lawyers at this time, "issue" looked plausibly like "children". Most explicitly, the statute only spoke about the grantee being restrained (that is, the original recipient, not his/her children), with the issue being sure to receive the land. It was thus not implausible for lawyers to conclude that only the grantees were restrained. The result was that instead of the birth of issue increasing the estate that x received, the lawyers concluded that x's estate was much more like a life estate (although not a life estate). On birth of issue, nothing at all happened to x's estate, but the fee then resided in the issue, who, on reaching majority, could cut off the reversionary interest in the grantor merely by granting a fee simple. Thus the lawyers interpreted the statute merely to have put off the defeat of the reversionary interest for one generation.


1. Given the severely logical nature of thirteenth century lawyers, remember to read the statute carefully.

2. The statute speaks of gifts made in the form "to H. and W. his wife and the heirs of their bodies begotten" and in the form "to X and the heirs of his body" when the condition was made for reversion on default of such heirs descendant.

3. What is the problem with alienation here? What did a grant "to x and his heirs" give the heir if x sold? What is the logical conclusion about the nature of a grant to "x and the heirs of his body": does this just defer the heritable interest until x has a child? And after that, was it any different from any other fee?

4. Are such grants new? Remember a grant of a marriage portion, for which husband did not give homage so that the land would revert to donor on default of heir, with homage being given by the fourth tenant descendant? Since there was no homage, what would be done if the tenants sold? That is, how was the reversion secured earlier, say early thirteenth century? What changed that situation? Are the grants covered in this statute exactly the same as the marriage portion?

5. Pay careful attention to the language in the statute. It speaks of donors, donees, and the issue. Who is protected here? Now try the hard questions.

6. Before the statute, when the donee could alienate after the birth of an heir, who had the fee before the birth of the heir? Who has the fee after the birth of the heir?

7. After the statute, the land will descend to the heir. Who had the fee before the heir's birth? When the heir is born, who has the fee? Can you conceptualize all this in terms of a fee and a life estate?

8. Now for a difficult question. Half-blood siblings do not inherit. Robert receives a grant to him and the heirs of his body. He marries and has a daughter. Who has the fee? His wife dies. He remarries. He has a son from his second marriage. Daughter dies. Who has the fee?

.


9. The Fee Tail is a cut-down fee, that is, a heritable interest that is limited both in terms of the power of alienation and also as to the class of those who can inherit. This means that the current tenant has not just a life estate, but a cut-down fee in himself. Do you see how that was the necessary solution to the problem in "8"? If once the fee simple rested in the issue, then parts of the grantor's intent failed. The only reasonable solution was to invent an entirely new kind of fee that each successive possessor would possess in its entirety, so that no longer could the interests be conceptualized as something like a life estate and a fee simple. The issue then had absolutely nothing until his ancestor died. Do you likewise see how the drafters of the statute did not set out to create a second different kind of fee, but did set in motion the process by which that was the inevitable result?

10. The writ in the statute is the writ of formedon (= "form of the gift"). It came soon in three forms, depending on whether claimant was claiming as a descendant (for any descendant of the original grantee), a reversioner (for the grantor's line), or a remainderman (for a secondary grantee). The three forms were known respectively as formedon in the descender, reverter, or remainder.

11. A grantor created a remainder in the following grant form: "to x and the heirs of his body, then to y and the heirs of her body." Note that Y's line will only receive after x's line dies out. Note also that if Y's line dies out as well as A's line, then the general heirs of X and Y (that is, their cousins etc.) will still have nothing: the grant was only to those two individuals and their blood descendants. Thus the grantor still retained a reversion. A remainder is called a remainder because the land stays out for a further time from the grantor after the first grant takes effect. Note that it is still called a remainder even when the grantor does not retain a reversion (to x and the heirs of her body, then to y and her heirs).


IX.C. Brok v. Westwyk [1290-1294]

BL Add. 31826, fol. 59

This report shows the way in which the law in the 1290s thought about the distribution of interests in land that followed a grant in the form of "to x and y and the heirs of their bodies". Whereas before De Donis one had a fee simple conditional (the grantee's interest would become a fee simple on the birth of issue), after the statute for a few decades the law considered that the grantee continued to have something like a life estate, and on birth of issue the fee passed to the issue from the grantor. Work your way through this report (it is not easy) and see how the serjeants' argument demonstrate that perception of the fee tail in the years immediately after De Donis.



William son of Lawrence de Brok brought his writ of formedon against John de Westwyk and claimed three parts of the manor of Burton by the reason that A., B., C. gave the three parts of this manor to Lawrence de Brok his father and to Maud his wife and to the heirs of these two engendered, of whom he is the issue and thus he claims the tenements by the form of the gift, etc.[5]

Warwick [D]. Put forth some specialty [=deed under seal] which attests the form of the gift.

Mutford [P]. We want to aver it etc.[6] [aver=submit to verification by jury]

Warwick [D]. You ought not arrive at the averment without specialty, because where a man claims by the "to descend" or by the "to remain", it behoves him to have something to show the form etc., but that is not necessary in the reverter, because the donor is able to aver his own seisin or the seisin of his ancestor etc.[7]

Mettingham, [J]. If I will be received to the averment when the form is not plain, a fortiori will I be received when the form is sufficiently plain. But if it were such that those to whom the gift was made by this condition die without issue engendered of their bodies and the donor claim the reversion by the form of the gift, he would be received to the averment.[8] Likewise here, inasmuch as the condition is sufficiently plain in form, etc.

Warwick [D]. If those to whom the gift was made by such a form were impleaded and they prayed aid of their issue,[9] they would not be received to this prayer without putting forward a deed which attests that the fee and the right repose in his person, in the same way here.

Mutford [P]. Sir, we tell you that those who entered the tenements by this form so held their feoffment against them that the issue was not able to be party to guarding this deed, because he was then an infant.[10] And he asks judgment etc.

Warwick [D]. If those to whom the gift was made in this manner by condition were impleaded and they vouched their feoffor to warranty, they would not be received to the voucher if they did not show a deed which attested the form of the gift in the same manner etc.

Mettingham [J]. In this case whereas the tenant would be received to answer in form of an exception, so if he were demandant he would be received to put forward a response in the form of an action. Wherefore, if it were thus that such a one was in tenancy and his vouchee or another bring his mort dancestor, it will rebut the demandant from his action to say that he had entered by the form of the gift and aver without specialty, to which averment he would be well received. And by that much it suffices to attain his averment for his action, because he is descendant.[11]

Warwick [D]. One can have many exceptions and many answers as tenant which he will not have as demandant.[12]

Higham [D]. If I bring my writ of debt etc., and was asked what I had to show the debt and I had nothing etc., I would not be answered. And so here.

Warwick [D]. (ad idem). If those who were thus enfeoffed by condition, later but before they had issue purchase a quitclaim from their feoffor and then have issue and alienate these tenements to a stranger and bind themselves and their heirs to warranty, and then the feoffee is impleaded and vouch the issue as heir of his feoffors who enfeoffed him, as well he might, because they had fee and right by their second purchase, now comes the above issue and says that he ought not warrant because he has an action to claim the same tenements by the form of the gift etc., wherefore he ought not warrant and on this he tenders averment without specialty and thus unburdens himself of the warranty, so would ensue great duress and inconveniences, etc.[13]

Mutford [P]. In that case there is no duress, because the feoffee will have the quitclaim of his feoffors, which deed he ought to warrant and which will forebar him from the averment.[14]

Hertford [J]. If he were not received, there would ensue great duress, because where a man thus enfeoffed by condition will fully intend to disinherit his issue, he will do nothing else than put his feoffment in the flame or otherwise so that the issue will never get it. And thus it would follow that the will of the donor would be frustrated by the malice of the feoffee. That would be a great inconvenience, if he could not be received to the averment.

Higham [D]. From two great hardships, one ought to choose the lesser. But if he is received to the averment without specialty, it would follow that I myself could pursue all the land in England and say that it descended to me by the form of a gift made to such and such, whose issue I am and on this tender the averment etc.

Hertford [J]. It would be less duress that he be received to aver the form of the gift than that he be disinherited forever, because we ought to suppose that the jury will say the truth. Because it is possible that where the tenements are given in such form and they have issue and one of the [grantees] dies and the other purchases from the feoffor the fee, by that he would defeat the first purchase to the disinheritance of the heir if he cannot be received to the averment, wherefore etc.[15]

Warwick [D]. If my ancestor lease land at term of years and his heir bring his writ ad terminum qui preteriit and the tenant answer that he has the fee, he will not be received to the averment unless he puts forward some specialty which attests this fee. Likewise here etc.


Warwick's long hypothetical allows one to analyze the nature of the grant "to x and the heirs of his body": at this time, what did a donee have, and what did the donor have, until the heir was born? What are the competing problems about the descendant: whether or not he should be required to have written evidence of the form of the gift?



IX.D. John v. Anon [circa 1290s]

BL. Add. 31826, fol. 169


This is the only document I know of that gives a detailed view of what happened when one went into chancery to purchase a writ. In this case, the appropriateness of the respected writ was unclear, so inquiries had to be made. Chancery controlled the granting of writs, seeking from the plaintiff or the attorney the factual situation to make sure that the writ was appropriate. What does this case say about the nature of the fee tail in the 1290s?


A tenement was given to C. and to D. and to the heirs engendered of their two bodies. It happened then that they survived so long that the issue[16] of their issue had issue, one John by name, while the abovesaid C. and D. were still living and to whom the gift had been made. Their first issue died, and then their second. Afterwards, C. and D., the common ancestors, died. On whose death the abovesaid John who was thus in the fourth degree as to the common ancestor wanted to have had a writ of formedon in the descender.[17]

Chancellor. How did it happen that those in the third degree or in the second never sued for these tenements?[18]

John. Because C. and D. survived them.

[King's] Council.[19] By what you say they did not attain an estate. Now, if the tenements had been given simply, neither you nor your father before you could have had the mort d'ancestor. Wherefore you fall short of this writ in tailled form.

And he had concerning their death a writ of cosinage.[20]

IX.E. Belyng v. Anon (1312)

SS. vol. 31:176 (YB 5 Edward II)

This is the point at which the original conception of the fee tail, as demonstrated above, definitively changes into a distinctly new kind of fee that resides completely in the possessor, but is cut down in terms of (a) who can inherit [heirs special instead of heirs general] and (b) alienability.


John of Belyng brought his writ of formedon etc. [And the writ ran] "[lands and tenements] which after the death of the aforesaid Henry and Joan and John the son of that same Henry and Joan ought to descend to the aforesaid John of Belyng as son and heir of the aforesaid John."

Scrope [D]. Whereas in his writ he has made John the son and heir of John, he ought to have made John of Belyng grandson and heir of Henry and Joan to whom the tenements were given. Judgment of the writ.

Wiluby [P]. There is no need to do that, for John survived Henry and Joan and acquired estate, and therefore we ought to make the claimant heir to him and not to those to whom the tenements were given etc.

Spigurnel. [J]. What estate did he acquire?

Wiluby [P]. He survived [Henry and Joan] and was seised.

Scrope [D]. You have admitted that the issue was seised, and so the gift had effect in his person.[21] Judgment whether you can use this writ against us.

Wiluby [P]. That exception strikes at our right of action, for if you oust us from this writ you prevent us from taking action, for we cannot use the mort dancestor.[22] And you must take this as our answer.

Herle [D]. This exception does not go to the action, for if you come within the circumstances contemplated by the statute, you can have your recovery by the common law, for the issue, before the statute, could use the writ of mort dancestor or entry dum fuit infra etatem, and so the common law is open to you; and we ask judgment of this writ that follows the words of the statute but is not warranted by the statute.

Scrope [D](ad idem). By the common law when the feoffees had issue they had an estate of inheritance and could alienate,[23] and now by the statute the only persons restrained are the original feoffees. And the statute shows as much: "so that they to whom the tenement was so given shall not have the power of alienating it." But in the case where the original feoffees have no children, or, if they have, such children die without issue, then by the words of the statute, the reversion is preserved [to the donor]; but the statute does not say that the descent is preserved to the issue, but only that the feoffees cannot alienate. Judgment etc.

Bereford [CJ]. He that made the statute meant to bind the issue[24] in fee tail as well as the feoffees until the tail had reached the fourth degree; and it was only through negligence that he omitted to insert express words to that effect in the statute; and therefore we shall not abate this writ etc.

Herle [D]. The donor did not give to Henry, the grandfather of John, nor to Joan his wife, ready etc.


1. What kind of statutory construction is being exercised by Bereford?


IX.F. Anon (1410)

YB 12 Henry IV, fol. 9, pl. 15

Once the statute was made to mean that not just the first child, but the first three generations were bound, so that only the third heir (the fourth generation) would finally take the land as a fee simple, the limitation becomes discretionary. Why the third heir? Historically the answer is clear. The maritagium or marriage portion became a fee simple at the fourth generation because they were then considered not family: that was the point at which marriage again became possible with the main line without special church permission. But the statute, on which the fee tail was now based, gave no warrant for drawing a line between second and the third heir (between the third and fourth generations). In 1340, then, the court could discern any difference and extended the restrictions on the possessors of a fee tail in perpetuity. Not only the fourth generation, but all succeeding generations would be bound by the form of the grant until the grant expired for lack of heirs. Once that had happened, however, a strange reverse logic operated on the old marriage portion: would it continue to become a fee simple at the fourth generation?


A writ of formedon in the descender was brought and the writ was "that one such gave in free marriage portion"[25] and the demandant made the descent to himself by many degrees.

Skrene said that the land was alienated before the statute. Ready etc.[26]

And the others to the contrary.

Hill, J. It is proved by the descent that the free marriage portion is destroyed by the many degrees beyond and has become a common tail. In which case the writ ought to be general as of a common tail. Wherefore the writ is abateable.[27]

Hankford, J. The free marriage portion is destroyed having regard to the donor, because he will have such service from the issues as he does further to his lord. But still the issue will vouch and will have a writ of mesne for the same reason.[28] And furthermore, since the form of the gift begins by the free marriage, which is the title of this action, the writ will encompass the form, wherefore.

Hill, J. In a common tail the issue will have a writ of mesne without a deed; and the first form, which was free marriage portion, is terminated. Wherefore, by the form of this gift, it cannot descend to the issue, inasmuch as the first matter was to hold quit of all services and so it [the first matter] will not be to him who is demandant, even if he were in. Wherefore.

Colepeper, J. After the free marriage is destroyed, the issue will not have a writ of mesne as tenant in the free marriage.

And afterwards Skrene held himself to the issue.[29]

Quaere etc.



IX.G. Doctor and Student (1523-8)

SS. 91:156 (modernized)


Doctor. I have heard say that, when a man who is seised of lands in tail sells the land, that it is commonly done that he who buys the land -- for his own security and to avoid the tail in that respect -- will cause some of his friends to recover the said lands against the tenant in tail. Which recovery, as I have been credibly informed, shall be in this manner: the claimants shall suppose in their writ and declaration that the tenant has no entry but by such a stranger as the buyer shall want to name and appoint, whereas indeed the claimants never had possession thereof, nor yet had the stranger. And thereupon the said tenant in tail shall appear in the court and by covin and by assent of the parties shall vouch to warranty one that he knows well has nothing to yield in value. And that vouchee shall appear and the claimants shall declare against him and thereupon he shall take a day to imparl in the same term. And at that day by assent and covin of the parties, he shall make default, upon which default -- because it is a default in contempt of court -- the claimants shall have judgment to recover against the tenants in tail, and he over in value against the vouchee; and this judgment and recovery in value is taken for a bar of the tail forever.

How may it therefore be taken that that law stands with conscience that as it seems allows and favors such feigned recoveries?


.

Consider that, although the vouchee here had nothing to do with the land, in theory he was the person who granted the fee tail to the tenant or the tenant's ancestor. Thus in the eyes of the court, the vouchee has the reversion in fee simple, and it is the fee simple that supports the fee tail: if the title to the fee simple was faulty, then so too was the fee tail. The grantor of a fee simple cannot give good title if he does not have good title to begin with. This case provides a court judgment that the fee simple interest was faulty, in favor of the Buyer, so that the issue of the tenant in fee tail will be barred from bringing an action of formedon to claim the fee tail. Thus the perpetuity can be defeated, and the land can be disentailed.

This procedure was developed from the middle of the fifteenth century and is normally associated with Taltarum's Case (1472). This seems patently unfair to the issue. The proliferation of the common recovery to disentail lands, however, made possible further extension of the use, which will be covered below.


X.A. Evidence

X.A.1. Adam v. Goodknave


One Adam complained that he was disseised of one messuage and 111/2 acres of land in Leverton by John Goodknave, who did not come. Therefore, let the assize be taken by his default.

Huntingdon, for John in evidence to the assize, said that at one time this same Adam who now complains to have been disseised held the same tenements which are now in demand from one Geoffrey the Merchant, who enfeoffed him to hold these tenements from him. And after this feoffment came a great flood of water and covered this abovesaid land, by which submersion there was so much damage that he was not at all able to hold this land profitably. And he went to Geoffrey his lord and wanted to have rendered him all the lands he held of him, except these lands which are now in demand. And Geoffrey did not want to receive them unless he rendered all the lands. Wherefore Adam rendered him all the land in this form: "Geoffrey, I render you all the lands which I hold from you in Leverton." Geoffrey: "Render me the deeds of your feoffment." Adam: I do not know where they are, but as soon as I have them I will return them to you." After which render, [Geoffrey] enfeoffed this John of this messuage and of the 111/2 acres of land. And thus John has entry by Geoffrey and by his livery and not by disseisin.

The assize came and said word for word as Huntingdon had said.

Middleton [P]. Sir, if you please, inquire from the assize if Adam remained in these tenements after this render.

Berewick [J]. That is not of great significance.

--And nevertheless he inquired.

The Assize: No.

Mutford in secret [said] to Goldington: If the tenant by his grant renders to his lord the tenements which he holds of him by these words --"Sir, I render all the lands and tenements which I hold of you"--if the lord agrees to this render, immediately the free tenement goes to the lord.

Goldington. That is true if the tenant not remain in the tenements after the render.

Ormesby [J]. Adam brings this assize against John concerning a novel disseisin etc. And it is found by the assize that he did not disseise him. Wherefore this court considers that Adam take nothing by his writ but rather be in mercy and that John go adieu without day.


1. When the defendant in an assize of novel disseisin does not appear, the assize is taken by his default: that is, he cannot object. Does this mean that nothing is said on his behalf?

2. What you have in this document is a yearbook report. The record would not record that Huntingdon had said anything. This is one of the very few reports that reveal the character of evidence. It follows clearly that we know very little of what happened at nisi prius.

3. What is the character of evidence as revealed here? Are there any rules of evidence? Is Huntingdon a witness? No, he is a pleader. Is he put under oath to give evidence? Is there a cross-examination?

4. From other matter, it seems probable that evidence had not been presented to the assize in this manner for more than maybe a decade at this time. Is the jury still expected to be self-informing?


X.B. Lawyers: Master William v. Bishop of Rochester (ca. 1290s)

Lincolns Inn, Misc. 87, fol. 24v.


One Master William brought a writ of annuity against the bishop of Rochester where it was alleged that in such a writ brought etc., they were to the countryside, which passed for the bishop. But because no judgment was made on the verdict of the inquest etc., it was adjudged that he answer further, by Mettingham [J]. And then a deed was proffered that attested that the annuity was given to William for his whole life, so that he be attendant to the business of the bishop where there was something to be done.

Est [D]. He has been against us at three places (and he named them) and thus is the cause of the annual rent defeated.

Huntingdon [P]. It behoves you to say when, that is, which day and which year, because even if your exception were right, we would not be foreclosed from the arrears except after the cause of the forfeiture and will still have the arrears from the time before.

Sutton [D]. It is not necessary, because you have an action only by the deed if there is default, but the cause[1] of the deed is that you attend to our business, whereas you have been against us, and often you have been requested to come to our counsel, whereas you have not come.

Gosford [P]. This would be a hardship, where we had served well and loyally ten or twelve years, that we should lose all our work for one forfeit which we are supposed to have made thereafter.

Malberthorpe [D]. How is that? Do you want to recover by a deed that has been defeated by your own action?

Huntingdon [P]. It would be right for us to have our arrears from the time before the forfeiture, because that which has been earned cannot be forfeited by a subsequent trespass; judgment etc.[2]

Mettingham [J]. Answer to his allegation that you have been against him.

Huntingdon [P]. Never against him after the making of the deed, ready etc.

Est [D]. You must aver that you have always been ready to come to counsel us as the deed specifies.

Huntingdon [P]. Always ready when we have been reasonably summoned, ready etc.

Therefore, a jury.



1. What, from this case, is a lawyer's obligation? Whose obligation does that remind you of? Is it not like a knight's obligation: never fight against me and always come if summoned to help me?

3. Different cases (see, for instance, #166 in the materials) refer to the annuity having been given for "service, aid and counsel." Is that not reminiscent of giving homage? Why does a lawyer get a fee?

4. In the reign of Edward I (1272-1307) it is finally established that a lawyer has obligations both to client and court, although his obligation to client is prior. Is "lawyer as hired gun" a modern concept; "lawyer as hired lance"?

5. The writ of annuity or annual rent, from Early Registers of Writs, p. 76 (1260s): The writ of annuity is made whenever one person owes another an annual rent so that that rent does not issue from any tenement. And if it does not issue from any tenement, then it cannot and ought not to increase or diminish: as when one receives twenty shillings from the chamber of any one or even from a tenement until it is provided for him further. If, however, that rent should issue from a tenement in such a way that that tenement can revert by escheat to the lord and the rent is withheld from the same lord, then let the writ of customs and services be issued to him "as in rents, arrears, and others things". And it can also be pleaded in the county court.

"The king to the sheriff, greeting. Command B. that justly etc., he render to A. one hundred marks which are in arrears to him from the annual rent of a hundred pounds which he owes, as he says, and if he does not etc. Witness etc."




X.C. Marriage


X.C.1. Draycote v. Crane (1332-3): Ecclesiastical court case

Helmholz, Marriage Litigation in Medieval England, pp. 201-203. (My translation)

Note: This is a case in an ecclesiastical court; note the difference in procedure.


In the name of God, Amen. Alice daughter of Richard de Draycote in Crophill Butler seeks that William Crane of Bingham be adjudged to her in marriage, because they contracted marriage in turn by words of mutual present consent express. And afterwards, six years having elapsed, they ratified that contract, on which there is public fame in the vill of Crophill abovesaid and in the neighboring places. The abovesaid intends and the said Alice seeks jointly and separately, saving always the benefit of law in all things.[3]

John de Draycote was sworn, examined, and diligently interrogated[4] whether he had notice of Alice de Draycote in Crophill Butler and of William Crane of Bingham and from what time. He says that he knew the woman from her childhood; he knew the man from the time he was eight years old and more. Asked whether he knew of any marriage contract ever entered into between Alice and William, he says yes. Asked what he knows to depose on this, he says that he was present, saw, and heard when the said William accepted the said Alice by hand by saying thus: "Here I accept you, Alice, as my legitimate wife to have and to hold until the end of my life if holy church permit this, and I give you my faith of this." The woman answered immediately to the same William "William, here I accept you as my legitimate husband to have and to hold until the end of my life if holy church permit this, and I give you my faith of this." Asked concerning the place, time, day, hour of the day, and those present, he says that in the home of Henry de Kyketon at Crophill Butler on the feast of St. John the Evangelist near Christmas in the 8th year last near nightfall. Concerning the day indeed on which that feast occurred, he does not remember because of the lapse of time. Those present were the contracting parties, the deponent, Elizabeth Crane, Adlina daughter of Robert de Crophill, cowitnesses with Henry de Kyketon and Felicia his wife who have entered the way of all flesh. Asked the age of the contracting parties at the time they entered into the contract between them, he says that the man was at that time thirteen years and more; the woman was almost fourteen years. Asked how he knows this, he says that he learned it from the relation of Alice de Kyketon, mother of Alice, from whom it was inquired concerning the age of the woman. Concerning the age of the man, from the relation of his godmother who raised him from the baptismal font. Asked about the clothes of the contracting parties and in what part of the house they contracted and whether they were standing or sitting, he says that the man wore a tan-colored tunic and a green hat; the woman, a black tunic and a particolored hat. And they sat in the southern part of the house near the fire. Asked about his reason for having been there then, he says that he was there in the house of his mother as one of the family. Asked about the fame, he says that on the abovesaid matters there was public voice and fame in the vill of Crophill and the neighboring places.

Hugh Wodecok of Bingham was sworn, examined, and interrogated whether he had notice of William Crane of Bingham and Alice de Draycote of Crophill and from what time. He says that he knew the man from the time he was eighteen; he has not known the woman, as he says. He was then questioned on the first article, which is such: "In the first place, William intends to prove that if there was ever any marriage contract between the same William and the said Alice -- which he does not confess -- the aforementioned William at the time of this kind of contract was less than twelve years old and was considered such." He says that he heard from a certain Elizabeth Crane that a certain marriage contract was entered into between the same William and the same Alice around Christmas nine years ago; this same witness, however, was not present at that contract. He also says that the aforementioned William at the time of this contract was eleven years old and no more. Asked how he knows this, he says that he knows this by his fellows in the vill of Bingham and by a certain one his own daughter who is of age and by the public fame of the place which holds this. He was then asked on the second article, which is such: "The said William likewise intends to prove that if any marriage contract was entered into between the same William and the same Alice at any time, as it seems to be proved judicially by the witnesses of the same Alice -- which, however, the same William does not confess -- that aforementioned William before and after the time of such contract was refusing and contradicting and unwilling, nor to this time has he consented to the same Alice as his legitimate wife, but he has always dissented. He says that he heard from the aforementioned William and from others who were present then that he was brought by fear to thus contract with the said Alice by a certain Elizabeth Crane, who wanted to cut off his ear if did not do it. He, however, did not see this, because he was not present. Also, he says that from the said time of the contract till now he has always heard the same William contradicting and refusing, and he saw him always fleeing the company of that woman in all places in which he saw them. And on the abovesaid matters there is public voice and fame.

Simon Couper of Bingham was sworn etc. Asked concerning notice of William Crane of Bingham and Alice de Draycote, he says that he has known the man since he was twenty years old and more; he has not known the woman. Asked on the first article, he says that it contains the truth and he agrees with the first witness, excepting this that the abovesaid William at the time of such contract was eleven years old and more. And this he knows from the relation of others and from the fame of the place, which holds this. He says, however, that he had not attained the age of twelve at the time of such contract. To the second and third articles he agrees.

William Machon' of Bingham was sworn etc. Asked concerning notice of William Crane and Alice de Draycote, he says that he knew the man from the time he was twenty years old; the woman, for half a year. Questioned, he agrees on the three articles.

In the name of God, Amen. Having heard and understood the merits of the matrimonial case before us, the official of the lord archdeacon of Nottingham, the case moved between Alice daughter of Richard de Draycote of Crophill Butler actor appearing personally on the one side and William Crane of Bingham accused appearing by Adam de Sewale clerk his procurator on the other side, we decide as in the purport contained in the following words to the given libellus:

In the name of God, Amen etc. The suit having been legitimately contested by negative words to the same, the oath offered by the parties having been said concerning the challenges and concerning the truth, the witnesses produced having been sworn, examined, and their testimony publicized, days having been given to talk with the witnesses, to talk over their testimony, and to put all things together consistent with the facts, and the order of law which is required in this case having been observed in all things, because we have found that the said Alice has sufficiently and legitimately proved her intention brought before us in judgment, we have adjudged judicially and definitively the aforementioned William as the legitimate husband to the same Alice.


1. We are used to matrimonial suits being for divorce. Most medieval matrimonial suits were to prove marriage. Can you see anything here which would sponsor such suits?

2. Ecclesiastical courts did not follow the writ system, that is, an original document which alone provided jurisdiction to the court. The closest analogue, the libel, merely set forward the plaintiff's claim; it was not a superior's order to his court to hear the case. What difference would that entail?

3. Is this solely a civil suit? Note that the parties themselves (last paragraph) had had to take an oath to tell the truth. Self-incrimination possibilities? The church court has been found to be reasonably flexible, in that the lawyers seem actually to put, at least occasionally, a superior value on the parties' salvation and avoidance of sin rather than on legal technicalities. If the court was working for the parties' spriritual good, self-incrimination was not an evil, but a good (not a position here advocated). Medieval ecclesiastical law did maintain that there was no need to expose oneself, but once accused, it was a duty for the greater glory of God to confess: moreover, it was a benefit to one's salvation.



X.C.2. Pastrel v. Amory (1308): Court of common pleas

SS.17.33

A writ of entry causa matrimonii prelocuti


One Muriel brought a writ of entry against one Gilbert, saying "into which he had no entry, save through Thomas, to whom she demised by reason of an agreed-upon marriage."

Passeley [D]. True it is that the tenements were in the seisin of one Muriel, who gave them to one Thomas and his assigns to hold for the life of Muriel, rendering to her 2m yearly, and to the chief lord [by the accustomed services], and that this was done by this writing. Judgment, whether she can have an action, since her own deed proves that the tenements were given for a cause other [than that mentioned in her writ].[5] And, further to affirm our estate, Muriel released and quitclaimed her right.

Westcote [P]. By which of these two allegations will you abide?

Passeley [D]. We put forward the deed to traverse the cause [of the gift]; for whereas you say that we have no entry save by reason of an agreed-upon marriage, your deed proves the contrary; and then the quitclaim is evidence to affirm our estate.

Willoughby [P]. You must hold to one of the two, for each may take a different issue.

Passeley [D]. If I only used the writing [and not the release], I should suppose [the existence] of a reversion [in Muriel]. So it behoves me to aid myself by [the writing] to disprove the cause of the demise as stated in the writ, and then it behoves me to affirm my estate by [the release].

Westcote [P]. Whatever deeds they may put forward, we are ready [to aver] that the tenements were given as we have said.

Passeley [D]. Your deed or not your deed?

Westcote [P]. Where the tenements are given for such a cause as aforesaid one would not say in the writing "This gift is conditional"; so, if I be not admitted to aver the cause against the charter and the writing, it would follow that gifts of tenements for such a cause would never be established.[6]

Bereford [J]. Confess the deed and then betake yourself to your objections.

Westcote [P]. That would be another way of pleading.

So the cause pends.


1. What is the situation that lies behind this writ, entry causa matrimonii prelocuti?

2. You see here another complicated argument about doubleness of issue.

3. Look again at Westcote's second last statement. Why would one not put in the deed that it was conditional? That would be the obvious thing to do. That one would not must indicate some legal maneuver: what is it?

4. The next case might help.


X.C.3. Jordan v. Neel (1286): Justices Itinerant (common law)

JUST 1/210, m. 1d.


[John Jordan brought an assize of mort d'ancestor on the seisin of Walter Jordan, his brother, against William Neel and Edith, his wife. Neel objected that Jordan had a still older brother who was still alive and also that Walter Jordan had not died seised. The jury verdict follows:][7]

The jurors say on their oath that the abovesaid John is next heir of the abovesaid Walter, on whose death etc., and as to the article of the writ -- "if the same Walter died seised etc.," -- they say that matrimony was agreed upon between the abovesaid Edith and the abovesaid Walter the first husband of the same Edith. And after the parties consented to that marriage, the same Walter one month before the marriage celebrated between them gave the abovesaid tenements to the abovesaid Edith to hold to herself and her heirs and he put her in seisin. Asked what kind of esplees the same Edith took from the abovesaid tenements before he married her, they say that she took vegetables in the garden of the abovesaid messuage to make her pottage thereof and she remained in the abovesaid messuage, without this that the same Walter returned to her in the same messuage or had any goods in it. Asked also if the same Edith took any profit in the abovesaid lands, they say no. Asked at what time this was done, they say that it was done immediately after Michaelmas.[8] Asked also if before the livery of seisin to the abovesaid Edith the same Walter gave his faith to her by words which make marriage, they say no, but by common friends the marriage was agreed upon thereof between them, and it was secured that at the end of the abovesaid month the abovesaid Walter would marry the abovesaid Edith.

And because it is found by that assize that the marriage had been agreed upon thereof between friends and that it was secured before the abovesaid feoffment and a certain time had been set to celebrate the same marriage between them in the presence of the church, to wit, at the end of the abovesaid month and thus in the hope of resuming the same tenements at a certain time [to wit] at the time [he married] her, that that feoffment was not simple and that the abovesaid Walter of whose death etc., died seised of the abovesaid tenements in his demesne as of fee, it is considered that the abovesaid John recover seisin thereof by view of the recognitors and William and Edith his wife be in mercy etc. No damages, because the lands are improved etc.


1. This is a case of the deceased husband's brother against widow and her new husband. The marriage, thus, had gone to completion, so that all conditions considered appended to the marriage had been fulfilled. The feoffment was nevertheless undone. Why? Was there not a sufficient establishment of seisin? Or was it something about the grant? The grant was considered void, not simply voidable. The difference is that the law considered that the grant had simply been ineffective from the very beginning, not just capable of being defeated.

2. If a grant conditioned on a marriage was not simply voidable but void, what would the existence of a deed saying that the feoffment had been conditional on the marriage have done, as in the previous case? Would it not have made such a deed absolutely useless?

3. How then did one protect against the man or woman, as grantee, simply taking the fee and then not marrying? What if one made out two deeds, one conditional and one unconditional? Who would keep which? What would happen then after the marriage? What would happen if the marriage failed to materialize?[9]

4. This type of transaction is essential in the history of the use, the antecedent to the modern trust. Make sure you figure out the reason why one would make contradictory deeds and the role such deeds would have in enforcing conditions.
XI. Uses and Equity

Uses were the antecedents of the modern day trust. Once uses were well established, in the fifteenth century, one would describe it in the following way. Since the common law did not allow wills to be made concerning land and since Quia emptores prohibited lords from objecting to alienations, a tenant of a fee simple could alienate the fee simple to joint tenants. As an inter-vivos transfer, this was unobjectionable. The joint tenants had the fee simple, but if this was a collusive grant, the joint tenants could hold it solely for purposes specified by the grantor: the grantor had given up the common law title, but had retained every usage of the land. There were substantial benefits to this process, if the joint tenants were trustworthy. One could instruct them about what to do with the land after you died: since they were the common law title holders, of course, they could thus choose to do it. If they were careful, they could alienate to another group of joint tenants to keep the land from falling into wardship (only at the death of the last joint tenant would the land go into wardship: that could be avoided by a grant to another set of joint tenants). Thus, one could get greater benefit from land by alienating it to joint tenants than by keeping the legal title. The only complication was the reliability of the joint tenants, called the feoffees to uses. In the late fourteenth century the chancellor began to supervise these arrangements sporadically, making the feoffees do what they should; by mid-fifteenth century it had become a regular jurisdiction making the chancellor the head of a court of conscience; that court would later develop into what came to be known as a court of equity. If this is how one would describe the use in the fifteenth century, however, it does not even come near to answering the process by which the use began in the fourteenth century after the Black Death (1348-51, first plague).


XI.A. Godwyne v. Profyt (after 1393): a petition to the Chancellor

SS.10:48-49


To the most reverend Father in God, and most gracious Lord, the bishop of Exeter, Chancellor of England.

Thomas Godwyne and Joan his wife, late wife of Peter at More of Southwerk, most humbly beseech that, whereas at Michaelmas in the 17th year of our most excellent lord King Richard who now is, the said Peter at More in his lifetime enfeoffed Thomas Profyt parson of St. George's church Southwerk, Richard Saundre, and John Denewey, in a tenement with the appurtenances situated in Southwerk and 24 acres of land 6 acres of meadow in the said parish of St. George and in the parish of our Lady of Newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said Peter, enfeoff the said Joan in all the said lands and tenements with all their appurtenances for the life of the said Joan, with remainder after her decease to one Nicholas at More, brother of the said Peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to Holy Church for his soul; whereupon the said Peter died.[1] And after his death two of the said feoffees, Richard and John, by the procurement of one John Solas, released all their estate in the said lands and tenements to the said Thomas Profyt, on the said conditions, out of the great trust that they had in the said Thomas Profyt, who was their confessor, that he would perform the will of the said Peter [at More] in the form aforesaid; and this well and lawfully to do the said Thomas Profyt swore on his Verbum Dei and to perform the said conditions on all points. And since the release was so made, the said Thomas Profyt, through the scheming and false covin of the said John Solas, has sold all the lands and tenements aforesaid to the same John Solas for ever.[2] And the said John Solas is bound to the said Thomas Profyt in 100 pounds by a bond to make defence of the said lands and tenements by the bribery (?) and maintenance against every one; and so by their false interpretation and conspiracy the said Joan, Nicholas, and Holy Church are like to be disinherited and put out of their estate and right, as is above said, for ever, tortiously, against the said conditions, and contrary to the will of the said Peter [at More]. May it please your most righteous Lordship to command the said Thomas Profyt, Richard Saundre, and John Denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said Joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious Lord, shall be found and proved; for God and in way of holy charity.


1. Why is this document directed to the Chancellor? What did he have to do with dispensing justice?[3] Why not take the case to the king's court? Such petitions to the chancellor came to be settled by the chancellor in his court of conscience, new from around 1370. This court handled matters on the basis of fairness and did not formally change the law. For matters in which the chancellor wanted to change the law, he would issue a new writ (and thus begin a new common law remedy). When he only wanted to remedy the occasional problem inevitable given rigid application of rules of law in the common law courts, he took an individual case and settled it himself. These cases tended to fall