Our Legal Heritage Part 27

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

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

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

All s.h.i.+pwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them.

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

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

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

- Judicial Procedure -

Henry II wanted all freemen to be equally protected by one system of law and government. So he opened his court, the Royal Court, to all people of free tenure. A court of five justices professionally expert in the law, traveled with the King, and on points of difficulty consulted with him. Justices began to be more than presiding officers; they, instead of those attending, rendered the judgments. The chief court was in Westminster, where the weightiest decisions were made. Other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. They came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and nonperformance of homage, and a.s.sessing feudal escheats to the crown, wards.h.i.+ps to which the king was ent.i.tled, royal advowsons, feudal aids owed to the King, tallages of the burgesses, and debts owed to the Jews. The decision-making of itinerant justices on circuits begins the process which makes the custom of the Royal Court the common law of the nation. The county courts, where the traveling justices heard all manner of business in the counties, adopted the doctrines of the Royal Court, which then acquired an appellate jurisdiction. The itinerant justices came from the same small group of royal justices who were on the Royal Court and the Exchequer, which was headed by the justiciar. Difficult cases were decided by the king and wise men of his council.

Tenants of manors and of escheats in royal hands, who had been excused from the monthly county court, were required to appear. Side by side with the reeve and four men of the rural towns.h.i.+ps appeared the twelve legal men of each of the chartered boroughs which owed no suit to the ordinary county court. In the formation of the jury of presentment for criminal cases, each hundred sent twelve legal men and each towns.h.i.+p four to make report to the justices. Women did not serve on juries.

Compurgation was not used; accused persons were sent directly to the ordeal. In 1194, twelve knights or legal men from each hundred answer before any itinerant justice for their hundred in all criminal, civil, and fiscal cases. All who are bound to attend before the itinerant justices are, in the forest counties, compelled to attend the forest courts.

The Royal Court was chiefly concerned with 1) the due regulation and supervision of the conduct of local government, 2) the owners.h.i.+p and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), 3) the repression of serious crime, and 4) the relations between the lay and the ecclesiastical courts.

The doctrine of tenure applied universally to the land law formed the basis for judicial procedure in determining land rights. Those who held lands "in fee" from the king in turn subinfeudated their land to men of lesser rank. The concept of tenure covered the earl, the knight (knight's service), the church (frank-almoin [free alms]), the tenant who performed labor services, and the tenant who paid a rent (socage).

Other tenures were: serjeanty [providing an implement of war or performing a nonmilitary office] and burgage. All hold the land of some lord and ultimately of the King.

Henry was determined to protect lawful seisin of land and issued a.s.sizes giving the Royal Court authority to decide land law issues which had not been given justice in the county or lord's court. But he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. Rather he gave protection to mere possession of land, which could be justified because possession was intimately a.s.sociated with the maintenance of the king's peace.

These a.s.sizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. Though the petty a.s.size of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand a.s.size on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. The temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. Any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin.

An example of a writ of novel disseisin is: The king to the sheriff, greeting. N has complained to me that R unjustly and without a judgment has disseised him of his free tenement in [Houndsditch] since my last voyage to Normandy. Therefore I command you that, if N gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until Sunday after Easter. And meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ.

And summon them by good summoners to be before me or my justices on the Sunday after Easter, ready to make the recognition. And summon R. or his bailiff if he himself cannot be found, on the security of gage and reliable securities to be there then to hear the recognition. And have there the summoners, and this writ and the names of the sureties.

Witness etc.

Then an a.s.size panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: 1) Was the plaintiff disseised of the freehold in question, unjustly and without judgment? 2) Did the defendant commit the disseisin? Testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. No pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. The justices amerced the losing party with a monetary penalty. A successful plaintiff might be awarded damages to compensate for the loss of revenue.

There was also a writ for issues of inheritance of land called "mort d'ancestor". By law the tenure of a person who died seised of a tenure in a lord's demesne which was hereditary [seisin of fee] returned to the lord, who had to give it to the heir of the decedent. If the lord refused and kept it for himself or gave it to someone else, the heir could sue in the Royal Court, which used an similar a.s.size panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. Then it could give possession to the heir. Since about 1150, heiresses divided the land of their father if there was no son. The widow, of course, retained her dower rights. As of 1176, the widow held her dower from the heir instead of from the husband's lord. If the heir was a minor, the guardian lord would be in actual control of the land. A national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord.

Eventually royal justices acquired authority to decide the ultimate question of right to land using the grand a.s.size as an alternative to the traditional procedures which ended in trial by combat. Issues of the ultimate right of seisin were brought to the Royal Court by a contestant in a local court who "put himself [or herself] upon the King's grand a.s.size". The a.s.size consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. The avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. An example of a writ praecipe is: "The king to the sheriff greeting. Command [praecipe] N. to render to R. justly and without delay one hide of land in a certain vill, which the said R.

complains that the aforesaid N. is withholding from him. If he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of Easter, to show why he has not done so. And have the summoners and this writ. Witness." When the parties appeared in court, the claimant states his suit such as: "I claim against this N.

the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of King Henry the First, and from which he took the profits to the value of five s.h.i.+llings at least, in grain and hay and other profits; and this I am ready to prove by this freeman of mine, H., and if any evil befalls him them by this other man or by this third man, who saw and heard it". Then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand a.s.size of the king. If he chose trial by combat, the parties or their champions fought. The party losing, usually by crying craven, had to pay a fine of 60s. If the grand a.s.size was chosen, the action was removed to the Royal Court. A writ of grand a.s.size was issued as follows: "The king to the sheriff, greeting. Summon by good summoners the following twelve, namely, A. B. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether N.

or R. has the greater right in one hide of land (or other things claimed) which the aforesaid R. claims against the aforesaid N., who is tenant, and in respect of which the aforesaid N., who is tenant, has put himself upon my a.s.size and has sought a recognition to determine which of them has the greater right in the things claimed. And meanwhile the twelve shall view the land (or tenements from which the services are demanded). And summon by good summoners N., who is tenant, to be there to hear the recognition. Witness..." The claimant could object to any of the twelve knights for just cause as determined by the court. Each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. This oath was not to speak falsehood nor conceal truth according to knowledge gained by eyewitness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". If any did not know the truth of the matter, others were found until twelve agreed [the recognitors]

on which party had the greater right. Perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. If the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. If the warrantor lost, he would have to give to his va.s.sal equivalent land in exchange. Burgage tenure was not usually decided by a.s.size. Also, if the parties were relatives, neither the a.s.size nor the combat was available to them, but the matter had to be decided by the law of inheritance.

Itinerant justices could conduct these a.s.sizes: petty and grand. In 1198, the hundred is empowered to act on all the business of the session, including all recognitions and petty a.s.sizes ordered by the king's writ, where the property in dispute was worth no more than 200s.

[ten pounds] a year. The four knights came to be selected by the suitors of the county court rather than by the sheriff.

This a.s.size procedure extended in time to all other types of civil actions.

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

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

Henry involved the Royal Court in many criminal issues, using the agencies of the county and hundred courts. To detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. A traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. They made such inquiries through a.s.sizes of presentment, usually composed of twelve men from each hundred and the four best men of each towns.h.i.+p.

(These later evolved into grand juries). These a.s.sizes were an ancient inst.i.tution in many parts of the country. They consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them.

What Henry's a.s.size did was to insist upon the adoption of a standard procedure everywhere systematically. The procedure was made more regular instead of depending on crime waves. If indicted, the suspected persons were then sent to the ordeal. There was no trial by compurgation in the Royal Courts, which was abolished by Henry. If determined guilty, he forfeited his chattels to the king and his land reverted to his landlord.