Our Legal Heritage : 600-1776 King Aethelbert - King George III

by S. A. Reilly

Then an assize 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 assize 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 assize 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 assize". The assize 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 shillings 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 assize 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 assize was chosen, the action was removed to the Royal Court. A writ of grand assize 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 assize and has sought a recogniton 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 recogniton. 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 eye-witness 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 vassal equivalent land in exchange. Burgage tenure was not usually decided by assize. Also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance.

Itinerant justices could conduct these assizes: petty and grand. In 1198, the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes 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 assize 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 restitution 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 assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (These later evolved into grand juries). These assizes were an ancient institution in many parts of the country. They consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. What Henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. The procedure was made more regular instead of depending on crime waves. If indicted, the suspected persons were then sent to the ordeal. There was no trial by compurgation 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. If he passed the ordeal but was ill-famed in the community, he could be banished from the community. The ordeal was abolished by the Lateran Council of 1215.

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

If a man failed at the ordeal, the penalty prescribed by the assize of Clarendon of 1166 was loss of a foot and abjuring the realm. The assize of Northhampton of 1176 added loss of the right hand. Under the former assize, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal.