The following cases derive from the plea rolls, the records of the king's court, written in Latin. These records become more formal and lengthy later on; these are some of the earliest. The following cases are not typical; most cases are very straight-forward and uninformative. These cases represent a strand of the development of novel disseisin that seems new at the time the plea rolls first survive, in 1194.
V.A.1. Woodbridge v. Bardolf (Pal. 1:48) (1194, king's court)
Ralf of Woodbridge seeks before the justices his free tenement in Hebston by the assize of novel disseisin against Hugh Bardolf. Against which assize Hugh said that he had that seisin by judgment of his court for the default of the same Ralf. And the court has recorded the summonses and distraints reasonably made on the same Ralf.
And Ralf himself has acknowledged the summonses and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee.
And because neither he nor anyone for him has complained to the justices that Hugh unjustly drew him into a plea concerning a tenement which Ralf himself held of the fee of another lord, it is considered that Hugh hold in peace. And let Ralf plead by writ of right if he want and be in mercy for his false claim.
1. Note that just because Woodbridge lost in novel disseisin does not mean that he would have a problem with a writ of right; moreover, simply because he should not have lost, because he merely pleaded the right thing at the wrong time, does not mean that he wins at novel disseisin.
2. Note that Bardolf's court had to come in and attest to the process in feudal court. That usually meant that four men of the court had to come in to testify before the king's justices; anything less would be insufficient. Is that cumbersome?
V.A.2. Turroc v. fitz Walter (RKC, 40)(1194, king's court)
The assize came to recognize if Clement son of Walter unjustly and without judgment disseised Matilda of Turroc of her free tenement within the assize.
Clement comes and says that he disseised her by judgment of his court.
The court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come into court, and she so responded that she remained in mercy of 10s by judgment, so that for that amercement and for other complaints she made fine with her lord for 1/2 mark and put her land in pledge in his court and did not want to render the 1/2 mark. And therefore by judgment of his court he seised it.
Matilda denies all word for word.
And the same Clement only produces two men from his court; and it is considered that it was no court.
Judgment: let Matilda have her seisin and let Clement be in mercy for disseisin.
1. Is it worthwhile to distrain by the fee anymore? If a sufficient number of the court does not appear, the lord will be amerced.
2. What happens when court process is regulated? Does it change in character? Think about federal regulation of state courts: does that change the nature of state court adjudication? What about supervision of landlord/tenant problems? Does that change the character of leases?
V.A.3. Fitz Hereward v. Prior of Lecton (RKC 134)(1195, king's court)
The assize came to recognize if the prior of Lecton unjustly and without judgment disseised Reginald son of Hereward and Essolda his wife of his free tenement in Clapston after the first coronation of the lord king.
The prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing.
It is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. And let him treat them justly by judgment of his court.
1. The prior here had done everything he was supposed to do; he had followed the feudal court procedure and finally taken the land in his hand to hold until the tenant showed up to answer for the arrears of rent and service. As Glanvill indicated, he could well do this without writ. Moreover, he should have been able to declare the land forfeit also without writ. What has the prior gained from all this? Absolutely nothing. He has not lost the case, but he has not succeeded in exacting the appropriate sanction for the default. Not only then are there problems with getting enough of the lord's court to appear, even if they do appear and the lord and his court had done everything right, the case was not dismissed with the plaintiff amerced: rather they are returned to the lord's court to do it over again.
V.A.4. Stanfeld v. Brewes (Pal. 1:366)(1199, king's court)
The assize comes to recognize if Simon of Brewes and Luke cleric and Peter of Brewes unjustly and without a judgment disseised Odo of Stanfeld and Juliana his wife of her free tenement in Michehey within the assize.
Simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -- which he produced and which attests to this -- for default of his service.
And it was testified that Odo holds that land from the same Simon.
Simon was ordered to replevy that land to Odo as well as the chattels and to treat him rightfully in his court.
1. What has Brewes gained? Nothing. He did everything right but is just returned to his court to redo everything.
2. Would it not make just as much sense and be safer merely to distrain now by chattels, and not by the fee? What does that do for the tenant and the character of his tenancy? Disciplinary authority in the lord's court has been gutted. The lord can proceed against the recalcitrant tenant by writ of right, but that is cumbersome. While the lord retained his disciplinary jurisdiction and power, the action of mort d'ancestor was not monumental in its effect on inheritance: what difference did it make to the lord to be obliged to accept the heir if he could disseise the heir easily when he proved to be unsatisfactory? When novel disseisin guts the disciplinary power, however, mort d'ancestor's protection of inheritance assumes much greater significance. It is one thing to be seised and always conscious that an infraction will result in rapid and effective disseisin; it is wholly another to be seised and know that the lord would have a difficult time dislodging you.
fitz William v. Amice et al.(CRR 1:186)(1200, king's court)
The assize comes to recognize if Amice who was the wife of Richard earl of Clare and Hugh of Ceriton, John of Cornherd, William of Wattevill, Alexander son of Gilbert, Alexander son of Matthew, Bartholomew son of Alexander, Robert of Cornherd, and Geoffrey son of Leveric unjustly and without judgment disseised Richard son of William of Sudbury of his free tenement in Sudbury after the feast of St Michael next before the coronation of the lord king.
The countess says that, when she was separated by papal order from the earl of Clare her husband by reason of consanguinity, to which husband the vill of Sudbury had been given with her as marriage portion, she came to Sudbury and convoked her court and made the same Richard to be summoned to come to show by what warrant he held her land. He willingly entered into the plea and vouched the earl of Clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. And thus by consideration of her court she seised her land and holds it. Which court she produced and which attests this.
Richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. And this he offers [to prove].
It is considered that he defend himself 12-handed that he did not willingly enter into the plea and vouch to warranty. Let him wage his law [prove by the 12-handed oath, thus, by compurgation].
Pledges of the law: Hugh son of Hugh, Wido of Sudbury.
Day is given them at the quindene of St. John.
[Thereafter, CRR 1:249]
This is the suit of Richard of Sudbury: [there follow the names, but only of 10 men] against the countess Amice who was the countess of Clare, concerning whom he had complained concerning a novel disseisin of his free tenement in Sudbury. She said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. And he denied against her and against the suit, and law was adjudged. And he comes with his law and makes it with the abovesaid suit.
Therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same Richard has complained. And let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity.
The names of the men of the countess are in the writ.
1. First figure out the factual situation. The earl, putative husband of the countess, had granted Richard the land. He could legitimately do that, but only if the earl was really the countess's husband. He turned out not to be: the supposed marriage was void from the beginning. The dissolution of the marriage produces a serious problem. Since this was a marriage portion and not a fee, the earl had not done homage for it. Pray tell, to whom (if it had been due) would he have done homage to? The same person of course probably arranged the marriage. That was probably the king.
2. What would the earl have thought about all this now? He had thought his resources were larger when he granted the land to Richard. Would he want to warrant? Should Amice stand to that grant? made by one who in reality had no proper right to make it? There was no reason in justice why she should. A few years before (maybe at any time before this) her action would have been procedurally correct as well as substantively correct.
3. Is this a disciplinary or proprietary question? Does she need a writ? This is an odd proprietary case. Richard had done nothing wrong. Amice is only checking on his warrant: "do I have a relationship with you such that you should be on the land?" Since it is a proprietary case, it falls under the writ rule: No man need answer for his free tenement without a royal writ. What if the tenant willingly enters into the suit? If he agreed to answer, the rule would not work in his favor.
4. Does Richard have no title or just invalid title? What if you describe seisin as lawful possession; one could say possession gained from one who had right to give it. And whom will novel disseisin protect? Having gone as far as it had in V.A., the court here seemed to be saying that one who had entered seemingly lawfully, who had a colorable entry even though insufficient entry, would be protected by novel disseisin (novel disseisin, because that writ would enforce the writ rule). Thus seisin has grown somewhat from lawful possession derived only from the lord.
5. Did Richard realize what his best case was, or did the court's definition of what had to be proved strike them as something new? This, of course, is the application of the writ rule against the lord, the situation that falls outside the normal social expectations. The writ rule is now a rule of law. What can the lord's feudal court do? Now, nothing.
6. What can Amice do now? She could bring a writ of right. This would be a downward looking plea, would it not: lord against tenant? But it would have to be addressed to the lord from whom Amice claimed to hold. What if her lord were the king? Then the appropriate writ would the precipe of first summons. Called into court, Richard would have vouched the earl to warranty, who could then have vouched the king. Would the king readily be willing to acknowledge warranty obligations to both the earl and to Amice in this situation? After all, the whole thing arose because the earl and Amice had a consanguinity problem; should the king be held responsible for the consequences of that? Amice in fact cannot be found to have done anything further against Richard; I doubt that she did. Why? She would have had to judge whether attempting to get rid of Richard would have been worth getting the King John annoyed with her for bringing this problem forward. This situation is the conceptual origin for the later development of the writ of entry cui ante divortium (a writ very like the writ of entry cui in vita that you will see below). Still, Amice still should have ended up with the land.
7. Amice is a turning point; study her situation well. When, in disciplinary situations, such as those in V.A. above, the king's court just tells lords to go back and handle the matter in their court without any penalty on the tenant, and in proprietary situations such as Amice, the king's court applies the writ rule against lords, to what degree is the relationship between lord and man still primary? The king's court regulation of the relationship had transformed personal relationships into law. And do you see how at this point one can begin to speak of property instead of merely of contractual tenures?
V.C. The Writs of Entry
Traditionally, the king purposely created a legal system to undermine the magnates of the kingdom and aggrandize themselves for financial gain and power. In that conceptualization, the assize of novel disseisin (in that conceptualization thought to have begun in 1166 or earlier), only possessory in nature, was acceptable to the magnates because it left them with the determination of right in their feudal courts. The writ of right seemed like a licensing mechanism, but it also left jurisdiction to the feudal courts. The grand assize, while it removed such cases from feudal courts, came later and still left open the possibility of trial by battle in feudal courts. Step by step, then, the king presented other options to litigants; better procedures enticed litigants away from the local courts; each stage diminished the actual authority of lords and softened them for the next incursion on their authority. That view, of course, is quite different from the one presented in class. This simplified overview of the opposing viewpoint, however, will present the framework for evaluating the writs of entry.
The writs of entry constituted a middle tier in the realm of writs concerned with real property. The assizes of novel disseisin and mort d'ancestor were possessory; the writ of right and the precipe for first summons were proprietary; the writs of entry were an intermediate stage. One could thus bring an assize of novel disseisin and lose; thereafter bring a writ of entry and lose; and finally bring a writ of right. One could not go in the reverse order; each stage of this litigation tier was both more searching and more determinative than the former.
Writs of entry first appeared right around 1199. The first was the writ of entry ad terminum qui preteriit. The writs of entry sur disseisin, by guardian, and cui in vita followed before 1215. Only ad terminum qui preteriit was frequently used prior to 1220. The questions that follow these writs will help understand each writ individually; we shall then try to understand them as a group. Keep in mind that what you are seeing is the origins of property, a phenomenon of great social impact. The effect of the perception here is that it explains the reason why the magnates, far from protesting against writs of entry as another incursion on their feudal power, welcomed the writs of entry and were to protest that the king was not providing an adequate number of such writs.
V.C.1. The Writ of Entry ad terminum qui preteriit (for a term that has expired)
The king to the sheriff, greetings. Command Tertius that justly and without delay he render to Claimant ten acres of land with appurtenances in Whilton into which he has no entry save by [per] Secundus, the father of the said Tertius, whose heir he is, to whom [cui] Propositus, father of Claimant, whose heir he is, gaged them [by 1220: demised them] for a term that has expired, as he says. And if he does not [so render] . . . then summon etc.
1. This is, obviously, something akin to a leasing situation, in which the lessee is holding over. The original form, however, is for a gage; you will recognize the word from its current usage: mortgage (a mort gage is a dead gage, that is, a gage whose revenue does not serve to pay off the debt, as distinguished from a live gage, whose revenue does pay off the debt). Think carefully about this writ.
2. Traditionally, in the "classical" theory, what does this writ look like? Consider the question from two angles.
First, this writ is returnable into the king's court; what does it do to a lord's jurisdiction? In the traditional view, it removed another sector of property litigation from feudal court into the king's court.
Second, this writ is drawn, in the example above, at maximum reach. The writs of entry were from the beginning governed by what came to be known as the "per and cui rule." The rule is best stated in the following way.
A claimant can sue a tenant with a writ of entry if and only if the current tenant can be connected back to the claimant or the claimant's ancestor, however remote, by using either (or both) the words per (by) and cui (to whom) only once, while listing all the intermediate tenants.
Thus, if Tertius had died leaving his son Quartus on the land as tenant or if Tertius had sold to a stranger, the claimant could no longer have used a writ of entry; he would have had to resort to a writ of right. What is the reason for this restriction? Is it akin to other limited and cautious, but determined, incursions on lords' authority in their own courts?
3. Consider a possibility different from the traditional perspective. A gage was security for a loan. The undertaking was that, if the gagor did not repay, the gagee would become tenant. What would the gagor's lord think of all this if he had not been involved in the transaction? Ignoring him would deny his lordship. Had the lord been in full possession of his disciplinary authority, as he still was in 1188 and up until 1194, the lord could have disseised both the gagor and the gagee with impunity. No sensible lender would have loaned money on such a gage without the approval of the lord. The only sensible process would have been for gagee and gagor to make their arrangement before the lord and with his assent, with the arrangement being in the form of a conditional grant by substitution with the lord's consent, something like a conditional surrender and regrant.
This writ, however, did not appear until after the lord lost his disciplinary authority; the first known such writ was in 1199. After the loss of disciplinary authority, in the changed social situation, however, would repayment have been necessarily in the presence of the lord? If repayment was not in the presence of the lord, how would he know who his appropriate tenant should be when the gagor claimed that he had repaid. The lord had been excluded from the social situation. He could not just believe the gagor, however, because the gagee was in by the lord's consent: he had been seised and was now, after the scheduled time for repayment, claiming that he had a fee. If the lord acted against him, Secundus could sue him in novel disseisin. If Secundus was dead, leaving his son Tertius, then Tertius was on the land because of Secundus seisin, so that he was protected by mort d'ancestor. Thus the per and cui rule made those tenants vulnerable to a writ of entry who were protected in their possession by novel disseisin and mort d'ancestor against the lord's action in his own court.
The claimant could of course bring a writ of right in the lord's court. Secundus or Tertius would claim the lord's protection; in county court or the king's court (by removal), the lord would be vouched to warranty. If repayment had not been made, he ought to warrant Secundus or Tertius; if repayment had been made, he ought to warrant claimant. He could not know if repayment had been made, so that he might be burdened with the wrong tenant and furthermore be bound to provide escambium to the other party, simply because he did not know because he had been excluded from the social situation. That would accord with no one's idea of fairness. The claimant's use of the writ of entry delayed use of the writ of right and allowed determination of the issue about which the lord did not know. A further rule applicable in the writs of entry from the very beginning was that
No one outside the line in the writ of entry could be vouched to warranty.
Thus, the lord could not be vouched to warranty in this writ, so that the case would exclude him, because he had been excluded from the social situation. The lords liked this, since it avoided unjustly burdening them with escambium obligations. The two rules (per and cui; no vouching outside the line) demonstrate that the writs of entry allowed claimants to sue those people whose seisin was protected against lordly action by novel disseisin and mort d'ancestor while preserving lords against unjust imposition of escambium obligations. Thus the writs of entry adjusted the law to provide for problems newly created by the assizes. The loser, of course, could always bring a writ of right that could result in the lord being burdened with escambium, but at least the lord would go into the case with some good idea of what had happened and who is tenant should be.
V.C.2. The writ of entry sur disseisin
. . . Command Tertius that . . . he render to Claimant ten acres . . . into which he has no entry save by [per] Secundus, to whom [cui] Primus demised them, who disseised the said claimant unjustly thereof . . . .
1. The assize of novel disseisin was available only between disseisor and disseisee; if either died or the disseisor granted the land to another, then the assize of novel disseisin was not available. Note that a real action (an action concerned land or the equivalent, the suit always had to be brought against the actual tenant. The writ of entry sur disseisin (sur means "on") was originally issued only when disseisor or disseisee had died while there was a plea of novel disseisin pending; it was then also allowed when the disseisor granted further. The instances in which it was available were thus limited. This writ was provided in 1204.
2. Remember the per and cui rule? How many holders had the rule allowed after departure from the claimant's line with ad terminum qui preteriit? Only two, Secundus and Tertius. How many does the rule allow with entry sur disseisin? It seems, three. Is this cheating? Should the same rule yield different results? There was no contemporary explanation; indeed, no one seemed to notice the problem. That would suggest that there should be some perspective through which the two different results would seem the same. Think about that supposition before continuing.
3. If you failed to find the lord in the writ of entry ad terminum qui preteriit, are you similarly frustrated here? Who was the archetypical defendant in novel disseisin? The lord. If the defendant in novel disseisin died, who would be his successor? Note that more than one defendant could be named in novel disseisin: the principal disseisor and others (the principal disseisor was the vital person for the rule.) In such an instance, the disseisor leaving a son and heir, one might say that the heir had no entry save by Primus who disseised etc. On the other hand, if the disseisor/lord had thought that the claimant was rightfully to be disseised (disciplinary jurisdiction?) and granted out the land to another, would that yield another situation in which Secundus as tenant entered by Primus? What would the writ look like, then, if Secundus died, leaving a son and heir? Is there any doubt in this writ which position the lord occupies? The apparent further reach of the writ of entry sur disseisin, that is, the allowance to name three people instead of only two who have had the land since the claimant or his ancestor, is thus explained as the addition of a person not at the end of the chain, but at the beginning: the lord. The lord was omitted in the writ of entry ad terminum qui preteriit because he should not have been vouched; here the lord has actually done something, however, so he should be able to be vouched and held to warranty. The reach of the writ is identical to the other writ; the only difference is whether the lord is mentioned.
4. Remember the Amice case above? What if Amice had disseised Richard (which rightfully she should have been able to do) and granted it to one of her faithful followers? What would Richard do, if the case arose in 1210, instead of in 1200 as it actually did? Would he not (if he failed in an assize of novel disseisin) use a writ of entry sur disseisin against the new tenant? Moreso, if Amice died.
V.C.3. The writ of entry by guardian
. . . Command Tertius that . . . he render to Claimant, who is of full age, as it is said, ten acres . . . which he claims to be his right and inheritance and into which the said Tertius has no entry save by [per] Secundus, to whom [cui] Primus demised them, who had only the wardship thereof while the aforesaid Claimant was underage, as he says . . . .
1. Who is the guardian of a minor heir of a tenant in fee? Is this writ more similar to the writ of entry sur disseisin or the writ of entry ad terminum qui preteriit?
2. Do you see only real wrongdoing here? A male heir of a tenant in fee came of age at 21; an heiress, at 14. What if a lord had a son and heir only a year older than the tenant's heir, newly born, whereupon his father died. The lord's son would grow up with his father having beneficial disposition of the land. Would a son always know precisely why his father had disposition of the income from an estate? Would the situation be more complicated for this young lordly heir if his father had given the tenant's heiress as wife, taking the husband's homage for the land, whereupon the heiress died, leaving a cousin as heir? Were the writs of novel disseisin and mort d'ancestor and the actions of the king's court creating new problems, or simply transferring cases from feudal court to the king's court?
V.C.4. The writ of entry cui in vita (whom in his lifetime)
. . . Command Tertius that . . . he render to Claimant ten acres . . . into which he has no entry save by [per] Secundus, to whom [cui] Primus, late husband of the said Claimant, demised them, whom she was not able to contradict in his lifetime . . . .
1. What is the relationship between husband and wife revealed by this writ? Remember that the per and cui rule concerns connecting current tenant back to claimant or claimant's ancestor. Can you make any sense out of the statement that the wife was the man of her husband? (no typographical error here.)
2. Do you see any similarity between cui in vita and any of the three previous writs?
3. Given the remedy provided by cui in vita, what substantive law is produced by this procedure?
V.C.5. Entry dum fuit infra etatem (while he was underage)
. . . Command Tertius that . . . he render to Claimant ten acres . . . into which he has no entry save by [per] Secundus, to whom [cui] Propositus, father of the aforesaid Claimant, whose heir he is, demised them while he was underage, as he says etc.
1. The social situation envisaged here is that a minor granted his land. What was his guardian doing? A minor does not have disposition of the land. Compare this situation to the writ of entry by guardian. Remember that for the purposes of the per and cui rule, the number of descents since last possessor in the claimant's line is irrelevant. What is the difference? How many people had been tenant? Compare this writ to ad terminum qui preteriit. Why the similarity?
2. At this point, you should have a theory about the perspective that makes the different results with the per and cui rule seem the same.
3. If this writ supposes that the lord/guardian was ignored and you accept the premise that a standardized writ would not be made available unless the situation envisaged had substantial social counterparts, is it significant that dum fuit infra etatem was not provided until after 1220? Can one use two-handed writs of entry to chart social situations in which lords might be ignored?
V.C.6. Entry cui ante divortium (whom before the divorce)
Note: the medieval usage of divorce was identical to our usage of "annulment": the formal marriage was dissolved because there was some bar to there ever having been a marriage (as lack of consent, consanguinity, etc.)
. . . Command Tertius that . . . he render to Claimant ten acres . . . into which he has not entry save by [per] Secundus, to whom [cui] Primus, formerly husband of the said Claimant, demised them, whom she was not able to contradict before the divorce had between them . . .
1. This writ was provided only in the second half of the thirteenth century. Why was it provided so late? Would not this writ, written only the per form against Secundus, have been appropriate in the Amice case? The situation was there; why was the writ not? Could the situation in regard to the lord's power be different? What if one posits that the difference between ad terminum qui preteriit and writs like cui in vita had to do with whether or not the lord had actually done something?
2. In a completely different vein: when ad terminum qui preteriit is provided (1199), is the suit vertical or horizontal? That is, does it presuppose a triangular world in which the lord is involved in every transaction with land? If it is horizontal, between just gagor and gagee, does this look more like property? What is the difference? And more, what does this do to the structure of society? Would one be more likely to cultivate his relationship with his lord or his land? Even with the three-handed writs, you can see that the parties suable in writs of entry are identical with those protected against lordly action by novel disseisin and mort d'ancestor. The writs of entry would not provoke any opposition from the magnates: they were not a problem, but a means to address problems.
3. If you can see that the assize of novel disseisin and the assize of mort d'ancestor in the years between 1180 and 1220 increasingly isolated the tenant from the lord's control producing property instead of precarious tenures, what economic impact would that have? When the lord is eliminated from the gaging situation, would more or fewer gages be made? Would this result in greater or lesser liquidity of resources (remembering that land at this time was by far the most important form of wealth)? From the following observations, consider how socially important the origins of property were.
England has been through two great inflations prior to the modern time. The second was in the sixteenth century, with the influx of silver from new mines in Europe and from the Americas. The first, however, was between 1180 and 1220, inflation hitting almost all goods and services in something like a 300% increase over the 40 years (an immense change in pre-modern society); and with this inflation, England seems to have been unique. The continental European countries were not similarly affected. Only Normandy, ruled by the English king and tightly connected to England at this time, showed any substantial inflation, and Normandy's inflation was nowhere near England's. The common law of property developed in England between 1180 and 1220; no similar development occurred in continental European countries. Normandy was not subject to English common law. Can you see any relationship between the legal and economic phenomena? It is widely conceded that thirteenth century England was very prosperous. With such an inflation, how can that be?
 In substance, this is a wonderful plea, because it admits the process in Hugh's court but denies completely the legitimacy of that court doing anything with him for that tenement: he claims to hold it of someone else. The court's reponse rejects this, apparently because he should have said it much earlier. He must try to recover by writ of right.
 This is different from the admeasurement of dower situation in that the widow here has done something wrong: she has taken more than what was allocated by the sheriff as her reasonable dower.