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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 into categories and even produce new rules themselves. In the sixteenth and seventeenth centuries these rules cohered into a new set of rules: equity.

2. Was the grant to the three feoffees by Peter at More conditional? What written evidence would you expect to find of the grant? Think of the previous assignment. What mechanism might the parties have used? Who would have the deeds? [4]

3. What advantage did this arrangement give to Peter? Could he change his mind? Chancery soon distinguished between grants to feoffees in which specific directions were given at the very time of the grant and grants to feoffees in which the feoffees were merely to follow his will as expressed later. In which situation would Chancery have allowed the feoffor to change his mind about the uses to which he wanted the feoffees to hold?[5] Why not in the other situation?

4. The feoffees here had a fee simple held jointly. What happened to the interest of the others when one died? Would there be wardship, marriage, or relief?

5. What sense does it make for Peter at More to give up his legal estate in the land? Legal estates are interests that should be desirable. That people would alienate their legal estate in land prior to the time at which there was a secure protection for their expectations indicates a substantial social perception of law as an artificial system that could be manipulated.

6. What is the definition of a widow's dower right? How does this kind of arrangement affect dower right? Dower right only appended to land that the husband had held heritably at any time during the marriage. If the husband had never held the legal title himself during the marriage, but had instead put the land into the holding of the joint tenants, then no dower right would append and the wife would be that much more dependent on the husband's good will.

7. You have seen how the common law courts could inquire of a jury about the way in which the parties to a grant had felt that the control of the land had actually transferred from grantor to grantee (in the Whilton dispute). Clearly, the justices could have done precisely the same kind of inquiry with these grants to joint tenants. Since the courts could have voided these grants to joint tenants and thus have rendered stillborn the use, one must find the reason they did not. It is improbably to think that the justices favored depriving the magnates of their feudal incidents: redistribution of wealth was not one of the central principles of the law. Four motives, however, seemed desirable after the Black Death and provided the rationale for allowing the uses:

a. Posthumous provision for payment of debts. Unless special provision was made at the time of the making of a debt, repayment of the debt was an obligation of the executors (who had control over goods and chattels of the deceased), not on the heir (who received the land). A grant to joint tenants with instructions for them to pay off debts posthumously worked effectively to help people fulfil their ethical obligations. Such provisions occur frequently in use instructions to feoffees to uses.

b. Securing prayers for one's soul. Traditional methods for endowing ecclesiastical institutions were not terribly effective. One would have to get a royal licence to alienate lands into the hands of a church (thus, into "mortmain"--"dead-hand", because the church did not die), but that was not the real problem. A grant to a church for prayers required the heir to keep close watch on the church, and litigation if they did not pray. Better by far to grant to joint tenants with instructions that they pay the revenue to the church if they prayed: no prayers, no pay. In this situation, the church would have to show that it prayed, rather than requiring the heir to show that they had not. Edward III himself used a use for this purpose.

c. Giving full value to purchasers. Land sold still remained subject to the dower rights, perhaps from the seller's seller's seller's widow: who could estimate the probable value to the purchaser if he would not even know what women might assert dower claims to the land? Land that was always held in use was free of dower claims.

d. Strengthening the husband/father. The father/husband, by putting the land in use, acquired greater discretionary authority over children and widow. Some early use instructions ordered the feoffees to hold the land to the widow for her life unless she remarried. The father could likewise leave his decision until late in life about which children would benefit or how much his wife would have, and he could change his mind as often as he liked. Later on, use instructions further augmented a father's power by instructing the feoffees to do certain things with the land after his death if a child did a certain thing, as with marrying a particular person, etc.

After the Black death these purposes seemed not only legitimate but absolutely desirable; they correspond to other changes in the law after the Black Death that we will examine.

Still, the question must arise: why was there no opposition? Even if the motives were socially unobjectionable, the effect would often have been to deprive very important people of the profitable rights of wardship and marriage and the exercise of patronage. The very rich are not known for having their rights diminished without objection. As it happens, however, there was a particular pool of land from which uses could be made without depriving any lord of what were considered proper rights of wardship and marriage. To understand this, one must understand "prerogative wardship." Prerogative wardship was a right that pertained only to the king.

(1) In ordinary wardship by a baron over a tenant who inherited lands to be held from more than one lord, the liege lord (let us assume, the baron) would get wardship of the body and wardship over those lands held from him; other lords would have the wardship of the lands held of them. In addition, since each lord exercised all the rights of the ward for that fee, each got also the wardship of those tenants in wardship to their tenant in regard to the fee held of him.


Ordinary wardship of one tenant's land


Baron Lord Lord

(liege)

[wardship of [wardship of land [wardship of lands

^ body & lands] held of him] held of him]

tenant ^ ^ ^

fee 1 fee 2 fee 3


^ ^ ^

subtenants subtenants subtenants

in wardship in wardship in wardship


(2) Prerogative wardship was different. When a tenant held of the king, then the king had not only the wardship of the lands held of him (and of the subtenants held of that fee) but also of the lands held of other lords. Thus, in the above diagram, had the baron been the king, the king would have had the wardship not only of fee 1, but also of fees 2 & 3, thus depriving the other lords of the wardship rights that usually would have pertained to them. The lords hated prerogative wardship rights.

(3) Quia emptores did not apply to the king: the king certainly could and did object when his tenants alienated their lands to others. Such alienations required the king's consent. The king could thus prevent his tenants from alienating to joint tenants to create a use; when he allowed them to do so, it was an act of patronage.

(4) The king could not control the actions of his tenants concerning lands held of other lords, that is, of lands not held of the king but that would fall to him by prerogative wardship. Were important people to alienate those lands to joint tenants, the lord of whom they were held would not object (he would not get wardship or marriage rights anyway) and the king could not object: they were not held of him.

Without seeming unjustly to deprive lords of wardship rights, uses could develop thus (1) by specific acts of patronage by the king to his tenants in chief and alternatively (2) by grants to joint tenants from lands that would otherwise fall into prerogative wardship. If these were the original ways in which uses became socially acceptable, then it is not surprising that there were no objections.

Once the use was established for "reasonable and necessary" objectives, then they could also be used by others with purposes less in line with governmental objectives: avoiding the feudal incidents.


XI.B. Anon (1464)

Kiralfy, 260-261 (altered)


Note that this is a case at common law, not in chancery


In a writ of trespass for breaking his close and cutting down his trees, and trampling and consuming his grass etc.

Catesby [D]. You ought not have an action, for we say that a long time before the trespass supposed, one J.B. was seised of certain land (and he specified the place where the trespass was supposed to have been done) in his demesne as of fee and, being so seised of that land, enfeoffed the plaintiff in fee etc., to the use of the defendant etc., upon a confidence,[6] and then the defendant by sufferance of the plaintiff and at his will occupied the land and cut the trees in that land etc., and destroyed the grass, which is the same trespass on which the plaintiff has conceived this action.[7]

Jenney [P]. This is not a plea, for it is not certain matter -- the sufferance by the plaintiff and the defendant's occupying at the plaintiff's will, for this sufferance and will cannot be tried, for the intent of a man is not triable, and one must plead matter which could be tried by a jury if an issue were joined on it. And it cannot be at this sufferance of will of the plaintiff that the defendant occupied etc., and therefore in such a case, in order to get a proper issue of matter which can be traversed he should plead a lease made by the plaintiff to the defendant, to hold at his will, which is traversable and can be tried.

Catesby [D]. Why should he not have this matter, since it follows from the defendant enfeoffing the plaintiff to the defendant's use, and the defendant made the feoffment to the plaintiff on trust and confidence, and the plaintiff suffered the defendant to occupy the land, so that in truth the defendants occupied at his will. This proves that the defendant will be able to plead this feoffment on trust, to justify the occupation of the land on that account.

Moyle, JCP. That is a good matter to raise in Chancery, for there the defendant will aver the intention and purpose of the feoffment, for by conscience a man will have a remedy for that on the intention of the feoffment. But here by the course of the common law in the Common Bench or the King's Bench it is different, for the feoffee will have the land, and the feoffor cannot justify against his own feoffment, whether the feoffment was on confidence or not.

Catesby [D]. The law of the Chancery is the common law of the land,[8] and there the defendant can take advantage of such matter and feoffment; why, then, will it not be the same here?

Moyle, JCP. That cannot be so in this court, as I told you, for the common law of the land in this case differs from the law of the Chancery on the point.

Catesby [D], pleading over: as to the trees, to the feoffment of the land to the plaintiff on trust, as before etc., and that the defendant occupied the land by sufferance at will of the plaintiff. And, Sir, we have no other matter as to that, but as to the grass etc., we say that the plaintiff was seised in fee, and leased the land to the defendant, to hold at will etc., by which the defendant entered and did the trespass in the manner etc., upon which his action is brought here etc.

Jenney [P]. As to the plea of cutting the grass, to a plea pleaded in that way etc., [we have no need to answer], and as to destroying the grass, he traversed the lease.

And the others against this.


1. This is, obviously, one who believes himself to be a cestui qe use (he to whom the feoffees to uses hold the benefit of the land) being sued by the feoffees to uses. The court simply refuses to countenance the surfacing of the conditions of the feoffment. Why? Does this demonstrate hostility of the common lawyers to uses? That does not make sense, because the justices and serjeants themselves often had their land held in use and were feoffees to uses. If the common law had taken cognizance of the use, however, they would have "pierced the veil." The only way that the feoffees could perform their instructions was if the common law resolutely ignored them and considered that the feoffees had the whole common law title.

2. What sense does it make to have two different sets of court in which the legal rules are different on some points?

3. To approach the matter in a different way, is the use an artificial situation that would have collapsed if the common law had tried to enforce it? That is, did the growth of the use depend upon a common law so rigid that the estates could be manipulated? In this context, we shall talk about uses not as land held by one party for the benefit of another, but rather as land held by one party in fee simple at common law, but only for the benefit of another who had still an enforceable moral entitlement in Chancery. The difference is that the latter method incorporates the duality of legal systems on which the growth of uses depended.


XI.C. Russell's Case (1482)

Kiralfy, p. 262 (altered)

Common law, Court of King's Bench


In the king's bench one Thomas Russell and Alice his wife brought a writ of trespass for goods taken from Alice while she was single. The defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at 20 pounds.

Before the case was next to be heard in the King's Court an injunction issued out of the Chancery to the plaintiffs not to proceed to judgment, on pain of 100 pounds, and for a long time judgment was not asked for.

Then Hussey CJKB. asked Spelman and Fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict.

Fincham [P]. We would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the Chancellor if he disobeys.

Fairfax, JKB. He can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa.

Hussey, CJKB. We have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. The law will not make him pay the penalty provided in the injunction.

If the Chancellor wants to imprison him he must send him to the Fleet Prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us,9 and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you.

Nevertheless, Fairfax said he would go to the Chancellor and ask him if he would discharge the injunction.

And they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the Chancery injunction. And they said that if the Chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it.


1. Examine the procedural aspects of this case. What procedural tools does Chancery use? The distinctive devices of the chancery court of conscience were (1) interrogation of parties under oath instead of allegations tried by jury, (2) injunctions (orders to parties to do or not to do certain actions), and (3) the subpena (orders for a person to appear in court under the penalty of preordained monetary forfeiture). What can the common law courts do?

2. What, in the eyes of the common law justices, is the proper role of Chancery? Did they consider that the chancellor's court of conscience properly exercised a supervisory role over the common law courts? or was it an alternative forum, not meant to intervene directly in common law litigation?


XI.D. Hulkere v. Alcote

Proc. in Chanc.:2:xv-xvi

A petition to chancery, 15th century


To the right reverend father in God and gracious lord bishop of Bath, chancellor of England, your poor and continual bedwoman Lucy Hulkere, widow of Westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the King's Bench and in the Common Pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of Manthorpe in Lincolnshire and also of the manor of Gildenburton in Northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of 100 pounds and more, under record of notary, sued against Harry Alcote and Elizabeth of the foresaid Gildenburton within the same county of Northampton. And by collusion and fickle counsel of the foresaid Harry and Elizabeth his mother there was led and shown for him within the Common Pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid Common Pleas. Of the which false release proved she has a copy to show. [All this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. That it please your noble grace and pity graciously to grant a writ subpena to command the foresaid Henry Alcote and Elizabeth Alcote to come before your presence by a certain day by you limited in all haste that they may come to Westminster to answer to this matter abovesaid, for love of God and a deed of charity, considering graciously that the foresaid Harry Alcote, with another fellow of his affinity who is not lately hanged for a thief in France led her into a garden at Gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid Harry Alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother-in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead.

Pledges to prosecute: John Devenshire of Berdevyle in Essex and James Kelom of London. Returnable in Michaelmas term.


1. Clearly, this case does not involve uses. Early chancery adjudication on the basis of conscience was not so much about uses, as about problems that arose in the application of rigid rules of law, when chancery did not want to challenge the rules themselves but only relieve a few unconscionable results. For instance, the common law was absolute rigid that in debt litigation, when the creditor had a written and sealed bond to evidence the debt, the debtor could not allege that he had paid unless he had a written acquittance. That was a good rule. Nevertheless, it meant that a few careless debtors might end up paying twice. [Careful debtors would do one of two things: (a) get a written acquittance; (b) have the sealed bond cancelled.] Chancery would intervene to prevent an unscrupulous creditor from thus taking advantage of the common law rules to exact a second payment from the debtor. Similarly, when other common law rules, of which the chancery approved, created the occasional injustice, the disadvantaged person could petition the chancellor.

2. This is another aspect of Chancery, acting in default of the common law. What is the substance of her plea? Historians believe that a good many of the stories about cruelty and foul-play appended to the pleas are fictitious. Why would petitioners make up such things? What are the jurisdictions of Chancery?

XII. Relational Obligations

Hypothesis: The elemental legal categories of twelfth century England were wrongs (unilaterally involuntary, damage producing occasions) and relational obligations. Relational obligations were, of course, obligations that arose from a voluntary relationship, not from a promise. You will tend immediately to equate the actions of debt, detinue, and covenant with obligations deriving from a promise to pay or to do. That later becomes so; it was not so originally. With tenures, of course, one can easily speak of relational obligations in the twelfth century: they concentrated on maintaining the expectations that arose out of the relationships between the parties, rather than analyzing rights vested "in" one party or the other, the equivalency of what was given or gotten. In just this way, the relationship of buying-selling, lending-borrowing, leasing, suretyship, and agency were socially recognized relationships with obligations that the law sought to maintain. The proper remedy was standing to the relationship, not damages. Thus, the writ of account brought by a manorial lord against his estate manager called a bailiff sought to make the bailiff stand to his obligation: the remedy in the writ of account was that the bailiff would account. The result of the account was a debt, but one which the lord might have to sue for independently: account was to make the bailiff account, not to make him pay. In a similar way, detinue in lending situations was primarily to enforce the obligation of the borrower to return the goods; in covenant the remedy was to make the defendant stand to the agreement he had made; in debt the debtor was to pay. The central idea was not promise, but relational obligation.


XII.A. The Manner of Pleading in Lincoln: Materials #186.


In the first place, know that the pleas of the city of Lincoln are held by the bailiff and at least two attending judges on Mondays.

. . .

[Pleas of wound/blood]

Know further that he who complains of a wound and blood is supposed to pledge his faith in the bailiff's hand, and if he wants to find pledges to the bailiff that he will follow his complaint, the bailiff is supposed then immediately to put the other by pledges. If the complaint is of wound and blood and he does not want to find pledges, he is supposed to take his body. If the complaint is not of such matters nor (BUT?) of shame or debt, then he is supposed to summon him.

. . .

On the next Monday, if both appear in court, the complainant will make his complaint in these words


[Count for assault]

I complain of such a one, that when I went about my home in the peace of God and the peace of the city (or when I was in my home during the day or night or whatever he want to say, he will say), that W. came and violently put hands on me and threw me to the ground and beat and wounded me and gave me a wound and bloodshed and made off with 20s. in money from me and in shame and he inflicted abuses that I did not want to have for 100s. Wherefore I seek that right be done me for love of God and king.

Immediately the other will respond or will consult his counsel. If immediately, he will defend the peace of God and the peace of the city and injury and the violent putting of hands and that he beat or wounded him and that he gave him a wound or bloodshed and the sum of money and the shame etc., word for word and say that he is ready to do whatever the consideration of the court shall impose on him, as if a Frenchman immediately law will be adjudged and he will pledge his faith in the hand of the bailiff and in the hand of the complainant to do his law and he will do it with the third hand and will find pledges to do his law or his body will remain in custody until they are found. If in fact he does not make (his faith) in the hand of the bailiff or of the adversary but goes from court, he will fall in the mercy of the reeve.

Likewise, if he shall have pledged his faith in the hand of the bailiff or of the adversary before the judgment of the court, he will fall in the mercy of the bailiff. If in fact he will not defend as a Frenchman, he will make his law with the twelfth hand. If the complainant ask for sureties before judgment, he will have them, and he will name six.

Likewise, if he does not defend blood or wound fully, he will be put by consideration of the court in the prison of the lord king for fully 40 days. If in fact he defends blood etc., and not the shame or word for word he will fall in the mercy of the bailiff and will recover his plea by mercy.

Likewise, know that if anyone answer for the defendant, if he respond badly or well, the defendant will be asked if he grants that which he said for him. If he grants it, the other is quit; if not, he will remain in the mercy of the bailiff. And the defendant will immediately defend or the other for him. The complainant in fact is well able if he wants to make his attorney in court to take his law.

. . .

[Pleas of debt]

Likewise, know that if anyone complains in court of a debt, he is immediately supposed to find pledges to follow his complaint if he wants. The debtor, however, will be summoned by judgment of court. If therefore he appears in court on the next Monday at the first summons and the complainant make his complaint solely of a debt, the debtor if he wants will request his reasonable summonses. If he is supposed to have them, they will be adjudged him immediately. And he will have three summonses.

Further, if he does not appear in court after three summonses, he will be distrained by judgment of court. If in fact after he is distrained he does not appear in court, he will be distrained better and be distrained a third time.

Likewise, after he is distrained a third time, if he does not appear in court, the complainant or his attorney will request distress by gage and pledges if he wants. Hence, if the (debtor) will find pledges, the (complainant) will have them by judgment of court. If he wants, the complainant in fact can well make his attorney in court to prosecute his complaint to win or lose. If the debtor comes in court and asks for his distress by gage and pledges, he will have them outside by judgment of court if he finds pledges. And a certain day will be given him to appear in court to answer and to be rightfully condemned. And in fact on the day he can make himself to be essoined if he wants, etc., as above. Truly, on the next Monday he must appear in court to warrant his essoin or to defend himself.

Likewise, know that after his reasonable summonses have been adjudged and he appears afterwards in court (after) the first or second summons, for another cause or complaint, and the complainant or his attorney makes his complaint, the debtor must answer immediately.

Likewise know that the claimant makes his claim in these words,


[Count in debt]

I complain of this N. that he owes me and unjustly detains 20s. of money wherefore I am damaged to the value of a half mark in the peace of God and of the city. Hence I ask you for love of the lord king make for me to have right.

Hence if the debtor immediately defends the peace of the city and injury and the debt of 20s. and damage and loss of a half mark etc., word for word and says that he is ready to do etc, as if a Frenchman. If the other wants to prove, law will be adjudged and he will do it with the third hand. If in fact he wants to prove, he will say these words,

[Creditor's claim to prove the debt]

You unjustly defend this, for I will have at the day and term what I must and within a sufficient proof that you granted me this debt, to wit 20s., and this I am ready to do etc.

Immediately his proof will be adjudged and a certain day will be given him to come to prove this.

At the beforeestablished day he must come in court so fortified, to wit, with three law-worthy men who will conduct themselves in this manner before the bailiffs and judges. They will be asked nothing, but one of them will begin by saying thus,


[Form of creditor's suit's proof]

I appear here at a true, not a false demand. I was present, and I saw, and I heard that N. granted 20s. which he owed him. And this I am ready to do etc.

And thus the other two must say everything word for word that the first said. If all those three concord in one and all say one thing, immediately all will swear touching the sacrosanct gospels in court and say these words,

[Oath of creditor's suit]

Hear this, lord bailiff, that so help us God and these saints that that which we have said before in court is true and a true and faithful proof.

Then the claimant and the debtor together with the prover(s) will withdraw until the suit is adjudged. After the suit is in fact adjudged, all will be called into court and the judgment will be adjudged before them and it will be given such that the claimant fully proved the whole debt upon the debtor and the debtor will remain in the mercy of the bailiff. Further, a certain day will be given the debtor for acquitting the debt. Hence, if he shall not have acquitted the debt at this established day, by judgment of the court he will be well distrained for payment of the aforementioned debt.

Likewise, know that if the first of the provers does not accord with the others concerning the debt or other things and not fully say that he is ready to do etc, or if one of them shall not be present at the assigned day before the bailiffs and judges, the proof will be adjudged false and not true and the debtor will go away quit from that suit and the claimant will remain in the mercy of the bailiff.

. . .

[Method for compurgating]

Likewise, know that this is the way of making law in the court of the city of Lincoln, such to wit that a male, if he defends as a Frenchman, will make law with the third hand; but if he defends as an Englishman with the twelfth hand; if the English defendant is married, with the twelfth married hand. Likewise, any woman whatsoever is supposed to make law with the twelfth female hand.

Further, know that the assailant who is put by pledges is supposed to appear in court before the bailiff on the day of law so fortified such to wit if he is supposed to make law with the third hand that he have with him 2 men who are called "wahtes" standing beside him before the bailiff ready and prepared to make law with him, but if he is supposed to make with the twelfth hand, thus he must have them ready with him. Likewise, if the complainant is present there he will be asked if he wants to receive his law or, saving the right of the bailiff, to concord with the other by licence of the bailiff. Moreover, the other will be asked if he wants to make law or to concord with the other. Hence if both want to concord and are concorded, the complainant will remain in the mercy of the bailiff. Hence if they do not want to concord, he must make law, but if he make law he is quit from that suit and the complainant is in mercy.

Likewise, remember that if anyone complains of wound and blood and the defendant on the day of law does not appear in court before the bailiff to make law and does not make himself to be essoined, and the complainant is there present and says that he is ready and prepared to take his law, the other will be called and called again. And if he does not come and the other requests his judgment, a certain day, to wit the next Monday, will be given him to have his judgment. On the same day of law indeed the bailiff's serjeant will be ordered to distrain the assailant and his pledges to come to court on the next Monday to hear his judgment. On that Monday he will have (it) such, to wit, that the assailant will be attainted and his body will be put by judgment of the court into the lord king's prison for a full 40 days, and his pledges will remain in the mercy of the bailiff.

Likewise, know that if the defendant on the day of law appears to make his law on the day of law in court before the bailiff and does not have with him fully the "whactes" or if one of them does not want to make law, the defendant will be attainted by that suit and his body by judgment of court will be put in the lord king's prison for 40 days, but his pledges will go quit.

Further, if the assailant on the day of law in court before bailiff and judges will appear well fortified with his "whactes" and will say that he is ready to make his law, if the complainant is not present there he will be called and called again. But if he does not come while the court is sitting nor makes himself to be essoined and the assailant asks for his judgment, on that day he is quit of one of the "whactes," he will leave, and the complainant will remain in mercy of the bailiff. Similarly his pledges to prosecute his complaint will remain in mercy. Similarly on the other day of law if the assailant appears and the complainant does not, he will lose the other of the "whactes." But if on the third day of law the complainant comes, the assailant will make law with his sole hand. But if he make it, the assailant is quit, similarly also the complainant from the complaint. Likewise, if on the third day the complainant neither comes nor makes himself to be essoined, the assailant will withdraw without day and the complainant will be distrained to appear on the next Monday to hear his judgment and by judgment of court he will remain in the mercy of the bailiff.

Further, know that on the day of law if the complainant and defendant both appear in court and do not want to concord, the defendant must so come to make law and with his "whactes" genuflect before the bailiff and judges and before the book, and he will hold his hand above the book and his "whacti" will stand beside him. And one of the judges will weigh the law, and the other will say everything word for word that the judge shall say. Hence, thus he will begin,

[Form of compurgation]

Hear this, lord bailiff, that I am free as I made in the court of the lord king, so help me God and these saints.

Afterwards he is supposed to swear and say,

Hear this, lord bailiff, that I lead my "whacti" to a faithful oath, not false, so help me God and these saints.

Likewise a third time he is supposed to swear and say,

Hear this, lord bailiff, that I did not assail the same N. nor wound him nor make bloodshed nor inflict shame or injury or abuse on him (if he made his complaint concerning all these things) nor did I make off with a monetary sum from him (if he made his complaint of debt) as he said against me in the court of the lord king, so help me God and these saints.

Afterwards he will kiss the book and will rise by licence of the bailiff; and if he rise from the book before the order of the bailiff or of some judge and the bailiff shall request his judgment, by judgment of the court he will remain in the mercy of the bailiff. Likewise, if one of his "whacti" arise before the order of the court or of the bailiff, by judgment of the court, judgment having been requested, he will remain in the mercy of the bailiff. It will be similar also with the defendant. Afterwards indeed the "whacti" are supposed to swear and say,

Hear this, lord bailiff, that this oath that he made is true and not false as we know, so help us God and these saints.

But each one is supposed to swear this by himself and immediately they are supposed to kiss the book and rise by order of the court. And the defendant will go quit from that suit with his "whacti" by judgment of the court, and similarly the complainant etc.


1. "Bailiff" was the name applied both to estate managers and to executive officers of courts.

2. This treatise treats of only two kinds of pleas: debts and wrongs. What conclusion would you draw from that?

3. Find the count -- the formal statement of the plaintiff's claim -- in debt and the procedure following. Examine the text very closely for the following:

a. what is the nature of the claim?

b. who proves? Note that at common law in the time of Glanvill the claimant in debt could prove the debt also. Lincoln's procedure here is thus not aberrant, but remained like the common law had been at origins.

c. In the phrase "law will be adjudged" what does "law" mean? "Law" in this context means compurgation: group swearing as a form of proof. When one "waged" his law, he promised to come at another day to "make" his law; "making" one's law was compurgation.

d. why the differences in proof between "Frenchmen" and "Englishmen"? What are the differences?


XII.B. A. v. W. (1293-1297)

Harvard MS 162, fol. 190a

Court of common pleas


One A. brought a writ of debt against W. and said that he wrongly detained from him 10 marks etc.

Howard [D]. What do you have of the debt?

Spigurnel [P]. Good suit.[1]

Howard [D]. Do you have anything else to bind us to the debt?

Spigurnel [P]. No.

Howard [D]. Sir, he claims a debt of 10 marks from us and shows nothing to the court to bind us, neither writing nor tally[2] nor anything else, except their breath. We ask judgment if they ought to be answered.

Spigurnel [P]. We have tendered suit, to which they have not at all answered; judgment of them as undefended.

Bereford [J]. Answer to their suit.

Howard [D]. They have nothing else except their suit, which we pray to be examined.

Spigurnel [P]. There is no need, because suit only serves to attest that which the party has said and to make the party answerable.

Bereford [J]. The defendant can choose one of three ways, either to put himself on the countryside,[3] or to be at his law,[4] or to put himself on your suit which you have tendered, which is as of much value as the countryside.[5] And they have consented to the examination of the suit which you have tendered, which is at their peril, and you do not have it as you have tendered. Thus this court adjudges that you be in mercy etc.


1. What is a tally?

2. What is "suit"? How is it related to the plaintiff's proof in XIIA?

3. Do you understand the defendant's options as explained by Bereford? If plaintiff only has suit, can he force defendant to a jury? No, it is a defendant's option to go to a jury if the plaintiff only has suit; the defendant can avoid a jury by choosing compurgation. Only if the plaintiff has specialty (= a written bond under seal) can the plaintiff force the defendant to put himself on a jury.


XII.B.1: Anon v. Warein (1343)

YB Mich 17 Edward III, fol. 48, pl. 14

Court of common pleas

You have been accustomed now to litigation about real property in which even by the late twelfth century there was a great deal of substantive law argued in court. In debt the character of pleading is different, in that there is little substantive law (what constitutes a debt?). The most important point in a debt case is what the creditor has to evidence the debt. Thus the two different varieties of debt are different not because they are founded on different kinds of relationships, but rather only because in one the plaintiff can present specialty to evidence the debt (=debt on an obligation ['obligation' meaning specialy], whereas in the other the plaintiff only has suit, that is, two people (either actually there in the thirteenth century, or there only by allegation by early in the fourteenth century)(=debt on a contract ['contract' meaning a transaction (not an agreement) such as a buying, selling, lending, borrowing). Do not be fooled by this usage of the word 'contract': that word is now used for agreements, whereas then the word meant a transaction. Be sure you understand the difference.

The difference between debt on an obligation and debt on a contract, the difference that it made whether one had specialty or only suit, was in the form of proof that followed. If the plaintiff had specialty, the defendant had but two possible replies: (1) the specialty is a forgery (=not my deed) or (2) I have repaid as proven by your written acquittance under your seal. The debtor could not allege repayment unless he had the written acquittance. The only issue that could go to the jury was whether the specialty was forged (or, after ca. 1380, whether the debtor was illiterate so that he had not known what the specialty said so that it was, similarly, not his deed). Thus there was no possible discussion about the nature of a debt and thus little chance for the development of a body of substantive law. In debt on a contract substantive discussion was usually avoided by the defendant's plea: I owe nothing. That issue does not specify why he did not owe: was it repayment? no debt having been contracted? a subsequent oral forgiveness by the creditor? the creditor's acceptance of a lesser amount for full payment? a collateral transaction between the two that cancelled out the debt? We simply do not know, and neither did the court. Since all such issues were submerged in the general issue of debt ("he owes nothing"), not much substantive law could emerge.



Debt was brought against J. Warein canon of the church of St. Peter of York of a certain debt, part by obligation, part by contract.[6]

Richemund [D]. As to the obligation we cannot deny; as to the remainder, what do you have of the debt?

Moubray [P]. Good suit.

Richemund [D]. Let the suit be examined at our peril.[7]

Moubray [P]. Do you want that for your response?

Richemund [D]. Yes, because you take suit in this case of contract in place of proof of the action.

Moubray [P]. Suit is only tendered by form of count.8 Wherefore, judgment etc.

Shardelow [J]. One has heard that suit in such a case was examined, and this opinion was afterwards reproved.[9]

Shareshull [J]. Yes, that same justice who examined the suit for the issue saw that he erred. [And thus he condemned his own opinion.][10]

Gaynesford [D]. In a plea of land when one tenders suit it is only form, but in a plea which is founded on contracts which need witnessing, there is the suit such witness that without suit the party is not answerable if the matter is challenged.

Shareshull [J]. Indeed, it is not so; wherefore deliver yourself.

Richemund [D]. No money does he owe, ready etc.

Moubray [P]. To this you will not arrive, because you have tendered a different issue for the whole, etc.[11]

Richemund [D]. You said that the first was not an issue, wherefore from your plea you give me the advantage.

And nevertheless Kelshull [J] awarded that the plaintiff recover the entire debt and damages taxed by the court etc.

Moubray [P]. He is a clerk against whom we have answered and he came by the bishop, wherefore we pray a writ of fieri facias to the bishop.[12]

And nevertheless the writ issued to the sheriff. Quaere.


1. Is examination of suit any longer possible? Can you summarize what has happened to suit?

2. Why did the defendant here lose?



XII.C. John de C. v. Robert de T. (before 1309)

Harvard MS 162, fol. 191

One John de C. brought his writ of debt against Robert de T. and claimed against him [[sterling]]10 of silver, in which he was held to him by reason of a loan.

Burton [D]. What have you of the debt?

Herle [P]. See here a written and sealed tally.

Burton [D]. No money does he owe you, ready to do against you and your suit etc.[13]

Herle [P]. To this you will not arrive, because we have put forward a deed which attests our claim, which deed they have not denied.[14] Judgment if against their own deed they ought to arrive at their law.

Burton [D]. If we will be barred by the tally from the law, it seems that it would work against specialty, which cannot be. And we ask judgment.

Herle [P]. It is not so, because in the one case it bars the party from the law, in the other case from the law and the averment, wherefore etc.

Inge [D]. The seal does not prove the sum of the debt, because it is possible that the writing was taken off and enlarged and the notches were made larger; we ask etc.

Toudeby (ad idem) [D]. It is not in this case as it would be between a lord and a bailiff, because the bailiff will be held by the sealed tally to his lord to render his account of moneys received, but in this case of debt there is nothing which binds the party, as an obligation to be obliged to the debt nor a certain reason to pay the debt but only that one such received so much by reason of a loan, the which sum could be changed by erasure or by new writing, judgment.

Herle [P]. as before. We have put forward a sealed tally which attests the reason and the sum, the which they do not deny. And we ask judgment if they ought to arrive at the law.

Hengham [J]. Do you want the law?

Herle [P]. If you adjudge it, we want it.

Hengham [J]. We tell you by judgment: if you refuse it you will take nothing etc.

Herle [P]. By your judgment, we want it.

And the defendant had day to perform his law etc.


1. Debt was intensely focused on proof. What is the analysis here about the relationship between a tally and the form of proof?


XII.D. Anon. (1338)

Fifoot, p. 247

Court of common pleas


A writ of debt was brought against one; and he counted that the plaintiff, by covenant between him and the defendant, had been made his attorney for ten years, taking twenty shillings for every year, which were in arrear.

Pole [D]. This count begins with a covenant and ends with an owing;15 we ask judgment of such a count as not warranted.

From this objection he was ousted.

Pole [D]. He has nothing showing the covenant.

Shareshulle [J]. If one were to count simply of a grant of a debt, he would not be received without specialty; but here you have his service for his allowance, of which knowledge may be had, and you have quid pro quo.

Wherefore Pole waged his law that he owed him nothing; and the other counterpleaded it.

The court to Gayneford [P]: Will you receive the law at your peril?

Wherefore he received the law.



1. What does Pole's first objection mean?

2. Pay close attention to Shareshulle's comment. Specialty means "deed under seal". Does every debt involve "consideration"? Consideration comes later in time. When there is specialty, what analysis is there to the basis of the debt? Debt on a specialty is called "Debt on an obligation." Debt without specialty is called "Debt on a contract". In this phrase, "contract" means "transaction" like a buying, selling, leasing, etc. Why the "quid pro quo" analysis? What does it show about the nature of law, compared to the original hypothesis?

3. What does the swearing that "he owed him nothing" mean? Does it mean that he paid already? that he never owed? that there has been some collateral misfeasance that would seem to justify the debtor in cancelling his debt? With such a general issue, will the justices ever have to confront complicated factual situations? In debt on an obligation, the defendant had to plead to the specialty: either he had to present a written acquittance or allege a forgery. Will this present the justices with complicated factual situations, such as those you found in property coming up in novel disseisin? What does all this have to do with the nature of the law of debt?


XII.E. The Forty-Shilling Rule


The forty-shilling rule: all cases brought in lower courts (county, hundred, although not borough courts) in debt or detinue worth 40s or more must be brought by writ, not by plaint.


These documents relate to a complicated legal change that greatly enlarged the jurisdiction of the king's court. Through most of the thirteenth century the king's court jurisdiction was largely in matters of real property. In trying to resolve problems with bias in lower courts, the king's court backed into a major jurisdiction in debt and detinue. This is the pattern:

1. 1274: Edward I launched a massive inquiry into local corruption. Those inquiries revealed that people thought that the presiding officers of local courts (county, hundred, liberty) were often partial when a friend, ally, or relative was a litigant. That bias might not result in a wrong judgment (the writ of false judgment already provided for that possibility), but could uselessly delay the suit or otherwise cause unjust impediments to a worthy plaintiff or similar problems to an innocent defendant.

2. 1274-75: Instead of prosecuting all former sheriffs and other local officers, removal procedures were instituted to allow parties in county courts to remove suits into the king's court when the presiding officer of the lower court was biased. These new removal procedures applied to actions of debt, detinue, trespass, and replevin. The writ pone removed suits of debt, detinue, and replevin into the king's court that had begun in the lower courts by virtue of a royal writ. Before 1278 there was no writ for initiating suits in lower courts in trespass. The writ recordari removed suits of debt, detinue, replevin, and trespass into the king's court that had begun in the lower courts by plaint. The writ pone required the sheriff to return not only the pone but also the writ that had begun the dispute; the case then began all over again in the king's court, disregarding any process that had occurred in the lower court. Since there was no original writ in a removal by recordari, the recordari required the sheriff to return both the recordari and a record of the suit as it had been prosecuted thus far in the lower court. The king's court then could carry on the suit from that point if it chose. The king's court jurisdiction in trespass, begun by a standardized writ, was only about a decade old; this new removal process brought in cases from lower courts that apparently seemed less significant, and sufficiently so as to cause a problem.


XII.E.1. Statute of Gloucester, c. 8 (1278)

It is likewise provided that sheriffs shall hold pleas of trespass in the county courts as they used to. And that no one from now on shall have a writ of trespass before justices[16] unless he declares on oath that the goods taken away were worth at least 40s. And if he complains of battery, he shall declare on oath that his complaint is true. For wounds and mayhems one shall have a writ as one used to have it. And it is granted that defendants may make attorneys in such pleas where there is not an appeal [= private prosecution of felony], so that if they are convicted of the trespass in their absence it shall be required of the sheriff that they be taken and have the penalty that they would have had if they had been present when judgment was given. And if the plaintiffs in such a trespass henceforth cause themselves to be essoined after the first appearance, let there be an adjournment until the coming of the justices, and the defendants meanwhile shall be in peace in such pleas and in other pleas where attachments and distresses lie. And if the defendant causes himself to be essoined of the king's service and does not carry his warrant at the day given him by his essoiner, let him render damages to the plaintiff for his journey of 20s, or more at the discretion of the justices, and nevertheless be grievously in the king's mercy.


3. This is a statutory retreat, sending the more trivial of such cases back into the county courts. Around 1281 a similar action was taken by the justices, mandating that the justices would accept no pleas in debt or detinue worth less than 40s. For technical reasons (the sheriff could not tell the value of the suit in a plaint, only in a suit brought by writ) maintenance of this jurisdictional limit and maintenance of the option for avoiding bias in important cases dictated that pleas for debt and detinue in lower courts for 40s. or more had to be brought by writ. XII.E.2 shows the enforcement of that rule.


XII.E.2. Gobaud v. Prior of Spalding (1296)

CP40/112, m. 131

common law; court of common pleas


Clement, prior of Spalding, was attached to answer John Gobaud concerning a plea why, whereas pleas of debt in the king's kingdom which attain or exceed the sum of 40s ought not to be pleaded without royal writ,[17] the same prior held a plea without writ in his court of Spalding concerning a debt of 100s which Gomulda who was the wife of Reginald le Mariner of Spalding, John Cluny, Roger Richardesman, and Reginald Chese exacted from the aforementioned John Gobaud in the same court against the custom of the king's kingdom and against the prohibition etc.[18] And whereof the same John by his attorney complains that, when the abovesaid prior held the abovesaid plea in his abovesaid court concerning the abovesaid debt and the same John on [18 March 1295] at Spalding in open court within the same vill in the presence of John de Cotoun, Simon de Upton, and John de Upton delivered to the same prior a royal prohibition that he not hold the plea any further etc., the same prior, spurning that prohibition, nevertheless held that plea in the same court until the same John was condemned judicially by the same court in the abovesaid debt against the custom etc., and to the damage of the same John and in manifest contempt of the lord king etc., whereof he says that he has suffered loss and damage and has damage to the value of [[sterling]]10. And thereof he produces suit etc.

And the prior by his attorney comes and denies force and injury etc. And he says that he ought not respond thereof to this writ,[19] because he says that that writ is a certain new writ, newly conceived, and never used in the chancery of the king until this time, for he says that that writ is neither founded on any statute, nor is according to the common law, nor has been ordained,[20] wherefore he seeks judgment etc.

Day is given to them to hear their judgment here at the quindene of John the Baptist.[21]


XII.E.3. Early Registers of Writs, p. 115 (1320s)

Note. It should be known that when there is a plea of debt of, or above, 40s without a writ of the lord king in the county court or in the court of some individual, then there ought not to issue a writ of false judgment[22] for a debt of this kind, nor a recordari, nor a writ of execution of judgment, because it is abolished from use; but there shall be a prohibition against holding this kind of plea.


4. There were two writs that removed cases from county court into the king's court. Recordari removed cases begun by plaint, that is, not by writ, and proceeded by having the county court send a written record of the procedure to the king's court. Pone removed cases begun by viscontiel writ in the county court. The procedure by pone has two relevant points. The first is that, when the person removing the case was the defendant, the reason for the removal was stated in the writ, as that the plaintiff was related to the sheriff who presided over the county. The second is that the procedure only demanded the forwarding of the viscontiel writ, thus voiding all procedure and pleading taken up to that time in county.

5. In the 1290s the allegation of bias became non-traversable,[23] such that any defendant in debt/detinue could remove the case brought by writ into king's court, even if jury verdict had been rendered, if judgment had not been given. The nature of the removal procedure was that all process was nullified and the case started over. Would you, as lawyer or plaintiff, bring a serious case of debt in county court then? Could you?

6. County courts thus became relatively unimportant courts. This change was not intended straightforwardly: it was the result of the court working hard to overcome bias on the part of presiding officers of lower courts. The result was that the king's court, even though it obviously did not want the jurisdiction, became the primary forum for most[24] important cases of debt and detinue. This nicely parallels the way in which parliament had come to be, since 1257, a forum for handling issues of interest to the whole country. In both politics and law, central institutions served to unite the country and make the central institutions of increasing importance to many even ordinary people.
XIII. Detinue

XIII.A. Glanvill's writ of debt/detinue: Glanvill, X.2-3 (ca. 1188)


The king to the sheriff, greeting. Command N. to render to R., justly and without delay, 100 marks which he alleges that he owes him and which, he complains, he is unjustly withholding from him. And if he does not do so, summon him by good summoners to be before me or my justices at Westminster on the third Sunday after Easter, to show why he has not done so. And have there the summoners and this writ. Witness etc.


The cause of the debt may be loan for consumption, or sale, or loan for use, or letting, or deposit or any other just cause of indebtedness.


1. Is there any difference in legal analysis between a claim for money owed and for a thing to be returned? Today lawyers consider a claim for money as a contractual claim, that is, an obligation between people. A claim for a thing to be returned, however, seems a matter of property, an allegation of the plaintiff's relationship to a thing. In Glanvill no such difference appears. The easiest explanation is that the two claims were made with an identical writ because the claims seemed to them identical. That is possible if the claims were considered relational obligations like twelfth century claims to land: the personal relationship (narrowly defined and socially recognized) was primary, and people were expected to stand to the obligations of relationships. Remember the change that would happen to land claims over the following century culminating in Quia emptores, in which obviously the lords were unconcerned any longer with the relationships but with the incidents, concerned thus more with individuated rights than with the personal relationship. In the twelfth century, however, the relationship had been primary.

2. What is the difference between this writ and the writ of first summons for land in Glanvill (Glanvill I.6, see III.A. in the materials)? The lack of difference between the precipe of first summons and the writ of debt/detinue in Glanvill would reinforce the analysis made just above.



XIII.B. A Viscontiel Writ of debt/detinue from the 1220s

Early Registers of Writs, Hib.38.

A "viscontiel" writ is directed to a sheriff (in French, "viscont") directing him to hold a plea in his court (the writ would still be directed to him if the case involved one in a liberty; the sheriff would simply make out a copy [called a "return"] and send it to the liberty bailiff to have that liberty hold the case). This kind of writ was thus not "returnable" because it was not returned into the king's court; it stayed out.

The king to the sheriff, greeting. We command you to justice[1] B. that justly and without delay he render to A. 20s which he owes him, as he says, if he can reasonably show that he ought to render it to him. That we may not hear any further complaint thereof for want of justice etc.

In the same manner a writ issues for a deed which he has entrusted to him, or for a shield, or for a horse, or chattels to the value of 40s without payment. Because, if the debt or the value exceeds 40s, there is added this clause in the writ:

After receiving security from him for the third part of the first pence to the king's use.


1. Once again, what is the difference between debt and detinue? Modern law sees a great deal of difference between a claim for 20s (of ordinary money) and a claim for personal property like a shield. Glanvill seemed to see absolutely no difference.

2. Why is there such a writ to begin such a case in county court? We began by hypothesizing that county courts were omnicompetent unless for some specific reason the case belonged elsewhere. We can dismiss completely the idea that it gave the court jurisdiction: the county certainly had jurisdiction to handle such pleas without writ (and continued to have it until regulated in part by the 40s rule in the late thirteenth century, as treated above). Likewise, plaintiffs did not simply like writs: as indicated in the document, they cost the plaintiff. In truth, we cannot prove the reason why plaintiffs purchased viscontiel writs in the beginning, but we can proffer a reasonably good guess. The king's court around 1200 wanted to get rid of simple cases; in Glanvill cases of debt in which the plaintiff had specialty (proof of the debt written and under seal) seemed to be incredibly easy. The viscontiel writs probably encouraged plaintiffs to resort to lower courts by removing the case from county custom [in which, perhaps, specialty served to increase the number of oathhelpers necessary or establish who proved] and to give the case the procedure of the king's court even though the case was now in county [thus specialty would preclude the debtor from making any answer except (a) that he had paid, proven by a written acquittance, or (b) that the specialty was forged.] By this explanation, thus, the viscontiel writ was valuable because it carried better procedure; it was made available to lessen pressure on the king's court by shifting litigants to lower courts. The tendency here is to show that the king's court did not expand because the government wanted to; expansion was not a craftily designed expedient to increase royal finances and power.


XIII.C. Wulghes v. Pepard (1310)

Selden Society, 26:13-14

common law


Master John Pepard was summoned to answer Robert of Wulghes clerk on a plea [the terms of the writ:] that he render to him a certain book of the price of 100s. which he unlawfully detains from him etc. [the terms of the count:] And whereupon Robert by Henry of Gothmundele his attorney says that, whereas on [22 July 1305] at Wifamcoote [Warwickshire] he delivered to Master John a certain book of his which is called "The Holy Grail" of the price of 100s to guard and at Robert's will to redeliver to him etc., Master John though he was often asked to deliver that book to him still detains and has always hitherto refused to deliver it and still refuses. Whereupon he says that he is injured and has damage to the value of [[sterling]]10. And thereof he produces suit etc.

And Master John by Robert of Lychefeld his attorney comes and defends tort and force when etc., and well he denies that the book ever came into his custody, and that he detains from him the book as Robert asserts; and this he is ready to defend against him and his suit as the court shall award. Therefore it is awarded that he wage his law thereof to him 12 handed etc. And let him come here with his law on the quindene of Hilary. Pledges of the law: Robert of Lychefeld and Roger of Podymor of the same county. And the attorney of Master John is told that he cause his lord to come here in his own person at the aforesaid term etc.

Afterwards at that day came Robert by Henry his attorney and offered himself on the fourth day against Master John on the aforesaid plea, and Master John did not come. And he had a day here at this day after he appeared in court, and he waged his law to him thereof etc., as appears above etc. Therefore it is awarded that Robert recover against him the aforesaid book of the price aforesaid and his damages against him as undefended etc., and that Master John be in mercy etc.

Damages: 10 pounds, whereof 40s to the clerks.


1. What is the remedy in detinue? As with all relational obligations, the objective was to make the defendant stand to his obligation, to do what he had committed to do. In this case, that obligation was the return of the physical thing. Detinue thus aimed to recover the physical thing, not to recover the value of the thing as damages. What if the defendant were to return the book? It was and remained firm law in detinue that return of the book, even if damaged, terminated the suit. That rule appears even in the general issue of detinue: "I do not detain."

2. The method of proof here was compurgation: group oath-taking. This particular case is typical of fourteenth-century cases. Defendants never (that I have seen) lost if they showed up to compurgate with their compurgators, but they often defaulted and thus lost. It seems thus that compurgation was an acceptable method of proof. If the defendant could get eleven people to back him up and go with him to Westminster to take the oath, then he would win. But in a substantial number of cases the plaintiff could not so persuade his friends. This does not, of course, mean that the right person often won. A poor defendant might not be able to get people to go; but it seems likely that some defendants could not get compurgators because people did not believe him. All this is different from a jury, because a jury does not have to be chosen and persuaded to come by the defendant: it is compelled by court order through the sheriff, and the sheriff chooses the jurors.


XIII.D. Montfort v. Basset (1310)

Selden Society, 26:14-15; common law


Hawise the widow of John de Montfort, John, and William, the executors of the will of William de Montfort, were summoned to answer Robert Montfort, clerk, the brother and heir of William, for this that they detain from him 5 charters, and he named the manors contained in the charters, and one letter of covenant.

[D]. See, here is the lady. She has come on behalf of herself and the other executors and is ready to render the charters.

Stanton [J]. Count.[2]

Denham [P]. This shows you etc.

Cambridge [D]. Hawise defends tort and force, and see here the charters.

Stanton [J]., to Denham. Are these the charters which you demand?

Denham [P]. Yes, sir.

Stanton [J]. Receive them from her on their behalf.

And so they did.


Detinue of charters is a special subset of detinue, particularly important because of the importance of specialty in debt or for evidence of property in land. The conceptualization of detinue of charters is the same as in detinue; both aim for the return of the physical thing.


XIII.E. Anon. (1343)

Rolls Series, 17-18 Edward III, p. 2; common law

If the primary remedy of detinue of charters is return of the charters, what happens when the defendants cannot or would not return the deeds, either because they were destroyed or because the defendants would suffer severe loss if the plaintiffs got control of the deeds? Judgments on verdicts in detinue of charters are very rare; the following case represents the resolution of the justices on the question prior to the Black Death. The Black Death here, as with many other matters, was a point of crucial change. With detinue of charters, the reason for the influence of the Black Death was that, with the death of a third of the population and the consequent volume of inheritances, charters were absolutely crucial but often by successive deaths in inappropriate hands.


In detinue of a writing it was pleaded to the country[3] on a traverse of the detinue,[4] and now it is found by verdict that the charter has been burnt by the defendant.

Shardelow [J]. The plaintiff is possibly in such a case that he suffers disherison [=disinheritance] unless he has the charter, because in some actions a party is not entitled to an answer without showing a specialty; or even where he was possibly tenant, and had warranty, and his specialty was lost, his land would be lost without any recovery of the value, and therefore it seems that regard must be had to this, and enquiry made as to the value of the land included in the charter etc.

But afterwards Shardelow said that the issue is only on the detinue, which detinue is found, and therefore the court adjudges that the plaintiff do recover the charter, and damages assessed at one half mark, and that the defendant be distrained to give up the charter.


What sense does Shardelow's judgment make, given that the jury had already determined that the charter had been destroyed? Obviously, none. Continued distraint would put pressure on the defendants, but relatively little if they were not possessed of lands themselves. The government yet did not yet accord an overwhelming priority to compelling the return of the deeds to the appropriate hands.


XIII.F. White v. Vicar of Holbeach (1344-45)

Rolls Series, 18-19 Edward III, pp. 460-65.

court of common pleas

The straightforward use of detinue of charters is getting the return of deeds or writings back from an inappropriate holder. Detinue of charters, however, could easily be manipulated to serve others purposes. Suppose that two parties wanted to go to arbitration and make sure that the other would abide by the award. They could each make out a bond for a set sum to the other, each rendering their bond into the hands of a neutral party on the directions to return the deeds to their owners if both sides kept to the award, but, in case of default, to give both deeds to the non-defaulting party. The court engineered procedures to give effect to this manipulation of the action.


William White brought a writ of detinue of writing against the vicar of Holbeach, who alleged that he received the writings on condition to render them to the plaintiff or to another person, and he did not know whether the conditions had been kept or not, and prayed a scire facias [that is, a writ to the sheriff to notify the relevant party that he might be affected by what was happening and should come into court to object if he so wanted] against the other person etc. And the other person was warned and appeared in person, and he said that William did not appear against him either in person or by attorney, and prayed that the writings might be delivered to him.

Moubray [P]. On this original writ the plaintiff appears by attorney against the vicar, and that ought to be sufficient for this plea.

Willoughby [J]. No, the vicar is delivered by his answer.

Moubray [P]. The plaintiff appears by attorney against the person who is warned.

Skipwyth [D]. He could not be appearing by attorney before we had interpleaded, but would be appearing in person; and we cannot appoint an attorney against him; why then should he be able to appoint an attorney against us?

Thorpe [P]. Certainly he cannot. When anyone pleads in the manner in which the defendant did in this plea, the court will tell the plaintiff's attorney that he must have his principal on another day in person. But the record does in fact purport that "the same day" was given to the plaintiff's attorney when the scire facias issued, and, as Moubray said, that William has appointed his attorney against the person who is warned. And we tell you that we have kept the covenants on our part, and that they have been broken on his part, for the covenants were that, in order to set at rest a dispute between them, they should submit themselves to four arbitrators, and in case the arbitrators could not agree, they were to stand by the award of an umpire; and as security for these covenants four knights bound themselves by two obligations to us and to him severally in [[sterling]]100 (and these are the obligations which are now demanded) on condition that if one of us should fail to keep the condition the obligations should be delivered to the one in whom no fault should be found. (And Thorpe made profert of an indenture in witness of the fact.) And we stood by the decision of the umpire elected by consent of the parties, and you would not abide by his award; therefore we pray that the obligations be delivered to us.

Skipwith [D]. Now it is necessary that the knights who are bound, and to whose charge and damage the writings are to be delivered, should be warned, for they are properly parties to this covenant.

Stonore [J]. They are not so, but the parties between whom the dispute was are parties to this covenant, and the knights have bound themselves foolishly.

Thorpe [P]. The knights have nothing to discharge them but the good faith of the person who has the obligations in his keeping; therefore it is quite right that they should be made parties before the obligations are delivered up.

Willoughby [J]. That does not seem to us to be so; therefore answer.

Skipwith [D] took exception to the writ of scire facias on the ground that it was not warranted by nor in accordance with the record. And afterwards he took the issue that the person who was named as umpire did not arbitrate, ready etc.

And the other side said the contrary.


Is this situation concerned with a detention, or the enforcement of an agreement? How can it properly be litigated in detinue of charters? Why is it not litigated in debt? The ultimate enforcement, of course, would come after the nondefaulting party got hold of the other's obligation. Thereon he could bring a suit of debt against him, to which the other could have no effective answer.

In this way the court allowed a narrow range of matters to be enforced by manipulation of the law, primarily arbitrations and leaseholds. Arbitrations, in traditional opinion, have been seen as illustrating dissatisfaction with the law: resort to non-legal mechanisms for resolving disputes because the law was too slow or too corrupt. On the contrary, arbitration probably thrived precisely because it was supported by this kind of legal mechanism that made the parties live up to the award. Instead of showing dissatisfaction with the law, arbitration is an example of the law supporting diverse mechanisms for dispute resolution.

The other major use of thus putting obligatory bonds into escrow was leasehold arrangements. The real property writs did not protect leaseholds. As will appear later, the law did not provide very good protection for leases in a straightforward way until later. Nevertheless, this mechanism from early in the fourteenth century allowed leaseholders or landlords a fair amount of security. The agreement protected could either be the leaseholder's quiet enjoyment of the tenements or the landlord's right to receive the tenement back in as good condition as it had been.

What is the importance of the history of detinue of charters? You should be able to see in detinue of charters (a) the way in which courts and litigants allowed common law remedies to be manipulated (different from fictions, because the deeds actually were deposited in the neutral third hand); (b) the way in which the state, by judicial action, provided increasing benefits to society by furthering more efficient methods of dispute resolution (most cases of arbitration in which such arrangements were used would not have come into litigation).




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