The History of Law Blog

The Young King Henry – crowned but not a real king?

2016-09-21T12:57:59Z

Henry II had seen at first hand the devastation that can be wrought when the succession was not clear. He had after all initially been denied his inheritance by ‘the usurper’ Stephen. So he wanted to make sure that nothing like that happened after his own death.

Henry had five sons, the eldest William, had died aged three so in 1170 the eldest son was Henry, with younger brothers Richard, Geoffrey, and John.

He decided at that time, to have his eldest son crowned so there could, after his death, be no argument. So Henry junior was duly crowned king, aged fifteen.

According to local reports, he was “tall but well proportioned, broad-shouldered with a long and elegant neck, pale and freckled skin, bright and wide blue eyes, and a thick mop of the reddish-gold hair”. He seems to have been an easygoing and pleasant lad, but some say he lacked political force.

The Problem

However this could be a result of his main problem as king – Henry had no intention of giving away any of his power. What was the young king to do?

Three years later, having failed to find an answer, he rebelled against his father demanding that he be given either England, Normandy or Anjou.

He was supported in the rebellion by all his brothers and even his mother, Eleanor (who was subsequently imprisoned for the rest of Henry’s reign), and the rebellion was according to Warren, the most serious crisis of Henry’s reign (p117). However, Henry (the older Henry) did win in the end, although he agreed to pay an increased sum to Henry the younger.

Having failed to gain a kingdom to reign over, the Young King Henry turned instead to sport. A young but promising knight, William Marshall was appointed as his tutor and the two travelled together across northern and central France, winning renown and prize money. Indeed the Young King became quite a celebrity, as did William Marshall.

Things went badly though after 1182. He quarrelled with Marshall, who left him for a time, and then rebelled again against his father. However, the rebellion was cut short when he contracted dysentery and he died on the 7th June aged 28.

Not a real king?

Young King Henry is the only King (after the conquest) to be crowned in his father’s lifetime, although he never actually held any power. Not surprisingly, Henry II declined to crown one of his other son’s after the Young King’s death. No other monarch since then has, it seems, ever contemplated doing such a thing.

Because he never had any real power, Henry the younger is not counted in the list of Kings. The next King Henry – John’s son – was Henry III.

William Marshall, after redeeming a promise made to the Young King on his deathbed to take his crusader’s cloak to the Holy Land, joined Henry II who he served loyally until Henry’s death. We will be hearing more about William Marshall later …

The picture is the Coronation of Henry the Young King from Wikipedia

The Constitutions of Clarendon and the Becket affair

2016-09-17T11:48:27Z

If anyone knows anything about the reign of Henry II, they know about the Beckett affair.

About the King’s argument with his Archbishop of Canterbury (and former Chancellor) Thomas Becket, over the punishment of ‘criminous clerks’.

About his impassioned plea “Will no-one rid me of this turbulent priest?” upon which four knights of his household upped and murdered him in Canterbury Cathedral.

And about how Becket was subsequently canonised, with the scene of his murder becoming a shrine and place of pilgrimage for many years, until Henry VIII did away with all that sort of thing.

In reality it was a bit more complicated than that.

At the heart of the problem is the conflict between the jurisdiction of the church and the King. The divine and the secular.

The church and the king in conflict

The story of the rise and consolidation of the pope’s power runs throughout this period of history. It is not the story of this blog but we need to touch upon it here.

In medieval times, the Church was the Catholic Church which had its centre in Rome and was headed by the Pope. Both the Church and the King were jealous of their rights.

The Normans had ensured that their grip remained strong on their own territory. During the reign of William I for example, if a letter were sent to a Bishop by the pope, the King had to read it first, and prelates had to ask his permission before attending a papal court or general council.

These customs remained during the reigns of Rufus and Henry I, but were compromised during the difficult reign of Stephen.

As we have seen before, Henry was keen to return to the rights and customs at the time of his grandfather Henry I. However in the intervening period customs had changed. Partly this was due to the inept handling of things by Stephen. Although Henry did not consider himself bound by anything Stephen (the unlawful) had done, he could not ignore other developments so easily.

Take developments in cannon law for instance. An important new book from about 1140, Concordia Discordantium Canonum, by Gratian (believed to be a canon lawyer from Bologna), a compilation of earlier cannon law, was hugely influential. One of the chief lessons it taught was ‘the justification and necessity for papal legislative sovereignty’.

As you can imagine, this was not something Henry was likely to sympathise with. However, despite his ferocious Angevin temper, Henry was a good negotiator and was usually prepared to compromise in difficult situations. As Warren puts it:

It seems clear that Henry II took the view the ecclesiastical and royal jurisdiction were complementary and should co-operate. He was not prepared to see the traditional rights of the Crown impugned and did not, for his part, wish to contest the authority of the Church.

He seems to have supposed that the troublesome competition which might be caused by the unclear line of demarcation between the two jurisdiction could be averted by sensible give and take, with neither side trying the claim an exclusive jurisdiction.

Henry’s first Archbishop, Archbishop Theobold, shared this view. Becket however had different ideas.

Criminous clerks

Then there was the vexed question of the trial and punishment of clerks and clerics.

A much larger proportion of the population came within the jurisdiction of the medieval church than is the case today. Not only were there Bishops, Archbishops, chaplains and parish priests, together with the monks and canons in the numerous monasteries. There was also the ‘secular clergy’ of scribes, secretaries and teachers.

The only way ordinary people could get an education was through the church, so most educated men were clerics of one type or another. It is believed that clerics comprised some 5% of the male population.

As the times were violent, so too often were the clerks. But ‘criminous clerks’ had the right to be tried by the Church courts. This protected them from the more rigorous punishment meted out to ill doers under the Kings Courts (which could include lopping off your hands, testicles, or (for more severe crimes) your head).

The trouble was though that the Church seemed to be incapable of dealing with the punishment of criminous clerks properly, and this frequently resulted in considerable injustice. There are several stories of known criminals who escaped any punishment at all for their crimes due to this rule.

The Constitutions of Clarendon

Henry was keen to restore his domains to the (comparative) law and order they had enjoyed under his grandfather, and this jurisdiction of the church over criminous clerks offended him. He tried to deal with this during the three days in Clarendon Palace in Wiltshire when he promulgated what is known as the Constitutions of Clarendon – a set of rules setting out the demarcation between secular and papal authority.

Knowing that the question of criminous clerks was a tricky one, Henry’s clause here was a bit vague, but in essence it provided that if an accused could prove he was a Clerk he could seek the jurisdiction of the Ecclesiastical Courts. However if then found guilty he would be divested of his clerical status and fall within the jurisdiction of the Kings courts. Where he would be subject to punishment.

This sounds reasonable (for the time) and accorded with what actually happened in many cases. Becket however opposed it vigorously. One reason being that the Clerks would already have been punished by being stripped of their clerical office, and anything else would be unfair.

In retrospect, the Constitutions of Clarendon was probably a mistake – one which that wily old fox his grandfather would never have made. Clear rules are a barrier to the fudging which is often an essential part of compromise. However the young King Henry was rather keen on written statements of his rights.

Exile, restoration and revenge

As a result of their argument, Becket was exiled for some six years. Their failure to resolve their dispute was partly down to the issues, but partly also due the intransigence of the parties.

Eventually though a reconciliation was reached and Becket returned. However he still proved infuriating, hence Henry’s unfortunate outburst against him and the unwanted action taken by the four murderous knights before they could be recalled by Henry’s men.

Interestingly, some have suggested that Becket welcomed death and martyrdom. It certainly appears from the records as if he could have escaped if he had wanted to, but it seems, he chose to stay and die.

The murder had a catastrophic effect on Henry, and his reputation never really recovered from it. He appears to have been genuinely devastated (they had after all once been close friends) and shut himself up in his room and refused all food, until they worried for his own safely.

Due no doubt, to his genuine remorse, Henry was not excommunicated by the pope (who was horrified by the murder) and the terms of agreement and penance imposed on him were not as bad as they could have been.

As a result of all this though, he had no choice but to abandon the criminous clerks to the ecclesiastical authorities, and those clauses in the Constitutions of Clarendon were revoked. But the rest remained law. He also remained on reasonable working terms with the pope and his bishops for the remainder of his reign.

The Writ of Prohibition

The Becket affair ended Henry’s formal attempt to define in law the boundary line between secular and ecclesiastical jurisdictions. In future, conflicts of law were dealt item by item by means of a new writ, the royal Writ of Prohibition.

This could be issued to prevent a matter being decided in the ecclesiastical courts. However it would normally refused if the matter was something considered to be in the province of the church such as a marriage portion or the execution of a dead man’s testament.

So in future the boundary line between the state and ecclesiastical court jurisdictions was dealt with case by case, rather than by a once and for all law.
Lets leave the final comments with Warren:

The Writ of Prohibition was Henry’s major contribution to the avoidance of open conflict between Church ad State in the matter of competing jurisdictions. It produced what Maitland has called ‘a ragged and unscientific frontier’ between the courts, instead of the clear line which Henry had attempted to lay down in the Constitutions of Clarendon. This marked a retreat, but it was a retreat from his youthful distaste for ambiguity rather than from his basic objective. Henry had learned to be flexible …

It left the initiative in the hands of the King without forcing the clergy to the humiliation of abandoning established claims. Henry II was not accused of deviousness without cause; but the practice of prohibition, while undoubtedly vexatious to the clergy, stopped just short of being intolerable. Nothing indeed could be said to typify more clearly the policy and methods of Henry II than the Writ of Prohibition.

Canturbury Cathedral stained glass window picture is from Wikimedia

Towns in medieval England

2016-09-17T19:00:47Z

Most people in Medieval England lived off the land. There were cities of course, but these were far less populous than today.

For example Winchester had a population of about 6,000, Norwich, York and Lincoln about 5,000.

The capital, London was larger with about 10,000. (It is impossible to say for sure as there are no accurate records apart from Domesday which did not cover London or Winchester).

Burgesses of towns and cities had different rights to the rural population. They were not tied to the city as their rural cousins were tied to the land.

Their property was alienable and they had more freedoms. There was a saying that ‘town air makes you free’ which meant that in most towns, runaway villeins were free if they managed to stay there for a year and a day.

The burgesses (town dwellers) were also often free from taxation and tolls. However this freedom had to be bought – charters were generally granted by the lord in return for a payment. For example in 1194 Roger de Lacy granted a generous charter to his burgesses of Pontefract in exchange for a payment of £200.

It was often very much in a Lords interest though to do this. Bartlett cites the instance of Stratford upon Avon. It was initially a small hamlet belonging in the Bishop of Worcester. Then in 1196 a fiat created a borough with a weekly market and standard burgage holdings with a shilling per year rent, plus they were freed from toll.

Within 50 years Stratford was a market town with a population of 1,000, with artisans and craftsmen serving the surrounding area. The burgage rents alone brought the Bishop £12 pa which was considerably more than he could have obtained from the same area as farmland (about 16 s). So a good investment for the Bishop.

Only about 25% of boroughs were owned by ecclesiastics. Of the rest, 40% were owned by the crown, and 35% by the barons. However Henry II was careful not to let the towns gain too much independence and they were never as powerful as some of the continental towns and cities.

Even so, many of them had their own courts and thus judicial autonomy (apart from serious crime which was reserved for the royal justices) . They also often had financial autonomy. The various fines payments and tolls they were subject to were often negotiated down to a single payment, the ‘farm of the borough’. The town officials were then collectively responsible for ensuring that this be paid, and the lord was no longer entitled to control the urban finances.

Lincoln, for example, reached agreement with Henry I for an annual farm of £180. This was then confirmed by Henry II and Richard I made it hereditary.

Although towns and cities had a considerably smaller percentage of the population than they do now, they were an important part of the financial and political life of the country.

Reconstructed medieval house picture is wikimedia commons

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Medieval slavery and unfree villeinage

2016-09-17T18:57:33Z

In England (where I am writing from), slavery has been absent from our culture for a long time. However, it is by no means entirely absent from our history, and was certainly present during the Angevin period I am currently writing about, in various forms.

The answer to the question how much slavery there was though, really depends on how you define it.

‘Proper’ slaves

Early in our period there was undoubtedly slavery as it is traditionally understood – ie slaves chained together and girls raped before being sold.

Pirates would descend upon the North coast of Devon, taking slaves for Ireland, and Bristol apparently had a roaring trade, buying up slaves in England for sale to Ireland.

This trade was eventually stopped by Wullfstan, Bishop of Worcester and Archbishop Lanfranc. This was confirmed by the Council of Westminster in 1102:

Henceforth let no one dare to engage in that wicked trade, which has until now been customary in England, namely the selling of human beings as if they were brute beasts

Many took it that this was the civilising influence of the Normans – other countries, such as Scotland and Ireland, who were without the benefit of a Norman aristocracy and rulers, continued with the practice, although it reduced over time.

But what about unfree peasants? Weren’t they slaves too?

Unfree peasantry

There is no doubt that many in medieval England were effectively slaves, tied to the land and not allowed to leave. But it is a confusing picture, not helped by the terminology of the time.

Domesday refers to slaves, and shows that there were more of these in the time of Edward the Confessor than at the time the survey was taken. Slaves could also be freed by a process called manumission so over time their number declined.

However many referred to by other names were effectively slaves. Their lives were at the mercy of their Lords and they were not allowed to leave.

Many of course did run away. If they were lucky, and reached a town and stayed there for a year and a day, their status would change and they would become free. This is often mentioned in the Cadfiel books.

Others, less lucky, would be captured by their Lord and forcibly brought back. They would often then be treated very harshly, and there are records of Lords holding serf’s in chains to prevent their running away again.

Defining freedom

A man’s free or unfree status became more important after the legal reforms brought about by Henry II as only free men could use the Kings Courts.

As the Kings Courts and the common law became more important, it was necessary to find a way to tell the free from the unfree. Important signs were:

Payment of merchant – which was a payment for permission to give a daughter in marriage
Tallage – which was the right of the Lord to make an arbitrary levy at annual or longer intervals, and
Uncertain labour services. For example if the villein had to turn up to work on their Lords land for a certain number of days in the week without knowing exactly what work they would be doing.

Although these were all important, they were not absolute signs. Probably the surest sign was the right to bear arms.

This was the mark of a free man, and when a master or lord freed one of his men, he would place an appropriate weapon in his hands.

There was also a significant difference between someone who was a villein because of the nature of his tenure of land, and someone who was born unfree – villeinage of the blood.

Consequences of unfree status

Baker refers to three main consequences:

The first was that the villeins property was subject to seizure by the lord. Villeins could hold property but only subject to the lords will

The second was that the lord could exercise corporal punishment. However this was limited. He could put a villein in the stocks but did not have the right to kill, main or rape him

The third was that already mentioned – the villein could not run away and could be restrained by force.

However although freedom was definitely preferable, in most cases, to being unfree, it was not quite the same as traditional slavery. An unfree villein still had rights. Even though he was unable to use the common law courts, he could still use the manorial courts.

And as Bartlett points out, during this period (unlike the later medieval period) there were no large scale revolts and lower class uprisings were virtually unknown. Which may or may not be significant.

Peasant picture is a section taken from a larger picture on Wikimedia

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The Kings courts and the start of the common law

2016-09-17T18:53:20Z

The legal reforms carried out by Henry II had a profound effect on the English legal system. This post looks at some of these.

The reduction in the powers of the lords

In one of the very early posts on this blog, I talked about sesein and how it was essentially possession of land which you held from a lord after doing homage.

Originally the sons of a land holder did not necessarily have the right to sesein after their father’s death. This was a matter for the lord to decide.

However as time went by gradually the custom built up that in most cases a mans heirs would have the right to inherit (although the precise rules varied from place to place according to local custom).

Then Henry II, who felt strongly about a sons right to his inheritance, developed the writ of mort d’ancester which forced the lord to allow the heirs of a deceased tenant to take sesein. This was always subject to any final decision of the court, for example in a claim brought under a Writ of Right.

In most cases though people did not want to embark on this long and formal procedure. So the decision reached by the jury in the mort d’ancester claim was in many cases effectively a permanent decision.

However the writ of right itself also brought about profound changes. It too overrode the previous situation where seisin was the deciding factor. Now someone who had seisin could be removed in favour of someone who had the right of seisin. In law therefore the right to hold a piece of land was (when recourse was made to the Kings courts) more important than the fact of seisin and possession. This was getting closer to an actual interest in (or even ownership of) the land itself.

These new writs were however only available in the Kings Courts. Which led ultimately to the abandonment of the lords own courts which gradually fell into disuse. Another avenue for the exercise of the lords power lost.

The question of proof

In olden times, a court would call upon God to decide a matter. We looked in an earlier post at oaths and ordeals, and the trial by battle procedure brought over by the Normans.

However in the reign of Henry people started looking to more secular solutions. This was not always easy though. In an age when few could read and write, written charters for property was rare. Monasteries would often have them, but monasteries were a special case. For most men, grants of property were made orally.

These grants were not wholly without proof though. The grantor would be expected to warrant his grant in court – and attend to testify if necessary. Even after the death of the grantor, people who had witnessed the ceremony of transfer would be able to attest to it. As could people who knew of it through local knowledge.

This was what Henry was harnessing with his new jury system – local people and the knowledge they had of local land holdings was the best method of proof of title that there was at the time.

Men die though and memories fade. Long term, a continuation of seisin within the same family over a period of many years was the best proof of right. Which is why the petty assizes which dealt swiftly with an interruption of sesein were so important.

The beginnings of the common law

The move to more secular methods of proof had another profound effect. It led to the development of legal questions and the science of pleading. Which are the foundation of the common law of England.

When a question is to be answered by God, for example via an ordeal, a choice would be made. But you would not know why – God cannot be interrogated and asked to give His reasons. With the introduction of the jury this changed.

Like God during an ordeal, juries provided ‘yes/no’ answers. However you can refine the questions which are put the jury so that they are in a form that they can understand. Questions considered to be outside the competence of the jury would be raised with the Judge in advance.

This is how many of the principles of the common law were developed and refined – in discussions which occurred before the jury was summonsed.

Baker (p85):

Inheritance can only become a legal concept when the pedigree can be discussed and someone can be asked to rule whether one descendent or another has the right to succeed. Owning can only become a legal concept when the details of a transaction can be looked into, and someone asked to rule whether they result in a debt. ‘Legal development consists in the increasingly detailed consideration of facts’.

We owe much of the development of our common law system to Henry II and the reforms he set in place. It was the start.

The seal of Henry II photo is Wikipedia commons

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The petty assizes and the development of the jury system

2016-09-17T18:50:38Z

We discussed here how Henry II made it a requirement that all land disputes should be resolved via the courts after first obtaining a Kings writ.

This though, begged the question, what was to be done about the person who resolved matters the old way, by forcibly taking land without a court order?

The answer provided by Henry was a proclamation, or assize, saying that in future a ‘disseisin‘ (ie loss of land holding) made ’unjustly and without judgement’ was to be considered as a breach of the Kings peace. It would also be something to be dealt with and enforced by the Justices in Eyre.

For example in 1176 their instructions included the following:

Let the Justices make enquiry about disseisins contrary to the assize, committed since the Lord King returned to England after making peace with his son.

(The last few words refer to the civil war in 1173-4 when Henry’s elder sons and some of the barons rebelled against him.)

It is believed that this process was begin by the Assize of Clarendon in 1166 (named after Clarendon Palace, pictured, where it was promulgated). However the document we have appears to have been drafted later than 1166 and is believed to be a description of the administrative procedures set in place in 1166 (see Warren p282).

The Writ of novel disseisin

A new form of action was then devised to give the man who had been diseissed a swift procedure for recovery of seisin. It was called assize of novel disseisin and used a jury to decide the case. The jury were asked:

1. Had the plaintiff been diseissed unjustly and without judgement?
2. Was the defendant the person who had done it?

Judgment was given according to the jurors replies.

The procedure revolutionised the legal system and was very popular. It was also (for the time) unusually efficient and quick. The sheriff was the officer used and proceeded as follows:

The plaintiff would purchase a writ of novel disseisin which would order the sheriff to take action
The sheriff would first take security from the plaintiff
Then put the property in dispute under royal protection
He would then empanel the jury, which was of 12 local freemen in the neighbourhood (the defendant could object to the jury members but only if he attended)
The jurors were then sent to inspect the property (the defendant could attend this if he wished, but they would not wait for him)
Finally the defendant was summonsed to attend the hearing where the jurors would give their decision (or recognise the facts or make a recognition).

All of this was authorised by the precise wording of the writ. There was a tradition that this wording had taken the King and his advisors many sleepless nights to perfect.

It was also successful because it asked a very simple questions which could easily be answered, i.e. whether the plaintiff had or had not been dispossessed by the defendant.

Although it only dealt with the restoration of the status quo, the writ of novel disseisin was exceedingly important. It dealt with the disorder of self help, brought land disputes into the courts and was a quick remedy for someone who was ejected from land improperly. It became a model for other new writs. For example:

The Writ of Mort d’ancestor

This was another important new procedure and was available to heirs who believed that they had been deprived of their inheritance. As you can imagine, this was a subject dear to Henry’s heart. In his youth, and until he was finally accepted by Stephen as his heir, he had believed himself to be a true heir seeking his inheritance against a usurper.

The idea of an heir having the ‘right’ to inherit land was rather against the whole tradition and feudal system where the identity of a vassal was originally in the sole discretion of the lord. However over time inevitably people wanted their children to inherit the land that they had held, and custom built up.

Henry though took steps to ensure that a ‘rightful heir’ could take sesien even against a hostile lord. In 1176 the instructions to the Justices in eyre included the following:

If any freeholder has died, his heirs should remain possessed of such seisin as their father had of his fief on the day of his death; and they should have his chattels from which they may execute the dead mans bequests; and afterwards they should seek out the lord and pay him the relief and anything else that is due from the fief …

And if the lord of the fief should deny the heirs the seisin of the said deceased which they claim, the Justices of the lord King shall cause an inquiry to be made by twelve lawful men as to what seisin the deceased had on the day of his death; and as that enquiry establishes it, so shall restitution be made to his heirs.

And if anyone shall do anything contrary to this and is convicted of it, he shall be at the Kings mercy.

If there was no Eyre visiting at the time of the problem, the heirs could purchase a Writ of mort d’ancseter.

The petty assizes

These types of writs, which dealt swiftly with recovering sesein were rather like sticking plaster. They simply restored the status quo and did not look behind this at who was really entitled to hold the land. This would have to be dealt with the much more formal and solemn Writ of Right.

However in most cases the proper person HAD been in possession, and the swift action of these writs was all that was wanted. Also the Writ of Right could still be decided by the unpopular trial by battle (where a rich man could distort justice by buying the services of a top champion) and so tended to be avoided if at all possible.

These two forms action along with a third, the Assize of darrein presentment were known as the petty assizes, and remained in existence until they were abolished in 1833.

Ruins of Clarendon Palace picture is from Wikimedia commons

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The General Eyre and the Court at Westminster

2016-09-17T18:48:22Z

In my last post I said I was going to be looking the new forms of action developed by Henry II, but I think I ought to look first at his reforms of the Court System.

We last looked at the courts system at the start of Henry’s reign when they were in a right muddle. Henry changed all that, not by closing courts down, but by setting up his own systems to run alongside them, until eventually they fell into disuse.

The General Eyres

The first of these was the development of the General Eyres (from the old French word erre, journey). These were regular countrywide visitations from royal judges with special powers and duties.

It started in about 1166 when Henry appointed Geoffrey de Mandeville and Sir Richard de Lucy to tour the whole country.

In 1176 six circuits were organised (excluding Chester and Durham which were exempt) for itinerant justices to tour – they later became known as the Justices in Eyre. The Eyre became the most important form of local justice up to the time of Edward III.

Here is a description from Baker.:

Every so often a ‘general eyre’ would visit a county bringing the Kings government with it. Large throngs of people attended, to account for themselves or to seek justice: special regulations were required to control the rates of board and lodging during the crowded sessions; the writs were read and the Justices’ authority publicly proclaimed, local officials delivered up their insignia of office as if to the King in person, and the Justice started into their long agenda (the ‘chapters of the eyre’), investigating crimes and unexplained deaths, misconduct and negligence by officials, irregularities and shortcomings of all kinds, the feudal and fiscal rights of the crown, and private disputes.

The general eyres were not merely law courts, they were a way of supervising local government through itinerant central government. They begat fear and awe in the whole population.

The central court at Westminster

As well as the general eyre and the court which always followed the King, from the late twelfth century a central court developed in London, sitting at Westminster Hall and known as ‘the Bench’.

This is where the Justices in Eyre would come back to, and it was somewhere litigants could always come, at a price, if they could not wait for the general eyre or the King was unavailable.

There also started to develop a body of professional Judges who would keep records and discuss matters of law amongst themselves. In fact it was the start of the development of the common law.

*****

Note: links to original source material for general eyres (mostly post 1194) can be found via this page in the National Archive.

Henry II Picture is Wikipedia Commons

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The Writ of Right and the start of Henry II’s legal reforms

2024-11-28T08:51:42Z

At the start of the reign of Henry II

As can be seen by the case of Battle Abbey, the legal system in the early years of Henry II’s reign left much to be desired.

If the defendant (as in the Battle case) was determined to prevaricate, the case would be dragged out interminably until it could be brought before the King.

With Henry, this was difficult – he spent much of his time abroad, and even when he was in England, he was furiously busy.

The problem of land ownership

Another difficulty at the start of Henry’s reign was the problem of land ownership. During the civil war in the past 19 years, there had been much transfer of land to supporters of Stephen. Henry was anxious to return things to the way they were at the time of his grandfather, King Henry I, but there were difficulties.

Had Henry become King by conquest, things would have been easier – he could then have rewarded his supporters by taking land from Stephen’s supporters.

However Henry’s succession had been decided by agreement – the Treaty of Westminster in 1153. So, the option of just returning land to those who had held it in his grandfather’s reign was not always practicable. Some of his important supporters, such as the Earl of Leicester and Richard de Lucy had profited during Stephen’s time. Often he had to resolve matters by way of compromise.

With the proliferation of courts throughout the country under the control of different Lords, Henry had to exercise some control over land litigation. He did this by making it a rule that it was necessary to get a royal writ before starting a claim for land. AND that the only way that land disputes could be resolved was through the courts (i.e. not by self-help).

The Writ of Right

The earliest writ was known as the Writ of Right. It was not new, but the requirement that it (or another of the Kings’ Writs) had to be obtained in land disputes was. This had several unforeseen consequences.

The number of Writs requested went up dramatically, leading the clerks in the royal chancery to devise a standard format
The King was forced to consider what he should do if the lord failed to comply with the writ, and
He also had to think about what he would do when people still used self-help measures

The system that finally evolved is described in the Tractatus of Glanvill, the earliest law book we have, generally ascribed to Ranulf de Glanvill, Chief Justiciar of England, between 1180 and 1189.

How it worked

A writ would be issued (after payment of the fee) from the King’s Chancery. This is an example of the type of wording:

Henry, by the Grace of God, King of the English …to the Abbott of Thorney, greeting. I order you to do full right without delay to Richard FitzAdam concerning one virgate of land in Twyell, which he claims to hold from you by the free service of five shillings a year, and of which Roger de Bachelor deprives him. And unless you do it, the sheriff of Northampton shall do it, that I hear no further complaint thereof for lack of justice. Witness Ranulf de Glanvill. At Geddington.

This writ, which is an example from towards the end of Henry’s reign, is a lot more specific than those issued earlier in Henry’s reign, which were often rather vague.

If the defendant defaulted and did not comply with the request in the writ, the plaintiff would then lodge a complaint before the Shire Court and produce his writ, authorising the Sheriff to act. The Sheriff would then appoint a servant and four or more Knights of the shire to go with him to the lord’s court. There he would declare that he had not received justice. The case would then be litigated.

As the Writ of Right was to decide the matter once and for all it was a solemn affair. It was important that both parties attend the hearings, but in medieval times this was not always possible (even if one side was not deliberately prevaricating) so there were endless adjournments.

The new assizes

Trial was normally trial by battle. This was not popular, as it was a chancy affair, and a party with more money could afford to hire a top champion. However, one of the big innovations brought about by Henry was the development of the assize.

Here it is described by Maitland:

the action is removed out of the lord’s court and is brought before the king’s justices; four knights of the neighbourhood are summoned to choose twelve other knights who are sworn to say, to “recognise” (recognoscere), whether the demandant or the tenant has the greater right to the land. The name “grand assize” is transferred from the ordinance to the institution that it creates; these twelve recognitors are “a grand assize”.

So instead of being decided by battle (where God, it was hoped, would favour the righteous), the case was decided by 12 local Knights.

This was a massive innovation and very popular. However, it was not as popular as the other, new forms of action developed by Henry. We will look at these next time.

Picture of Henry and Eleanor holding court is Wikipedia commons

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Battle Abbey v. Gilbert de Balliol

2016-09-17T18:43:52Z

Its time to get our hands dirty and look at an actual 12th century land dispute. This is the story (helpfully recorded by Warren) of the dispute between St Martins Abbey at Battle (the gate house still remains, above) and the de Balliol family, over land at Barnholme in Sussex.

The story starts

Our tale begins with the purchase by the Abbey of three ‘virgates’ of land from Withelard do Balliol in the closing years of Henry I’s reign. The transaction, along with a gift of some adjoining land, was approved by Withelard, his lord the Count of Eu and indeed Henry I himself.

During the next few years the monk’s work improved the land greatly. As a result the Lord of the manor of Barnholme began to regret the transaction and start asking for the property to be returned. When the monks refused (as any monastry would) the Lord of the manor took back the land anyway and mortgaged it to a moneylender in Hastings.

The litigation begins

The Abbey was never going to take this lying down. The Abbot duly started litigation for the recovery of the land, but before they could really get going Henry I died abroad.

Although they had some success with King Stephen, who agreed with them, he was a weak King and his justice was little regarded – everyone just held on to what they had at the time.

Hope comes with King Henry

However come Henry II the monks decided that now was the time to push for it, especially as the Abbot, Abbot Waltar, was the brother of the Justiciar, Richard de Lucy. He got them a hearing at the royal court and King Henry sent a writ to the overlord, the Count of Eu, telling him to do right by the Abbey.

By this time the lord of the manor was Gilbert de Balliol. He kept putting up excuses and continually failed to answer, despite being summonsed many times by the count, the Sherriff, and the Abbot and his men.

A lot of back and forth

Despite the Abbey being in the right, it seemed impossible to bring the case to a satisfactory conclusion. After numerous applications, the case was eventually transferred to the Kings court. However the problem was, that the King was never there. He was constantly back and forth across the channel.

It wasn’t until the King came to stay for a while at Clarendon that the case could be heard.

King Henry hears the case

Finally the case came before the King and he was able to get the parties before him. The Abbot explained the situation and produced his paperwork.

Gilbert de Balliol then raised objections and challenged the paperwork on the basis that it did not have any seals attached to it. This got him nowhere though, Richard de Lucy pointing out that it had not been the custom then, for all knights to have their own seal.

However the King had noticed that one of the charters had his own grandfather, Henry I’s, seal on it.

By the eyes of God, (he said) if you can prove this charter false you will make me a rich man in England. If the monks by a charter and confirmation such as this would lay claim to this very palace of Clarendon, which I delight in above other, I would be obliged to give it up to them entirely

This heartend the monks no end, and being asked if they had any further evidence they said “no” they would just rely on the charter. Gilbert de Balloil had nothing to say to this, so royal judgment was given for the Abbey.

Enforcing the order

Leaving nothing to chance, Henry sent writs to the four knights, who at that time jointly held the sherrifdom of Sussex, ordering them to see to it that the land was restored to the Abbey

The land itself being first ascertained, and its bounds walked by twelve loyal men of those parts who knew its boundaries, and who should speak the truth about it upon oath

So the monks got back their land, and presumably used it and worked it, until some 300 years later, another Henry came along to take it away from them permanently. But Abbot Waltar was long dead by then.

In conclusion

Warren comments that this case just shows how hard it was to get justice in the face of a defendant determined to delay, prevaricate and avoid court appearances as much as possible. A weaker plaintiff without the resources and personal connections of the Abbey, would have given up in despair long before.

No doubt many did.

St Martins Abbey Battle gatehouse picture is Wikipedia commons

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A confusion of courts

2016-09-17T18:41:23Z

I looked briefly at courts in my post here. However, now we have reached Henry II it is time to look at bit more closely at the situation he faced early in his reign.

The problem was largely due to the existence side by side of the old pre conquest courts and the new courts and ideas brought over with the Normans.

Courts galore

Here is a list of the main types:

The vill courts enforced the village by-laws. These were small humble courts and often got subsumed into the more important courts later

The manor courts were the landlord’s private estate courts which dealt largely with matters relating to unfree tenures of his peasantry

The hundred (or wapentake) courts dealt with petty crime in the local area

The Shire courts dealt with more serious crime, tort and pleas of debt

The Borough courts had the same functions within townships, according to their charter or incorporation

The Ecclesiastical courts dealt with ‘causes which concern the cure of souls’ such as matrimonial and testamentary matters as well as cases against the clergy (the subject of the Becket problem later in the reign)

The Kings Court, which met wherever the King was, was the greatest court in the land and was where his tenants in chief brought their pleas. But it was also a court for enforcing the King’s rights, as well as acting as a supreme court of appeal

Courting confusion

It sounds nice and neat written like that, but in fact it was highly confusing. The jurisdiction of the different courts was unclear. This caused problems, for example defendants could delay matters endlessly by prevaricating and raising jurisdictional queries.

Attempts at clarification failed miserably, the best (according to Warren) being Glanville writing about litigation relating to land:

Such pleas are tried in the courts of lords, in accordance with the reasonable customs of those courts, which are so diverse and numerous that they cannot readily be reduced to writing

This coupled with the fact that the medievals were not big on paperwork (few other then the clergy could read or write) and frequently looked to unsatisfactory ordeals for proof, made ‘justice’ often illusory.

Ameliorating aspects

Although none of this was good, not all was gloom and doom. Warren suggests that the reports may make things appear worse than they actually were in practice as they were largely taken from monastic records.

Monasteries were in a separate class of litigant. They often had no alternative but to litigate, and as they held property for posterity, they were reluctant to accept compromise.

Having a strong minded King was also an advantage as they could often cut through the confusion and sort things out. As Warren says, rather tongue in cheek:

They were highly conscious of the prerogative of Kingship, and discharged its duties more vigorously than many Anglo-Saxon kings, who did not have to try so hard to prove that they were truly kings.

As we will see, this all changed during the course of Henry II’s reign. However before we move into considering the changes, it is time to look at an actual case. Which is the subject of the next post

The medieval robbers picture is wikipedia commons

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