II. The Reign of King Stephen (1135-1154)
When King Henry I died in 1135, he left only a daughter (Matilda), but a
daughter to whom the English magnates had sworn loyalty and undertaken to
acknowledge as queen.[50] Henry I's nephew, Stephen, was in fact acknowledged
as king in 1135, and, because of mismanagement, there ensued a war between
Matilda (reinforced by husband, who was a French count) and Stephen. The war
was indecisive, but at one time or another both Stephen and Matilda had seemed
to be victorious. Henry, Matilda's son and thus grandson to Henry I, eventually
took over his mother's fight; because of a compromise in 1153, Henry became
king (Henry II) at Stephen's death in 1154. It was during Henry II's reign
(1154-1189) that the common law began. Note that the common law is designated
"common" because it was a law common to all of England and
administered by a central court, as distinguished from the customary law that
varied, albeit often only in minor ways, from county to county, lordship to
lordship, or manor to manor. Moreover, the common law began as the result of
political occurrences, not from jurisprudential considerations.
II.A. The Treaty of Winchester (1153)
The Treaty of Winchester was the formal conclusion of the war between King
Stephen and Henry, Matilda's son and the future Henry II. The treaty was
arranged because the armies refused to join battle, so that Stephen and Henry
were effectively in stalemate. This treaty occupies an important position in
the origins of the common law, because it set the pattern by which the king
undertook an obligation for the maintenance of certain tenures and thus
interfered for the first time in a regular way between his tenants-in-chief and
their tenants. For the first time the holding of such land became a concern for
the king, instead of being a contractual matter between the lord and his tenant
to be handled in the lord's own feudal court, a court structured as a communal
court. The treaty itself shows none of this, but the terms must be understood
to understand what happened.
[The Treaty of Winchester has been treated traditionally as a compromise solely
between Stephen and Henry, not also a pattern for a broader social compromise.
The evidence for the broader social compromise is admitted, but interpreted
rather as an undertaking of immediate restoration of the disinherited, which
both Stephen and Henry found it more convenient simply to ignore.]
Stephen, king of England, to the archbishops, bishops, abbots, earls,
justiciars, sheriffs, barons, and to all his liegemen of England, greeting.
Know that I, King Stephen, have established Henry, duke of Normandy, as my
successor in the kingdom of England, and have recognized him as my heir by
hereditary right; and thus I have given and confirmed to him and his heirs the
kingdom of England.[51]
The duke in return for this honour and gift and confirmation which I have made
to him, has done homage to me, and given me surety by oath. He has sworn that
he will be my liegeman,[52] and that he will guard my life and honour by every
means in his power[53] according to the agreements made between us which are
described in this charter.
I also have given an oath of surety to the duke, that I will guard his life and
honour by every means in my power, and that I will maintain him as my son and
heir in all things, and that I will do all I can to guard him against all men.
William, my son, has done liege homage and given surety to the duke of
Normandy, and the duke has granted him to hold from him all the lands which I
held before I acquired the kingdom of England, whether in England or in
Normandy or in other places.[54] He is also to hold whatever came with the
daughter of the earl of Warenne, whether in England or in Normandy, and
whatever pertains to those honours.[55] And the duke will put William, my son,
and the men of that honour into possession of all the lands, villages, and
boroughs and revenues which the duke has now in his demesne, and especially
those which pertain to the honour of the earl of Warenne, particularly the
castle of Bellencombre, and the castle of Mortemer: the agreement being that
Reginald of Warenne shall, if he wish, keep the castle of Bellencombre and the
castle of Mortemer, giving the duke hostages in respect of it; but if Reginald
does not wish to do this, then other liegemen of the earl of Warenne agreeable
to the duke shall keep the said castles likewise giving the duke good hostages.
The duke shall return to him the other castles, which belong to the count of
Mortain, at my pleasure, when he can, for safeguard and with safe hostages, it
being understood that all hostages shall be returned without dispute to my son
when the duke comes into possession of the kingdom of England.
The duke has agreed[56] to the increment which I have given to my son, to wit,
the castle and the town of Norwich with 700 pounds-worth of land, it being
understood that the revenue of Norwich itself is included within those 700
pounds-worth; and the whole county of Norfolk, except what pertains to churches
and prelates and abbots and earls, and excluding particularly the third penny
which pertains to Hugh Bigot as earl, and excepting in all things the rights of
the royal justice which are reserved.
Also, in order to increase my thanks and to strengthen my love towards him, the
duke has given to my son, William, all those things which Richer of Laigle had
from the honour of Pevensey. And besides this castle and town of Pevensey, and
the service of Faramus, apart from the castle and Dover and what pertains to
the honour of Dover, the duke has confirmed the church of Faversham with its
appurtenances and will confirm all the other things given or returned by me to
other churches by the advice of holy church, or through my own intention.
The earls and barons of the duke, who were never my men, in consideration for
the honour which I have done to their lord, have sworn homage to me, saving
only the agreements made between me and the duke;[57] and the others who in
previous times had done homage to me, have performed fealty to me as to their
lord.
If the duke goes back from his promises, these shall altogether break their
service to him until he corrects his errors; and my son also, following the
counsel of holy church, shall act likewise in similar circumstances.
My earls and barons have done liege homage to the duke saving their fealty to
me so long as I live and have the kingdom with a similar understanding that if
I go back from my promises they shall altogether break their service to me
until I correct my errors.
[Provisions for the keeping of royal castles, so that they would be turned over
after Stephen's death.]
The archbishops, bishops, and abbots of the kingdom of England, by my order,
have sworn fealty to the duke. And those who shall henceforth be made bishops
or abbots in the kingdom of England shall do the same.
And the archbishops and bishops severally have undertaken that if either of us
departs from these agreements, they will visit him with the justice of the
Church until he has corrected his errors and returned to the proper observation
of this pact.
1. What role do homage and fealty play in this treaty? In what way does the
giving and taking of homage embody the reality of making Henry "heir by
hereditary right"?
2. Could it be said that King Stephen's son William was to retain only those
lands that Stephen had held on the day King Henry I had died in 1135? What
about the lands that came to William with the daughter of the earl of Warenne?
Indeed, why is the language so strange ("whatever came with the
daughter" instead of "whatever she owns"?) If people held land
only as the consequence of a personal relationship, and the relationships between
these people were basically military, such that they gave homage and thus owed
knightly service for their tenures, would a woman be able to do homage? Would
she be a good and acceptable fighting man? And if not, what is the status of an
heiress (remembering that Matilda was supposed to have become queen of
England)? Explain, then, what William was getting, considering also the
statement that Stephen's land in 1135 was to come to William now from Henry
purportedly by a grant from Henry.
II.B. The Broader Compromise (1153)
Contemporary accounts of the Treaty of Winchester report something more than
appears in the royal settlement. One outstanding problem derived from the
inconclusive nature of the war. Many people had lost their land by adherence to
the wrong side, and the land had been granted to a follower of the temporarily
dominant side. What to do with them, considering that they were skilled
military people (whom you do not want roaming dissatisfied through the land)?
Torigni: "It was also sworn that possessions which had been snatched away
by intruders would be recalled to the ancient and legitimate possessors whose
they were in the time of the excellent King Henry [I]."[58]
Gesta Stephani: "So it was provided and firmly established that, arms
having been completely laid down, peace should be restored everywhere in the
kingdom, the new castles should be demolished, the disinherited should be
recalled to their own,[59] the rights and laws commanded to all according to
pristine custom."
1. Do you see any evidence in the Treaty of Winchester itself for these
assertions about those who had been "disinherited"? In regard to the
treatment of Henry; of William?
2. Given that one of the problems observed was that men had broken their
undertakings of loyalty made by homage, it is relatively unlikely that anyone
at that time would have wanted wholesale severance of homage bonds. Could the
settlement regarding the disinherited have been exactly like that to be made
between Stephen and Henry? And if, then, those whose ancestor had held a
particular piece of land in 1135 would be preferred to a current tenant's heir
when the current tenant died, what are the incentives on the part of the future
claimant to come to some kind of lesser arrangement prior to current tenant's
death? on the part of the current tenant? on the part of the lord from whom
both current tenant and future claimant hold? And what if the current tenant
has a marriageable daughter and the current tenant has land legitimately held
elsewhere, so that he would not be impoverished by the loss of the tenement?
II.C. The Writ of Right
Since the lord would have given the tenement to the current tenant in the way
normal for a fee, that is, "to x and his heirs," the lord would be
inclined strongly to keep the promise he had made to x. Since his own strength
depended on his keeping his obligations to his men (and vice versa), the
outside claimant would be in a difficult position when he tried to take
advantage of the settlement of 1153 when the current tenant died. It was,
nevertheless, the king's undertaking. The king thus provided a writ (a written
order) in relatively standard form. This writ, the writ of right, could be
purchased and remained with the claimant, often for years, whereas later
classes of standardized writs were sent directly to the sheriff and immediately
executed. The writ of right remained anomalous in the possible length of time
between issuance and use, but this is precisely what this kind of outside
claimant would want to have, ready for use at the proper time some distance,
near or far, in the future.
[The writ of right has traditionally been viewed as a first royal attempt to
undermine magnate control. Early expressions of a later rule seemed to indicate
that the king demanded that claims for land be initiated only by a royal writ:
a licensing requirement for litigation for what historians thought were
property pleas being held in feudal courts that functioned as dispassionate
fora for litigation.]
The following example of a writ of right comes from Glanvill, 12.3.
The king to Earl William, greeting. I command you to hold[60] full right
without delay to N. in respect of ten carucates of land in Middleton which he
claims to hold of you by the free service of one knight's fee for all service,
which Robert son of William is withholding from him. If you do not do it, the
sheriff of Devonshire will, that I may hear no further complaint for default of
right in this matter. Witness etc.
1. Glanvill was written circa 1188, and this writ is somewhat more advanced
than what one would have found in the 1150s and 1160s. The principle difference
is the deforciant clause ("which Robert son of William is withholding from
him.") No writ of right has been found before about 1170 that has a
deforciant clause, so that in no writ of right that has been found is there any
evidence that the lord to whom the writ is addressed has a tenant already on
the land. That, of course, would be the situation if the tenant had just died.
It also shows the reluctance of the king prior to about 1170 to interfere
between lords and their already accepted tenants by homage.
2. As soon as we know anything about what could be done in cases begun by writ
of right, we find that one could base one's claim on an ancestor's tenancy in
1135 (when Henry I had died), but not on any ancestral tenancy or personal
tenancy during Stephen's reign. Of what significance is this? To whose benefit
was this, the followers of Stephen or the followers of Henry? Was this
illustrative of Henry's hatred to Stephen, that he would not even allow proof
deriving from Stephen's reign? Henry's official memory of what had happened in
Stephen's reign would frighten Stephen's supporters: better to wipe the slate
clean so that these people started with an equal opportunity to prove
themselves good men to their new lord.
3. What is the venue for this writ? Why?
II.D. The Assize of Northampton, cc. 4-5 (1176)
This is an assize (enactment) which instituted the assize (writ and legal
action flowing from the writ) of mort d'ancestor. It is at this point that we
can begin to speak of the common law. The writ of right was provided originally
for only certain people in certain narrow circumstances. This enactment
provided a broad access to the king's court. Within three years there are many
cases coming into the king's court; in 1179 the king modifies certain
procedures and institutes the grand assize (to be treated later); and there is
a proliferation of common form writs authorizing the king's court to hear
cases. In 1176, justices began to be more than presiding officers: they instead
of those attending rendered the judgments. Moreover, there begins to be a small
nucleus, perhaps only three or four, specialists in hearing cases, whether at
Westminster or on circuit in eyre (from a word meaning "journey"); in
1194 that nucleus will expand to more than a dozen.
If we now know the major impetus for the provision of the standardized writ of
right, what is the purpose to the assize of mort d'ancestor? Remember the
appearance of the deforciant clause in 1170? How would lords have felt about
the king interfering when they had already committed themselves to a new
tenant? Either they would have to ditch the new tenant and appear perfidious,
or else they would have to satisfy both new tenant and outside claimant,
incurring unwanted expense. This was one reason among many why many magnates
backed Henry II's oldest son's attempt to displace his father. Henry II won the
war of 1173-74 against his son, the Young Henry. The Assize of Northampton
overall sought to settle the kingdom down, to implement the peace struck
between Henry and his rebellious subjects. Although Henry won decisively, he
dealt generously, as was characteristic of him, with those who had followed his
son, who had been, before the war, crowned king at Henry's own order and
received the homage of the English magnates. Loyalty to one's lord was not to
be punished too severely, although one wanted to discourage further uprisings.
4. [a] Likewise, if any freeholder has died, let his heirs[61] remain possessed
of such "seisin" [lawful possession] as their father had of his fee
on the day of his death; and let them have his chattels from which they may
execute the dead man's will. And afterwards let them seek out his lord and pay him
a relief [payment to obtain the benefit of the lord's promise to the dead
tenant to give the land to x and his heirs] and the other things which they
ought to pay him from the fee. [b] And if the heir[62] be under age, let the
lord of the fee receive his homage[63] and keep him in ward so long as he
ought. Let the other lords, if there are several, likewise receive his homage,
and let him render them what is due. [c] And let the widow of the deceased have
her dower and that portion of his chattels which belongs to her.[64] [d] And
should the lord of the fee[65] deny the heirs of the deceased the seisin of the
said deceased which they claim, let the justices of the lord king thereupon
cause an inquisition to be made by twelve lawful men as to what seisin the
deceased held there on the day of his death. And according to the result of the
inquest let restitution be made to his heirs. And if anyone shall do anything
contrary to this and shall be convicted of it, let him remain at the king's
mercy.[66]
5. Likewise, let the justices of the lord king cause an inquisition to be made
concerning disseisins carried out contrary to the assize,[67] since the lord
king's coming into England immediately following upon the peace made between
him and the king, his son.
1. A close reader will have noticed that there are several oddities in
comparing clause [a] and clause [b]. Clause [a] speaks of "heirs"
whereas clause [b] speaks of only the "heir". Clause [b] orders the
lord to receive homage; clause [b] does not mention homage. Does it help to
figure out this provision if you realize (1) that women could not give homage
and (2) that since about 1150 heiresses divided the land of their father,
whereas if there was a son he succeeded to the whole tenement, excluding both younger
brothers and all sisters? Can one conclude that clause [a] concerned heiresses
whereas clause [b] concerned minor male heirs?
2. I think it is true that prior to this time lords did not take the homage of
minors until they were old enough to perform knightly service, so that until
majority the land was well and truly in the lord's hand and there was no real
tenant, because only homage made a man a tenant. Now, on the death of military
tenant who left only minors, the lord was only a guardian and indeed had a
tenant, although the lord continued to have disposition of the income in a
beneficial manner for himself. Prior to 1176, then, the widow's dower, that
portion of her husband's land that would remain with her to support her, was
held from the husband's lord. After 1176, the dower was held from the heir,
although the guardian lord would in fact be in control. This change would
seemingly have necessitated clause [c]. Thinking about all this, together with
the fact that a fee (a military tenure) was granted "to x and his
heirs," what did it take to buy the loyalty of a good knight? Clause [c]
seems to be the beginning of the various standardized writs concerning dower.
3. Clause [d] provides a writ for the situation of heirs concerned here. It
utilized a panel of twelve men to answer set questions to determine land
tenancy. The ASSIZE OF MORT D'ANCESTOR asked if the deceased had held the land
in demesne (in his own hands and not granted out to another) as of fee
(heritably), whether the deceased had died since a certain time (at first,
since the king's coronation), and whether the claimant was the nearest heir
(but not only heir, but an heir who could claim the deceased as father, mother,
brother, sister, aunt or uncle). If the panel returned affirmative answers on
all these points, the claimant would be put into the tenement; if not, as that
the deceased was the grandfather of the claimant even though the claimant was
heir, the claimant's case failed.
4. This is the first major (although not the first) use of a sworn panel of men
as a normal method of trial in litigation. This sworn panel was not a jury in
their parlance, but an assize. The difference, for them, was that a jury
concerned only a single point and the single point was determined by pleading.
An assize concerned several points, and they were determined at the beginning
of the case by the standardized writ. An assize panel could be converted into a
jury by pleading. The sworn panel (assize or jury) was different from a modern
jury because the panel was supposed to know the answers before they came before
the justices: they were not supposed to be, like modern jurors, impartial
judges of evidence put before them at trial.
5. From all this, who was the normal defendant?
6. Chapter 5 concerns disseisins, that is, removals of tenants from their
tenancies. This procedure also utilized a sworn panel of men; it at least
developed rapidly into the assize of novel disseisin. It obviously concerned
current tenants who were ejected. If one analyzes the provisions, therefore,
one finds that chapters 4 and 5 concerned (a) heiresses, (b) minor male heirs,
(c) widows, (d) ejected current tenants. The one kind of person not here
singled out for protection was the adult male heir, the person whom one would have
thought would have been the most obvious candidate for protection. Considering
the political situation between 1173 and 1176, why is this? Is it that Henry
II, as benevolent monarch, was reaching out to help the poor and defenseless in
society? How gullible are you? Note that although the adult male heir was not
mentioned here, he was also protected by the assize of mort d'ancestor when we
see the assize in practice; this analysis only concerns what was foremost in
the drafters' minds.
[Traditional analysis would have the provision of the assize of mort d'ancestor
as the transfer of jurisdiction over property pleas from feudal courts (seen as
simply lower jurisdictions) into the king's court as a further attempt to
undermine magnate power, to increase royal authority, and to augment royal
income with the profits from adjudications. The assault on magnate authority,
however, was tempered because mort d'ancestor was only possessory: it left
adjudications about right (ultimate title) in the feudal courts.]
II.E. The Assize of Novel Disseisin
This is the earliest example of the writ of NOVEL DISSEISIN we have; it comes
from Glanvill, 13.33 (circa 1188).
[Novel disseisin, in traditional analysis, was only a possessory protection of
property rights, not connected with major political events. Its origins were
uncertain, perhaps as early as the 1150s, probably by 1166, even though it was
admitted that no exemplar predated Glanvill. Since it was thought thus that
novel disseisin predated mort d'ancestor, novel disseisin appeared as a
preliminary undermining of feudal power by protecting knightly possession of
their property rights, preparatory to the introduction of mort d'ancestor and
the possessory protection of inheritance rights. The transformation of royal justices
into judgment-giving officials was not a part of the theory, nor was the
discretionary quality of feudal justice.]
The king to the sheriff, greeting. N has complained to me that R unjustly and
without a judgment has disseised him of his free tenement in [Houndsditch]
since my last voyage to Normandy. Therefore I command you that, if N gives you
security for prosecuting his claim, you are to see that the chattels which were
taken from the tenement are restored to it, and that the tenement and the chattels
remain in peace until Sunday after Easter. And meanwhile you are to see that
the tenement is viewed by twelve free and lawful men of the neighborhood, and
their names endorsed on this writ. And summon them by good summoners to be
before me or my justices on the Sunday after Easter, ready to make the
recognition. And summon R. or his bailiff if he himself cannot be found, on the
security of gage and reliable securities to be there then to hear the
recognition. And have there the summoners, and this writ and the names of the
sureties. Witness etc.
1. Who was the envisaged defendant? Who might have disseised with a judgment
but did not? Who could be expected to have a bailiff (estate manager)? Why does
the writ not mention a certain amount of land like all other writs (such as, 10
carucates, or 15 acres, etc.), but only mentions "his free tenement"
as if that is enough? Why does it seem possible that the sheriff can restore
the chattels? That seems to assume that the chattels have (a) been removed, but
(b) will be readily available for restoration. Does this assume a renegade
bandit who decides to take over land? Does it assume a relative who disputes
title? Does it assume a lord? Does the following writ help at all:
Robert earl of Leicester to all his men, both French and English, greeting.
Know that I hold in the manor of Knighton 10 pounds-worth of land from the
bishop and from the church of Lincoln. This I hold in heredity for myself and
my heirs in return for our homage and by the service of 1 knight. If, moreover,
any one of us fails to do or to observe the homage, the bishop of Lincoln will
compel him through that land according to the judgment of his court and the
statute of the realm. These are witnesses . . . .
The standard method of court process was by summons (three times), distraint by
chattel (three times), and then distraint by the fee (taking the fee and
excluding the tenant until he came in to court to answer). Does not the writ of
novel disseisin look like it is being conceptualized primarily against a lord
who has distrained by the fee either unjustly or without the judgment of his
court? Thus this remedy as well as mort d'ancestor would seem to have been
conceptualized in a world that thought about problems with land as being primarily
concerned with vertical relationships (lord/men) instead of horizontal
relationships (buyers/sellers; tenants/marauders).
2. A version of this process, or at least some kind of protection against
disseisins has been found from relatively early in Henry II's reign, although
certainly not in the form with a panel of sworn men. What relevance might this
have had to the compromise deriving from the Treaty of Winchester?
3. Two overarching questions:
A. What role, then, did political situations have in the birth of the common
law?
B. Of what importance are standardized writs? Examine the writ for the assize
of novel disseisin and ask how legal categories are generated. What would the
justices think about the words "free tenement"? In the mid-twelfth
century tenements had been ranged on a spectrum between free and unfree. Now
everything hinged on a determination about whether a tenement was free or
unfree. The justices finally decided that a free tenement was one held for life
(the original duration of a knight's fee before about 1100) or heritably, for
which precise and non-servile services were due. Words in standard writs
required definition for the determination about the scope of protection and
thus generated legal categories.
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[50] Note that a woman could receive homage from men, but could not give homage
to men. Giving homage (before around Magna Carta in 1215) meant willingness and
ability to fight as a knight: a woman could not do it. Thus, when she
inherited, her husband did homage for her land. Nevertheless, she could receive
homage for men, because receiving homage meant nothing about fighting, only
about lordship.
[51] Henry, like anyone else, could enter an estate in one of two ways:
inheritance or grant. This provision joins the two. Henry was not the bodily
heir of Stephen, but Stephen here makes him his heir. There was no adoption
process in England, but (since there is no lord here superior) if all the
magnates agree, nothing could prevent Stephen making a non-son his heir. Henry
is supposed to take by "hereditary right". Is that only an assertion
that he is inheriting from Stephen? Is it also an assertion that he is taking
it hereditarily? Then Stephen also grants the kingdom to Henry and his heirs
("to x and his heirs").
[52] When a man does homage to two different lords (for two different fees),
the lord to whom he owes primary loyalty is his liege lord, to whom he is then
liegeman.
[53] Once again note the simplified statements about the consequences of
homage.
[54] Thus Stephen's bodily heir retains everything that Stephen had held in
1135, on Henry I's death: 1135 becomes a touchstone for appropriate title.
[55] Stephen's son will also retain lands that came with his wife, so that this
implies retaining nothing from the kingship: only lands normally acquired.
[56] Thus Henry made the grant his own and would be honor-bound to stand to it.
[57] The reservation on the homage made puts superior this agreement, so that
the agreement here forms something like a fundamental understanding about the
future course of England.
[58] That is, in 1135.
[59] Does this necessarily mean that there would be a massive restoration of
lands? That had not occurred with Henry himself: Stephen retained England until
he died, but that was was considered a primary restoration of one of the
disinherited.
[60] There is some controversy about how the Latin word "teneas"
should be translated. Most translate it by "do": "do full right".
That translation supposes a neutral court that is adjudicating right in an
unbiased manner, in which the lord is not intrinsically involved in a land
claim. "Hold" implicates that the lord to whom the writ is addressed
and who would preside over any case in his court was part of a contractual
relationship with the claimant, as in "stand or hold to your duties toward
your man."
[61] Note that this concerns a singular freeholder who has plural heirs (Latin
does not distinguish between heirs and heiresses, so that it is here translated
simply as "heirs"). That situation arises, under primogeniture, only
when a freeholder dies without sons: the inheritance is thus divided among the
daughters, whose husbands would do homage for their wives' land.
[62] Note that the document here switches to only one heir, the situation when
the freeholder died leaving a son or sons: only the eldest would inherit.
[63] This commands that a lord take homage from a minor. It is probable that
before this the lord waited until the child's majority. In the interim, in the
time of wardship, the land was held by the lord for his own benefit; at times
wardship was called "escheat" as if the land had lapsed back to the
lord, waiting to be granted out again.
[64] Probably before this, when the heir was underage and the inheritance was
held by the lord as "escheat" in wardship until the heir's majority
(or afterwards also), the widow probably held her dower from the lord as a
consequence of the fee that had been granted to her deceased husband. Thus,
when the lord was required to receive the homage of a minor, the question about
the treatment of the widow would inevitably arise: this clause made it clear
that the widow was not going to be excluded; traditional standards about
treatment of the widow was continue, even if now she would seem necessarily to
be holding from the underage heir. In some ways, even the traditional situation
would continue, because the lord had the heir in wardship and thus exercised
the heir's rights over the heir's tenant: his mother or mother-in-law. What had
changed was the homage taken as a minor.
[65] This is thus not conceptualized as just any hereditary claim, but a
vertical claim. The lord, from whom the heir's father held, had refused to
accept the heir. Moreover, seisin meant "lawful possession", and the
decisive test for seisin at this point was intrinsically related to whethe the
lord had accepted the tenant. No one else could give a tenant seisin; no one
else could put a tenant out of seisin.
[66] Remaining at the king's mercy meant that the person was subjected to a
monetary penalty discretionary in amount.
[67] While this provision surely pertains to tenants who have been disseised
and thus to the history of the assize of novel disseisin, it is unclear as to
whether this is evidence for the assize of novel disseisin as a standard
remedy. The earliest real evidence we have for a standard writ of novel
disseisin, and thus for a structured legal remedy, is in the treatise Glanvill,
from ca. 1188. What "the assize" of "disseisins carried out
contrary to the assize" refers to is unclear. It could conceivably refer
to the settlement between Henry II and Henry the Young King.
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