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The Origins of Property in England

Published online by Cambridge University Press:  28 October 2011

Robert C. Palmer
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The English common law of real property, as S.F.C. Milsom has argued, took shape between 1153 and 1215. The common law gave royal protection to free tenements, replacing feudal relationships as the primary bond structuring society. The law thus constituted the institutional core of the English state. But no Machiavellian monarch constructed the English state. Henry II was, rather, a king who presumed the morality and necessity of feudal relationships. His innovations, though intentional and carefully planned, were directed at narrower and less far-sighted ends. Other changes were the result of bureaucratic action. The complex interplay between present-oriented political or juridical decisions and bureaucratic rigor generated a legal system.

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Articles
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Law and History Review , Volume 3 , Issue 1 , Spring 1985 , pp. 1 - 50
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Copyright © the American Society for Legal History, Inc. 1985

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References

1. The short forms for frequently cited works, primary and secondary respectively, are the following:

Bracton: de Bracton, Henry, De Legibus et Consuetudinibus Angliae, ed. Woodbine, G.E. and trans. Thorne, S.E., (Cambridge, Mass, and London, 1968Google Scholar).

Glanvill: The treatise on the Laws and customs of the Realm of England Commonly Called Glanvill, ed. Hall, G.D.G. (Oxford, 1965Google Scholar). The author will, as is customary, be referred to as ‘Glanvill’ for reasons of convenience.

CRR: Curia Regis Rolls (London, 1922Google Scholar) [entry numbers instead of page numbers after vol. 10].

RCR: Rotuli Curiae Regis, ed. F. Palgrave (1835).

PKJ: Pleas before the King or his Justices, 1198–1212, ed. Stenton, D.M., Selden Society, vols. 67 (London, 1948), 68 (1949), 83 (1966), 84 (1967Google Scholar).

PRS XIV: Three Rolls of the King's Court in the Reign of King Richard the First, 1194–1195, ed. Maitland, F.W., Pipe Roll Society, vol. XIV (London, 1891Google Scholar).

Registers: Early Registers of Writs, ed. de Haas, E. and Hall, G.D.G., Selden Society, vol. 87 (London, 1970Google Scholar).

Milsom, Historical Foundations: Milsom, S.F.C., Historical Foundations of the Common Law, 2nd ed. (London and Toronto, 1981Google Scholar).

Milsom, ‘Inheritance by Women’: Milsom, S.F.C., ‘Inheritance by Women in the Twelfth and Early Thirteenth Centuries’, in Arnold, Morris S., Green, Thomas A. et al. , On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, (Chapel Hill, 1981), 60–89Google Scholar.

Milsom, Legal Framework: Milsom, S.F.C., The Legal Framework of English Feudalism, (Cambridge, 1976CrossRefGoogle Scholar).

Palmer, Feudal Framework: Palmer, R.C., ‘Feudal Framework of English Law’, Michigan Law Review 79 (1981), 1130–1164CrossRefGoogle Scholar.

Pollock and Maitland, Hist. Eng. Law: Pollock, F. and Maitland, F.W., The History of English Law Before the Time of Edward I, 2nd ed. with introduction by Milsom, S.F.C. (Cambridge, 1968Google Scholar).

Thorne, ‘English Feudalism’: S.E. Thorne, ‘English Feudalism and Estates in Land’, Cambridge Law Journal (1959), 198–209.

2. Palmer, R.C., The Whilton Dispute, 1264–1380: A Social-Legal Study of Dispute Settlement in Medieval England (Princeton, 1984) 16–17, 215–20Google Scholar; Van Caenegem, R.C., The Birth of the English Common Law (Cambridge, 1973), 6–7Google Scholar; Sir Stenton, Frank, The First Century of English Feudalism, 2nd ed. (Oxford, 1961), 256–57Google Scholar; Strayer, Joseph, On the Medieval Origins of the Modern State (Princeton, 1970), 38–47Google Scholar. The role of the Exchequer (as a bureaucratic financial organization) in the growth of the English state has been overestimated. It provided a financial base for a strong monarchy and functioned bureaucratically in revenue matters from the reign of Henry I. It could not, however, form the base for a state until it produced bureaucratic judicial organs. Until then it lacked the capacity to impact in a direct beneficial manner on a broad range of the population making people associate its existence with their own well-being. Only the social impact, not the mere existence of bureaucracy, is relevant to state creation.

3. Bryce Lyon bluntly summarized the traditional evaluation of the Angevin monarchs: ‘To accelerate the disappearance of feudal law and the concomitant centralization of power in their hands, the kings and their counselors developed courts and procedures to adjudicate legal differences more rationally and efficiently. The more cases adjudicated in royal courts, the more revenue and power for the kings’. (Lyon, Bryce, ‘The Emancipation of Land Law from Feudal Custom’, Yale Law Journal 86 (1977), 784CrossRefGoogle Scholar.) This approach determines monarchical intent from results. Maitland, forced to be brief, did little better: ‘Speaking briefly, we may say that [Henry II] concentrated the whole system of English justice round a court of judges professionally expert in the law. He could thus win money—in the Middle Ages no one did justice for nothing—and he could thus win power; he could control, and he could starve, the courts of the feudatories. In offering the nation his royal justice, he offered a strong and sound commodity’. Maitland, F.W. and Montague, F.C., A Sketch of English Legal History (New York and London, 1915), 36Google Scholar. Jolliffe's portrayal of the Angevins similarly suffers from an anachronistic valuation of vis, voluntas, ira and malevolentia. Jolliffe, J.E.A., Angevin Kingship 2nd ed. (London, 1963Google Scholar). It is also not useful to label the Angevins ‘autocrats’. (Jolliffe and Lyon [Lyon, Bryce, A Constitutional and Legal History of Medieval England, 2nd ed. (New York, 1980), 244–45Google Scholar]) In a feudal and discretionary society, structured by personal relationships such matters were relatively acceptable bases for decision-making. See Stenton, English Feudalism, supra note 2, 51; Milsom, Legal Framework, 183–86.

4. Milsom, Legal Framework, 183–86; text accompanying notes 46–63.

5. See text infra accompanying notes 68–98; Palmer, ‘Feudal Framework’, 1163; Palmer, Whilton Dispute, supra note 2, 215–18; Milsom, Legal Framework, 45–51 (although Milsom does not speak straight-forwardly to the nature of bureaucratic action).

6. See Palmer, ‘Feudal Framework’, 1132–33.

7. Milsom, Legal Framework, 164–66; Historical Foundations, 137–39.

8. Milsom, Historical Foundations, 119–24.

9. Ibid., 147–48.

10. See Holt, J.C., ‘Politics and Property in Early Medieval England’, Past and Present 57 (1972), 3–52CrossRefGoogle Scholar; Holt, J.C., ‘Feudal Society and the Family in Early Medieval England: I. The Revolution of 1066’, Transactions of the Royal Historical Society 32 (1982), 193–212CrossRefGoogle Scholar; and Holt, J.C., ‘Feudal Society and the Family in Early Medieval England: II. Notions of Patrimony’, Transactions of the Royal Historical Society 33 (1983), 193–220CrossRefGoogle Scholar which concern only social notions of inheritance and dismiss jurisdictional matters and enforcement as irrelevant. The problem with Holt's argument is that there is a difference between social notions—essentially, then, ideas about what is just and moral and expected—on the one hand and property and ownership on the other. The existence of social ideas about inheritance logically must precede the appearance of property, but the social ideas are neither equivalent to property nor do they necessitate it. Social ideas about inheritance were controlled by social ideas about the lord's authority: jurisdictional matters are not irrelevant trivia. Moreover, indeterminancy of rules concerning descent is not mere vagueness: it connotes lordly authority, not that the thought about descent had not been considered. Finally, some thought about the nature of inheritance was inevitable from ecclesiastical practice; that consideration weakens whatever force arguments relating notions of heirship to land have.

11. Glanvill, IX.1; English Historical Documents, vol. II, 1042–1189, ed. Douglas, David C., Greenaway, George W. (New York, 1913), 725Google Scholar.

12. Glanvill, IX.4; Milsom, Historical Foundations, 107–109.

13. Milsom, Historical Foundations, 108.

14. Ibid., 109, 406.

15. ‘The Constitutions of Clarendon’, Select Charters and Other Illustrations of English Constitutional History, ed. Stubbs, William, 9th ed. (Oxford, 1913), 165–166Google Scholar; Milsom, Historical Foundations, 102–103; Stenton, English Feudalism, supra note 2, 45; Pollock, and Maitland, , Hist. Eng. Law, 1:592Google Scholar.

16. See e.g., Chronicle of Battle Abbey, ed. Searle, Eleanor (Oxford, 1980), 174–208Google Scholar; English Historical Documents, vol. II, supra note 11, 724–33.

17. Milsom, Legal Framework, 42, 63; Palmer, ‘Feudal Framework’, 1134–35.

18. Milsom, Legal Framework, 179–80; S.E. Thorne, ‘English Feudalism’, 195–200.

19. For dower as part of the fee, see text infra accompanying notes 58–63.

20. The widow or heir could still claim dower or fee: they would remind the lord of his undertaking and the propriety of the heir being the recipient. But the undertaking to the late tenant was equally well fulfilled if the eldest son, a scoundrel, was passed over in favor of the second son. The right thus was not in a person designated by abstract law, even though there certainly were customs for preference.

21. Glanvill, VII. 12.

22. Glanvill, IX. 1.

23. Originally, a grant ‘to A. and his heirs’ was only an undertaking to A. It did not commit the lord to acceptance of any particular person or to heirs in perpetuity. The lord's obligation would be fully met by marrying the heiress to a man. The heiress would be secure for her life. The grant to the husband when he did homage for his wife's inheritance would again be in the form ‘to B. and his heirs’. Since husband and wife might have the same heir, the land could continue to descend apparently to A.'s heirs. Moreover, there was no undertaking to the heirs directly; if A. was disloyal or incompetent, he forfeited the tenement completely without his heir receiving anything. The lord's undertaking was completely to the tenant until he had likewise committed himself to a specific person as A.'s heir. See Milsom, Historical Foundations, 106; Thorne, ‘English Feudalism’, 193.

24. Thorne, ‘English Feudalism’, 196–98.

25. RCR, 1:360 (younger son preferred to weak older brother during Stephen's reign).

26. Thorne, ‘English Feudalism’, 209; Milsom, Legal Framework, 1–35. For the emphasis on regularity of succession, see Holt, ‘Politics and Property’, supra note 9, 30–31 (with some recognition of disciplinary action); DeAragon, RaGena, ‘The growth of secure inheritance in Anglo-Norman England’, Journal of Medieval History 8 (1982), 381–91CrossRefGoogle Scholar (‘In conclusion, the Anglo-Norman baronage enjoyed fairly secure inheritance in the reign of Henry I as long as they remained loyal to the king’. Ibid., 389).

27. A good example on how reliance on ‘mine-yours’ terminology results in an inadequate view of the nature of property is Hackney, Jeffrey, ‘Review of S.F.C. Milsom, Historical Foundations of the Common Law, 2nd ed.’ The Journal of Legal History, 5 (1984), 79–84CrossRefGoogle Scholar.

28. The tradition of scholarship in medieval materials obscures the point. Consider an apartment dweller prior to state regulation of landlords. The tenant might well be secure; his parents might have occupied the apartment before him. He could easily be very emotionally attached, and even a new tenant would refer continuously to ‘my apartment’. No one, however, would maintain that he owned the apartment. His claim to continued residence there depended on the mutual obligations between himself and the landlord, and the consequence of a minor fault could be eviction. The tenant in such a situation would feel greatly wronged. But his feeling of injury would not mean that he thought he owned the apartment: the reality of his dependence was one of the basic data of his existence. The definitional element in all this is crucial. Properly defined, the emergence of property is an extraoidinarily important matter of social structure. The increased independence of apartment dwellers after state enforcement of commonly accepted landlord practices is the modern analogue of the medieval phenomenon.

29. The king, in intervening, was claiming a favor as well as trying to assure order in the ranks. Even when itinerant justices presided over cases under Henry I, the important consideration is the standards they applied. In Henry I's day, the standards would have been discretionary. No body of abstract property law governed adjudication; nor was the lack of rules of law considered a deficiency. The court considered only what would be just in the given instance, the decision usually then relating to proof.

30. Wrongs and obligations are different, despite modern conceptions. They cannot be collapsed into each other, even though the non-fulfillment of an obligation may be a wrong. When an heir asked to be recognized, he was claiming the benefit of an obligation: no wrong had been done, but there was a case in court. Obligations properly look toward performance; wrongs, toward damages. Remedies for wrongs increasingly suppressed elemental ideas of obligation.

31. Regesta Regum Anglo-Normannorum, vol. 3 (1135–54), ed. Cronne, H.A. and Davis, R.H.C. (Oxford, 1967), 272Google Scholar; Davis, R.H.C., King Stephen, 1135–1154 (Berkeley and Los Angeles, 1967), 122–23Google Scholar.

32. Chronicles of the Reigns of Stephen, Henry II, and Richard I, The Chronicles of Robert of Torigni, Abbot of the Monastery of St. Michael-in-Peril-of-the-Sea, ed. R. Howlett (Pub. No. 82 in Rerum Britannicarum Medii Aevi Scriptores, 1889), 4:177; Davis, King Stephen, supra note 31, 122 (translation slightly modified: ‘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]’); Gesta Stephani, Potter, K., trans., 2d ed. (Oxford, 1976), 240Google Scholar (translation slightly modified: ‘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, and rights and laws commanded to all according to pristine custom’.) See Davis, King Stephen, supra note 31, 122–25; Appleby, J., The Troubled Reign of King Stephen (New York, 1969), 197Google Scholar; and Warren, W.L., Henry II, (Berkeley and Los Angeles, 1973), 333Google Scholar for less optimistic assessments of the effects of the Compromise of 1153. Recognition of property right or strict acceptance of the ‘hereditary principle’ would allow no delay in the restoration of property to the owners. That ‘all-or-nothing’ approach seems to lie behind the pessimistic assessments in Davis, Appleby, and Warren. Davis supposed that the royal settlement was the pattern for the barons, but in the sense of an acceptance of the hereditary principle. Sons succeeding fathers as a phenomenon was fairly regular under Henry 1, barring disciplinary action (supra note 26). Milsom seems to think the Compromise had some importance. Milsom, Legal Framework, 178–79.

33. This applied preeminently to the king. CRR, 8:357; 9:332. In one case Henry II was said to have disseised a tenant per voluntatem because of a discord between the tenant and an outsider; in the other he disseised a tenant for not receiving his dogs. In each case, however, the tenant lost his whole fee instead of merely a portion: that was proper in disciplinary disinheritance. Warren, Henry II, supra note 32, 101, 110, 233, 242, 247, 367. It was likewise true for other lords: Glanvill, VII. 12 (a father to be disinherited for marrying off a prospective heiress without the lord's consent; a doweress to be disinherited for marrying without consent of the lord; incontinent heiresses to be those who do anything to the lord's disinheritance, who do violence to him, who deny the service due); IX. 11 (disinheritance for purpresture against the lord). The matters in IX. 1 come within the cognizance of the lord's court explicitly without the necessity of a writ.

34. Henry II was not constrained by royal supervision. Nothing prevented him from demanding compromise and disciplining the inflexible, except the indeterminant bounds of his own adherence to his undertakings and the expectations of his tenants-in-chief.

35. The following cases recount events in Stephen's reign that precipitated a compromise or resulted eventually in litigation: (1) Piron v. Piron, PRS XIV, 9 (a forfeiture granted thereafter by the Empress Matilda and Brian of Wallingford; a subsequent marriage between the descendants of the new grantee and the descendants of the disinherited line; alleged pressure by Henry II involved in the marriage); (2) Raimes v. Welles, RCR, 1:93 (a wartime seizure granted thereafter by Henry II, with a subsequent dispute after the new grantee died); (3) Son of Hamon v. Son of John, RCR, 1:360 (dispute between grandson of firstborn passed over and son of second son preferred in wartime); (4) Holewell v. Son of Ascelin, RCR, 1:440–41 (the lord preferred an outsider to a minor during the Anarchy; afterwards they divided the land and intermarried, but a dispute remained about whether the disinherited party had received his portion of the land from the new tenant or from the lord); (5) Cotele v. Constable, CRR, 5:147–48 (a disciplinary disinheritance by Stephen and a grant to an outsider; Henry II later concorded them, with lands remaining to Stephen's grantee for life, reversion to the disinherited party, although Constable alleged a disseisin by Henry II sua voluntate et sine judicio. See Warren, Henry II, supra note 41, 333: there had been a previous disciplinary disinheritance by the Empress); (6) Baiocis v. son of Nigel, CRR, 5:181–82; 6:17 (a younger son intruded on land in Stephen's reign and granted to a woman in maritagium; elder line sued under Henry II in lord's court, where they were concorded, the beneficiary of the grant after the intrusion received other lands for life [capable of being termed escambium]); (7) Niger v. Panton, CRR, 6:46 (tenant's title based on entry through marriage to a doweress, whose first husband had held in 1135; tenant was greatgrandson of second husband; 1210 was possibly the first chance available to sue after his death); (8) Abbot of Stanley v. Bloet, CRR, 6:178–79 (a grant by the Empress, with a subsequent arrangement of a life estate, but the text is too damaged to ascertain the context; see CRR, 6:234 for the issue); (9) Gurnaco v. Tingrie, CRR, 6:272–73 (Stephen granted to claimant's father, who held it through the first years of Henry's reign; Henry II seized the land shortly after 1160 [for disciplinary reasons or at death of tenant?], but had confirmed the wife in her dower lands; Henry then granted the land to tenant's father); (10) Badele v. Tateshale, CRR, 8:18–20 (a wartime disciplinary disinheritance of tenant's ancestor with grant by Stephen to claimant's grandfather, who then granted to another; under Henry II the disinherited tenant sued and recovered in the king's court prior to the death of either Stephen's grantee or the grantee's grantee, the latter receiving escambium. The now restored disinherited's heir held for seven years, when the dispute was compromised by marriage. One side, however, alleged that the woman had the land only in dower; the other that she had it by maritagium by grant from the other side. At the time of the marriage the issue was probably buried).

There are other claims from 1135, but without sufficient specification to know whether they contain an 1153 issue: CRR, 7:20; 7:293; 8:43; 8:252; 8:295; 8:356; 9:251; 9:234; 9:364; 9:474; 10:108; 10:114; 10:148; 10:137.

36. The writ of right patent became standardized shortly after Henry II became king. See Van Caenegem, R.C., Royal Writs in England from the Conquest to Glanvill, Selden Society, vol. 77 (London, 1959), 421Google Scholar (no. 19): (translation modified) ‘Robert, earl of Leicester, to Reginald de Warenne, greetings. I order you to hold full right without delay to Robert de Mandeville concerning the land of Digswell with its appurtenances which was William de Mandeville's, his brother, which he claims to hold from you. And if you do not, Robert de Valognes will. And if he does not, I shall make it to be done’. Compare this with Glanvill, XII.3: (translation modified) ‘The king to earl W. greetings. I order you to hold full right without delay to N. concerning ten carucates of land in Middleton which he claims to hold from you by the free service of one knight's fee for all service, of which R. son of W. deforces him. And if he does not, the sheriff of Nottingham will, that I hear no further complaint thereof for default of justice. Witness, etc’.

Compromise enforcement was not the only reason for the writs; Henry II was also interested in restoration of lands stolen from ecclesiastical establishments (Palmer, ‘Feudal Framework’, 1147–49). Compromise enforcement, however, explains the standardization and also the operational peculiarity of the writ of right patent that the demandant could buy his writ long before it was needed and keep it in his possession. (Van Caenegem, Royal Writs, 171–72.) That retention by the claimant was unique among royal writs. The oddity served two purposes. It reassured the demandant, in advance, of royal backing. It also made it possible for the outsider to intervene immediately on the death of the tenant. Otherwise, outsiders, occupied in searching for the writ, would come too late and face the tenant's heir already accepted.

37. Placita Anglo-Normannica, ed. Bigelow, M.M. (Boston, 1881), 212Google Scholar; Glanvill, XII.6,7; Palmer, R.C.The County Courts of Medieval England, 1150–1350, (Princeton, 1982), 144–47Google Scholar.

38. The Latin is ‘plenum rectum teneas’, which has traditionally been rendered ‘do full right’ (Glanvill, XIII.3; Registers, 1 (Hib. 1), 18 (CA.l); Milsom, Legal Framework, 58, 72; Milsom, Historical Foundations, 124, 127.) That translation embodies a Maitland view of the writ of right patent: that feudal courts were impartial fora. The phrase literally is ‘hold full right’: a rendition that properly conveys an obligation deriving from a relationship and that illustrates the connection between the obligation grounding this writ and the obligation grounding covenant (prior to the specialty rule).

39. The often-noted studied avoidance of Stephen's reign, usually interpreted as a Tudoresque comment on the previous reign, was a benefit to Stephen's followers. Palmer, ‘Feudal Framework’, 1143–44. Note that acquisitions by marriage were secure, even by the terms of the Treaty of Westminster as related to Stephen's son William.

40. See supra note 31.

41. Palmer, ‘Feudal Framework’, 1150–51. Protection could not be simply against lordly action, because calculated lordly inaction was an effective way of eliminating an intransigent tenant challenged by a better-positioned outsider.

42. The history proposed for regulation of disseisins prior to 1176 in Palmer, ‘Feudal Framework’, 1149–53, seems mostly still acceptable, except that the analysis of the Assize of Northampton here suggests strongly the regulatory purpose behind the assize and thus is closer to Milsom's view. The role of writs of protection while Henry was away, however, together with the relationship to the Compromise, probably provided the quasi-criminal element (Glanvill, XIII.38) as well as the sporadic nature of early edicts. Henry handled matters directly when he was in England and had no need of edicts then; he prohibited certain matters when he left the country. Edicts were thus forward-looking in time until the Assize of Northampton, which has a limitation in the past.

43. See the form of the writ in Glanvill, XIII.33: ‘The king to the sheriff, greetings. N. has complained to me that R. unjustly and without a judgment has disseised him of his free tenement in such-and-such a vill 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 sureties to be there then to hear the recognition. And have there the summoners, and this writ and the names of the sureties. Witness, etc’.

44. See e.g., Van Caenegem, Birth of the English Common Law, supra note 2, 40–44; Sutherland, D.W., The Assize of Novel Disseisin, (Oxford, 1973), 2–5Google Scholar.

45. This general purpose does not exclude usages that kings generally advocated, such as restoration of ecclesiastical holdings lost during a previous reign. Palmer, ‘Feudal Framework’, 1143.

46. For an account of the war, see Warren, Henry II, supra note 32, 117–41. The coincidence of Becket's murder in 1170 falling before the war is usually mentioned (Ibid., 135) as a factor; what has not been associated with the uprising and the magnates' discontent is that also in 1170 the deforciant clause was included in the writ of right patent (see supra, note 36). In addition to the more important implication of the king's intrusiveness in the magnates’ relationships with their men, that would have meant an increased incidence of escambium obligations. Some lords may have felt disadvantaged.

47. Warren, Henry II, supra note 32, 140–45.

48. Select Charters. supra note 15, 179–80:

‘4. Item, si quis obierit francus-tenens, haeredes ipsius remaneant in tali saisina qualem pater suus habuit die qua fuit vivus et mortuus, de feodo suo; et catalla sua habeant unde faciant divisam defuncti: et dominum suum postea requirant, et ei faciant de relevio et aliis quae ei facere debent de feodo suo. Et si haeres fuerit infra aetatem, dominus feodi recipiat homagium suum et habeat in custodia ilium quamdiu deberet. Alii domini, si plures fuerint, homagium ejus recipiant, et ipse faciat eis quod facere debuerit. Et uxor defuncti habeat dotem suam et partem de catallis ejus quae eam contingit. Et si dominus feodi negat haeredibus defuncti saisinam ejusdem defuncti quam exigunt, Justitiae domini regis faciant inde fieri per cognitionem per duodecim legales homines, qualem saisinam defunctus habuit die qua fuit vivus et mortuus; et sicut recognitum fuerit, ita haeredibus ejus restituant. Et si quis contra fecerit et inde attaintus fuerit; remaneat in misericordia regis.’

‘5. Item Justitiae domini regis faciant fieri recognitionem de dissaisinis fact is super Assisam, a tempore quo dominus rex venit in Angliam proximo post pacem factam inter ipsum et regem filum suum.’

I do not maintain that ‘heredes’ as the plural form always means ‘heiresses’; it obviously does not. Only the omission of the duty of homage, together with the contrasting mention of homage later on in connection with the mention of the ‘heres’ justifies this understanding.

Warren apparently felt that the substance was adequately conveyed without the infant heir and doweress clauses, omitting them by an ellipse (Warren, Henry II, supra note 32, 343). Sources of English Constitutional History, ed. Stephenson, Carl and Marcham, F.G., (New York, 1972), 1:81Google Scholar, and Stenton, Doris M., English Justice Between the Norman Conquest and the Great Charter, 1066–1215 (Philadephia, 1964), 44Google Scholar translate ‘dotem’ in the doweress provision as ‘dowry’, ignoring Glanvill's cautions about the two means of ‘dos’ in England (Glanvill, VI. 1; VII. 1). D. Stenton (Ibid.) perplexingly translates ‘pater suus’ as ‘his father’ despite the fact that the reflexive refers to ‘heredes’ and thus is ‘their father’. For the proper treatment of the reflexive in identical instances, see Hall's translation in Glanvill, VII. 1 (p. 73), VII.3 (pp. 76, 78), VII.5, and VII.9 (p. 82: following the words of the Assize of Northampton).

Finally, the regulatory purpose that this translation allows relates the Assize to the preceding war in a way that obviates Sutherland's criticisms of previous formulations (Sutherland, Novel Disseisin, supra note 44, 10).

49. Warren, Henry II, supra note 32, 344 notes the problem with the plural form of heres, but refers it to the family collectively [‘Clearly the concern here was to prevent the disseisin of the deceased family (referred to collectively as ‘the heirs’) before the formal installation of the rightful heir’], even though younger son and daughters could not be considered an heir, nor could the widow. Milsom did not see the significance of the plural form of ‘heres’, since he transformed the plural nouns and verbs into the singular form when quoting the Assize. Milsom, Legal Framework, 164. Nevertheless, he later paraphrased the provision correctly, although he omits the doweress provision. Milsom, Historical Foundations, 135. Milsom supposes that the problem leading to the Assize might have been the demand for excessive reliefs. Ibid., 135. This explanation separates the provision from any concern over the recent war. The solution suggested here reconciles the normal security of holdings with the social and political context. Note that the first recorded payments for writs of mort d'ancestor sought the wife's inheritance. D. Stenton, English Justice, supra note 48, 44.

50. Glanvill, IX. 1; Pollock and Maitland, , Hist. Eng. Law, 1:305–306Google Scholar.

51. Stenton, English Feudalism, supra note 2, 39 (the divided succession of daughters the subject of a ‘statutum decretum’ in Stephen's reign; see Milsom's perceptive comment about the moral tone of the provision: Milsom, ‘Inheritance by Women’, 78); Glanvill, VII. 12.

52. Palmer, ‘Feudal Framework’, 1151–53; Sutherland, Novel Disseisin, supra note 44, 10.

53. The problem is that the first surviving form of the writ of novel disseisin is in Glanvill, ca. 1188. The date for the provision of the writ is thus conjectural. Sutherland argues for a writ of novel disseisin from at least 1176 and probably from a decade or more earlier: Sutherland, Novel Disseisin, supra note 44, 7–9. John Beckerman has argued xsfor a later origin (Beckerman, John, ‘Review of Sutherland, The Assize of Novel Disseisin’, Yale Law Journal 83 (1974), 625–29CrossRefGoogle Scholar, as have I (Palmer, ‘Feudal Framework’, 1151–53).

54. The terminological distinction between proprietary and disciplinary decisions is Milsom's. Milsom, Legal Framework, 39–44, 165. The distinction does not appear in words in the medieval documents. The differentiation between chapters 4 and 5 in the Assize of Northampton here justifies the introduction of those terms, if any justification were needed.

55. Milsom, Legal Framework, 184–85; Historical Foundations, 128–36.

56. Text supra accompanying notes 36–38.

57. Supra note 35 (no. 3).

58. Socage tenants certainly knew of dower rights (Pollock, and Maitland, , Hist. Eng. Law, 2:421Google Scholar) as did customary tenants: Searle, Eleanor, ‘Seigneurial Control of Women's Marriage: The Antecedents and Function of Merchet in England’, Past and Present 82 (1979), 38–39CrossRefGoogle Scholar.

59. Glanvill, VI.

60. Milsom, ‘Inheritance by Women’, 62.

61. I know of no one who addresses this problem, but the arguments in Milsom, Legal Framework, 163–64, equating escheat and wardship apply with equal force in making the widow tenant of the lord prior to the Assize of Northampton. A few cases touch on the matter. Stenton, English Feudalism, supra note 2, 52–53, 91. The last case might be taken to indicate that a widow was holding from the heir, but that is not clear. Regesta Regum, (Regesta Regum, supra note 31, 3:306) only has one indexed mention of dower, but that entry shows the reality of the power of the lord's confirmation in 1153–54.

62. ‘Prerogativa Regis’ in Prerogativa Regis: Tertia Lectura Roberti Constable de Lyncolnis Inne Anno 11 H. 7, ed. Thorne, S.E. (New Haven, 1949), 159Google Scholar. The translation of the Latin there is:

‘4. Item, [the king] shall assign to widows after the death of their husbands who hold of him in chief their dower which pertains to them even if the heirs be of full age, if the widows want. And before the assignment of the dower, the abovesaid heirs being minors or of full age, those widows shall swear that they will not marry without royal license. And if they do, then the king shall take into his hand all the lands and tenements they hold of him in dower until they shall make satisfaction at the will of the king’. Thorne dates the Prerogativa Regis at between 1279 and 1285 (p. xl) and remarks (but citing only a fifteenth century reading on the tract) that the doweress still held of the heir (p. xxviii). The words of chapter 4, however, are quite explicit: ‘omnes terras et tenementa que de eo tenent in dotem’. Maitland, F.W. (‘The ‘Praerogativa Regis’, in The Collected Papers of Frederic William Maitland, ed. Fisher, H.A.L. (Cambridge, 1911), 2:182–89Google Scholar) talks about the document. Maitland, Ibid., p. 189, thought that it might have been ‘a document issued by the king to his Serjeants’, but at any rate thought it a respectable source for thirteenth century law. Walker, Sue Sheridan (‘Feudal Constraint and Free Consent in the Making of Marriages in Medieval England: Widows in the King's Gift’, Canadian Historical Society Papers (Ottawa, 1979), 97–110Google Scholar) has examined widows. Neither addressed the question of from whom the widow of the tenant-in-chief held her dower while the heir was a minor in the thirteenth century.

63. The position of the doweress prior to 1176 has received no systematic attention. Little can be gleaned from Royal Writs, supra note 36. The sources are perhaps too intractable for definitive analysis. It should be noted, however, that in Henry I's Coronation Charter (Select Charters, supra note 15, 118) the king assured his men that their wives would receive their dower whether they died leaving children or not: he took it as his duty to his own men to provide for their survivors. Dower from a life-time fee certainly makes more sense if it is held from the lord; but it may have been usually transferred so as to be held of the heir when the heir gave homage. The lord still continued to provide the dower when the tenant died without heir. The reason for the provision was not that the lord was substitute heir; he was here acting like lords prior to the Assize of Northampton.

64. Warren, Henry II, supra note 32, 296–98.

65. PBK, 3:lxxix-clxi.

66. Glanvill, VII. 1: the lord and heir rule dictated that descendants play musical chairs with the tenement to prevent the lord becoming the heir.

67. The statement does not apply to early, formal practices, such as the order or manner of speaking in court. Such matters are important to indicate mindset, but do not operate autonomously to produce artificial conduct at the societal level. G.D.G. Hall routinely translated ‘generaliter verum est’ as ‘it is a general rule’, instead of the more proper ‘generally it is true’. By present modes of analysis, that translation would be misleading.

68. Milsom, Legal Framework, 59; Palmer, ‘Feudal Framework’, 1137–38.

69. I have pursued this theme in later times in Palmer, Whilton Dispute, supra note 2.

70. Fora treatment of the maxim as a rule, see Royal Writs, supra note 36, 212–31. Donald Sutherland still considers that the maxim was a rule rather than a statement of fact very early in the reign of Henry II. Sutherland, D., ‘Review of Searle, ed., The Chronicle of Battle Abbey’, New York University Law Review 56 (1981), 872Google Scholar. The case he cites, however, is equally evidence for the maxim as a mere statement of fact or very early custom.

71. Regesta Regum, 3:nos. 119, 150, 177, 221–26, 274–75, 300, 321, 360, 450, 473–74, 493, 509, 512, 568, 582, 634–35, 901.

72. Royal Writs, supra note 36, 212.

73. Supra note 36; Palmer, ‘Feudal Framework’, 1141–42.

74. An honest or politically sensitive lord would have occasionally voluntarily honored a dual obligation, if only by supplying one or the other with an heiress.

75. Glanvill, VI.5, 15. The writ of right of dower was appropriate for a widow who already had part of her dower; the proper venue was the lord's court. Unde nichil habet was for the widow who had not been acknowledged and thus had none of her dower yet; the proper venue was the king's court.

76. Ibid., VI. 17–18.

77. CRR, 16:1766 (1242); Pollock, and Maitland, , Hist. Eng. Law, 2:422Google Scholar.

78. One might contend that the situation was analogous to purpresture. Purpresture (Glanvill, IX. 11–13) was treated as a feudal felony: stealing from the lord by enlarging the tenement. Purpresture resulted in forfeiture of the whole tenement, not merely that part that had been added to one's tenement by the purpresture. Acceptance of an excessive dower, however, was not like purpresture. The doweress had been seised of the excessive portion: had been installed by the lord. Any wrong here was on the part of the heir's lord, who as guardian was probably responsible for most excessive allocations.

79. Glanvill, XII.2.

80. Ibid., XII.25.

81. Ibid., IX.8; see also IX. 1.

82. Ibid., IX. 13.

83. Ibid., IX. 1 (‘Si vero super hoc convictus fuerit tenens ipse, de iure de toto feodo quod de domino illo suo tenet exheredabitur’.)

84. Ibid., VII. 12, IX. 1.

85. Milsom, Legal Framework, 55.

86. Supra note 53.

87. See generally Sutherland, Novel Disseisin, supra note 44, and Milsom, Legal Framework, 8–35.

88. PBK, 3:lxxix-clxi.

89. PRS XIV, 134.

90. RCR., 1:366; 2:294.

91. Milsom, Legal Framework, 21–25, 46–47.

92. Title and lordly acceptance were somewhat separated by the Compromise of 1153, but title was still based on lordly acceptance at some prior date: Palmer, ‘Feudal Framework’, 1149.

93. PBK, 1:3199; RCR, 2:180; CRR., 1:186, 225, 249. For analysis, see Milsom, Legal Framework, 45–47.

94. CRR., 1:186 records him pleading that he was not summoned, did not come into court by summons, did not vouch to warranty, and did not lose his seisin by judgment of the countess's court. But the court decided that he should take issue on not having entered into the plea willingly and vouching: a somewhat different position.

95. Glanvill, XII.8; Milsom, Legal Framework, 92; Palmer, ‘Feudal Framework’, 1138.

96. Milsom, Legal Framework, 183–86.

97. Palmer, ‘Feudal Framework’, 1149.

98. Palmer, Whilton Dispute, supra note 2, 15–17. The standardization of writs was at least as important as the provision of returnable writs.

99. Pollock, and Maitland, , Hist. Eng. Law, 1:148Google Scholar.

100. My previous inconclusive resolution of the nature of the writs of entry (Palmer, ‘Feudal Framework’, 1153–61) derived from a failure to distinguish the questions.

101. Milsom, Legal Framework, 72–74.

102. Text infra accompanying notes 173–183.

103. Bracton, 3:159–60 (f. 219b) Bracton probably did not quite understand the legal conceptualization, although he talked about the writs reaching the third person inclusively: ‘This writ will lie against strangers who have entered through a disseisor, one or several, as far as the degrees of entry and the persons permit, as well as against the heirs of the disseisor or those who have their entry through the heirs, as far as the third person inclusively’. This was only in the context of sur disseisin, an obviously three-handed writ. Note, however, that Bracton did treat the vouching rule immediately after this treatment of the degrees, so that he may have thought there was some connection). Britton, ed. Nichols, F.M. (Washington, 1901), 565–70Google Scholar (an explanation of the way to count the degrees); Fleta seu Commentarius Juris Anglicani (London, 1647), 361–64 (Book 5.35) (rendition of the writs and method of counting the degrees); Sir Fitzherbert, Arthur, The New Natura Brevium (London, 1687), 201Google Scholar; Blackstone, William, Commentaries on the Laws of England, 1st ed. facsimile (Chicago and London, 1979), 3:180–82Google Scholar; Pollock, and Maitland, , Hist. Eng. Law 2:65–66Google Scholar, 71n (the latter hypothesizes some relationship between the degrees and the vouching rule, but concludes: ‘There is something to be discovered in this obscure region; we cannot profess to have thoroughly explored it. It is darkened by inconsistent methods of counting the degrees’.); S.F.C. Milsom, Introduction to Novae Narrationes, cxxxiv-cxxxvii; Milsom, S.F.C., Historical Foundations of the Common Law, 1st ed. (London, 1969), 121–24Google Scholar (p. 121: ‘The writs of entry may therefore have started within the feudal framework; and this origin may explain a major mystery to which they were subject, that of the “degrees”.’); Milsom, Historical Foundations 144–46, 148–49 (see infra note 107).

104. See Registers, 10 (Hib. 25). The writ was apparently available at full reach from the beginning: PBK, 1:3506.

105. Statute of Marlborough, c. 29 (52 Henry III, 1267).

106. Supra note 103.

107. Milsom correctly identified the crucial question as the position of the lord in the formula. Milsom, Legal Framework, 92–102. He likewise suspects that the position of the lord related to the per and cui rule: Milsom, Historical Foundations, 148 (‘can the “downward” nature of the writs of entry throw light on the mysterious “degrees”?’). Nevertheless, he identified Claimant as the relevant lord making a downward claim, so that he assumed the writ would mirror the social fact, whereas the writ followed the legal conceptualization of the process demanded by the structure of the writs. He thought the per and cui rule still mysterious and perhaps related to the degrees in maritagium (Milsom, Historical Foundations, 148–49). The degrees in the writs of entry, however, were completely distinct from the degrees in maritagium.

108. Registers, 95 (CC. 198); Bracton, 4:38, lists only two-handed varieties of the wardship entry writ. Early writs were also three-handed. Two early cases have minor claimants, so they were presumably not bringing a writ of right but a writ of entry: CRR, 3:92–93, 114 (1204) (showing that although the legal conceptualization was upward-downward, the social situation was downward); CRR, 4:60, 115, 122–23, 141, 221–222 (1206) (for the form of the writ, see Palmer, ‘Feudal Framework’, 1155, note 56). Other examples of three-handed guardian writs of entry: CRR, 7:238, 291 (1214); CRR, 8:230 (1220).

109. A sale of the wardship to another may not have had to have been recounted in the writ. CRR, 11:2040.

110. Infra text accompanying notes 173–94.

111. The writ was certainly available by 1213: Palmer, ‘Feudal Framework’, 1155. It may have been available in 1212: CRR, 6:399. The first writ at full reach I have found is CRR, 8:110, 329 (1219). See also CRR, 11:208. The writ was also available for the recovery of dower, a mere free tenement: CRR, 13:693 (1228).

112. Bracton, 4:32.

113. Milsom, Introduction to Novae Narrationes, cxxxv-cxxxvi: ‘the degrees will accommodate only one holder between the propositus and the tenant. This seems to be true of ad terminum qui preteriit already considered, dum nonfuit compos mentis, dum fuit infra etatem, sine assensu capituli, and cui in vita. But it is not true of writs based on disseisin, or intrusion, in which the degrees turn out to accommodate two persons between propositus and tenant, the disseisor or intrudor and another’. The error relates not to the actual reach, but only as to who is propositus.

114. Registers, 10 (Hib. 26: in the per), 292 (R. 795: in the per and cui). For an early writ in the per and cui, see supra note 111.

115. Baker, J.H., An Introduction to English Legal History, 2nd ed. (London, 1979), 395Google Scholar.

116. The husband appears as lord in at least two other situations. A wife who opposed alienation of her nominated dower land could not reclaim it after the husband's death (opposition apparently being equated to feudal felony), whereas if she consented, paradoxically, she could recover it: Glanvill, VI.3. Likewise, a wife who killed her husband was guilty of petty treason: Baker, English Legal History, supra note 115, 395. Two early situations in which a cui in vita formula appeared (although not in a cui in vita writ) reflect the obligation found in Glanvill, by expanding the formula to ‘cui non potuit vel debuit contradicere’: CRR, 1:142 (1200); 4:43 (1205). The latter case and others describe the wife as being in the wardship custodia of the husband: CRR, 4:43 (‘custos terre cum Alicia uxore’); 2:221 (‘custos hereditatis matris sue’); 8:152; Milsom, ‘Inheritance by Women’, 85–86.

117. Registers 292 (R.797, in the per for husband's alienee), 293 (R.798, in the per and cui for husband's alienee's alienee). Early possible examples of sur cui in vita are CRR, 8:72 (1219); 10:47 (1221); and Rolls of the Justices in Eyre for Yorkshire, 1218–19, ed. Stenton, D.M., Selden Society, vol. 56 (London, 1937), no. 167Google Scholar (-no. 1132). All of these reach only to Secundus.

118. Bracton, 4:33. See CRR, 15:1840, ad terminum qui preteriit, which shows that a son may not be barred from claiming his inheritance from his mother's side by a grant from his father, when the son had no inheritance from the father.

119. Registers, 293 (R. 800: in the per, but with a note that it can be made in all the degrees); Registrum Brevium (London, 1687), 233 (a writ in the per, with a note that it can also be made in the cui. Cases of cui ante divorcium axe rare: Public Record Office, London, CP. 40/70, m. 31 (1278); CP. 40/135, m. 226; JUST. 1/956, m. 15 (in the post). The situation, although not the writ, shows up much earlier. Countess Amice, text supra accompanying notes 93–95, would have used such a writ had it been available, and see CRR, 4:274. CRR, 14:1549 seems to be a situation related to the Amice situation, but more in the nature of Cui in vita than cui ante divorcium. CRR, 16:2411 (1242) (in the per for husband's alienee) is a writ cui in vita, but for a cui ante divorcium situation. The only problem with using cui in vita is that the writ assumed the death of the husband. That incongruity was not raised in the 1242 case, but probably eventually gave rise to the writ cui ante divorcium.

120. For a similar approach to a writ of entry, see Palmer, R.C., ‘Contexts of Marriage in Medieval England: Evidence from the King's Court circa 1300’, Speculum 59 (1984), 61–62CrossRefGoogle Scholar.

121. This writ was apparently not available prior to Magna Carta. The only pre-1215 possibility I found is CRR, 7:109, but that is just as likely a writ of right. It does appear in Bracton, 4:37–38.

122. Supra note 117.

123. Bracton, 4:37–38; Brevia Placitata, ed. Turner, G.J., Selden Society, vol. 66 (London, 1951), 198Google Scholar. Registers, 298 contains only the immediate writs provided by the Statute of Westminster 11, c. 24 that allowed the heir to claim immediately on a grant in fee made by the tenant in the curtesy.

124. Registers, 95 (CC. 197); Hall, G.D.G., ‘The Early History of Entry Sur Disseisin’, Tulane Law Review 42 (1968), 584Google Scholar. The first writ at full reach was in 1230 (Ibid., 594). CRR, 14:49 deserves consideration also, although it may not have been a writ sur disseisin. It was at least a continuation of the action after the disseisee died.

125. Hall, ‘Sur Disseisin’, supra note 124, 586.

126. It seems that earlier strictures about using sur disseisin as an important part of the history of the writs of entry because of its infrequent use are incorrect. It was infrequently used only when compared to ad terminum qui preteriit, cui in vita, and the guardian writ of entry.

127. Milsom, Legal Framework, 11–13; Palmer, ‘Feudal Framework’, 1150.

128. Text supra accompanying notes 31–63.

129. Novae Narrationes, cxxxiii.

130. Plucknett, T.F.T., Legislation of Edward I (Oxford, 1962), 81–82Google Scholar.

131. Registers, 95, 98 (CC. 198, CC. 206a) are the only writs of entry through the guardian in that collection; register R did not include the writ; Registrum Brevium (London, 1687), 231 only has a note that the writ has been superseded by sur disseisin. Supra note 113.

132. Frequency is a relative matter with writs of entry. Between 1233 and 1242 (CRR, 15 and CRR, 16), there are records of 14 cases begun by ad terminum qui preteriit, 18 by cui in vita, 7 or 8 by the guardian writ, 2 by sine assensu capituli, 6 for alienations by doweresses or other life tenants, 3 for intrusion, 1 for alienation by bailiff, and 1 each for dum fuit infra etatem and dum fuit non compos mentis. Writs of entry simply were not that frequently used even in the 1230s.

133. Registers, 99 (CC. 212, later revised into the per form on p. 296: R. 821), 296 (R. 822: in the per and cui against the man's alienee). CRR, 14:610 (1230) is an interesting example of the way in which this kind of situation with entry language appeared prior to the provision of the writ. The idea behind this writ was not ‘failure of consideration’, but related more to the relationship between the parties: Palmer, ‘Contexts of Marriage’, supra note 120, 61–62.

134. Glanvill, IX. 1.

135. Milsom, ‘Inheritance by Women’, 63, 86–87.

136. The analysis in Milsom, Historical Foundations, 172–74, seems to apply to midthirteenth century.

137. Registers, 99 (CC. 212 Capella v. Boyvill (1267–68), see Palmer, ‘Contexts of Marriage’, supra note 120, 62–63, still without entry language), 296 (R.822: in the per and cui.

138. Milsom, Historical Foundations, 115; Prerogativa Regis, supra note 62, xxxvi-xxxvii.

139. Milsom, Historical Foundations, 113–16.

140. Registers, 96 (CC. 199: without entry language), 290 (R. 780: in the per and cui). This writ was not available prior to Magna Carta or soon thereafter. CRR, 16:2303 (1242) may have been a beginning of it: a suit by a woman against her former guardian for a sale she made to him while she was a ward, but without using entry language. For earlier alleged cases, see infra note 141.

141. Supra, note 108; Rolls of the Justices in Eyre for Gloucestershire, Warwickshire, and Staffordshire, 1221–1222, ed. Stenton, D.M., Selden Society, vol. 59 (London, 1940), no. 1120Google Scholar is a guardian writ with the phrase dum fuit infra etatem (which, of course, would always have been true in guardian writs) indexed as a writ of entry dum fuit infra etatem (p. 752); the same classification problem appeared in Rolls of the Justices in Eyre for Lincolnshire, 1218–9, and Worcestershire, 1221, ed. Stenton, D.M., Selden Society, vol. 53 (London, 1934), 569 (667Google Scholar). The crucial difference, of course, is the alleged grantor: the ward or the guardian.

142. Registers, 95 (CC. 196 in both per and per and cui, although indexed only as second degree). CRR, 7:296 illustrates the problem of classifying cases as upward or downward without distinguishing fact from claimant's legal conceptualization. This was not a writ of entry, but claimant's claim was met by an allegation of claimant's grant to tenant for homage and service, making it seem clearly a downward claim. Claimant, however, responded that he was insane at the time and in the wardship of the tenant, who was his uncle: thus, in some sense, it was likewise upward-looking, as against his former guardian. See CRR, 13:1921 (1229); 15:1309, 1394 (1235): possibly the earliest cases.

143. Maitland, ‘The “Praerogativa Regis”,’ supra note 62, 184–86; Pollock, and Maitland, , Hist. Eng. Law, 1:481Google Scholar.

144. Two further writs deserve some mention here: sine assensu capituli and the writ of entry after the revocation of an outlawry. Sine assensu was two-handed: CRR, 11:1187 (1223); 15:1665 (1236). I am still unsure who Primus was- perhaps the chapter, without whose consent the previous abbot had alienated the land, was Primus. Early examples: 12:560 (1225) (in the per, went to the grand assize by a special mise.) The writ of entry after the revocation of an outlawry is not really well-enough known to classify yet. The examples in Registers 97, are in the first and second degree, and that register in its computations would thus contemplate a third degree also, making a three-handed writ. That would make good sense, because the first-hand was always the lord of whom Claimant claimed to hold, since the land had escheated back to the lord after the king's profit from the escheat. Since the relationship of Primus here to claimant is explicit (lord of the fee), it is likewise similar to other three-handed writs, which specify the relationship (guardian, husband, etc.).

145. Text supra at note 104; note that while ad terminum qui preteriit was two-handed, on occasions a three-handed version appeared. In 1214 a writ concerning a term without the ad terminum qui preteriit formula was used in something like a cui in vita situation: CRR, 7:282. In 1228, a three-handed version was apparently modelled on the villeinage writ, with the termor holding from the claimant; CRR, 13:405.

146. Milsom, Historical Foundations, 146–48.

147. Glanvill, X.II; RCR, 2:247–48.

148. Baker, English Legal History, supra note 115, 252.

149. Glanvill, X.6 mentions the situations in which seisin of the gage is given or not, and in which there is a fixed term or not, and in which there is an agreement that on default the land will be the creditor's or in which there is not such an agreement. One can also imagine differences arising from whether the creditor was a Jew, one's lord (PRS XIV, 48 (1194); CRR, 4:40–41), one's tenants, an outsider, or one of the homage group of one's lord, and whether one was gaging the whole of the fee held of the lord or only part.

150. Supra note 149. This is a plausible situation, because the lord would then have someone to deal with from whom he could expect the services, whereas an absentee tenant would create numerous problems.

151. Milsom supposes, probably correctly, that substitution was rare in the late twelfth and early thirteenth century. That does not prevent substitution from being the conceptual model upon which the writs of entry were based. Substitution was the artificial situation necessarily supposed by the rule that a writ of right must be directed to the lord of whom one claims to hold.

152. Supra note 33.

153. Glanvill, X.6 (creditor receives seisin of the gage), X.II (creditor loses seisin of his gage), XIII. 11 (gage-holder has some sort of seisin qualemcumque seisinam); CRR, 5:16.

154. Glanvill, XIII.30.

155. Glanvill, 1.6. Milsom's view on the development of the writs of entry remains obscure. He admits readily that several writs of entry—at least ad terminum qui preteriit and sur disseisin—existed prior to Magna Carta (Milsom, Legal Framework, 95, 101), although he does not deal with the origins of ad terminum qui preteriit. He continues to stress Magna Carta c. 34 as resulting in the incorporation of entry language into the precipe as a jurisdictional statement (Milsom, Historical Foundations, 146–48). But if several writs of entry existed prior to 1215, the effect of c. 34 would seem a subsidiary development: perhaps only the appearance of consistency. At any rate, the use of the language in writs prior to 1215 would have to be explained, and presumably the explanation would not be as a jurisdictional specification.

156. Milsom, Historical Foundations, 146–47.

157. Glanvill, X.9. After the provision of ad terminum qui preteriit (1199 or earlier), that writ would form the pattern. Each new writ would not resort back to the writ of first summons, and it is highly unlikely that ad terminum qui preteriit derived from the writ of first summons except insofar as the gage writ derived from it.

158. There are several surviving writs ad terminum qui preteriit from 1199: PBK, 1:3487, 3506, 3538.

159. Palmer, County Courts, supra note 37, 327.

160. Glanvill, X. 10–11.

161. It is of some interest to speculate about what Glanvill meant by ‘father or some other ancestor’ of the creditor. It seems likely that the ancestor specification was not as broad as it would have been in a writ of right, but rather the kind of limitation found in an assize of mort d'ancestor: father, mother, brother, sister, aunt, or uncle.

162. Glanvill, XIII.27. Note that the fee or gage recognition follows and seems patterned on the assize utrum. The vital question in fee or gage is ‘whether (utrum) the carucate of land in that vill that R. claims from N. by my writ is the inheritance (or fee) of N. or a gage pledged to him by R. (or R.'s ancestor H)’.

163. RCR, 1:361 (1199); 2:137, 218 (199–1200), and with entry language, because deriving from a writ of entry ad terminum qui preteriit; 2:211 (1200); 2:227 (1200); PRS XIV, 135 (1195); RCR, 1:312, 2:46–47; CRR, 1:158, 220 (1199–1200). Most of these derive from gage writs.

164. Glanvill, XIII.13–14; Palmer, ‘Feudal Framework’, 1158.

165. CRR, 1:136, 116, 181; CRR, 2:219. It is hard to see how, given such upward use of entry language, Milsom states that ‘The first appearance of “entry” clauses, then, is not in original writs of entry. It is in requests by demandants in “writs of right” for a special issue to be put to a jury’. Milsom, Historical Foundations, 147. The first appearance was not in writs of entry, but neither was it solely derivative of writs of right: the assize of mort d'ancestor was equally a source of such language, and in an upward context.

166. Sutherland, Novel Disseisin, supra note 44, 141.

167. Hall, ‘Sur Disseisin’, supra note 124, 586–87.

168. Milsom, Legal Framework, 95–102.

169. Milsom, Historical Foundations, 146–48.

170. Text supra at note 150.

171. Supra note 33.

172. Bracton, 4:43. It is unlikely that all the cases that look like entry but that end in a grand assize were actually writs of right to begin with. The claimant's option was explicitly asserted in CRR, 13:668 (1228), and see the cases of sine assensu capituli, supra note 147.

173. For the mort d'ancestor limitation: CRR, 10:286; 14:1101. For the minor claimants: CRR, 3:92–93, 4:203, 4:221, 13:2342 (1234).

174. Compare this with the Countess Amice case, text supra accompanying notes 96–98. Note that the widow's writ of right would not go to the heir: she would not claim to hold inherited land from him. But the heir could do nothing on his own volition.

175. Thorne, ‘English Feudalism’, 200–201.

176. Text supra at notes 150, 171.

177. Glanvill, X. 11.

178. Ibid., XIII.11.

179. Milsom, Historical Foundations, 149.

180. Statute of Marlborough, c. 29

181. CRR, 16:183, 301; Bracton's Note Book, ed. Maitland, F.W. (Littleton, 1983), 3:no. 1215Google Scholar; Milsom, Historical Foundations, 132, 137.

182. Usually if there were vouchers, the vouchers would be in the line anyway. When they were not, sometimes it is unclear who the vouchee is: occasionally a seeming stranger might be heir to one named in the line. In apparent instances of vouching outside the line, however, most were probably to prove the other entry rather than to continue the case, except when the claimant was pleading in the right: CRR, 7:122; 8:230 (allowed); 8:196 (allowed); 8:227 (jury preferred to voucher); 9:88 (voucher ignored and jury summoned); Bracton, 3:160.

183. Supra note 103.

184. CRR, 14:905: Claimant's brother, a tenant at will, alienated to a bishop, who alienated to tenant, who was now vulnerable to litigation by writ of entry. CRR, 14:1758 is a further example. The writ does not appear in Registers. Early examples, CRR, 12:370 (alienor v. alienee, issue going to grand assize on a special mise.) Note that the writ of entry by alienation of claimant's farmer (CRR, 13:1465): reaching farmer's alienee's alienee, but with a per and quibus; also alienation of dower land by one's bailiff, reaching to bailiffs alienee's alienee (CRR, 15:612).

185. Bracton, 4:36; Hyams, P.R., King, Lords, and Peasants in Medieval England, (Oxford, 1980), 41–43Google Scholar. CRR, 11:2145 (1224): ‘in quam idem (tenant) non habet ingressum nisi per (Secundum) patrem suum, cui Johannes filius Reginaldi eam dimisit ad terminum, qui eam tenuit in vilenagio’. Note the term alleged in this writ, which makes the writ somewhat like ad terminum qui preteriit, perhaps, in the early years. CRR, 12:330 (1225) (similarly three-handed); 12:465.

186. Registers, 96 (CC. 200: in the per, 293 (R. 803: in the per and cui against doweress's alienee's alienee, or, here, doweress's alienee's husband); CRR, 9:252 (1220) (against doweress's alienee's alienee); 15:348.

187. The so-called ‘in casu proviso’ writ: Registers, 298 (R. 833, 834).

188. Ibid., 96 (CC. 200a, 200b, 201), 294–96 (R. 805–820), 302–303 (R.855–860). Perplexingly, some early cases of intrusion [CRR, 12:2057 and 12:2526 (the latter a minor claimant whose father died seised as of fee, concerning a posthumous daughter v. nephews] alleged entry by intrusion after the death of a tenant seised as of fee.

189. Milsom, citing an early fourteenth-century report, says an heir of the life tenant would not be an intruder: Milsom, Introduction to Novae Narrationes, cxl, n. 5. Bracton thought differently: Bracton, 4:37. For a detailed instance of a late thirteenth-century case, see Palmer, Whilton Dispute, supra note 2, 147–49.

190. Registers, cv; Milsom, Introduction to Novae Narrationes, cxl-cxli.

191. The writ was sometimes called a writ of attachment, and plaintiffs were described as complaining. Moreover, early intrusion accusations (not writs of entry of intrusion) normally involved allegation of some royal interest, such as a breach of a final concord (CRR, 1:56; 1:170; 6:203; 14:1473) or violation of a judgment of the king's court (CRR, 3:28; 4:184; 8:32; 8:150; 14:235), force or force and arms (CRR, 1:104; 4:80–81; 4:118; 6:237; 8:138; 8:147; 8:204; 8:394; 10:106; 10:112; 14:2432; 15:253; 15:305), a privilege granted by the king (CRR, 3:69), a royal wardship involved (CRR, 5:221), violation of a royal order (CRR, 8:148), involvement of one in the king's service (CRR, 8:174), or other miscellaneous matters (CRR, 7:245; 8:21; 9:381; 10:325).

192. Registers, 295 (R. 815), 296 (R.819).

193. Intrusion seems to have been exactly the kind of plea Milsom portrays as typical of writs entry: a downward plea of a lord against his tenant. Intrusion inquiries could contain the quo warranto words (CRR, 4:250; 6:351; 8:238 (considered along with 8:236); 8:297; 10:325). Seemingly the inquiries could be on behalf of the lord's ward (CRR, 1:378; 6:321) or in his own interest. A certain number of the intrusion inquiries involving the king were probably of the former kind (supra note 193). The most likely positions for the lord would thus have been either as plaintiff or (and I take this alternative as the probable one) as the presumed lord who had finally dropped out of the litigation, leaving it up to his tenant.

194. Registers, 296 (R. 819). Equating the doweress and the tenant in the curtesy was possible because both were life tenants. They were different in that the doweress held of the main line, whereas the tenant in the curtesy held of the chief lord (for a woman's inherited land) or from the grantor's line (for maritagium).

195. For the doweress situation: the writ in casu proviso (Registers, 298 (R. 833–835)); for the tenant in the curtesy: the writ in consimili casu (Ibid., 298 (R. 836–838)).