Calendar of Wills Proved and Enrolled in the Court of Husting, London: Part 1, 1258-1358. Originally published by Her Majesty's Stationery Office, London, 1889.
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The "hygh and auncyent" Court of Husting of the City of London is of Anglo-Saxon or, to speak more accurately, of Scandinavian origin, being a remarkable memorial of the sway once exercised over England by the Danes and other Northmen. The name of the Court is derived from hur, "a house," and "in[gh], "a thing," "cause," or "council," and signifies, according to general acceptation, a "court held in a house," in contradistinction to other things or courts, which in Saxon times were usually held in the open air. (fn. 1)
The judicial and legislative assembly of the Northmen represented by the word "thing" (from tinga=to speak, and allied to our English word "think") can be traced in many local names throughout England, and more especially in the extreme North, where the Scandinavian race prevailed, and where the "thing" was primitively held upon the site of, or as an appanage to, a hof or temple. (fn. 2) It is plainly seen in the Tynwald Court or general legislative assembly for the Isle of Man, where the distinctive feature of the primitive open-air assembly still survives in the custom of the whole assembly going once a year in solemn procession, attended by the governor of the island and a military escort, to a hill known as the Tynwald Hill, whence all the laws that have been passed in the course of the past year are proclaimed in English and Manx. (fn. 3)
There is some probability of the etymon surviving in the divisions of Yorkshire known as "ridings," although of this there is still some doubt. Mr. Laurence Gomme, however, has done much towards showing the probable affinity between the "Treding" (=riding) moot and the open-air court of the primitive Thing. (fn. 4)
The term "Husting" or, less correctly, "Hustings" is commonly applied at the present day to open-air assemblies or temporary courts, usually held in some elevated position, for the purpose of electing members of Parliament in counties and boroughs, its strict etymological meaning being lost sight of. An open-air place of assembly certainly best accords with a description given in an ancient monastic chronicle of the death of Archbishop Elphege when he entered the City in 1012, and, refusing to obey the commands of a rabble army, was led to the Husting and there done to death with bullocks' heads and bones. (fn. 5)
There is little evidence to show when the Court was first instituted in the City of London. It is mentioned in the laws of Edward the Confessor as the place where the Court of the lord the King is directed to be held on Monday in every week. (fn. 6)
It was called the King's Court, and served on one occasion at least (viz. anno 18 Edward I.) for holding the Court of the King's Exchequer; (fn. 7) but whether this was the first or only time when the Barons of the Exchequer sat in the Husting of London is not clear.
It has been suggested by no less an authority than Dr. Stubbs, Bishop designate of Oxford, that, whilst the folk-mote of the citizens of London corresponded to the shire-mote outside, and their ward-mote to the Hundred Court, the Court of Husting might be regarded as a general meeting of the citizens. (fn. 8) The more general opinion, however, is that the Husting Court was the County Court of London, having all the powers incident to such courts, and retaining a great deal of the now obsolete jurisdiction of the ancient shire-mote. It is the oldest court of record within the City, and at one time constituted the sole court for settling disputes between citizen and citizen. With the increase of population it became necessary to erect a separate jurisdiction over actions merely personal, which were thenceforth to be decided in the courts known as the Mayor's and Sheriffs' Courts respectively, while all real and mixed actions, (fn. 9) with the exception of ejectment, remained subject to the exclusive jurisdiction of the Court of Husting as before. The precise period when this differentiation took place is unknown, but it is surmised to have occurred about the time when the Aula Regis underwent a similar change in the reign of Edward I. (fn. 10)
Notwithstanding, however, its delegation to other courts of all personal actions, the Court of Husting still retained an exclusive appellant jurisdiction in all such actions after judgment in the Sheriffs' Court.
If either party to an action in the Court of Husting were dissatisfied with the judgment there given, an appeal in error lay to certain special commissioners appointed for the purpose to sit at S. Martin le Grand; and no record could be enforced to be brought up except before these commissioners.
An attempt was made by the King in 1315 to encroach upon the liberties of the City in this respect by ordering the Mayor and Aldermen to bring up the record of proceedings taken relative to the will of Edmund Horn, whose will was proved and enrolled in the Court of Husting, (fn. 11) and afterwards contested. The writ recites the custom of the City of proving and enrolling wills of real estate in the Husting, and the fact of the probate of the will of Edmund Horn, whereby he devised and gave to William de Burgo and Margery his wife the whole of his tenement in Tamestrate, together with certain rents, to hold the same for the term of their lives, and so that the said William might dispose of the same by his testament for pious uses as the said William might think fit; and then proceeds to complain that the Mayor and Aldermen had only granted execution of the will of the said Edmund so far as related to the life estate of the said William and Margery in the tenement and rents so devised, and had not taken cognizance of the power vested in the said William of disposing of the same by will, which, says the King, was to the no little prejudice of the said William, was contrary to the will of the testator, and contrary to the custom of the City. He therefore commands them to proceed to the full execution of the testament of the said Edmund, according to the custom of the City, and to inform him under their seals of the whole of the proceedings relative to the probate and execution of the same.
To this the Mayor and Aldermen made answer that execution had been fully done as to everything contained in the will of Edmund Horn according to law and the custom of the City, but that no process of matters brought into the Husting ought by mandamus to be taken before any other justices than those assigned to sit at S. Martin le Grand to examine and correct errors (if any there be) in the Husting, and that this was according to the custom of the City. (fn. 12)
It frequently happened that in the case of a debt, trespass, or covenant, the defendant against whom judgment had been given in the Sheriffs' Court, and who had obtained leave to have the record brought before the Mayor in the Husting or before the Justices at S. Martin le Grand, eloigned his goods pending the plea of error, so that there was nothing left within the City upon which judgment could be executed. To remedy this abuse of the process the Mayor and Sheriffs were commanded, by writ dated Westminster, 4 June, 8 Edward III. (A.D. 1334), (fn. 13) to see that the goods and chattels of a party defendant who had appealed in error either to the Mayor or to the King's Justices within their bailiwick should be safely kept, to the amount of the judgment already given, to the end that such judgment, if confirmed, might be duly executed.
On the occasion of any record being sent before the Justices at S. Martin le Grand, the Mayor and Aldermen were allowed forty days' respite to advise them of the said record and of the process of the same (de avisamento habendo super recordo et processu), and the said process and record were recorded before the Justices at their first sessions after the expiration of the said term, by word of mouth (ore tenus) of the Recorder. (fn. 14)
The municipal government of the City of London, with its liberties and franchises granted or confirmed by a series of royal charters, frequently served as a model to be followed in granting charters to other cities and boroughs throughout the kingdom, (fn. 15) hence it is that Courts of Husting are also found to exist at Winchester, Oxford, Lincoln, York, Norwich, and Great Yarmouth. (fn. 16)
The close relationship and interdependence existing between the City of London and various other municipalities cannot be better exemplified than in the municipal history of Oxford. That city obtained a charter from Henry III., whereby the citizens of Oxford were not only permitted in certain respects to enjoy the same customs, liberties, and laws as the citizens of London, but whenever any question of difficulty arose they were enjoined to send messengers to London, and whatsoever the citizens of London decided, that was to be acted upon. (fn. 17) As in London so in Oxford there was a Court of Husting, which continued to exist down to quite recent times, its proceedings from the time of Edward II. to that of Charles II. being enrolled in a book bearing the same title as that of the chief and best known of the MS. records of the City of London, namely, Liber Albus. (fn. 18)
There are at least two occasions recorded of the Mayor and Bailiffs of Oxford having consulted the municipal authorities of London as to procedure in this court. The first took place at the commencement of the reign of Edward III., (fn. 19) and a translation of the letter and reply is here set out in full, as it involves a question which will be seen to crop up from time to time in the wills here calendared, namely, the right of a testator to devise lands and tenements of which he is jointly seised with others: (fn. 20)
"To the most honorable and wise barons, the Mayor and Aldermen of the City of London, their humble and obedient Mayor and Bailiffs of Oxenford honour and reverence. Whereas, lords, we are in doubt as to judgment to be given in the matter of a testament which one Phelip de Wormenhal made, who devised in his testament, among other devises, certain tenements to one Thomas his son, which tenements the said Phelip and Alianore his wife jointly purchased to them and their heirs in fee simple, and the said Phelip made the same Alianore his executrix together with other executors, and the same Alianore accepted the testament as to all other devises, and delivered seisin to all to whom tenements were devised in the said testament, except those tenements which she purchased jointly with the said Phelip her husband, which tenements she retained at her will as her right by purchase by deed which she produced at the probate of the said testament, and so continued her seisin for six years and more, until now of late the said Alianore has before us in the Husting granted and delivered the said tenements to one Margaret her daughter, and has prayed that livery may be made to the said Margaret of the tenements aforesaid; whereupon came the said Thomas, to whom the devise was made as aforesaid, and disturbed the seisin, alleging that the said testament is of record, and is of such force, according to the usage of London and Oxenford, that no seisin contrary to the said testament ought to be made, whether full execution has been done in the matter or not: And whereas, sirs, we are advised that a testament made in such manner without livery of seisin cannot bar the wife of her right to give and to sell to whomsoever she will, notwithstanding such testament being proved and enrolled, together with the other tenements legally devised: We pray, sirs, and humbly and devoutly request that you will write us plainly an absolute decision and your determination thereon. May God maintain you, very dear sirs, in honour for ever. Written at Oxenford the 26th day of January." [French.]
"The Mayor, Aldermen, and Sheriffs make answer, that inasmuch as the said Alianora asserted at the time the aforesaid testament was proved that she was jointly enfeoffed with the said Philip her husband of the tenements which are now claimed by Thomas, the son of the said Philip, in this case the said testament ought not by right to have any force as concerning those tenements, nor according to the custom of the City can there be a mandamus for execution, inasmuch as it appeared to the Court that she was jointly enfeoffed. And therefore let the said Alianora do with the said tenements according to her will, the claim of the said Thomas notwithstanding," &c. [Latin.]
About thirty years later the Mayor and Bailiffs had again occasion to write for information as to certain customs of the City of London, and more especially as to the procedure of holding Courts of Husting for pleas of land, of which full details in reply were sent. (fn. 21)
The Court, according to provisions made by charter, sat only on one day in each week, (fn. 22) that day being usually Monday. If, however, the business of the Court did not allow of its being determined on one day, permission was granted by charter of Henry III. (fn. 23) to carry it over to the morrow, but no longer.
In course of time it became the custom to sit on both Monday and Tuesday in each week, that is to say, upon Monday for demanding appearance of demandants, the award of non-suits, and allowing of essoins; (fn. 24) and upon Tuesday for the award of defaults and for pleading; the Courts for hearing Pleas of Land and those for hearing Common Pleas sitting separately in alternate weeks. (fn. 25) The proceedings, however, were always recorded and legally presumed to have been held on Monday. (fn. 26)
It also became the custom whenever Monday happened to be a festival or holiday to hold no court at all that week, but owing to this giving rise to much inconvenience, it was ordained by Act of Common Council (fn. 27) passed in 1550 that the Court should thenceforth sit upon every Tuesday, except the Tuesdays between 1 August and 29 September, notwithstanding the preceding Monday being a holiday, and notwithstanding the Court bearing the title of Monday.
Eventually it was found more convenient that the Court should always actually sit on the Tuesday in every week instead of the Monday, (fn. 28) and this it continues to do at the present day whenever occasion requires.
For one month in every year, commencing from the Feast of S. Botolph (17 June), the sittings of the Court of Husting were suspended in order that citizens of London might attend the annual fair held at the town of S. Botolph (i.e. Boston) in the county of Lincoln. This was due to the number of citizens who flocked thither, leaving suits and pleas still pending in the Court, which could not well be disposed of in the absence of the parties most interested. In order to settle disputes between citizens and to protect their interests whilst engaged at the fair it was the custom for the Mayor to issue a commission appointing wardens for prosecuting, challenging, and demanding all citizens who might be attached or made to plead in other courts, (fn. 29) as well as to do right to those who had complaints against them, according to the law merchant. (fn. 30)
The suspension of the sittings of the Court continued for many years after the fair at Boston had ceased to be held, until in the year 1416 the inconvenience arising from the hearing of suits being thus unnecessarily delayed was represented to the Mayor and Aldermen, who thereupon ordained that in future the Husting should be held within the City upon the Feast of S. Botolph and during the month after it, the same as at other times of the year. (fn. 31)
The sessions of the Court were similarly suspended on the occasion of the fair held at Winchester, and also during harvest time. (fn. 32)
In 1264, during the mayoralty of Thomas Fitz Thomas, who had been elected to that office by the voice of the populace ("the Aldermen and principal men of the City being but little consulted thereon") and without the usual formality of being "admitted," it is recorded (fn. 33) that "no Pleas of Land were pleaded, save only Pleas of Intrusion, as also pleas on plaint made, which pertain to the assizes; nor was any Hustings held. Hence it was that no affidavits as to tenements were sworn from foreign courts, nor was any testament proved." (fn. 34)
Again in 1272 the same chronicler records that throughout the mayoralty of Walter Hervey, another popular Mayor and "worthy pupil and successor of the ill-fated Fitz Thomas," no pleading was allowed in the Husting of Pleas of Land except very rarely, and the reason he gives is at least curious when imputed against one who was undoubtedly accepted as the people's nominee and champion, namely, that the Mayor "himself was impleaded as to a certain tenement which Isabella Bukerell demanded of him by plea between them moved." (fn. 35)
The presiding judges of the Court were the Lord Mayor and Sheriffs, the Recorder sitting as assessor for the examination of witnesses and for pronouncing judgment. In case of the unavoidable absence of the Lord Mayor from illness or other cause, the following provisions were made by Act of Common Council, 29 April, anno 26 Elizabeth [A.D. 1584]: (fn. 36)
"Whereas the auncient courte of Husting' within this Citie of London by the auncient usage and custome of the same Citie is, and time out of mynde hath byn kepte and holden every weeke weekelye upon the mondaie in the Guildhall of the same Citie before the lorde maior and Sheriffes of the saide Citie, And that no courte of Husting' coulde or hath byn kepte or holden unles the lorde maior of the saide Citie for the time beinge were personally p'sent at the same. Forasmuche as of late yeres by reason of the absence of the lorde maior at the daies in wch the saide courte of Husting' ought and have byne used to be kepte, by meanes of sicknes of the same lorde maior and diverse other urgent occasions no courte of Husting' hath byn holden or kepte, By meanes wheroff greate delaie of the execucon of her Mates processe issueinge out of her heighnes courtes at Westm' hath happened to the great hindrance of Justice to a greate nomber of her Mates good subiect'. For the avoidinge of the wch inconveniences and for the advancinge and furtheringe of Justice and expedicon to be had in sutes for recov'ye of iuste and true debtes, and for other good consideracons. Be it enacted by the lorde maior Aldr'en and Com'ons in this com'on Counsell assembled, and by the aucthoritye of the same, That from henceforth the saide courte of Hustinges shall and maie be holden and kepte at the daies and place of olde time used and accustomed before anie one Aldr'an of this citie that hath or shall have borne the office of maioraltye of the same Cittie, and the Sheriffes of the saide Cittie for the time beinge or thone of them when and as often as it shall fortune or happen that the lorde maior of the Citie afore saide for the time beinge shall by reason or occasion of sickenes or other urrgent cause happen to be absent and not to come to kepe the saide courte of Hustinges, anie acte ordinaance Custome or usage heretofore had made or used to the contrarie notwithstandinge"
This Act has been set out in full because it has been often cited (fn. 37) as an authority for the statement that in the unavoidable absence of the Lord Mayor there must be six Aldermen present in order to properly constitute a court.
That six Aldermen were accustomed from a very early date to be present in the Husting, and to act as judges in matters connected with that court, may be seen from certain ordinances made at the time of the Iter of the Justices, (fn. 38) anno 28 Henry III. (A.D. 1243-4), when it was provided that the Court for Pleas of Land should be held every fortnight (de quindena in quindenam), and that it should be held by six Aldermen and one of the Sheriffs, if other Aldermen and the other Sheriff were prevented from attending or wilfully absented themselves from malice or favour, so that justice should be delayed. In like manner the Court was to be so held if the Mayor was prevented from attending, and judgment was to be given by the said six Aldermen and Sheriff in the absence of the others, if they clearly arrived at a decision; if, on the other hand, they experienced any difficulty, judgment was to be deferred, but not beyond a third court or six weeks.
Upon a mandamusbeing sent (anno 24 Edw. I.) to the Sheriffs and Aldermen of London that they should see speedy justice done to Johanna, wife of John de Hakeburne, (fn. 39) who claimed a certain messuage, seld, shop, and cellar under the will of her said husband, they made a return to the effect that judgments concerning testaments of lay fee within the City could only be determined in full Husting, and not elsewhere; and as an explanation of any delay that might have occurred, they represented that no Husting had been held since the writ had come into their hands, nor could be held, because almost all the Aldermen who ought to hold that court were serving the King upon the sea coast by precept of the King himself. (fn. 40)
In 1302 it was ordained that no judgment should be delivered in the Great Court of Husting (Magna Curia Hustengalis) until the Mayor and Aldermen should have conferred thereon, and then in the presence of six Aldermen at the least, as had been anciently accustomed. (fn. 41)
In the following year we find the Mayor and a number of Aldermen solemnly giving their judgment, each one for himself, upon the right of inheritance of the heirs of the blood of Osebert de Suffolk to a certain tenement which the said Osebert had disposed of by will, proved and enrolled in the Husting of London. (fn. 42) It is recorded that two of the Aldermen did not agree in toto with the judgment of their brethren, but contented themselves with declaring the testament to be valid. (fn. 43) It was afterwards decided by the Mayor, ten Aldermen, and one of the Sheriffs that certain parishioners of the church of S. Mary le Bow should sell the tenement in question for the best price obtainable, and that the proceeds should be devoted to the benefit of the souls of the said Osebert and Anna his wife, according to the instructions contained in his will, and the residue should go towards the maintenance of the fabric of London Bridge.
It was the custom for an officer of the Sheriffs to summon Aldermen to the Court whilst sitting upon a horse the value of which was to be one hundred shillings at least: (fn. 44)
"Item, les Aldermans de Loundres serrount somounz de veignir as les Hustenges: et deyvent par usage de la dite citee estre somounz par un ministre del Viscountz seant sur un chival prys de cent soulz a meyns."
This ceremony was from time to time enforced by orders of the Court of Aldermen. (fn. 45)
The Town Clerk for the time being was formerly Registrar of the Court, and upon him devolved the duty of superintending its proceedings, under the direction of the judges, and of seeing that the same were properly entered up. (fn. 46)
The attorneys of the Mayor's Court were likewise attorneys of the Court of Husting; the second attorney being Clerk of the Husting or Clerk of the Enrolments whose duty it was to see that all deeds and wills were duly enrolled. (fn. 47)
The procedure was as follows:The party sealing the deed had to appear before the Lord Mayor, or the Recorder, and one Alderman, and make acknowledgment that the same was his act and deed. If a wife were a party, she was examined as to her having acted of her own free will. After the Mayor, or Recorder, and Alderman had set their hands to the deed, it was delivered to the Clerk of the Enrolments, who at the next Husting caused proclamation to be made, according to custom.
The fees for the enrolment of a deed are stated by Bohun (fn. 48) to have been as follows:
|To Mr. Recorder||06||08|
|To the Chamberlain||01||08|
|To the Town Clerk (fn. 49).||00||10|
|To the attorney "for every press"||06||00|
|To his clerk||00||08|
Aldermen were exempt from paying any fee for enrolment of charters or deeds affecting themselves in any way, whether in the Court of Husting or elsewhere. (fn. 50)
About the beginning, however, of the fifteenth century the City authorities found themselves in sore straits respecting the necessary funds for carrying out "the New Work of the Guildhall," begun during the mayoralty of Thomas Knolles. To meet the difficulty it was ordained that, for the term of six years next ensuing, certain payments should be made by every apprentice and every freeman towards carrying out the New Work; and among other devices for raising money for the same purpose, it was decreed that for the period just mentioned a charge of 3s. 4d. should be made for every deed or charter and 6s. 8d. for every will to be enrolled over and above the old fee. (fn. 51)
It was thought no doubt that the above arrangement, if carried out for the prescribed period, would be sufficient for the purpose in view. Such, however, was not the case, for the increased charges were renewed for a period of three years, at the end of which time they were again renewed, and so on from time to time.
The Sheriffs, besides being judges of the Court, were also its executive officers, every process of the Court being made out in the name of the Mayor, and directed to the Sheriffs to be executed by them or by some one of their servants. They had, moreover, to see to the proper enrolment of all pleas in the Court of Husting, and to maintain clerks for the purpose at their own expense. Upon the morrow of each court all pleas were recited before the Mayor, Recorder, and four Aldermen, and such pleas as were not properly written or enrolled were amended in their presence. (fn. 52)
It was the duty of the Common Sergeant at Arms of the City, otherwise called the Common Crier (qautrement est dit Comune Criour), to give notice to the judges of the sittings of the Court, and to open and adjourn the same. This he continues to do at the present day by making the following proclamations:
"Oyez, oyez, oyez!All manner of persons who have been five times called by virtue of any exigent (fn. 53) directed to the Sheriffs of London, and have not surrendered their bodies to the said Sheriffs, this Court doth adjudge the men to be outlawed and the women to be waived." (fn. 54)
"Oyez, oyez, oyez!All manner of persons who have anything more to do at this Hustings of Common Pleas may depart hence at this time, and keep their day here again at the next Hustings of Common Pleas. God save the Queen."
This officer received a fee of fourpence for every testament proclaimed in the Husting and for every plea determined therein, in addition to his salary, the robes or cloaks of Aldermen worn by them on taking their oath of office, which devolved by way of perquisite to him, and a fee of twelvepence, which the Sheriffs paid him, for every proclamation he made within the City. (fn. 55)
The counsel employed in the Court were usually known as the four City Pleaders; the attorneys, as already stated, being the same as the attorneys of the Mayor's Court, their admission as attorneys of the latter court giving them the exclusive privilege of practising in the Court of Husting.
The employment of counsel appears at times to have worked hardship upon the citizens, for in 1259 we find the King, after promising the citizens that he would preserve all their liberties unimpaired, granting certain new statutes "for the amendment of the City," which he commanded should be inviolably observed, to the effect that in future it should not be necessary to have a pleader in any plea moved in the City, either in the Husting or any court in the City, save only in pleas pertaining to the Crown, or pleas of land and distress wrongfully taken; but every one was to set forth his complaint with his own lips, and the other side in like manner. Further, if any pleader entered into an agreement to take a part of the tenement for which he pleads by way of reward, he was to lose his share and to be suspended from office. (fn. 56)
Another step in the same direction was taken in 1264, when it was ordained that no advocate should act as an essoiner or agent for proffering excuses for non-appearance, either in the Court of Husting or any other court of the City. (fn. 57)
The Court sat to hear Pleas of Land and Common Pleas in alternate weeks, its proceedings being entered under the headings "Pleas of Land (or Common Pleas) holden on Monday the Feast of (or "next before" or "next after" the Feast of ......) ......," &c., as the case might be, upon two distinct series of Rolls.
In the Court of Husting for Pleas of Land were pleaded writs of Right (fn. 58) Patent directed to the Mayor and Sheriffs, the tenant or tenants having three summonses to the three Hustings of Pleas of Land next ensuing after delivery of the writ, and three essoins (fn. 59) at the three next courts; after which, if the tenants made default, process issued against them by Grand Cape, or after appearance by Petit Cape, (fn. 60) and other process according to the common law. If the parties pleaded for judgment, it was given by the mouth of the Recorder, and six Aldermen at the least were wont to be present at each such judgment given. (fn. 61)
Of this right to hear all pleas of land in the first instance the citizens of London were very jealous, and boldly resented an attempt to deprive them of it which the King's Justices made at a remarkable Iter held at the Tower (anno 14 Edw. II.), lasting in all for twenty-four weeks and three days, to the great discomfort and annoyance (in tribulatione et angustia) of the citizens of London. (fn. 62)
This series of Husting Rolls contains also a number of assurances of lands, tenements, and hereditaments known as common recoveries. These were for the most part fictitious actions entered into by consent for the better assurance of lands and tenements, and if made in respect of property outside the City were usually enrolled in the Common Pleas. (fn. 63) The ecclesiastics are credited with the
discovery of this "piece of solemn juggling," as it has not inaptly been called, they having first made use of it to circumvent the statute De Viris Religiosis (7 Edw. I.), which provided that no person, religious or other, whatsoever should buy or sell, or receive under pretence of a gift, or of a term of years, or any other title whatsoever, nor should, by any art or ingenuity, appropriate to himself, any lands or tenements in mortmain, upon pain of forfeiture. As this statute extended only to gifts and conveyances between the parties, the religious houses set up a fictitious title to the land which it was intended they should have, and brought an action to recover it against the tenant, who acted in collusion and made no defence. Judgment was thereupon given for the religious house, which thus recovered the land by sentence of law upon a supposed prior title.
About two hundred years later the same procedure was adopted in order to counteract the effect of another statute known as De Donis Conditionalibus (13 Edw. I. c. 1), establishing estates tail. The operation of these estates frequently bred much ill-will and disagreement in families, for children grew disobedient to their parents when they knew they could not be set aside; creditors were defrauded of their debts, and purchasers were deprived of land which they had fairly bought, by the setting up of innumerable latent entails. The statute, which was all but universally condemned, found favour, however, with the nobility, for they were thereby enabled to preserve their family estates from forfeiture, and owing to their influence the less privileged classes had little hope of procuring its repeal by the legislature. The application of common recoveries to effect a bar to an estate tail was not legally recognized till the decision in Taltarum's case, (fn. 64) anno 12 Edward IV., although it is said that the courts so long before
as the reign of Edward III. inclined to the opinion that a bar might be effected in this manner. From the recoveries entered upon the Husting Rolls it would appear that their effect in this direction had been speedily recognized within the City, for from the very commencement of the reign of Edward IV., or more than ten years before judgment had been given in the case just mentioned, fictitious recoveries were constantly enrolled, and a true recovery is only occasionally found.
They were not unfrequently preceded by a conveyance of the property in question to some third party, upon the understanding, expressed or implied, that he would consent to a recovery being made against him. The grantee was then known as "tenant to the prcipe," and such conveyance was often enrolled in the series of Husting Rolls kept especially for the enrolment of deeds and wills.
The Rolls upon which Pleas of Land were entered are numbered respectively No. I. to No. CCXVI., commencing A.D. 1273 and ending A.D. 1724. (fn. 65)
In the Husting for Common Pleas were pleadable various writs (many of them now obsolete), among which were the following: (fn. 66)
Writs of Dower unde nil habet, for the recovery of a widow's dower of lands which a tenant had bought of her husband in his lifetime, whereof he was solely seised in fee simple or fee tail, and of which she was dowable.
Writs of Gavelet for the recovery of lands and rents; writs of waste and partition; writs of Quid juris clamat and of Per qu servitia; writs of Assize of Novel Disseisin, called "Freshforce," and of Mort d'Ancestor; writs of Replevin for recovery of distress wrongfully taken, and others.
The Common Pleas Rolls are 170 in number, commencing A.D. 1272 and ending A.D. 1506. To these there is neither calendar nor index. The entries on them are of the briefest possible nature, but might be made valuable by the addition of an alphabetical list of the names of the parties to the various suits.
Besides matters already mentioned with which the Courts for Pleas of Land and for Common Pleas were respectively concerned, there were certain others in respect of which proceedings appear to have taken place indifferently in either court.
Of these we may mention in the first place the admission of foreigners (fn. 67) into the freedom of the City. The citizens of London were always more or less jealous of any foreigner who entered the City, and would allow none to reside within its walls for the purpose of selling his merchandise for more than forty days, and then only in lodgings especially assigned for the purpose. It was probably with a view to putting an obstacle in the way of their being admitted to the freedom of the City that the citizens obtained letters patent from King Edward II. (fn. 68) allowing, at their own especial request, certain "articles," among which was one that declared that no foreigner should be admitted into the freedom of the City except in the Husting (nisi in Hustengo). (fn. 69)
It was again ordained in 1326 by the Mayor, Aldermen, the men and merchants of divers trades, and others of the Commonalty, for "the great advantage of the lord the King," who was himself a prisoner at Kenilworth, and for "the avoiding certain perils," that thenceforth no alien should under any circumstances be admitted to the freedom of the City, save only at the Husting of London. (fn. 70)
It was to the Court of Husting that application had to be made by an aggrieved citizen for an assize to sit for the settlement of any dispute relative to buildings within the City; and it was in full Husting that twelve men, Aldermen (fn. 71) of the City, had to be elected and sworn for the purpose. This "Assize of Buildings," as it was called, dates from the time of Henry Fitz-Elwyne, the first Mayor of London; and details of the manner in which it was to be carried out are fully described in the City's' Liber Albus.'
The Court was occasionally used as a place for doing public penance, it having been decided in 1364 by the Mayor, Aldermen, and an immense number of the Commonalty, in the Great Hall of the Guildhall of London assembled, that any person found guilty of perjury should be committed to the prison of Newgate, there to remain until the Husting next ensuing; at which Husting he was to be taken from the prison to the Guildhall, before the Mayor and Aldermen, and there made to stand on a high stool, before all the people, bareheaded, whilst the cause of his imprisonment was publicly proclaimed as an example to others, after which he was to be set at liberty. (fn. 72)
Writs of Exigent were demandable as well at the Husting for Common Pleas as the Husting for Pleas of Land; (fn. 73) but such Exigents as were demanded at the one Husting were not to be demanded at the other. At the fifth court outlawries and waiveries (fn. 74) were awarded in the presence of the Mayor and Aldermen by the mouth of the Recorder, in the same manner as other judgments given in the Husting. (fn. 75) The custom of the City permitting the suing out of Exigents in the Courts of Husting and the subsequent proclamation of outlawry in the Folkmote, especially summoned for the purpose, was made the subject of inquiry by the King's Justices at the Iter at the Tower already referred to (fn. 76) as having been held in the 14th year of Edward II. The questions put by the Justices and answers thereto are fully set out in the 'Liber Custumarum' of the City of London, but the final judgment as there given appears somewhat contradictory in terms. (fn. 77)
In 1582 we find Sir Thomas Blanke, the then Lord Mayor, informing Sir James Harvey, his predecessor in office, by letter, that an amercement of one thousand pounds had been set upon the latter's head in the Court of Common Pleas for failing to hold a Court of Husting in the month of October of his mayoralty, whereby a great number of suits of Exigentaffecting the Crown and various parties had been lost. Excuse had been made in his behalf to the Court of Aldermen by Mr. Sheriff Rowe and Mr. Norton, who explained that he was sick in bed at the time, "and in some suspicion of the infective sicknesse," (fn. 78) and could not rise without imperilling his life. The counsel of the City had stated that in like cases there were precedents for loss of Hustings Quia Maior egrotat. The Lord Mayor and his brethren the Aldermen accordingly advise him to "repaire to the terme" (fn. 79) with convenient speed in order to obtain his discharge, first conferring with Mr. Recorder and Mr. Moseley, and bearing with him such letters, testimonials, and certificates as he might be advised. (fn. 80)
To this Court, as formerly to all county courts, belonged the enrolment of deeds and wills relating to property belonging to citizens of London. It has been laid down that, by ancient custom, lands in London might pass by mere parol, (fn. 81) inasmuch as the transaction being recorded in the Husting, no other safeguard was required. Deeds and wills were also enrolled at either of the Courts of Husting, Pleas of Land or Common Pleas, but were preserved in a separate series of rolls from either of those previously mentioned.
By the Statute of Uses (27 Hen. VIII. c. 10) the method of conveying lands and tenements by lease and release acquired a much more extended application by means of a Bargain and Sale, a mode of conveyance described by Blackstone (fn. 82) as a kind of real contract, whereby the bargainor for some pecuniary consideration bargains and sells, that is, contracts to convey the land to the bargainee, and becomes by such bargain a trustee for, or seised to the use of, the bargainee, and then the Statute of Uses completes the purchase; in other words the bargain first vests the use, and then the statute vests the possession. In consequence of such conveyances lacking those elements of notoriety which formed a prominent feature in all the old common law assurances, and in order to prevent freeholds being clandestinely conveyed, it was enacted by a statute passed in the same session of Parliament (stat. 27 Hen. VIII. c. 16) that such bargains and sales should not enure to pass a freehold unless the same were made by indenture sealed and enrolled in one of the King's Courts of Record at Westminster, or before the Custos Rotulorum, Justices of the Peace, and Clerk of the Peace within the county wherein the property was situate, within six months next after the date of such indenture.
There is, however, a provision in the Act that it should not extend to lands, tenements, or hereditaments within any city, borough, or town corporate wherein the mayors, recorders, chamberlains, or other officers have customarily enrolled any evidences, deeds, or other writings within their precinct or limits.
By stat. 33 Geo. II. c. 30, s. 10 (an Act for widening certain streets, &c., within the City), it was provided that all bargains and sales of lands, tenements, and hereditaments purchased under the Act, enrolled in the "Hustings" of the City, should have the force of fines and recoveries at common law. Similar provision has also been made in various local Acts of Parliament affecting the City. (fn. 83)
The enrolment of deeds in the Husting commences in 1252 and continues down to the present day. But of late years very few have been enrolled, and these consist chiefly of deeds of gift by various benefactors to the City of London School for the purpose of founding scholarships.
There is, moreover, a deplorable hiatus in this series, the rolls for the years 1718 to 1837 being unfortunately either lost or destroyed. It has been already mentioned that the duty of enrolling deeds and wills in the Husting devolved upon one of the four attorneys of the Mayor's Court. These officials transacted their business for some considerable time at the Royal Exchange, and their offices were situate in that building at the time of its destruction by fire in 1838; and it is more than probable that many of the rolls of the Court of Husting perished in the flames together with other records belonging to the Mayor's Court. (fn. 84)
A calendar has been prepared, in tabulated form, of all deeds enrolled in this Court, giving at a glance the names of the grantors and grantees, with a brief description of the property conveyed. The work fills more than seven large folio volumes, to which an exhaustive index is in course of preparation, and is so far advanced as to be of practical utility down to the year 1481 and when complete will form one of the most valuable indexes of the City's record.
Wills devising lands or tenements within the City and its liberties, executed and attested according to law, might be enrolled either in the Husting held for determining Pleas of Land or that for Common Pleas, "the same being first proved in open court on the oaths of two of the subscribing witnesses thereto, and proclaimed at one of these courts." (fn. 85)
It is said, on the other hand, that a testament of goods must be enrolled in the Husting; (fn. 86) but this statement is scarcely supported by the evidence of the wills themselves, since, comparatively speaking, but few wills of pure personalty are found entered on the rolls.
It was not unusual, as well within the City as without, for a testator to make two separate and distinct wills, one disposing of his real estate and the other of his personal goods and chattels. (fn. 87) Thus we find two wills enrolled of William de Thorneye, (fn. 88) pepperer, and two of Peter de Blithe, (fn. 89) potter, not to mention others. It is not, however, often the case that both wills are found enrolled in the Court of Husting; but frequently a will of personalty not enrolled is mentioned in the will, disposing of the testator's real estate, that is enrolled. Thus, for instance, Robert de Kelseye, by will proved and enrolled in the Husting in 1336, (fn. 90) devised certain tenements to his executors in trust for sale for the purpose of fulfilling his testament ordained by him as to his movables, which testament does not appear on the rolls. Again, the will of Robert atte Hyde (fn. 91) refers to another will which the testator had already made touching his movables, and which he wishes in express terms to remain still in force.
The will of William de Cave, (fn. 92) proved and enrolled A.D. 1348-9, also expressly states that the testator, having already made his testament (testamentum) concerning his movable goods, &c., proceeds further to make and publish his testament or last will (testamenti mei seu ultime mee voluntatis) concerning all his tenements whatsoever situate in the City of London, in manner as then follows.
It is said that by the custom of London a devise of lands is invalid unless enrolled within a convenient time. (fn. 93) But what may or may not be considered a convenient time is not clear. In one case so long a time as twenty-five years appears to have been allowed to elapse between the execution of a will and its enrolment, and yet there is no record of any objection having been raised. (fn. 94) On the other hand, mere lapse of time before enrolment was not sufficient to set aside a will, provided that some reasonable excuse could be adduced. Some considerable time had evidently elapsed between the death of Alexander Heyrun and the bringing his will into court for probatethe precise length of time that had so elapsed we have no means of knowing, the will itself being without date; but whatever it may have been, it did not prevent the admission of the will, inasmuch as the lapse of time was accounted for by one of the executors being proved to have maliciously withheld it from probate for the purpose of disinheriting the testator's issue. (fn. 95)
The number of wills upon the rolls of the Court exceeds four thousand, of which two thousand five hundred (in round numbers) are calendared in the present volume. There is no record of any will enrolled after the year 1688, although deeds, as already stated, continue to be enrolled down to the present day, and notwithstanding it having been laid down, according to Mr. Serjeant Pulling, (fn. 96) that all wills of lands in London, and even of personal property of citizens, ought still to be enrolled in this Court.
For some years previous to 1688 the number of wills enrolled gradually diminishes, in some years only four, five, or six wills being enrolled, and in others none at all. The reason for this may perhaps be explained partly by the absence of any penalty for non-enrolment and partly by the better class of citizens of the first half of the seventeenth century being driven by royal proclamations to leave the City and to reside upon their estates in the country, "there to keep hospitality according to their several degrees." (fn. 97)
The number of wills enrolled in 1348 and 1349 far exceeds those of any other years, owing in all probability to the ravages of the plague or pestilence known as the "Black Death," which, breaking out in England in the month of August, 1348, reached the City towards the end of that year. (fn. 98) This is often spoken of as the first of the three great plagues or pestilences, the second having occurred in the years 1361 and 1362, when the number of wills again increases, although in a less marked degree, and the third in 1369, when there is no appreciable increase in the number of wills enrolled.
The wills enrolled in 1348 and 1349, besides their extraordinary number, bear internal evidence of members of families having dropped off very quickly one after another during that baneful period. Take for instance the will of Nicholas de Barton, (fn. 99) which was dated 19 January, 1348-9, and enrolled, presumably after the testator's decease, early in the following month of February. The will mentions Alice his wife as being then alive, but before the will was taken into court for probate she also had perished, a victim in all probability to the Black Death.
The wills of Richard de Shordich and of Benedict his son, the one dated 10 February and the other 6 March, 1348-9, and both of them proved and enrolled on one and the same day, tell a similar story, for the son, having been appointed executor to his father, died before probate was granted, and was obliged in his own will to grant a power of attorney to others to execute his father's testament in his stead. (fn. 100)
The will of Benedict de Shordich, again, is followed immediately by that of Thomas Fraunceys, who makes certain bequests to Agnes his wife. These, however, she was fated to enjoy but for a few days, or weeks at the most, for her own will follows in close succession on the Husting Roll to that of her husband.
Lastly, we may mention the case of Richard de Stokwell and of Hugh his son, whose wills, dated respectively 4 April and 8 April, 1349, were proved and enrolled on the same day, showing that the son survived his father but a very short time. (fn. 101)
A calendar (with alphabetical index of the names of testators) of the wills proved and enrolled in the Court of Husting was made many years since by the late W. T. Alchin, formerly Librarian at the Guildhall, to whose varied and extensive knowledge as well as unremitting zeal is due the existence of so many valuable indexes to the Corporation records. This calendar, which is also in a tabulated form, gives the names of the testators and a short description of the property passing under the wills; it likewise notices any devise or bequest which, from its being for pious, charitable, or other uses, is of more than ordinary importance and interest. A column is also left for any observations which might seem necessary or advisable. It has, however, one drawback, namely, the omission of the names of individual beneficiaries; but notwithstanding this it is consulted more perhaps than any other index to the Corporation records, and has proved of considerable service in the production of this calendar.
The method of conveying real estate at the present day possesses one great and palpable defectthe want of sufficient notoriety. It was to secure the advantage of notoriety that our Saxon forefathers executed all conveyances at the County Court, and caused a memorial of the same to be entered on a register; and the system of enrolment in the Court of Husting in force within the City of London was but a continuation of this ancient custom. Under the feudal system this notoriety was obtained by open livery of seisin of lands, tenements, and hereditaments to be conveyed, such livery of seisin being necessary, at common law, for every grant of an estate of freehold in corporeal hereditaments, whether of inheritance or for life only. In hereditaments incorporeal it was impossible to be made, for they have no objective reality; and in leases for years or other chattel interest it was not necessary. In the case of the latter, however, actual entry was necessary in order to vest the estate in the lessee, and this entry by the tenant himself served the purpose of notoriety as well as livery of seisin from the grantor could have done.
In addition to the publicity given to every deed and will by open proclamation and enrolment in full Husting, there was the further advantage that such enrolment was of record, so that no averment could be made against a deed thus enrolled, and the enrolment itself could be pleaded. (fn. 102)
The advantages to be derived from a proper system of registration of all documents affecting real estate are becoming more recognized every day; among these must be reckoned the greater facility and cheapness afforded to conveyances of land by an effective registry of title by the landowner. Such a registry exists already in Scotland as well as in the counties of Middlesex and York, and an attempt is being made at the present time to extend the system to other parts of England by a Bill known as "The Land Transfer Bill," recently introduced by the Lord Chancellor, and still before a Committee of the House of Lords, by which it is proposed to make registration compulsory for the conveyance of the legal estate, and to create land transfer districts, each having a local office for the purpose of registration and transfer of land within its limits, with a principal office in London.
The Court of Husting for centuries served the purpose of a similar registry for the citizens of London, and still offers exceptional facilities for the re-establishment of a system essential to the well-being of a commercial people.
So far, however, from any attempt having been made to adapt this Court to the wants of the age, proposals have more than once been made, from quarters one would least expect, to abolish it altogether and to transfer its powers to the Mayor's Court. To this end a clause was inserted in the Mayor's Court Procedure Bill, 1857, but it was rejected in the passage of the Bill through the House of Lords. (fn. 103) Ten years later the City authorities themselves introduced a Bill (fn. 104) which had a similar object. By section 5 of that Bill it was proposed that thenceforth no action or suit or other proceeding should be commenced, removed into, or prosecuted in the Court of Husting, and that all the jurisdiction, powers, and authorities of the Court and of the judges thereof should be transferred to, vested in, and executed by the Mayor's Court, as if the Mayor's Court were actually the Court of Husting of the City of London; and by the next section it was proposed that all deeds, evidences, and writings by any Act of Parliament or charter, or by any custom or otherwise, authorized, required, or accustomed to be enrolled, should after the passing of the Act be enrolled in the Mayor's Court. This Bill was afterwards withdrawn, (fn. 105) as was also a similar Bill (fn. 106) introduced by the City Remembrancer in 1871, notice of which was given on the 11th of November, 1870.
Such, in brief, is the history of the Court of Husting as derived from the records of the City of London generally, but more especially from the records of the Court itself, as well as from printed authorities bearing upon the subject, written for the most part by men who, from their special legal qualifications or the position they held in connexion with the Court itself, may be supposed well qualified for the task they undertook. It remains to consider the Court more especially in its aspect as a court of probate of wills or testaments of citizens of London; and, first, as to the distinction, if any, between a will and a testament.
In their strictest technical sense the terms "will" and "devise" are appropriate to real estate, and the terms "testament," "bequest," and "legacy" to personal estate, (fn. 107) but this distinction is lost sight of in ordinary usage. It will be seen that there is little or no difference in the nature of the property passing under a testamentum and under an ultima voluntas in the Court of Husting, whilst on the other hand there is evidence to show that the terms were frequently used indiscriminately. (fn. 108)
In its general sense a "testament" has been said to differ in no way from a last will, for the latter is nothing more than a testifying or declaration of the mind (testatio mentis (fn. 109) ); "hence it is that not only in our speech, but in our writings also, we use the term of testament and last will indifferently, or one for another." (fn. 110)
"The same day and year was proved in full Husting the last will of [name of testator] by fit and trustworthy witnesses there sworn and lawfully examined, who said that they were present and heard when the said [name of testator], being of good and sound memory, gave and assigned to," &c.
"The same day and year was read and proved the testament of [name of testator] by [names of witnesses], sworn and examined, containing these words," &c.
"The same day and year came A. B., executor [or executors] of [name of testator], and proved the testament of the said [name of testator] as to lay fee (quoad laicum feodum) therein contained by [names of witnesses], sworn and examined, who say upon their oath that they were present when the said [name of testator] made his legacy (fn. 111) (legatum suum) in this manner," &c.
The term "lay fee" in this connexion appears to comprise everything that is not of. an ecclesiastical nature, for both real and personal estate are for the most part disposed of by one and the same testament. It is, indeed, expressly recorded that the executor of Robert de Elsingg proved the testator's will (fn. 112) in respect of everything therein contained, movables as well as immovables (tam mobilia quam immobilia). It is only occasionally that we find any marked distinction between the disposal of the testator's real and personal property, as, for instance, in the two wills of William de Thorneye already mentioned; or as in the will of Ralph de Upton, (fn. 113) proved and enrolled A.D. 1341-2, where, after various pecuniary bequests to his kinsfolk and for charitable purposes, the testator leaves to his wife all his tenements in the Ward of Coleman Street, together with two selds or warehouses in the parish of S. Mary le Bow; this devise being of real estate, there is the marginal note Hic de laico feodo placed over against it; or, again, in the will of Alan Hotham, (fn. 114) where the disposal of the testator's lay fee is made subsequent to and distinct from that of his personal goods and chattels.
Every freeman of the City of London might make a will and alter it as often as he pleased. In disposing, however, of his personal estate it was necessary for him to follow the custom of the City by leaving to his wife one third of such estate, and to his children, if any, another third; or, if he had no children, by leaving one half to his wife. If, on the other hand, he left children and no wife, his children were entitled to the same proportion of his personalty. (fn. 115) The residue in each case was at the free disposal of the testator, and was known as the legatory or dead man's portion; if left undisposed of by the testator it fell under the direction of the Statute of Distributions, and was no longer controlled by the custom of London, (fn. 116) but as a matter of fact it was usually devoted to pious uses for the benefit of the testator's soul. The shares of the wife and children were called their reasonableparts, to recover which there was at common law a writ de rationabili parte bonorum.
This restriction upon the testamentary disposition of a man's personalty was not, strictly speaking, a particular custom of London, having formed part of the common law of the land at least as far back as the reign of Henry II.; but from its having continued in force within the City of London long after it had been abolished elsewhere by various Acts of Parliament (fn. 117) it came to be looked upon as a custom of the City. The practical effect of such restriction was to deter wealthy persons who lived within the City and carried on their trade within its liberties from taking up the freedom of the City and becoming freemen, until an Act was passed in the eleventh year of George I. enabling citizens to dispose effectually of all their personal estate by will so as to bar claims by wife and children, and "thus is the old common law now utterly abolished throughout all the kingdom of England, and a man may devise the whole of his chattels as freely as he formerly could his third part or moiety." (fn. 118)
A similar distribution of the goods of an intestate was enforced in the Courts Christian. It is not, however, a prominent feature in the wills enrolled in the Court of Husting, although a widow's right to a third part of her late husband's movable goods within the City was unquestionable, as is plainly seen in the will of Walter de Schenefeld, (fn. 119) who bequeaths that portion of his movables to his wife in conformity with the provisions of law (prout decet et de lege et jure habere debeat).
The manner of disposing of a testator's residuary estate is not always apparent, as frequently the record stops short with "Residuum vero etc." But this very brevity seems to intimate that the residue was to be disposed of in a manner prescribed, and that therefore there was no necessity to set it out at length. Where further details are given of the testator's wish as to the disposal of the residue of his property after his specific bequests and legacies have been executed, it will be found that the widow's and children's portions usually follow as near as possible the division of a deceased person's personal estate at common law. Thus Roger Carpenter, whose will (fn. 120) was enrolled A.D. 1348-9, after disposing of his tenements and rents to his son and daughters, leaving nothing to his wife, directs that the residue of his goods, if there be any after payment of debts and legacies, be divided into three parts: one part to go to his wife, another to be divided equally among his children, and the third to be devoted to pious uses.
It appears from a letter (fn. 121) addressed to the Lord Mayor and Aldermen by the Archbishop of Canterbury in 1619 that an attempt was made about that time, by some over-zealous officer of the Corporation, to extend this so-called custom to the goods also of free-women whose husbands had been free, and to divide their goods among their children accordingly. This claim, wrote the Archbishop, he had never heard of before the previous year. Being desirous to maintain the jurisdiction incident to his place, and to avoid all suits and contentions with the City, he prays the Court of Aldermen to inform themselves of the true state of the custom, and not to encroach upon his prerogative. To this the Lord Mayor and Court of Aldermen replied that they conceived his Grace had been misinformed, but since he gave them no particulars, either as to the officers who made the claim or when or where it was made, they were unable to give him the satisfaction he expected. Upon receiving particulars they would inform themselves and endeavour to satisfy him in the matter.
Previously to the reign of Henry VIII. no one who was not a freeman of the City of London could by will dispose of a greater estate than a term of years, although the hardship of this rule was frequently mitigated by conveyances to uses (the Court of Chancery permitting the use to be devised by will), until matters were placed in statu quo by the passing of the Statute of Uses (27 Henry VIII. c. 10), whereby all uses were turned into legal estates. To remedy the inconvenience arising from this want of testamentary power, another statute was passed a few years afterwards (32 Henry VIII. c. 1), known as the Statute of Wills, whereby every person holding lands or hereditaments in socage, or in the nature of a socage tenure, was enabled by his last will and testament in writing to dispose of the same according to his pleasure; and those who held estates in fee simple by knight service were similarly allowed to dispose of two third parts thereof. It was not till the year 1660, when by statute 12 Car. II. c. 24 socage was made the universal tenure, that all estates in fee simple became devisable, being all then held in socage.
Within the City and liberties of London, however, matters were different; for the City being held immediately of the sovereign lord the king in free burgage (a tenure in the nature of socage), every citizen from time immemorial enjoyed the right of devising lands, tenements, or hereditaments within the same to whomsoever he would, and for whatsoever estate he would, as if they were chattels. (fn. 122) This right extended also to gavelkind lands and to some few favoured boroughs. (fn. 123)
The validity of the privilege thus enjoyed by citizens of London was made the subject of a special inquiry, anno 14 Edward I., the following being an abstract of the proceedings as recorded (fn. 124) :
A precept issued to Ralph de Sandwich, then Warden of the City, and to Walter le Blund and John Wade, then Sheriffs, to examine upon oath as to whether certain lands, tenements, and rents which Sir Robert Aguylun (fn. 125) held at the time of his decease, and had lately devised to the Prior of Tortinton, were of the liberty of the City of London, so that the said Robert might dispose of them by his testament, as if they were a chattel, to whomsoever he would, according to the custom of the said City, or whether they were of the same condition as his other lands and tenements outside the City (forinseca) and so ought to descend by right of inheritance to his right heir after his decease. A return made that all the tenements devised by Robert Aguylun were of the liberty of the City, and a petition presented to the king by Hugh Bardolf and Isabella his wife, who was alleged to be next heir to the said Robert, praying that the inquisition already held should not be to their prejudice, as they took no part in it, and that no seisin should be given to the Prior of Tortinton to the prejudice of the said Isabella.
The king accordingly summoned all the Aldermen and chief men (maiores) of the City to appear at his Exchequer, where Gregory de Rokesle, on behalf of his fellow citizens, declared the lands and tenements in question to be capable of being disposed of by will (legabilia tenementa) according to the custom of the City, but that they would have descended by right of inheritance to the aforesaid Isabella according to the same custom, had not the aforesaid Robert devised them to the said prior. Being asked whether the aforesaid tenement was a barony held of the king, and, as such, capable of being devised, and also as to whether the king was seised of the wardship and marriage of the testator, he replied that the aforesaid tenement was no barony, but contributed to the king's ferm, and that the ancestors of the aforesaid Robert were never in the ward of any king nor given in marriage by any king by reason of the aforesaid tenement; but he understood that the ancestors of the lord the king had the wardship and marriage of ancestors of the testator by reason of tenements outside the City, as was the case with many citizens of London. For these reasons, and because the king had no wish that the Statute of Mortmain should be prejudicial to the prior, it was adjudged that the latter should recover seisin of the tenements devised against the aforesaid Hugh and Isabella.
Citizens of London, admitted to the freedom of the City, enjoyed by custom the further privilege of devising their lands and tenements in mortmain without any licence; but this privilege did not extend to non-freemen, otherwise denominated "foreigners" or "strangers" (fn. 126)
This custom was also an incident to the peculiar tenure of free burgage already alluded to, whereby lands were held within the City, and it was expressly confirmed to the citizens of London by charter of Edward III., granted to them, with the assent of Parliament, in the first year of his reign. (fn. 127)
Advantage was frequently taken of this privilege to evade the necessity of a licence in mortmain, by conveying lands and tenements to citizens upon the understanding that they should afterwards devise the same in mortmain. To obviate this an ordinance was passed, anno 13 Henry VI. (A.D. 1434), by the Common Council, (fn. 128) that thenceforth no testament of any citizen whatsoever, whereby lands and tenements were devised in mortmain, should be admitted to be enrolled, unless it appeared, after due examination made on oath before the Mayor and Recorder for the time being, or either of them, together with some one Alderman, that such devise had been made without deceit or fraud of the testator's own lands and tenements which had come to him by right of inheritance or honest purchase, and not of lands or tenements of others conveyed to him by a side feoffment (per feoffamentum a latere) for the purpose of having them devised in mortmain without a licence under colour of his freedom. The Chamberlain and the Common Clerk were authorized by the same ordinance to levy a fine, according to their discretion, upon every testament brought to be enrolled devising lands and tenements in mortmain; such fine being devoted to the expenses of the new chapel at the Guildhall at that time in course of erection, as already mentioned. (fn. 129)
Many of the civic companies availed themselves of this method of acquiring lands in mortmain beyond the limits allowed them by their several charters; for instances are not wanting where a company has found the money and had land purchased and conveyed to trustees in trust to convey the same to some third party in trust to devise it to the company by his will. The company thus became possessors of land under a devise of the nominee of its nominees, which it could not legally have acquired by direct conveyance. (fn. 130)
There were certain restrictions, however, imposed by custom upon testamentary disposition of real estate within the City no less than upon that of personal property. Thus a husband could not, before the Statute of Wills already mentioned, devise to his wife any tenements within the City for a higher estate than the term of her life. (fn. 131) In cases where a husband has devised a higher estate, as for instance a fee simple, it will be found that his widow usually came into court and formally renounced the fee so devised, and expressed her willingness to accept only a life estate; (fn. 132) this she was compelled to do upon pain of losing the whole.
Again, a husband could not devise tenements enjoyed in right of his wife, nor those which he and his wife had jointly acquired. Where, however, a husband and wife were jointly seised of tenements to them and the heirs of the husband, the latter could devise the reversion, but not otherwise. (fn. 133) It will be seen that the will of Nicholas de Farndon (fn. 134) was opposed upon this ground by Roisia his daughter, the testator having devised tenements of which he was jointly seised with Isabella his wife, to hold to them and the heirs of the body of his said wife, under the will of William de Farndon (or Farindon), (fn. 135) the result being a stay of execution.
By "dower" at common law is meant that portion of her husband's lands or tenements which a wife has after his decease for the term of her life for her own sustenance and the nurture and education of her children. (fn. 136)
"Freebench" is a term usually applied to that estate in copyhold lands or tenements which a wife has on the death of her husband for her dower, according to the custom of the manor. Within the City of London, governed as it is in a great measure by custom, "dower" and "freebench" may be considered convertible terms, for we read (fn. 137) that, by the custom as well of the City of London as of York, "the wives of deceased husbands have their freebench of the lands of sock-men, and hold it in the name of dower (nomine dotis) for their life." The terms appear also to apply equally to real and personal estate. (fn. 138)
A widow's freebench of copyhold lands was usually held only so long as she remained unmarried and chaste, and Bracton, in continuation of the passage just quoted, goes so far as to say that the custom of the City of London was such that if a widow married again she thereby lost the dower which she had by her first husband. A later authority, (fn. 139) however, intimates that such a custom had ceased to be in force in his time, and this seems to be corroborated by the evidence of the wills before us. (fn. 140)
Where a certain dower, says Bracton, has been settled upon a wife she cannot by the custom claim any more as of right, but she was permitted to take what more her husband might be pleased to bestow upon her as an act of grace, (fn. 141) presumably because dower took precedence over all other debts of the testator. Many instances will be found in these wills of a husband leaving his wife a specific sum of money, which she might elect to take in lieu of dower or not. (fn. 142)
A case is on record (Kitson v. Kitson and others (fn. 143) ) of a widow claiming certain tenements devised to her for life, and likewise one half of her husband's personal estate (there being no children) and her widow's chamber by virtue of the custom of London as a freeman's widow, as well as the other half of her husband's personal estate for life by virtue of his will. It was held that she must be put to her election, and she thereupon renounced the will.
Dower was recoverable in the Husting for Common Pleas, as already stated, (fn. 144) by Writ of Dower unde nil habet, the procedure in respect of which is set out in 'Liber Albus.' (fn. 145) It could, however, be barred by deed enrolled in the Husting, a deed so enrolled operating as a fine at common law; (fn. 146) or by the wife having agreed to a jointure in bar of her customary part, in which case the agreement bound her, and she could never sue for her customary part. If, however, the jointure were expressed to be in bar only of her dower or "thirds"of lands, tenements, and hereditaments, the wife was not barred of her customary share of her husband's personal estate. (fn. 147)
The "widow's chamber" just mentioned was that portion of her husband's tenement or dwelling-house which they had jointly occupied, and which she was allowed by the custom of London to enjoy for life. It is stated by a former Recorder of the City of London, whose work upon City customs has already been cited, to have consisted of the hall, the principal chamber, and the cellar; she was further allowed the use of the oven, the stable, privy, and yard, together with other necessaries, so long as she remained unmarried. (fn. 148)
In this respect the custom of the City of London appears to have been more favourable to the widow than the common law, for by the latter she was only allowed to remain in her husband's capital mansion house for the space of forty days after his decease, during which time her dower was to be assigned. These forty days were called the widow's quarentine:
"Likewise his wife should have her necessaries up to her quarantine (usque ad quarentenam) unless her dower has been sooner assigned to her." (fn. 149)
The will of John de Flete, (fn. 150) proved in the Court of Husting A.D. 1279-80, affords an instance of a manner of endowing a wife which was only abolished by statute 3 & 4 Will. IV. c. 105, viz. dower ad ostium ecclesi, i.e. at the church door. This took place when a husband immediately after marriage endowed his wife openly at the church door with a portion of his lands which he specified at the time, and on which the wife, after her husband's death, was therefore permitted to enter without further assignment. If she so entered and agreed to accept the same by way of dower, she was concluded from claiming any dower at common law.
"Infants within age can make no devise, nor woman under covert barn [baron?] cannot devise their Tenements by leave of their Husbands, nor in any other sort during the coverture." (fn. 154)
In 1256 (or two years before the commencement of the series of wills here calendared) it is recorded (fn. 155) that William de Munchanesey appeared in the Husting and proffered for probate a testament of his wife Paulina, daughter of Reginald de Bungeye, whereby she devised all her tenements in London. Opposition was offered to probate being granted on the ground that she was unable to devise any tenements, being at the time sub potestate viri. The question appears to have been much canvassed, for the record proceeds as follows:
"At length, after much altercation between the parties, the Mayor and citizens, having conferred thereon in the Chamber, came and said that no married woman can or ought to devise any tenement of hers, and if she do so it should be revoked as void; for that no sale, gift, demise, or alienation as to land, tenements, or rents ought to be held good unless she herself come to the Husting with her husband, and openly make affidavit as to the same."
Whereas a will of lands has always operated as a document of title without any extrinsic sanction, a will of personalty possesses no legal force until proved. All testamentary causes were originally entertained by the Courts of Common Law, viz., the County Courts; but wills of personalty became subject to the exclusive jurisdiction of the Ecclesiastical Courts, at least from the time of Henry II., and so remained until this jurisdiction was taken away from them and restored to the Crown by the Court of Probate Act, 1857 (stat. 20 & 21 Vict. c. 77, amended by stat. 21 & 22 Vict. c. 95).
As representing the ancient County Court of London, the Court of Husting exercised jurisdiction over wills of citizens from earliest times. Strictly speaking, only wills of lands were required to be proved in this court, and these had first to be taken before the Ordinary, (fn. 156) that ecclesiastical dignitary taking cognizance of such wills, presumably from the custom already mentioned of lands within the City being devisable as chattels. There is very little, however, to show that the wills before us had as a rule been first submitted to him, (fn. 157) notwithstanding the statement by Fitzherbert (fn. 158) that where a testator devised goods as well as lands (as is generally the case with these wills), and appointed executors, the executors must prove the same before the Ordinary, and afterwards bring it before the Mayor for enrolment.
The primary object of proving a testator's will was its authentication, (fn. 159) and an early ordinance is recorded to the effect that when a testament is brought into the Husting for probate, and a claim made to a tenement devised therein, probate shall issue notwithstanding such claim, the right, however, of every party being reserved, for "such probate ratifies nothing save only the fact that it is the last will of the deceased." (fn. 160)
Any beneficiary under a testament within the City could cause the same to be enrolled in the Husting by writ of ex gravi querela to the Mayor, (fn. 161) the manner of enrolment being as follows:
"The Testaments which are so to be inrolled, shall be brought, or caused to be shewn before the Mayor and Aldermen in full Husting, and there the said Will shall be proclaimed by the Serjeant, and then proved by two honest men well known, which shall be sworn and examined severally of all the circumstances of the said will, and of the Estate of the Testator, and of his Seal; and if the proofs be found good and true and agreeing, then shall the same Will be inrolled upon Record in the same Husting, and the Fee shall be paid for the Inrolment, and no Testament nuncupative, nor other Testament may be inrolled of Record, unless the Seal of the party be at the same Will; but Wills that may be found good and true are effectual, albeit they are not inrolled of Record." (fn. 162)
The testator's seal played, as is here seen, an important part in proving his will. In the year 30 Edward I. (A.D. 1302) it was expressly ordained that thenceforth no testament should be admitted to probate unless the testator's seal was appended or affixed, and unless both witnesses could identify the same of their own knowledge. (fn. 163) The will of Hugh de Kyngeswode (fn. 164) was refused probate on this account shortly after the passing of this ordinance, annulled, and marked with an iron instrument or chisel (celte consignatur (fn. 165) ) kept for the purpose, according to the custom of the City.
A will was frequently refused probate on the ground of prevarication of the witnesses, as was the case with the will of Hugh de Wollechirchehawe. (fn. 166) Witnesses convicted of bearing false testimony ran the risk of being put in the pillory. (fn. 167) Other reasons for cancelling a will were its inexcusable detention by executors and failure to bring it into court for probate within reasonable time, and any suspicious erasure or interlineation. (fn. 168)
Besides a written will (testamentum in scriptis) a will might be made by word of mouth (testamentum nuncupativum). The latter derives its name from the word nuncupatio, (fn. 169) a term of the civil law, originally used to express the declaration of the testator's intentions, whether the testament was written or not; but later usage appropriated the term "nuncupative" to testaments where there was no written will, and where the testator declared his wishes orally.
At common law a will remained nuncupative although reduced afterwards to writing, unless (1) the written testament was brought to the testator during his lifetime and was by him approved, or (2) unless the testator, when he declared his testament, gave instructions for the same to be written, and the same was done accordingly. (fn. 170)
A devise of lands, tenements, or hereditaments by a nuncupative testament or will without writing was void under the Statute of Wills, (fn. 171) unless the said lands and tenements were held in free burgage, and as such devisable before the passing of that statute.
The setting up of nuncupative wills became so often associated with fraud that the Legislature interposed, and such wills were practically abolished by the stringent provisions enacted with respect to them by the Statute of Frauds (29 Car. II. c. 3).
There is only one instance of a nuncupative will in this portion of the Calendar, (fn. 172) but there will be found others, amounting to a little over a dozen in all, in Part II.
Occasionally we find a will enrolled during the testator's lifetime, as was the case with that of Master Richard de Stratford, (fn. 173) a novitiate of the Order of Preaching Friars, who is recorded as having brought his own will into court for the purpose of probate.
Again, a memorandum is prefixed to the enrolment of the will of William Kelwedon in 1285 to the effect that the testator himself had two years previously brought his will into court, (fn. 174) and that the Mayor had then affixed the mayoralty seal in sign of probate.
The right of probate in the Court of Husting was duly appreciated by the citizens of London, who resented any interference on the part of the ecclesiastical authorities; for when, in 1268, during the absence of the Bishop of London, his deputy, or "Warden of the Bishopric," endeavoured to usurp this right, and threatened excommunication against the chief men of the City who received probate of wills devising lands and tenements, they appealed direct to the king, who answered them by writ, (fn. 175) reciting the ancient custom of devising lands and tenements within the City and of admitting probate of testaments in the Husting of London, and straitly enjoined the Warden forthwith to recall his sentence of excommunication, upon pain of being "taken in hand." This appears to have had the desired effect, for we hear of no further complaints.
Limits of space forbid us touching upon many matters of interest with which the wills in this volume abound. Consideration of these must therefore be deferred for a time, whilst such space as is at our disposal here must be confined to a brief statement of the custom of the City of London relative to the guardianship of orphans. (fn. 176)
If a freeman or freewoman died leaving orphans under age and unmarried, the custody of their bodies as well as their goods became vested by custom in the Mayor and Aldermen, who, following the practice in guardianship in socage, placed them under the care of those next friends to whom the inheritance could not descend. (fn. 177) Guardians so appointed were usually (fn. 178) called upon to give security at the Guildhall for due maintenance of their wards during minority, and for rendering a just account of the issues and profits of their property when they should come of age or marry. In default of their so doing, the guardians could be committed; (fn. 179) and if proceedings were taken in any ecclesiastical or other court a prohibition lay. (fn. 180)
The Mayor and Aldermen exercised their equitable jurisdiction over matters relating to orphans in the character of a Court of Orphans, whose chief officer was the Common Sergeant. It was only, however, in the absence of a testamentary guardian that one was appointed by the Court to take charge of the persons and property of infants who had lost their father, and to see that their substance was not wasted either by their mother or by some scheming adventurer who sought by marrying the mother to get possession of her children's portions.
It is curious to trace the fortunes of the widows of some of the testators in this volume, who, being left presumably in good circumstances, sooner or later found second husbands. (fn. 181) Thus in 1314 it is recorded that the widow of John Laurenz, (fn. 182) having remarried, desired to marry her daughter of eight years of age by her first husband to a child of her second husband aged ten years. The banns, we are told, had been published and the trousseau and wedding feast prepared, (fn. 183) when the affair got wind, and some friends brought the infant daughter before the authorities at the Guildhall, who placed her for the time being under the care of the City Chamberlain.
The functions of the Court of Orphans were much hampered by the arbitrary acts of Charles II., who, after borrowing large sums of money of the City, shut up the Exchequer, wherein a great part of orphans' money was deposited, and finally seized the City's charter. These proceedings led to the passing of an Act of Parliament (5 & 6 Will. & Mary, c. 10) "for the relief of orphans and other creditors of the City of London,"and to the establishment of what was known as the"Orphans' Fund."
The Court received its death-blow upon the passing of the Act 11 George I. c. 18 (already mentioned), which abolished all restrictions upon testamentary disposition of personal estate, and thus barred the claims of a testator's widow and children.
The calendar of the whole series of wills proved and enrolled in the Court of Husting is divided into two parts, of which the present volume, comprising wills enrolled between A.D. 1258 and 1358, forms Part I. It may fairly claim to possess more than ordinary interest for the reason that it presents to the reader a prcis of early wills which in point of number and antiquity are unequalled by any others within the United Kingdom. (fn. 184) The rest of the series will appear in another volume.
To have taken note of every name and bequest would have entailed so great a sacrifice of time and money that nothing more has been attempted than a general abstract of each will, noticing more particularly the names of the testators, their place of burial (when stated), the names of those nearly related to them, the nature and situation of the various parcels of lands and tenements devised, bequests illustrative of domestic life, language, or manners, bequests for the maintenance of chantries, the fabric of S. Paul's and other churches, as well as of London Bridge, and similar pious and charitable gifts; on the other hand, names of many beneficiaries outside a testator's own family and bequests of no special interest or importance" have necessarily been omitted. Such a method is no doubt open to objections, but it recommended itself to the Library Committee of the Corporation as affording a practicable way of making at least a portion of the records of the Court of Husting more widely known, and of indicating a field for investigation hitherto but little explored.
An Appendix has been added containing the only complete lists of Aldermen recorded in the City's archives during the period embraced by this volume. The wills of many of the Aldermen will be found in the Calendar, that of Nicholas de Farndon being especially interesting as illustrating the power which an Alderman of the City of London at one time enjoyed of disposing of his aldermanry by will.
R. R. S.