London Assize of Nuisance, 1301-1431: A Calendar. Originally published by London Record Society, London, 1973.
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The Assize of Buildings
London was much afflicted by fire in the eleventh and twelfth century. In a period of less than one hundred and fifty years there were, perhaps, as many as five major conflagrations. (fn. 1) According to City tradition, in 1189 during the mayoralty of Henry fitz Ailwin (probably from 1192 or 3 to 1212), some regulations were provided for settling disputes between neighbours concerning boundaries and other matters, and for encouraging the use of stone in building.
A number of questions concerning the antiquity of these regulations, apart from the obvious discrepancy in dates, are posed by the surviving texts. Well known to students of London history, the Assisa de Edificiis (hereafter referred to simply as the Assize) has often been printed, both in its original latin and in translation. (fn. 2) It was also frequently copied by compilers of the City custumals: in Liber de Antiquis Legibus, ff. 45–8; Letter-Book C, ff. 13v–15; Liber Horn, ff. 227–229v, 231; Liber Custumarum, ff. 208–210v; and Liber Albus, ff. 210v–212v as well as in Liber Dunthorn, the Elizabethan Liber Albus, and in Ricart's Kalendar (a particularly corrupt and unsatisfactory version). Apart from the text in Liber de Antiquis Legibus there are only minor variations between the other texts which clearly derive from one another or from a common exemplar. Letter-Book C contains the cleanest text with the smallest number of corrections, and probably dates from the beginning of the fourteenth century. Liber Horn was not earlier than 1311, the year in which Andrew Horn caused the book to be made, and its text of the Assize, which has many insertions, was corrected from the text in Letter-Book C. Liber Custumarum is at least two decades later in date and contains a number of obvious slips and copying errors. Liber Albus, is, of course, early fifteenth century and the other texts, which are later still, need not concern us. The earliest text of the Assize is contained in Liber de Antiquis Legibus which may have been so called for that reason. The volume also contains a chronicle (ff. 63v–144v) part of which is clearly in the same hand as the Assize and which, according to Riley, was written before or in 1274. (fn. 3) This version of the Assize contains everything which was in the later texts with the exception of one paragraph (fn. 4) and the word 'aldermanni' after 'xii viri' in the description of how the assize was to be constituted. One paragraph was added in a margin (fn. 5) and two at the foot of ff. 45v and 46 (fn. 6) but all in the same hand as the rest. Only the last paragraph of the text is in a later hand. (fn. 7) After mentioning the fire in Stephen's reign this text adds: 'ut in cronicis in hoc libro prescriptis notatur' (f. 47v), a reference to a short chronicle of Stephen's reign on f. 35.
The regulations contained in the Assize are remarkably elaborate; they set out not only the rules concerning walls, gutters, privies, windows, and pavements but also the procedure to be followed in assizes. On the other hand their arrangement is far from systematic and suggests compilation from more than one source. There are two widely separated passages touching upon the origin of the Assize (Lib. Alb., i, 319, 328–9), some of the regulations being summarised in the second of these (ibid., 329). The regulations concerning both walls and gutters are also separated and somewhat repetitious (ibid., 321–3; 329–30; 331–2). It is unfortunately not possible, with one notable exception, to establish which parts of the Assize belong incontestably to a period earlier than the twelve-seventies. The exception concerns the regulations relating to stone walls (ibid., 321–2). The London custumal of John's reign, under the heading, Lex de Assisa, laid down in words very similar to those used in the Assize (fn. 8) that neighbours wishing to build a party-wall should each give 1½ ft. of land and share the cost of building a stone wall 3 ft. wide and 16 ft. high, and also share the cost of a gutter; that arches should be only 1 ft. deep so that 1 ft. of wall would remain between them; that if one party did not wish to, or could not afford to, build a wall, that party should provide the land and the other party should build upon it; and that he who gave the land should have half the wall and the right to build upon it. The Lex de Assisa is preceded by a list headed 'Nomina iuratorum ad assisam muri lapidei' consisting of the mayor (unnamed) and ten men, some of whom may be identified as aldermen; (fn. 9) they were performing the work allotted by the Assize to twelve alder men chosen in full Husting. In 1244 aldermen are found serving as jurors in a plea of intrusion (fn. 10) and aldermen were certainly serving on assizes in 1301, when our rolls begin. In the provision concerning privies, we find that the period of limitation, the first year of Richard I, coincides with the year in which the Assize was said to have been drawn up. (fn. 11) The only other clause in the Assize which contains any apparent indication of date concerns pavements (Lib. Alb., i, 331); as the term 'ballivos civitatis' is used rather than 'vicecomites' it is possible that the passage belongs to a period during which the City was in the king's hand (i.e. possibly in 1239 or more likely 1265–70).
The Assize made no mention of the great fire in John's reign, but equally a series of regulations drawn up under Henry fitz Ailwin, immediately after the fire in July 1212, made no reference to the Assize. (fn. 12) They were directly concerned with fire-prevention and rebuilding after the fire and were apparently all framed at one time. It is here, and not in the Assize, that we find provisions concerning roofing and roofing materials; no building should be covered with reeds, rushes, straw or stubble but only with tiles, shingles or boards and buildings roofed with reeds or rushes should be plastered over within eight days. It was also ordered that all the wooden houses in Cheap which endangered the stone houses there should be removed, by view of the mayor, sheriffs and discreet men of the City. The regulations concerning roofing were later incorporated in the articles of wardmote; (fn. 13) evidence of presentments under this article survive for 1377 and 1422 (fn. 14) and in an interesting instrument of 1302 a citizen indemnified the City against the peril of fire arising from his houses roofed with straw and undertook to correct the matter within a period amounting to five months. (fn. 15) On the other hand, pleas concerned with thatched roofs were never dealt with in our records. (fn. 16)
The Lex de Assisa may have originated in the twelfth century and anyway cannot be later than 1216; the Assize in the form we know it is almost certainly of a later date. The mention of 1189 as the period of limitation for privies, a familiarity with the regulations of 1212 which were undeniably promulgated by Henry fitz Ailwin and a liking for any story which lent antiquity to City custom, (fn. 17) may well have stimulated the Assize's compiler to explain its origins as he did. In any case, it was this compilation which provided the basic rules of procedure for assizes of nuisance in London.
The Assize of Nuisance: procedure
The assize of nuisance (fn. 18) according to Glanvill had its origins in a variant writ of novel disseisin. (fn. 19) A freeholder might be disseised of some part of his tenement and the injury was said to be 'ad nocumentum liberi tenementi'. Bracton wrote at length on the subject and mentioned the assize of nuisance by name for the first time. He explained that no one might complain of nuisances unless he was a freeholder, so that the assize was denied to any who held only for a term of years. Further, the nuisance must both have caused damage and be of a kind condemned by the law. He also emphasised that the tenement in question must be viewed. (fn. 20)
In the thirteenth century assize of nuisance proper, which concerned the making or removal of ditches, pools, hedges, the diversion of watercourses and the obstruction of ways, were heard by the justices of assize. Viscontiel writs of nuisance, described as 'de parvo nocumento', concerning houses, mills, weirs, privies and other matters (perhaps including doors and windows), were used in county courts. (fn. 21) Little is known of the process in boroughs but it is clear that custom concerning nuisances had developed in several places before 1300. The earliest record of such custom dates from the late twelfth century and relates to Northampton: in disputes between neighbours concerning a wall, building, or gutter, the bailiffs and good men of the pleas ought to view the tenement by men of the neighbourhood and their finding should stand without essoin and delay. (fn. 22) London custom preserved in Lex de Assisa, although dating from the early thirteenth century, may well have been as old or older than Northampton's. However, an assize concerning a party-wall, gutters and pipes of 1290–1 vouched to warranty in a later plea (283) appears to be the earliest reference to an assize of nuisance in London. (fn. 23) Only from 1301 when the rolls here calendared begin is there ample evidence, both direct and indirect, of how the assize of nuisance functioned in London and how the Assize was applied in practice.
The Assize (Lib. Alb., i, 321–1) laid down that the action should be initiated in full Husting, or, if the Husting was not sitting, at a congregation of the mayor and aldermen. Bills of complaint, which were written in French (574, 591), were rarely entered upon the rolls but it is sometimes stated that the assize was sought in the Husting (460–1, 593, 661) or at a congregation (287, 658–60). A random search of the rolls of Husting of Common Pleas and Pleas of Land (fn. 24) shows that assizes of nuisance were noted upon both, from time to time, but usually in small numbers; and from 1448, in the earliest Husting Book only very occasionally. Such records of congregations as exist for the fourteenth and early fifteenth century are to be found in the Plea and Memoranda Rolls (fn. 25) and these contain scattered plaints of nuisance. It is likely, however, that the greatest number of pleas originated at congregations, especially as the Husting was held only on Mondays. According to the Assize (Lib. Alb., i, 320) the defendant could be prohibited from further building operations during the time of petition (in tempore petitionis) and workmen or owners continuing to build after such prohibition would be sent to prison. No example of this regulation appears on our rolls.
The Assize (Lib. Alb., i, 320) provided for the election of twelve aldermen in full Husting; the greater part of those so elected was to be present with the mayor in holding assizes. The mayor nearly always presided; his inability to attend, for a variety of reasons, was a frequent cause of adjournment (314, 323, 373, 629). The appearance of Hamo de Chigwell in August 1327 as locum tenens (286–7) was exceptional. The mayor, Richard de Betoyne, had gone to Nottingham in an attempt to persuade the king not to remove the exchequer from London to York and Hamo, who had been deposed only nine months earlier, took the opportunity of reasserting himself. (fn. 26) In practice, the mayor and six aldermen (fn. 27) apparently constituted a quorum and an insufficiency of aldermen was a frequent cause of adjournment or respite (37,146,151,192,407–8,506). On the other hand, unless we assume clerical negligence, there were assizes at which fewer than six aldermen were present (e.g. 16 Feb. 1358, 492; 7 Nov. 1365, 524); on 22 May 1360 a defendant objected that there were fewer than six aldermen present but he was ordered to make another answer (510). Even at the end of our period the mayor and sheriffs, taking with them six aldermen, go to the site (645). It is clear that the duty of serving on the assize was by no means evenly shared amongst the aldermen: most of them appeared at some time but it was left to a minority to perform what must have been a timeconsuming duty. On one occasion an assize was adjourned because certain well-informed aldermen were absent (54). The alderman who served most regularly was the recorder; he is not mentioned by office until 1328 (272) and not frequently until after 1369. As an alderman he was normally entered in the headings of the record either after the mayor or after the mayor and past-mayors and before the other aldermen (an order preserved in modern ceremonial practice). (fn. 28) The aldermen were often joined on the assize by the sheriffs. From time to time the assize is described as consisting of the mayor, the aldermen, sheriffs, 'and others', 'and all the others belonging to the assize', 'and others sworn to keep the assize', or 'etc.' (67, 87, 154–5, 181, 277, 310) which may have referred to the carpenters and masons sworn to the assize (430) or even to the commonalty (85). In 1309 a defendant declared that an assize ought to be held by the mayor and aldermen and 'other good men of the City elected and sworn for the purpose'; 'the mayor and good men' were later said to have been insufficiently advised and the assize was accordingly adjourned (146).
The plaint having been made, the mayor was to assign a day within the following week, which in practice was always a Friday. A bill embodying the plaint was prepared by the common clerk and forwarded to the sheriffs. On the Wednesday following the day on which the plaint was made, the sheriff or his serjeant summoned, by view of two neighbours, the defendants named in the bill to appear super terrain on the following Friday. (fn. 29) Should the defendant default, it had to be testified that he had been summoned (Lib. Alb., i, 327). This was normally done by the sheriff (10, 50, 57, 62,132) but sometimes by his clerk (494). A similar procedure obtained for persons pleaded in aid by defendants (219). Should the defendant be out of the City at the time of the summons, a contingency provided for in the Assize (Lib. Alb., i, 328), the sheriff was to order those living in the tenement in question to warn the defendant to appear in a fortnight. The sheriff or his clerk often testified that the defendant was out of town when he was summoned (51, 170, 299) but sometimes it was the tenants or neighbours who testified to his absence (273–4, 294, 306). Increasingly, in the later pleas, the names of two summoners were given (266, 292–3, 305) and sheriffs frequently testified elsewhere, perhaps in the Husting, that defendants had been summoned (528, 605–6, 608, 611).
On the appointed day the mayor and aldermen came to the site and the plaintiff explained his case. The defendant frequently made default, or if he came, said nothing to delay the verdict of the assize (50, 60, 84,110,126). Alternatively, there were a variety of arguments he might put forward aimed either at excluding the plaintiff from the assize or simply to delay judgment. The defendant frequently pleaded that the freehold was not his and that his interest was only for life or for a term of years (6, 87,104, 219, 258, 608) or that he held by courtesy of England (14). Similarly he might plead that the joint-feoffee was not mentioned in the plaint (54,76,449). In such cases the assize was normally adjourned so that the freeholder might appear, either freely (6) or after being summoned (219). (fn. 30) Conversely the defendant might argue that the plaint was defective because a tenant for life had not been named (102) or for some other reason (109).
The Assize specified the period of limitation in the case of privies as the first year of Richard I. It had also been laid down that the plaint must be raised within a year and a day (Lib. Alb., i, 324, 331). But according to a regulation (fn. 31) in Liber de Antiquis Legibus not included in the Assize, a man might make his plaint long after his wall had been encroached upon provided he did so as soon as the encroachment had been noticed. It was sometimes asserted that a plaintiff was not entitled to an assize because the plaint had not been raised within a year and a day (61, 232, 261, 313). One plaintiff in reply to the charge that the period of limitation had been disregarded claimed that it applied only to 'stone walls and the like' (261) but on at least one occasion the plaintiff was advised to seek another remedy (61). A defendant who cited the appropriate provision of the Assize did so to no avail (313). Long seisin was often pleaded by defendants (2, 69, 96, 243) but in an assize of 1306 it was expressly stated that long seisin could not prejudice the plaintiff's case or give the possessor the right and fee (105).
A defendant might plead that a nuisance was not apparent to the view of the assize (20, 111). Alternatively, he might plead that the assize had no cognisance of the matter in question (52) because it was a case of trespass (55) or intrusion (510) and not of nuisance. If there had been a previous assize he might assert that the plaintiff should not be allowed another (528). The Assize (Lib. Alb., i, 330) stipulated that a defendant who claimed to have a deed from the plaintiff, or from an ancestor of the plaintiff, should be allowed to produce it. This could be used simply as a means of delaying proceedings (37–8, 282, 313, 376, 389, 399) but documents were often actually produced both by defendants (85, 255, 261, 305, 574, 619) and by plaintiffs to support their case (146, 219, 272). Both plaintiffs and defendants also vouched to warranty proceedings in previous assizes (371, 476, 528, 631) or wills proved in the Husting (233). The defendant might make complaint concerning the plaintiff's tenement (11,31) and this was commonly the practice when the plaintiff's building operations had been prohibited (13, 35, 204, 236), a process dealt with below. The Assize was occasionally cited by the litigants, the surveyors or the court (230, 235, 313, 323).
Attorneys were employed much less often than in assizes of fresh force. (fn. 32) Attorneys for defendants occur from time to time (34, 70, 102, 125, 488) and at least once a defendant was given permission to appear by attorney on account of illness (233). (fn. 33) Plaintiffs also appeared by attorney but infrequently until the late fourteenth century: an Italian plaintiff was allowed an attorney, possibly because he was an alien (12); the mayor was petitioned to send two aldermen to receive the attorney of the abbess of the Minoresses (the plaintiff), because she was enclosed (80); one party appearing as both plaintiff and defendant was also allowed an attorney (27). The Assize (Lib. Alb., i, 330) made special provision for minors to appear by their guardians (312, 493).
Both parties were allowed one essoin (Lib. Alb., i, 326). But for every essoin by a plaintiff (e.g. 6–8) there were dozens by defendants (e.g. 21–3, 58–9, 531–3). In the early fourteenth century there is some evidence of restraint in allowing essoins: a defendant was refused an essoin because he had already had one (37), the essoin of a wife was quashed because her husband had been essoined in the same plea at the previous court (26), while the essoin of another defendant was held not to lie because he was seen in court (71). In the same period there appear to have been professional essoiners, William de Brainford and William de Reyle being those most frequently employed. At an assize in 1311 (169) the latter offered to essoin the defendants but afterwards denied having done so on the ground that he had not been asked. In the second half of the fourteenth century some essoiners' names suggest that the office may have become fictitious, for example, John, Robert, Thomas and William (atte) Rose or Russe (443, 466→539); William (atte) Grosse (467–8); James and William (atte)Posse or Pusse (465→542, 549); most appropriately for a building assize, Adam, Alan, Thomas and William Post (573, 575, 578, 580); and perhaps Adam Potelle (579) and Richard Postek (564–5). On the other hand, even in the later period, it is possible to identify some essoiners, for example, Ralph Coo and Gilbert Meldebourne who were attorneys and William Sewale who was afterwards serjeant of the Chamber. Essoiners might be asked to produce their warrant at the quindene (488, 510, 525, 604) and after 1357 this became common form. One essoin was allowed not only to each of the parties or their attorneys (488) but also to defendants not named in the bill (76). After an adjournment to produce his muniments, a defendant was allowed one essoin (510, 566) in accordance with the Assize (Lib. Alb., i, 330). Our calendar omits very many essoins (fn. 34) in the interests of economy.
Essoins were not the only cause of delay in the settlement of disputes. Adjournments on various pretexts were very frequent. The Assize (Lib. Alb., i, 328) stipulated that if the mayor and aldermen did not come upon the land, the plaintiff must demand another assize in the Husting or at a congregation and occasionally resummons was necessary (37, 53), in one instance because of the proximity of Easter (fn. 35) (149). But resummons could be, and usually was avoided. According to the Assize it was necessary for some of the aldermen to view the land in the presence of the parties, but in practice two aldermen (312–14, 319, 328), an alderman and the mayor's serjeant (151) or an alderman and the common clerk, Hugh de Waltham (329), might go to the site and adjourn proceedings, a procedure which provoked a scandalised marginal comment from a student of the rolls (312). As we have seen, adjournments for lack of aldermen were numerous (146, 192, 407–8, 416, 502, 506). A variety of reasons was given for the absence of the mayor and aldermen: because the mayor was occupied with the collection of money for the king's gift (fn. 36) (314), or was delivering Newgate gaol (313, 323), or because he and the aldermen had been summoned to the king at Westminster (373,629), or were engaged upon his business (313,328,331), or had to appear before the treasurer and council (174), or because they were occu pied with important City business (389,441, 593, 614). The Assize (Lib. Alb., i, 330) provided for adjournment in the event of the defendant claiming that he had muniments bearing upon the case and this rule was much used both for its proper purpose and as a means of delaying judgment. The plaintiff too was allowed respite to produce documents (38, 313, 631). Adjournments or respites were also given at the request of (430) or with the consent of parties (389, 479, 510). Occasionally a special reason for an adjournment on behalf of a defendant was given: to produce a husband (51), to consult (44) or because the defendant's counsel had left when noon struck before the assize had come (104). Perhaps the most frequent cause of adjournment was that the mayor and aldermen wished to be more fully advised (37,146–7, 346, 400, 483); in due course this became common form for adjournments. No doubt there were occasions when the assize genuinely sought further information, for example when an adjournment was made so that the mayor and aldermen might consult the sworn masons and carpenters (522) or because there was some important business touching the plea (618). Finally there were adjournments to hear judgment, which in the later fourteenth and fifteenth century, became the normal practice. The proceedings were adjourned to Guildhall, before the mayor and aldermen, often in Husting, where the record and process were recited (426, 431, 436, 500–2) and judgment given; but sometimes the mayor and aldermen found it necessary to return super terrain before giving judgment (430, 631, 635).
From time to time certain questions were referred to juries which were summoned either by the sheriff (43) or by the serjeant of the Chamber (608, 614, 618), frequently at the request of the the parties (375, 381, 387, 396, 510). There were normally twelve jurors (109, 375, 381, 396, 483); exceptionally eighteen or twenty-four were summoned (234, 401, 511), but only twelve came. Only once are the jurors said to have made default (510). They were described variously as being of the venue or neighbourhood (387), of a lane or street (511, 483), of a parish (488) or of a ward or wards (261). Such questions were asked of them as, whether or not a defendant had stopped up a gutter or ditch (258, 375, 614), to which party an easement belonged (317, 381, 488, 510, 660), or whether a lane was common to both parties (396). In one assize where a plaintiff pleaded a deed, without apparently producing it, a jury was summoned to test the truth of his allegation (511) and in another a jury found that a plaintiff had given a wrong measurement (309). An assessment of a plaintiff's damages (660) was exceptional. (fn. 37) Juries were summoned for four pleas in which the commonalty were plaintiffs (375, 387, 396, 483) but in one of these the jurors were asked about only one of the charges (387). In one of the most interesting pleas in which jurors feature, a jury was summoned because the interests of the City were involved and the parties were suspected of fraud and trickery (618). In 1347 an assize ruled that the custom of the City did not allow the reference to a jury of the point at issue (399) which turned upon the ownership of a lane. Returns by juries in favour of both plaintiffs (261, 309, 375, 381, 483) and defendants (109, 396) feature upon the rolls. In an unusual plea (145) an inquest consisting of six men of the neighbourhood was elected and sworn by consent of the parties to certify the mayor and aldermen concerning certain doubtful points in an assize which they could not determine by view. Arbitrators were not often appointed (61, 534, 632), presumably because arbitration was the normal task of the mayor and aldermen and the masons and carpenters sworn to the assize.
According to the Assize (Lib. Alb., i, 325) a neighbour's building operations might be impeded provided a pledge to prosecute was given to the sheriff; thereupon building was to cease until the assize had considered whether such building was unjust. The rolls abound in pleas of this kind (11,13, 35, 92, 212, 282–3, 305, 381) in some of which the sheriff's serjeant rather than the sheriff prohibited the building work (253, 269, 317, 346, 348). The defendant usually brought a counter charge attempting to justify the prohibition in which he might succeed (13, 35) but was much more likely to fail and be amerced for unjustly impeding the plaintiff's building work (308, 313, 333, 348, 405).
Amercement of one or other party was by no means the inevitable outcome in pleas of nuisance. Apart from amercement of a defendant for unjustly impeding building to which we have just referred, a plaintiff (13, 290, 358, 371, 392) or a defendant (11,169, 282) was liable to amercement for making a false plaint or defence. To demolish part of a wall held in common without the consent of the parceners (272); to neglect or refuse to repair such a wall (18, 256, 482); or to allow it to be damaged by a cesspit (19) might, but generally did not, result in amercement.
The Assize (Lib. Alb., i, 326) ordained that if the plaintiff should default, he and his pledges were to be amerced by the sheriffs. Suits of this kind, where the plaintiff was adjudged non prosecutus, appear on our rolls, often before the parties had been heard (46, 342, 374, 425, 596) but occasionally after lengthy proceedings (488). On the other hand, licence to agree (24, 31,184,193, 391) and agreement between parties (337, 531, 588, 623) were not uncommon. If the defendant should default, the Assize continued, the mayor and aldermen were to proceed to give judgment and the sheriffs were to warn him so that the judgment should be carried out within forty days (117,119, 525, 537, 566, 609). Only rarely do we find a longer period allowed; in one plea the period appears to have been six months; a wall was declared by the sworn carpenter and mason to be ruinous but not to need repair before the summer (53); in another, the repair was to be carried out when the weather was suitable (281). It was equally rare for less than forty days to be allowed but one defendant was ordered to repair a gutter 'without delay' and remove his corbels from his neighbour's walls within eight days (184). Occasionally the task of warning the defendant was entrusted to the serjeant of the Chamber (483).
In the earliest pleas the period of forty days was not always specified in the judgment but by about 1320 its omission was exceptional. Likewise, the penal clauses to the effect that the sheriffs would act at the expense of the defaulting party and fine him 40s. were not always fully entered in the record. In the event of judgment remaining unexecuted after forty days, the Assize (Lib. Alb., i, 326) laid down that complaint might be made to the mayor, whereupon, by his precept, two or three aldermen were to proceed to the site; if they saw that judgment had not been executed, the defendant was to be amerced by the sheriff who was to put it into effect at the defendant's expense. Complaint that the judgment had not been executed was apparently made either in the Husting (272, 292) or, perhaps, at a congregation of the mayor and aldermen (291). Of the consequent visit to the site by two or three aldermen prescribed by the Assize there is but one example (284). The sheriffs might be ordered to summon the defendant before the mayor and aldermen to show cause why judgment should not be put into execution (442) but normally the sheriff was simply ordered to put the judgment into effect at the defendant's expense and to fine him 40s. for contempt (353–4, 367–8, 370), a fine which he levied to his own use (284, 347). How successful the penal clauses were in assuring that judgments were executed is difficult to ascertain. While threatened action by the sheriff may have spurred some defendants to the correction of nuisances, enforcement cannot have been easy. Plaintiffs normally waited from three to nine months before complaining that judgment had not been executed (174, 279, 292, 367, 390, 439). Occasionally they were less patient and we find complaints made seventy-six and fifty-four days after judgment (353, 291) and once within six days of the statutory period of forty days, that is, forty-six days after judgment (429). When the commonalty were plaintiffs (or an interested party) the sheriff was ordered to report upon the action he had taken (292) and the correction of a nuisance might be entered on the roll (536–7). On the other hand, sheriffs encountered difficulties in enforcing judgments or were dilatory in doing so (390, 398). In one plea, the plaintiffs did not complain of non-execution until five years after judgment (272). Early in the fourteenth century plaintiffs were sometimes advised to seek a remedy by another process (20, 36, 52, 55, 61, 287) which suggests that the scope of the action was less clearly defined than it became later in the century when such advice was given less frequently (386, 400, 492).
When a nuisance could quite literally not be seen by the assize the plaintiff's case was likely to fail (11, 20, 111). Perhaps for this reason, increasing use was made of professional viewers during the fourteenth and fifteenth century. Four such viewers, two master carpenters and two master masons, were sworn to consider matters concerning buildings. On a Monday in 1301 (presumably in the Husting) a mason was sworn to give due consideration to stone walls between neighbours, party-walls and others in bad repair as often as he was required to do so and two carpenters took a similar oath concerning boundary-walls and gutters. (fn. 38) Twelve years later masons and carpenters sworn to make and supervise assizes and partitions of tenements are found making partition of a debtor's tenements with the City chamberlain. (fn. 39) Later appointments of sworn masons and carpenters appear in the Letter-Books. (fn. 40) Our record first mentions these officials in 1303 (53) in a dispute concerning a ruinous wall. The regulations in the Assize relating to party-walls and gutters were often difficult to apply and in such cases, the expertise of the masons and carpenters was valuable. They were increasingly relied upon by the mayor and aldermen to give advice (310, 501, 522) as well as, at the request of the parties, to settle disputes that depended upon view (518). Measurements made by the masons and carpenters were accepted and were sometimes given to within a quarter of an inch (527) or even represented diagrammatically on the roll (304). Once the carpenters were ordered to correct a nuisance with the plaintiff's carpenters (271). In 1384 the mayor and aldermen initiated what must be one of the earliest archaeological excavations in London by ordering the masons and carpenters to uncover foundations in order to discover how wide a. path had been (631). After 1366, with increasing frequency, their reports were made in the form of a bill or certificate addressed to the mayor and aldermen in French (526–7, 566), a language used until at least 1428, (fn. 41) but in English some twelve years later. (fn. 42) The certificates were filed (604, 645) (fn. 43) and sometimes enrolled at the request of the parties (526–7). There is little evidence that the advice or findings of the masons and carpenters was ever over-ridden. But in a plea of 1373 (591) the defendants denied that a wall was partible, although at their request, a certificate to that effect had been enrolled about seven years earlier (526). An indenture of 1406 concerning the apportionment of rent in accordance with the testament of Thomas Noket, late citizen and draper, was presumably only entered (647) because the masons and carpenters were among the parties to it. A similar reason may explain the enrolment of a view concerning fixtures (583), which appears at the foot of a membrane containing two other certificates. The plea to which it relates was enrolled on the Plea and Memoranda Rolls (fn. 44) and concerned damage done to the fixtures of a house by a tenant. The task of partitioning tenements fell, as we have seen, to the masons and carpenters from an early date. A partition arising out of a plea of dower was cited by a defendant (160) and in a plea between co-heirs (233) a mason and carpenter were sworn to make partition and report in full Husting. (fn. 45) Once more, the presence of such pleas in our record can be explained most readily by the role of the masons and carpenters in the proceedings.
The Assize laid down elaborate regulations for the settlement of disputes between neighbours, concerning walls, gutters, windows, privies and paving. (fn. 46) Some of those concerning walls (Lib. Alb., i, 321–3) were, as we have seen, modelled upon the Lex de Assisa: stone walls between neighbours were to be 3 ft. thick and 16 ft. high; each party was to give 1½ ft. of his land and the cost of building was to be shared between them; or, if one party could not or would not build jointly with the other, he was to give 3 ft. of his land and the other was to build at his own expense and the wall so built was to be shared equally between them. Judgments based upon these regulations usually offered the parties the choice implied by the rules (32, 34, 278, 288, 590); if a defendant pleaded poverty (279) no alternative was offered. According to the Assize (Lib. Alb., i, 329–30), a party wishing to build the whole of a wall upon his own land who had an assize brought against him, might either join with his neighbour in building a wall in common or continue building his own wall; the neighbour might then build a similar wall for himself. Once again we find the parties are offered a choice (93, 165).
Party-walls were often the subject of litigation. Owners of stone walls held in common were forbidden by the Assize (Lib. Alb., i, 323) to pull down or alter any part of the wall without the consent of the other party (74, 272). Disputes frequently arose when one or other party was rebuilding or repairing his tenement. Complaints were usually made because one party had placed his timber upon the wall (92,146,156, 211, 282–3), because the wall had been pierced and beams or corbels placed in it (37, 506) or, less usually, because one party had deforced and overthrown the building work of the other alleging that the wall was his (38). Such disputes were normally settled by view, in accordance with various regulations laid down in the Assize (Lib. Alb., i, 325–7). If a person owned a wall covered at the top with his own roofing or timber, his neighbour, even though he had corbels and joists in the wall, could not claim more than he already had possession of, without the consent of the wall's owner; if a person owned two parts of a wall and his neighbour owned the third part, his neighbour could use his part freely (but presumably only by consent). When the nuisance was viewed, the mayor and aldermen and later the masons and carpenters sworn to the assize noted the position of the old timber or corbels in deciding how much of the wall belonged to each party (90, 92,146, 211, 253). The part shared might be very unequal: for example, the assize found that a plaintiff was formerly seised of a wall to a depth of 6 inches and it was adjudged that he might place his posts and timber upon the wall only to that depth (269). The Assize (Lib. Alb., i, 322) contained a regulation, also in the Lex de Assisa, concerning the building of arches and cupboards in party-walls. Although the building of arches was never a matter of dispute on our rolls, interesting use was made of the regulation: the mayor and aldermen found after diligent scrutiny that, when a certain wall was first built, it had had arches 1 ft. deep on both sides, with 1 ft. of wall in the middle, thus establishing that it was divisible between the parties (308). Arches were used as evidence of ownership on other occasions but without the same clear implication of age (526, 591, 597).
Walls or houses overhanging a neighbour's land, which prevented him from building, frequently gave rise to litigation (118, 149, 265, 301, 304, 377–9). Such disputes were often settled with the aid of a plumb-line (76, 271, 295, 388). Walls leaned by as much as 2 ft. but one two-storeyed solar overhung a churchyard by as much as 6 ft. (502) while one over a street projected 10 ft. (536). Ruinous walls were another source of trouble. One party might refuse to repair his part of a wall (256). Plaintiffs alleged that ruinous walls were a danger to inhabitants and passers-by (50, 53, 131, 264) and that they themselves suffered damage thereby: their gardens are said to have been trampled down, their fruit taken and their private business watched (34, 446, 496); dogs, pigs, cocks, hens and children came too, over the ruinous walls (66, 293, 595). Such walls were described as clausture, a term usually rendered as 'fences' (fn. 47) in our calendar, but it is clear that murus was often used to describe a boundary wall of the same kind.
The record does not always specify the material of which walls were made. Stone was, of course, a common material and, as we have seen, one of the purposes of the Assize was to encourage its use. But many walls were made of earth (25,165, 218, 281, 293). These appear to have been thicker than stone walls, measuring as much as 4½ ft. (307) and were generally fences. Plastered walls (164, 505, 521, 595, 607), wooden walls (501) with stone foundations (149) or palings of wattle and daub (278–9) are occasionally mentioned. The Assize laid down that walls of stone were to be 16 ft. high, presumably high enough to accommodate a two-storeyed house, and this height was generally given in judgments. One plaintiff, contrary to the Assize., undertook to provide a wall 10 ft. high on a defendant's land (180). Sometimes it was adjudged that fences should be rebuilt in stone according to the Assize (93, 217, 278) but, more often, that the wall, even though earthen, should be repaired or rebuilt in that material (218, 307, 380, 418, 496).
The Assize made no mention of chimneys, a fact which might argue for its antiquity. (fn. 48) When chimneys were complained of, it was rarely on account of the risk of fire (77, 658), unless by implication in the case of a forge (617), but rather because they overhung a neighbour's property (265, 447, 527); such were a chimney built upon a corbel (629) and a double chimney (655). The only other chimneys mentioned were in an indenture (205) and by a plaintiff who was hindered from repairing one (331).
Other causes were given for the ruin of walls: the building of a turret (31), the stacking of firewood (55, 60,183, cf. 524), and the building of pigsties (263, 332) against them, or, in the case of a wattle and daub paling, the piling of earth against it (278). Seeping sewage from cess-pits was, as we shall see, a further cause of ruinous walls and rotting timbers but so too was water. It is not surprising then, that gutters feature prominently in the Assize and upon the rolls.
The subject is difficult because the terms used for gutter are confusing; indeed, it is often impossible to visualise the form of gutter to which the record refers. The most generally used word was guttera (gotterum, gutera, etc.) which might be made of lead (fn. 49) (283, 336, 370), attached to a wall (184, 236, 331) or in, or under, the ground (11, 20, 111, 618). Stillicidium was the term used by the Assize and was also commonly used on our rolls (71,163, 183, 222, 230, 344) to describe a gutter above ground level, often under the eaves. Frequently it is used interchangeably with guttera. Exceptionally, however, Stillicidium is used to designate a spout of the kind still seen pro truding from the mouths of gargoyles (521). A pipe from the middle of a gutter (486) and two other pipes jutting out from a house (424) may have served the same purpose. Filettum, which we have translated as fillet-gutter, was used with more discrimination. Once we hear of a 'filettum plumbeum ad modum guttere' (267) and these gutters were often made of lead (222, 267). It seems likely that they were long strips of lead bent so as to form a gutter. In one plea (616) a concave leaden gutter (filacium plumbeum concavatum) upon the eaves of a house received the water from the house and conveyed it into a leaden underground channel (fistula). In another (222) ail three words occur: stillicidium is used to describe a rain-gutter; gutterum seems to describe a gutter on the ground while a leaden filettum carries the water from the stillicidium into a sink. Gutters (guttere) might be as much as 1½ or 3 ft. wide (222, 501). 'Down pipes' of a kind familiar to the reader are seldom, if ever, mentioned; a possible exception may be four leaden pipes draining from the roof of a house into a leaden gutter (283). Gutters spilled on to waste ground or into cess-pits or into the street but sometimes their contents were received by sinks or soakaways (222, 277, 572, 584). From the streets the water might be carried away in street gutters or kennels (140, 358, 577). These in turn might feed the rivolus leading to the Moor (266,292,375), the Fleet, the Walbrook or the Thames itself. A kennel near Houndsditch was allegedly liable to overflow so that the children of the inhabitants were often drowned (618).
The provisions of the Assize about gutters were no less elaborate than those concerning walls and far more confusing. When a wall was held in common by neighbours (Lib. Alb., i, 321, 322), whether in equal or unequal shares (ibid., 327), the parties were either to combine to provide a raingutter to carry off the water from their houses, or each was to provide his own gutter to convey the water from his own house on to his own land or into the street (ibid., 321). If one of the parties heightened his portion of the wall he was to make a rain-gutter for it at his own expense (ibid., 321–2). Should one party be unable or unwilling to participate in the building he was to give 3 ft. of his land, and his neighbour was to build thereon a wall of the prescribed height and breadth, half of which was to belong to the donor of the land, and between them they were to provide for drainage (ibid., 322). On the other hand, if an individual built a wall upon his own land at his own expense he was to possess it libere et digne (ibid., 329). His neighbour was to have no right in it, but was to provide a rain-gutter under the eaves of the house built upon it and receive the water upon his own land or convey it into the street (ibid., 323). (fn. 50) If in such a case the neighbour brought an assize against the builder, the latter was free to choose whether to join him in building a wall in common, or to adhere to his original plan; but he could not prevent the plaintiff from building a wall of the same height next his, and they would then have to provide for the drainage either jointly or severally (ibid., 329–30). If it happened that water had been allowed to drain for a long time from a house not walled in stone on to a neighbouring vacant plot of land, the owner of the plot might nevertheless build upon it at will, removing the overhanging eaves of the adjoining house; but thereafter he would be responsible for carrying off the water from it. The same rule was to apply to gutters discharging on to vacant land. When a gutter discharged into that of a neighbour or ran through the midst of his tenement the neighbour might not obstruct it, and even if he demolished his house with the intention of rebuilding it, he must continue to receive the water and convey it away, as had been customary; but the assize should be notified of what had been done (ibid., 331–2).
In most of the pleas.concerning gutters, the plaintiff complains that the water from the defendant's roof falls upon his land, flooding it, rotting his timber, etc., (fn. 51) either because the defendant had no gutter or because his gutter was defective in some way (77,132,163, 336, 343–4, 349–50). Gutters held in common were the cause of litigation when one party refused to share the cost of repair (183) even if there was a written agreement (71,476). The obligation to receive and carry off the water from a neighbour's roof (54,61, 95, 252) must always have been likely to cause disputes. For example, a plaintiff complained that the defendants had built a gutter to carry off the water from their own house, whereas they ought to have received the water from his house, as he had provided the stone wall enclosing their land; but it was found that part of the wall was held in common and therefore adjudged that the defendant should provide the gutter where the wall was owned solely by the plaintiff but that it should be provided jointly or separately where the wall was held in common (94). The tearing down of a neighbour's gutter might result in a plea of trespass in the mayor's court, (fn. 52) or in an assize of nuisance (184, 236, cf. 589). Sewage thrown into gutters was another ground of complaint (370). Gutters which passed through a neighbour's tenement and were blocked (70, 258, 438, 607) may have been below ground (11, 20, 111). Elsewhere on the rolls gutters running under houses are specifically mentioned (214, 614, 616, 654).
Intense and drastic rebuilding at various times since the middle ages has left little of medieval London either above or below the ground. Archaeologists find medieval pits, cess-pits, rubbish-pits and wells, and these are, perhaps, the only physical remains of the nuisances with which we are concerned. The ground of the medieval city was honeycombed with pits, (fn. 53) often of considerable size, measuring as much as 12 ft. across and 12 ft. deep (485). (fn. 54) Into them went much of London's sewage and rubbish; (fn. 55) and they gave rise to many disputes between neighbours.
The provision in the Assize (Lib. Alb., i, 323–4) for these disputes did not feature in the Lex de Assisa but may well have been as old. The assize might be demanded for any pit, except those made before the first year of Richard I, i.e. theoretically, the year in which the assize was enacted. If the cess-pit of a privy was lined with stone its mouth should be 2½ ft. from a neighbour's land even though there were a stone wall between them; if not so lined it should be 3½ ft. from a neighbour's land. Pits of all kinds, for receiving clean or foul water, were to be subject to this rule.
The complaint most frequently made was that the cess-pit of a privy was too close to a party-wall and that the sewage from it was penetrating the wall, ruining it, rotting the timber or running into a neighbour's cellar. (fn. 56) Judgments strictly in accordance with the Assize were common (2, 44, 60, 69, 96, 98) and when it was simply a matter of a pit's distance from a wall, little room was left for elaborate pleading, which perhaps explains the small number of incomplete pleas of this kind. A pit might be found to be far enough away (26); or when a stone wall was alleged to have been ruined, the defendant might be ordered to repair the wall (19). But on one occasion when a plaintiff said that his earthen wall had been rotted and his house inundated with sewage, the defendant successfully claimed that the pit in question was held in common; and it was adjudged that the parties clean it and rebuild the wall in stone at their common charge (165). Occasionally the distance from the plaintiff's wall specified in judgments varied, e.g. 1½ ft. (3) or 3 ft. (191).
A few details concerning sanitary arrangements are noteworthy. A privy might be enclosed by party walls and provided with seats but have a cess-pit shared with neighbours (325). A public convenience in Queenhithe was cleansed by the flow of water collected in a gutter for that purpose; the flow was obstructed by sewage from a wooden pipe connected to the seat of a householder's privy (214). The stench from such places was not greatly complained of (364, 585, 644). (fn. 57)
Apart from walls, gutters, privies and pavements (fn. 58) the only other category of nuisance for which the Assize provided, was windows (Lib. Alb., i, 324). It ordained that a view from a window, despite long possession, could be fully obstructed by a neighbour who built opposite it on his land, unless it were protected by a deed. But the plaint most frequently found was made by plaintiffs whose neighbours had windows or other apertures, or even doors, overlooking their land (14, 129, 163, 167, 216, 231–2). Complaint of evils arising from such windows was commonly made: that the private business of the plaintiff, his household and servants could be seen by the defendant, his tenants and servants (407, 419–23); that filth and rubbish were thrown out on to the plaintiff's land (81, 407, 426, 445, 514, 525); that the stench of a defendant's privy came through apertures in his wall (364). (fn. 59) The height at which windows overlooking a neighbour's land were tolerable appears to have been settled in 1316. In a plea of that year it was adjudged that a defendant should have no window at a height of less than 16 ft. facing the plaintiff's land (230). This judgment seems to have been duly noted in later plaints which gave the height of windows as 13, 7 or 4½ ft. from the ground (261, 340–1) (fn. 60) but by 1339 it was common form to complain that they were less than 16 ft. from the ground (349–50, 359, 363, 371–2). (fn. 61) In such cases it was normally adjudged that the defendant should block the windows or apertures in question. In one plea of this kind, the parson of St. Stephen Walbrook who had made a great aperture in the stone wall on the south side of his church was obliged to repair it (174); in another, doors and apertures opening on to an alley adjoining the defendant's house and leading to the plaintiff's garden were to be blocked up (464).
A view from a window less than 16 ft. from the ground cannot have been easy to retain. An unexceptionable grant of view and light from a house was almost a prerequisite. A plaintiff, whose view had been blocked by a stack of firewood, successfully supported her suit with a deed granting her 'visum, aperturam, lumen, aerem et claritatem' of a window in the gable of her house, 2½ ells, 1 inch above the ground and barred with wood or iron (312); another produced a deed guaranteeing him the light into and out of (cum libero introitu et exitu luminis) his windows and upheld his plaint against a neighbour who had begun to build a house opposite (430); yet another, whose apertures lighting his kitchen had been blocked, had them reopened because he was able to produce a deed granting the light to his predecessor (203). (fn. 62) Sometimes, if a view were obscured by a new building, the building was prohibited but when complaint was made concerning the prohibition, defendants seldom had success in protecting their view (255, 305, 317, 381, 417). But jetties or pentices which obscured a view (77) or blocked the light into a workshop (548) were treated as nuisances.
Many of these windows were presumably unglazed. The earliest glazed window to which reference is made occurs in a deed of 1263–4 (255); other examples are not numerous (81, cf. 648); once we hear of windows with broken glass through which a neighbour's affairs can be seen (362) suggesting that the glass itself was translucent rather then transparent. Unglazed windows were sometimes barred with wood or iron (312, 370) or shuttered (206). A defendant in 1427 hopefully alleged that according to the custom of the City, it had always been permissible for windows to overlook a neighbouring tenement provided they were 8 ft. from the ground and glazed with thick glass or barred with iron (cum vitro spisso vel fermentis ferreis includere) but in accordance with the custom of the City she was ordered to block her windows (652).
Public nuisances and the commonalty
Apart from the disputes between neighbours with which our record is primarily concerned, the Nuisance Rolls also contain a number of pleas which sought to correct public nuisances. But the assize of nuisance was never used extensively for this purpose.
The vast majority of public nuisances were dealt with by wardmotes. A few presentments have been preserved, notably those for 1422 and 1423 enrolled upon the Plea and Memoranda Rolls, but fragments of earlier presentments and the evidence provided by the custumals show that the procedure dated from a much earlier period. (fn. 63) The range and variety of matters dealt with was considerable and many of the presentments were not unlike the nuisances appearing on our rolls. Apart from purprestures, the wardmotes dealt with ruinous houses or walls which endangered passers-by, defective paving, ruinous chimneys, low pentices, obstructions of paths or lanes, blocking of ditches, noisome privies, the tipping of ordure or rubbish into the streets or watercourses and many other matters that need not here concern us. Our rolls contain not only several pleas initiated by presentment (449–50) at wardmote, but also one membrane (DD, m. 68) consisting of seven presentments made at three different wardmotes (453–9), which may have been especially copied for the use of the assize. (fn. 64)
In 1309 two entries occur (140–1) which probably arose from wardmote presentments; judgment was given because the nuisances had been found by the testimony of the neighbours and were apparent to the men of the assize. These nuisances may well have been dealt with in this way in order to impress the dean and canons and the master of the bakehouse of St. Paul's who had perpetrated them.
Purprestures, or encroachments upon the king's highway, were commonly enquired into, during the thirteenth and early fourteenth century, by the justices itinerant in their sessions of crown pleas at the Tower; in 1246 a special session was held there and many purprestures were rented from the king while the remainder were ordered to be amended. (fn. 65) The normal procedure at such sessions, (fn. 66) according to a note in Liber Custumarum, (fn. 67) was to amerce anyone who made a purpresture but to allow him or his heirs or assigns to rent it from the king for a fixed annual rent provided the dozens (duodene) of the ward should agree that it was not a nuisance to the neighbours but if it was not so agreed, the sheriffs were to throw it down. A further proviso allowed the tenant of such a purpresture to place himself upon the verdict of the mayor, aldermen and commonalty as to whether his purpresture was to the nuisance of the neighbours.
The purprestures dealt with by the justices itinerant were basically concerned with free passage along the king's highway, streets, lanes, paths or waterways. They were normally presented at wardmotes, but in the fourteenth century they were also sometimes inquired into by the assize of nuisance. Even before the Eyre of 1321 the mayor and aldermen were using the process to settle what might well have been treated as purprestures by the justices (15, 97,188). During the Eyre itself no assizes were held (254) but thereafter the commonalty had frequent recourse to the assize for this and other purposes (260,292,334,390,487). The most common ground for complaint by the commonalty was ruinous stone walls (299, 302–3, 361, 390), sometimes described as being in danger of collapsing to the peril of neighbours and passers-by (264, 334). After judgment had been given in one such plea, the defendant's wife, who was present in court, warned her husband to repair the wall lest evil befall someone (28). The mayor had warned the owner of a wall near the entrance of Guildhall to repair it but when he failed to do so, the commonalty brought an assize against him (213). Ruinous houses (fn. 68) also gave offence: one was said to be so ruinous that great and small, horsemen and pedestrians feared to pass by, while its lack of a roof and rotten timbers were the scandal and disgrace of the City (300). Walls or houses, ruinous or otherwise, which overhung a road, street, or lane and other things, including pentices, which obstructed the free passage of pedestrians, horsemen or horses and carts were among the nuisances which the commonalty sought to correct by the assize (97, 396, 408, 536, 547). Pentices, jetties and solars which overhung the street were a perennial problem to the City authorities. Regulations controlling them are numerous: they were to be high enough for a man on a great horse to pass beneath, (fn. 69) and later, more precisely, they were to be 9 ft. from the ground; otherwise they were to be corrected within forty days under penalty of 40 shillings. (fn. 70) When it was adjudged that a solar of this kind should be removed 'iuxta formam statuti editi de edificiis' (536) this regulation, although never part of the Assize, may have been intended. Other pleas concerned forges (483, 547), the fencing of a vacant plot in the parish of St. Bartholomew by the Exchange because robbers lurked there at night and attacked passers-by (fn. 71) (394); the blocking of ditches (292, 375); and pigsties built over, and other encroachments upon, the Walbrook (15–16,188, 382–3).
The City officials presumably found the assize useful when the wardmote process had failed, when religious houses or difficult or powerful men were perpetrating nuisances or where there was some call for urgency in the correction of a nuisance. Nearly every plaint by the commonalty resulted in judgment for the plaintiffs: only once did a defendant win his case (396) and very few of these pleas were incomplete (e.g. 97, 299, 387). No doubt the mayor and aldermen seldom bothered their heads with theoretical matters but one development of the fourteenth century may possibly have coloured their views and this concerned the common soil or solum communitatis. (fn. 72) The arrentation of purprestures was probably never very profitable to the crown (fn. 73) and in any case, after 1341 there were no further London sessions of crown pleas at the Tower. There was then nothing to inhibit the idea that the commonalty owned the streets and lanes. Thus, it is striking that the phrase solum communitatis first appears on our rolls in 1344 (387) when a defendant is charged with having built upon the commonalty's soil next the City Wall (fn. 74) within Newgate; (fn. 75) further pleas (450, 487, 493–4) and two ward presentments (453, 455) are also concerned with nuisances upon the common soil. No mention of the common soil was made in 1305 when an assize (85) found that the Black Friars had built too close to the City wall and forbade them thenceforth to build within 16 ft. of it.
The commonalty were normally represented as plaintiffs by the common serjeant, (fn. 76) the City's professional pleader (260, 334, 483) although he was sometimes simply described as attorney (292, 299, 302, 449–50). Ralph Pecok, the first attorney to appear for the commonalty (15) was common serjeant in all but name. (fn. 77) Reginald Wolleward (fn. 78) who pleaded for the commonalty from June to August 1328 may have been another holder of the office but Adam de Acres, who is only described as attorney, is known to have been the common serjeant from other sources. (fn. 79) No holder of the office is known between Ralph Pecok in 1301 and Gregory de Norton in 1319, during which period the commonalty were represented by the City chamberlain (167, 188, 213–14) and, quite exceptionally, by an alderman, John de Gisors, prosecuting a suit on his own as well as on the commonalty's behalf (179). In pleas concerning Bridge House property the commonalty were represented by the wardens of the bridge (51–2, 416).
The commonalty never had an assize brought against them although one complaint is entered upon the rolls (544). The parson of St. Clement Eastcheap and his parishioners complained of a tenement bequeathed to the mayor and commonalty with two jetties one above the other between the church and the churchyard. After view, the complainants released and quitclaimed all plaints and demands concerning the tenement and in return the mayor and aldermen undertook to provide wax torches on the vigil of the Assumption, at the elevation of the Body of Christ and on appropriate occasions when the Lord's Body was carried through the parish.
One other form of entry on the rolls deserves comment although there are only four examples of it. The perambulation of the mayor and aldermen is twice described as being at the instance of a complainant (64, 250); and on the other two occasions it is likely that it was made because the mayor and aldermen happened to be in the parish for holding an assize (114, 119). They do not conform to the Assize's rules of procedure; there appears to have been no summons, and no essoins or adjournments, but the judgments follow the same pattern as those used in the assize. In other cases not described as perambulations, the assize apparently took action without the usual preliminaries: peremptory orders were given to remove obstructions from the course of the Walbrook (198–200) (fn. 80) and the owners of a ruinous wall spontaneously agreed to repair it (201). (fn. 81)
Another matter sometimes dealt with peremptorily by the mayor and aldermen was paving. The Assize (Lib. Alb., i, 331), contained a regulation whereby anyone unjustly making a pavement in the king's highway to the nuisance of the commonalty or a neighbour could be prohibited from doing so by the City's bailiffs (fn. 82) and that the matter could then be discussed by the men of the assize. (fn. 83) In one instance the course of a stream (probably a kennel) had been changed by raising the level of the pavement (140); in another the level of the pavement was to be lowered because it endangered private persons and strangers walking or riding there (142); and in another it was alleged that for lack of paving great damage was daily incurred by the citizens and, it was curiously added, could arise in case of fire (141). Each was to pave in front of his own tenement (141–2,186, 369). Only once do we find a party impleaded by his neighbour concerning the repair of paving (249). It was normally a matter dealt with by the commonalty. (fn. 84)
Two-thirds of the pleas on the rolls were heard in the first half of the fourteenth century. Although only one plea was entered in 1349, the number of pleas in the few years immediately after that date differed little from those before it, thus serving to confirm the impression given by the possessory assizes (fn. 85) that the Black Death had little effect upon the level of business in City courts. (fn. 86) Between 1379 and 1431 when the rolls end, only forty pleas were enrolled. Complaint was made of nuisances in most City parishes. They were most numerous in the parishes surrounding Guildhall (especially in St. Lawrence Jewry); along the Thames (especially in St. Michael Oueenhithe and St. Dunstan in the East) and also along the course of the Walbrook (especially in St. John, St. Martin Vintry and St. Stephen). Indeed, to keep the Walbrook flowing without obstruction or excessive filth, was a task which greatly exercised the City authorities: (fn. 87) Londoners stacked their firewood above it (16,199), built pig-sties and privies over it (200, 382–32) and otherwise encroached upon its course (15, 55).
During the first few decades of the fourteenth century aldermen or members of aldermanic families were the predominant class among the parties to the assize. No doubt their great wealth goes far to explain their taste for litigation but the possibility that they could indulge this taste without payment of fees cannot be overlooked. Certainly, at a later date, when a fee of six pence payable to the common clerk was fixed for each bill of assize of nuisance or intrusion, aldermen were specifically exempted from it. (fn. 88) The rule that no one can be at the same time a party and a judge (fn. 89) was not observed by the aldermen who held the assizes in the early fourteenth century. Frequently aldermen are found on the assizes in which they were plaintiffs (29–30, 44, 50, 66, 96). Nor were sheriffs and mayors blameless in this respect (9, 53).
The City clergy with their parishioners or churchwardens often made use of the assize to rectify nuisances around their churches and churchyards (63, 81, 308, 546, 574, 623, 659) and conversely, were frequently impleaded (50,125, 259, 298, 487, 631). Apart from many pleas which concern churchyards, particular mention should be made of several entries touching upon parochial processions (43, 544, 639), chantries (385, 498, 647) and a small window in a party-wall of St. Leonard Eastcheap through which the owner of an adjoining house could watch the celebration of Mass (574). Religious houses both within the City and outside were also parties to assizes, particularly in the second half of the fourteenth century and the fifteenth century (386, 399, 570, 613, 642, 656), and were frequently represented by their heads in person, even the abbot of St. Albans appearing upon the site of the nuisance himself. Apart from the heads of religious houses outside the City a number of other parties, who were not Londoners, are noteworthy: several members of the nobility (the earls of Gloucester and Suffolk, the countess of Hereford and Aymer de Valence) as well as a number of knights who were 'foreigners'.
The number of pleas which arose through the practice of a craft is strikingly small. Most nuisances of this kind were probably corrected by the wardmote, but a handful resulted in assizes: a chalk-pit for tanning hides (251); dyers' workmen who carried their dripping wet cloths up and down steps allegedly belonging to a neighbour (488); a tenter-yard (589); tenting-frames which damaged a wall (643); the work-shop of Queen Philippa's tailor (417); a scalding-house in St. Nicholas Shambles in which pigs and other animals were slaughtered (569); (fn. 90) forges built in the public highway (483, 547–8) and most intriguing of all, the forge of an armourer (617) whose sledgehammers shook the neighbours' walls, disturbed their rest and spoiled their wine and ale, while the stench and smoke from the sea-coal used in his forge penetrated their hall and chambers. The picture of the social life of fourteenth and fifteenth century London which the rolls present is in sombre colours and no doubt distorted, but the fact remains that many of the parties to assizes were from the more well-to-do sections of society and nuisances and squalor would hardly have been confined to their tenements.
Malice, although difficult to detect with certainty, may well have been the root cause of some pleas. It was only once alleged by a party to an assize (591) but clearly little love was lost between the neighbours Joan de Armenters and William de Thorneye on the one hand and Andrew Aubrey and his wife on the other. The trouble apparently started when Joan hired masons to build a door in her cellar and Andrew prohibited it (323) and at the same time prohibited William from building a privy (324). Six weeks later Andrew complained that Joan and William had removed the fence and roof from their privy (325) and that they had made a hole in their room over William's cellar through which his private business could be seen by those in the room above (326). Matters seem only to have been resolved by the death of Joan (316).
Outside London the assize of nuisance was available for actions concerning rights of way from an early date. (fn. 91) The Assize (fn. 92) made no mention of rights of way but the process was used both by individuals (125, 399–400, 511, 606, 631) and by the commonalty (64, 259, 449) to correct nuisances concerning them. Access to the private quays (392, 453, 637) and wharves along the Thames was a likely cause of such disputes (327, 396, 459).
Although even in the early fourteenth century plaintiffs sometimes complained of several apparently separate nuisances at one time, this practice became common after about 1341 (370 et seq). There was, in such pleas, a distinct air of trying to tidy up everything in a neighbouring tenement about which complaint could possibly be made. For the plaintiff such a course was obviously economical both of money and time while the risk of overloading his bill does not appear to have been great. If he sometimes over-reached himself he might still succeed on most counts and face amercement only on one (371).
'Nocumenta vero infinita sunt' wrote Bracton; although not infinite, the nuisances on our rolls are undoubtedly varied. The Assize may originally have clearly marked the scope of the action, but a high proportion of the entries fall wholly or partly outside that scope. Pleas concerning chimneys, leaning walls, windows overlooking a neighbour's land, and rights of way, as well as most of the actions in which the commonalty were plaintiffs, provide striking examples. During the century and a quarter covered by our records changes in procedure can also be seen. Even in the early fourteenth century essoins and adjournments sometimes delayed the process unduly but by the end of our period its summary character had almost disappeared. There can be little doubt, however, that the assize of nuisance provided the freeholder in London with a convenient means of solving some of the problems of urban life.
The Rolls and the Calendar
The records of the assize of nuisance are preserved in the Corporation of London Records Office in three rolls, known as Miscellaneous Rolls DD, FF, and II. Misc. Roll DD (1–180), covering the years 1301–56, consists of 73 membranes (most of which are roughly 8½ × 28 inches), filed together at the head. The membranes have been numbered in pencil mm. 1–17, 17a, 18–72 and these are the numbers given in the calendar. They were also numbered in a late fourteenth-century or early fifteenth-century hand 1–44 (= mm. 1–17, 18–44) and 45–71 (= mm. 46–72); mm. 17a and 45 were not numbered, probably being overlooked because they are short. A note at the head of m. 38 explains that mm. 38–9 were found among the memoranda of John de Burton, clerk of the Chamber, after his death, (fn. 93) which perhaps accounts for the duplication of entries on mm. 39 and 40. The roll has been repaired in recent years but there is no reason to suppose that mm. 17a and 45 are modern additions. The piece of parchment sewn to the foot of m. 12 (as a roll cover) and the endorsement upon it shows that mm. 1–12 at one time formed a separate roll and endorsements (fn. 94) on mm. 13–15, 17, 18, 20–2, 27, 32 and 35 suggest that these membranes may once have been filed separately as rotulets. Misc. Roll FF (481–619) covering the years 1356–78 consists of 40 membranes measuring from 10½ to 11½ inches in width and from 18 to 30 inches in length. A few membranes are damaged, rubbed or faded and several have been repaired. The stitching at the head of the roll and the numbering of the membranes is modern but there appears to be no reason to doubt that the roll was anciently made up in this way. Misc. Roll II (620–61) consists of 17 membranes measuring 9½ to 10½ inches in width and 15 to 29 inches in length. It contains the record of assizes and certain other matters between 1378 and 1431. Some membranes are much damaged and have been extensively repaired and there is considerable chronological disorder in the arrangement. But the numbering of the membranes shows that this disorder was not of recent making. The roll differs from DD and FF in failing to give an impression of the process's continuity; matters such as essoins and respites are not separately entered upon it.
The rolls tell little of how they were kept, but it is clear that they must generally have been written up after the assize had been held. It is unusual to find proceedings for one assize entered in more than one place on the rolls even though judgment was sometimes greatly delayed. Essoins and respites that were separately entered frequently appeared also in the record of the proceedings. The rolls appear to have been well kept; incomplete entries are not uncommon but cannot be attributed to clerical negligence. Apart from contemporary notae indicating essoins, respites, judgments or amercements at least two students (probably of the late fourteenth or early fifteenth century) (fn. 95) have made comments in the margins of DD and FF. Such comments are seldom more than a brief summary of some point in the record and have not been calendared here, except in a few instances where the commentator was clearly surprised or scandalised at his findings.
The compression of records occupying 130 membranes into the present calendar has imposed a difficult task upon the editors. Our aim has been to eliminate 'common form' as far as possible while retaining significant details of fact and procedure. The normal form 'B summonitus fuit ad respondendum A de placito assise nocumenti. Et unde A queritur quod . . .' has been calendared 'A complains that B', while the more unusual form 'A optulit se versus B' has been rendered 'A appears against B' (e.g. 10–12, 24, 28). (fn. 96) Dates have been rendered in days, months and years, the latter reckoned to begin on 1 January. Where a word or phrase seemed obscure or of particular significance it has been enclosed in round brackets after the suggested translation. Illegible words or phrases have been indicated thus: (—). Latin forenames have normally been translated; the original spelling of surnames and places has been retained but Latin place-names have been translated. Suspension marks at the end of names have generally been ignored. Separately entered essoins and respites have been calendared only when they are the sole evidence that a plaint had been raised; where proceedings of the assize appear elsewhere on the roll essoins and respites have been omitted.
The Index contains entries for persons, places and subjects. H. A. Harben, Dictionary of London (1918), E. Ekwall, Street-names of the City of London (1954) and the appropriate volumes of the English Place-Name Society have generally been used to establish the modern forms of place, street and parish names. Certain subjects occur too frequently in the text to make indexing profitable; these are dealt with in the Introduction, and the Index makes reference to the discussion of them there. Subjects of legal interest have not been entered separately in the Index but have been brought together under the heading 'Legal matters'. For subjects grouped under the headings, 'Buildings & parts thereof and 'Trades & occupations', crossreferences have been provided. References in Roman numerals are to the pages of the Introduction; Arabic numerals denote entries in the calendar (and not pages) unless printed in italics when they refer to the heading of an entry in the calendar. In indexing headings only the first and last appearance of mayors, aldermen and sheriffs have been given.