Staffordshire Historical Collections, Vol. 6 Part 1. Originally published by Staffordshire Record Society, London, 1885.
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Plea Rolls of The Reign of Edward I.
Edward I. has been styled the English Justinian, and if the efforts of a wise and sagacious prince to improve the administration of the law entitle him to the designation, few have deserved it better. It is difficult, however, to discover the great and sudden advancement of the law in this reign mentioned by Sir Mathew Hale and other writers, and such as may be observed during the reign of his predecessor Henry II. A few useful statutes were passed to improve the execution of the law in some of its details, and others which were declaratory of the law or in extension of previous statutes, but changes of the code itself appears to have been very few, and legal process remained substantially the same.
The King, however, possessed qualities which eminently fitted him for the task of correcting a corrupt administration of the law. He took a personal interest in the efficient execution of justice, and his frequent presence in court is testified on the rolls, not only of the Curia Regis, but on those of the Common Pleas and of the Itinerant Judges. On his return to England in 1289, after an absence of three years, great and general complaints of the judges coming to his ears, he caused them all to be apprehended and indicted for bribery. Two only were acquitted. The Chief Justice Ralph de Hengham, who had been Regent during his absence, Weyland the Chief Justice of the Common Pleas, and Stratton the Chief Baron of the Exchequer, were all degraded and heavily fined. Two of them, Hengham and Weyland, were forced to abjure the kingdom, and Stratton was imprisoned for many years.
The remedy by assize which has been previously described in these Collections remained the same during this reign, but was extended by statute to cases where formerly it had no application. None of these, however, are likely to interest the reader, and in place of entering further into details of procedure, it is proposed in this introduction to give a succinct account of some of the more celebrated statutes of this and the preceding reign, and to which reference is frequently made on the Plea Rolls now printed.
The earliest in date of these is the well-known statute of Merton of the 20th year of Henry III., A.D., 1246. It contains altogether eleven chapters, but it is proposed in these notes to deal only with those which interest the antiquarian student.
On the subject of the marriages of heirs who were in ward, it was ordained that when heirs were forcibly taken away by their relations or others, in order to marry them, any one who should so marry an heir, should restore to the lord of the fee who was the loser by it the value of the marriage, and that he might be imprisoned till he had made such amends, and till he had satisfied the King for the trespass. This provision related to heirs under fourteen, the age of consent; as regarded those who were fourteen or more and yet under full age, if such an heir married of his own accord without the lord's license, and his lord offered him a suitable marriage without disparagement, it was ordained that the lord should hold the land after the heir had reached the age of twenty-one years, till he had received the double value of the marriage.
If any lord married his ward to a villein or burgess whereby he should be disparaged, the ward being within the age of fourteen, and so not able to give consent, he was to lose the wardship and custody of the inheritance till the heir came of age, and the profit was to be converted to the use of the heir. But if the heir was fourteen and had reached the age of consent no penalty ensued.
If an heir would not marry at the request of his lord, he could not be compelled to do so, but when he came of age, and before he obtained his land, he was to pay to his lord the full value of the marriage.
Then after some provisions respecting widows' jointure and the law of usury, comes the important provision respecting enclosures of commons and waste lands. When lords of manors having great extent of waste land within the manor enfeoffed a tenant of parts of his demesne, (fn. 1) it was usual for the feoffee to have common in such wastes as were incident to his feoffment, and such rights would be conveyed under the term "cum pertinentiis" suis, which occur in all feoffments of land. There was good reason for this in the early ages of agriculture, for the land could not be ploughed without oxen, and the oxen could not be supported without pasture; but as these rights were undefined, and the tenant had a remedy by assize against his lord if the latter appropriated to himself any part of the pasture, it was found that the lord having once allowed his feoffees to range at large over the wastes of the manor, had lost the power of enclosing and reducing to arable land any part of the waste, without being liable to an assize of novel disseisin of common of pasture. In order therefore to adjust the respective claims of the lord and the freehold tenant, it was ordained that when such feoffees brought an assize of novel disseisin for the common of pasture, and it was shown that they had as much pasture as was sufficient for their freeholds, and free ingress and egress from their freehold to the pasture, then the defendant against whom the assize was brought should be quit for any lands, waste, pasture, or wood which he had converted to his own use.
The alteration made by this statute in the limitation of time for bringing writs of novel disseisin, etc., have been already detailed in Vol. IV. of these Collections, and need not be repeated.
It is in this statute also that occurs the celebrated reply of the Barons to the Bishops and Abbots respecting the legitimacy of children born before wedlock; the clergy maintaining the legitimacy of such children in consequence of the Constitutions of Pope Alexander, whilst the English judges alleged such a legitimation to be contrary to the common law. In order to end the controversy the Ecclesiastical estate assembled in Parliament proposed to the nobles present that all children born before wedlock should in future be considered legitimate, and be entitled to succeed to the inheritance equally with those born after marriage. But the statute says, "Omnes Comites et Barones unâ voce responderunt, quod nolunt leges Angliæ mutari, quæ hucusque usitatæ sunt et approbatæ."
The Statue of Marlbridge or Marlborough was passed 52 H. III., for the purpose of remedying many hardships arising from the incidents of feudal tenures, some of which bore hardly upon the tenant, and others on the lord of the fee. One of the most valuable incidents of feudal tenure was the wardship and marriage of minors, and many devices had been practised to defraud lords of them. A tenant would in his lifetime enfeoff his eldest son and heir being a minor, and it was declared by this statute that no lord should lose his ward by reason of such a feoffment. There was also a provision to protect heirs against their guardians, for it was enacted that if a lord having the custody of an infant's lands would not restore them when he came of age, the heir might have an assize of mort d'ancestor, and recover the damage he had sustained by the inheritance being withheld from him. Previous to this enactment the heir had no remedy for this wrong, because no damages were recoverable in an ordinary assize of mort d'ancestor.
It was enacted also that a guardian in soccage, who was usually the nearest of kin of the heir not in the line of succession, should make no waste or destruction of the inheritance, and should not sell the marriage of the heir except for the emolument of the heir himself.
A provision was made by this statute as to "suit of court," and it was ordained that no person enfeoffed by charter could be distrained to perform more than the charter expressed, excepting such suit as the tenant or his ancestors had been accustomed to perform before the King's first voyage into Brittany, i.e., about forty years before the date of the statute; and as to those who were enfeoffed without charter from the time of the Conquest or other ancient mode of feoffment, they were not to be distrained to perform such services unless they or their ancestors had done them before the same date. Also that persons enfeoffed by charter to perform fixed and certain services, such as the payment of a sum of money to be quit of all other services, were not to be distrained for any other suits or services, contra formam feoffamenti. In cases where the inheritance descended to coparceners, the eldest was to perform the service, and the others to contribute according to their portions.
The statute then goes on to provide a course of redress for those who were injured contrary to its enactments, and ordains that lords who distrained their tenants to perform suit and services not due for a tenement, were to be attached to appear in the King's Court at a certain day to be named. Upon this clause a form of writ was framed, which was called, from the words in it, "contra formam feoffamenti," and which frequently occurs in the Plea Rolls subsequent to this date.
It was also enacted by this statute that no lord should distrain any tenant to come to his court who was not resident within his fee, or within his Hundred or bailiwick, nor could he levy a distress out of his fee or bailiwick where he had jurisdiction. The reason of this enactment was that as the King had by his prerogative a right to distrain in any man's fee, several lords had taken upon themselves to do the same; but it was now ordained that no man should for any cause whatever take a distress out of his fee, or in the King's highway, except only the King, or the King's officers having special authority to do so.
Another abuse in the process of distress was removed by a clause which ordains that no lord should distrain his freehold tenants to answer for their freeholds or anything relating to them without the King's writ. Before this enactment lords could compel their tenants, by distress, to show their titles and by what services they held their lands.
Before the date of this statute, when a manorial court was alleged to have given a false judgment, the regular order of appeal was to the court of the mesne lord next above, and so on to the chief lord. By the Statute of Marlbridge none except the King should hold pleas of false judgment, which the statute says, "specialiter spectant ad Coronam et dignitatem Domini Regis."
It will be noted that, with one exception, all the provisions of the statute above quoted are in favour of the tenant and directed to restrain the lord, and the enactment of such a statute after the long contest between the King and his subjects had subsided, and which had been followed by the complete annihilation of the popular party after the battle of Evesham, is a striking proof of the moderation and sense of justice of the Barons.
The first Statute of Westminster was passed in the third year of Edward I. It contains fifty-one chapters; but as in the case of previous statutes, it is proposed only to advert to those provisions of it which are of interest to an archæologist. In the matter of wardship of minors it declared that the provisions of the Statute of Merton should be observed, but it was further enacted that those who married without the consent of their guardians after they had passed fourteen years of age, should forfeit the double value of their marriage as directed by that Act; and that, moreover, the abductor of such ward should be answerable to the guardian to the full value of the marriage for the trespass, besides making amends to the King. For the protection of the rights of heirs female, and in order that lords might not prevent their marrying in order to keep possession of their lands, it was ordained that after they had accomplished the age of fourteen years, the lord should not keep their lands for more than two years; and if in that time the lord did not marry them, they could bring an action to recover the inheritance, without giving anything for wardship or marriage. On the other hand, if a female ward wilfully refused a suitable marriage provided by her guardian, being such as would not disparage her, he was entitled to hold the inheritance till she was twenty-one, and to hold it further, till he had taken the value of the marriage.
With regard to the aids due to the lord for making his eldest son a Knight, and to marry his eldest daughter: before the date of this statute, these had never been legally fixed in amount, and some lords levied them to an unreasonable extent. It was therefore declared that for the future there should be taken from each Knight's fee 20s. only, and the same sum from land held in soccage of the value of £10 yearly, and so in proportion either more or less. This was not to be levied for making the lord's son a Knight till he was fifteen years of age, nor for the marriage of the daughter before she was seven.
The limit of time for writs of right was fixed by this statute at the reign of Richard I.; writs of novel disseisin at the first voyage of Henry III. into Gascony, which was the fifth year of his reign, and is the same limit as fixed by the Statute of Merton; and writs of mort d'ancestor, of entry, and of villeinage, from the coronation of Henry III. These continued the periods of limitation till the reign of Henry VIII., when the system of computing the time of limitation for commencing actions by a certain number of years was first introduced.
In 7 E. I. was passed the Statute of Mortmain, the object of which was to enforce the clause of Magna Charta directed against the alienation of lands to religious uses, for it was found that notwithstanding the above clause in the Great Charter, religious houses and societies still continued to accept gifts of land, and to evade the prohibition by taking leases for long periods or by collusive purchases and suits-at-law. To prevent this it was now ordained that no person whatsoever, religious or other, should presume to buy or sell, or under colour of any gift or other title, receive from any one or appropriate to himself any land or tenement, in such way that such lands or tenements should come under mortmain, under pain of forfeiting the same; and if any offended against this Act, it was made lawful for the chief lord of whom the tenement was held to enter upon it and retain it in fee and inheritance.
Some writers on the law have held that the method of obtaining a legal title by fine and recovery originated in the attempts of ecclesiastics to evade this statute; but I have great doubts of the truth of this statement, for the words unde placitum fuit inter cos occur in all the earliest fines, which were final concords made at the conclusion of a plea, and the extension of the practice of levying fines by means of a collusive suit in order to obtain a record of title would appear a natural development of the process, and much more likely to have originated with a lawyer than with an ecclesiastic. As a matter of fact the religious houses obtained but little extension of property after the date of this statute, and this was acquired legally by license of the Crown, for which the fines appear in every case upon the Originalia Roll.
The most important statute of this reign in a legal point of view is probably that of Westminster the second, which was passed in the thirteenth year of Edward I. It has an interest for archæologists from its effect on the descent of lands, and still more for lawyers from its originating the legal estate known as the fee tail (feodum talliatum), so called because the fee was taillé, i.e., cut or divided as it were. Reeves gives the following account of it:—
"This Act has occasioned more discussion than perhaps any parliamentary provision in the Statute Book, and deserves a very particular consideration. The design of it cannot be better understood than from a recital of its contents. It says that where lands were given upon condition, as to a man and his wife and the heirs begotten between them, with an express condition that should the man and his wife die without such heirs, the land should revert to the donor or his heir; or again, where land was given in liberum maritagium (a gift which had an implied condition that upon the death of the husband and wife without any heir begotten between them, the land should revert to the donor or his heirs); or again, where land was given to a man et heredibus de corpore suo exeuntibus, it seemed hard, says the statute, to the donor and his heirs, that their will expressed in the gift should not be observed; for, says the Act, in all the above cases the feoffees, post prolem suscitatam et exeuntem ab ipsis, hare hitherto had a power to alien the land so given upon condition, and to disinherit their issue, contrary to the will of the donors and the express form of the gift. And whereas if such feoffees had no issue, and even if there had been any issue, which had afterwards died, the land ought, by the express form of the gift, to revert to the donor or his heir; yet the persons to whom such conditional gift had been made used to enfeoff others, and so bar the donors of their reversion, all which was in direct violation of the form of the gift."
To remove these mischiefs, the statute ordains as follows, that thenceforward "the will of the giver, according to the form in the deed of gift manifestly expressed, shall be observed;" so that the person to whom such a conditional gift was made should not have power to alien and prevent the land from remaining to his issue, or upon failure of issue to the donor or his heir. It was enacted also that the second husband of such a woman should not claim anything per legem Angliæ, (fn. 2) in such a conditional gift, nor the issue of such second husband claim anything by descent; but that immediately upon the death of a man and woman to whom land was so given, it should revert to their issue, or to the donor or his heir.
The writ which was framed to give a remedy by this Act was in after times called a formedon, from the words in it, "per formam donationis."
This statute likewise made land for the first time liable to answer for debts. This was contrary to the general spirit and policy of the feudal institution, and the liability was limited to one half of the land in possession of the debtor. It was enacted that when a debt was recovered or acknowledged in court or damages adjudged, the plaintiff should have his election either to have the writ of fieri facias to levy the money on the goods and chattels of the debtor, or one commanding the Sheriff to deliver to him omnia catalla debitoris (exceptis bobus et affris caruccæ) (fn. 3) et medictatem terræ suæ quousque debitum fuerit levatum. The writ of execution upon this enactment was called an elegit, from the sentence which occurs in it, quod elegit sibi executionem fieri de omnibus catallis et medietate terræ, etc., and it is believed this writ is still in use.
The statute known as Quia emptores passed in the eighteenth year of this reign, and was directed against the frequent subi feudations of land and the services due from land which had caused much mischief and confusion in tenures. (fn. 4) Previous to this statute every tenant who possessed freehold lands of inheritance could convert his property or portions of it into a manor by a grant which carried with it the services of the customary and freehold tenants. By this system of sub-infeudation manors were rapidly multiplied, and the chief lords found themselves deprived of the eschaets, reliefs and wardships of the lesser freeholders, which by the condition of the sub-infeudation were reserved to the immediate lords of whom the land was held. It was enacted therefore that in all sales or grants of land for the future, the feoffee should hold his land, not of the donor, but of the chief lord of the fee.
In consequence of this law, the "Habendum" clause of a deed of gift, which before this statute usually ran, "Habendum et tenendum de me et heredibus meis, sibi et heredibus suis, was now changed to "Habendum et tenendum, etc., de capitalibus dominis feodorum illorum per servitia inde debita et de jure consucta." I must warn the reader however that the form tenendum de capitali domino feodi is not uncommon before the date of the Statute of "Quia emptores," and it is important to note the fact, as it occasionally happens that the date of deeds is stated to be posterior to 18 E. I. in consequence of their containing this form of words, when they are certainly of much earlier date, and in some cases to be stigmatised as forgeries for the same reason.
The effect of this enactment was to prevent the creation of new manors, because as no further reservation of services could be made, no new manors could be formed.
The reader of the Pleas in the present volume will note that as a rule the pleas of Easter and Michaelmas terms only have been extracted from the Rolls. This has been done for the purpose of expediting the work, and is justified by the great length of time consumed between the first entry of a suit on the rolls and the appearance of the parties in court. Thus the process in a personal action was as follows:— (fn. 5)
"Suppose a summons was returnable in Octabis Michaelis (the 6th October), the process of attachment issued upon that would be returnable in Octabis Hillarii (20th January). If the party did not appear, there issued a second attachment per meliores plegios, returnable in Octabis Trinitatis (19th June). (fn. 6) If he did not then appear, there issued a writ of habeas corpus (to take the body), returnable in crastino Animarum (3rd November). Thus ended the solennitas attachiamentorum; and so passed away a full year and almost one month.
"If the Sheriff returned upon this last writ, as it was probable he would, non est inventus, resort was had to the process of distress, and a distringas per terras et catalla would issue, returnable in tres septimanas Paschæ (8th May). (fn. 6) If he did not appear to this, there issued another distringas, returnable in quindenâ Michaclis (13th October). If he did not appear, another distringas issued, nc quis manum apponat, returnable in quindenâ Hillarii (27th January). If he still did not appear, another writ issued for a caption into the King's hands, returnable in quindenâ Trinitatis or in crastino Sancti Johannis Baptistæ, which sometimes happens on the same day (26th June). And here ended the distress per terras et catalla; so that the whole of this process, from the return of the summons to the return of the last distringas would continue two years and more than eight months."
The parties having appeared and pleaded to the action, probably appeal to a jury, and a jury is summoned for the next term; and from this point the suit is adjourned from term to term pro defectu juratorum sometimes for a year or more before a verdict is delivered.
In real actions the process varied according to the nature of the original writ, but except in the case of a recovery by default of appearance, was not more expeditious than in personal actions; and even in cases of a verdict by default of appearance of the defendant, three terms at least must be consumed, for there is first the summons, then the defendant is attached by pledges to appear at a given day at the next term; if he does not appear at the day named, his pledges are in misericordiâ, and he is summoned for a day in the following term, and the tenement is taken into the King's hands. If he does not appear at this term, and the Sheriff returns he has taken the tenement into the King's hands, the plaintiff recovers seisin by default of the tenant.
It will thus be seen that a searcher of the Records of the Common Pleas or Coram Rege Rolls may safely limit himself to two terms of each year without fear of missing any of the Pleas in progress, the disadvantage merely consisting in the liability of losing the termination of a suit. To obviate this, if a suit is lost sight of during its progress, I have referred back to the records of the intermediate terms, but in many cases without being able to find the final verdict. Several reasons may be adduced for this: the suit may be compromised, or one of the parties may die, or it often occurs that the suit drags on for so long a time that the period approaches for an Iter of the Justices within the county, and a writ of nisi prius is issued. The cause is then determined by the Justices Itinerant, and as the records of the County Assizes are for the most part no longer in existence, no termination of the suit will thus be found at all.