This though, begged the question, what was to be done about the person who resolved matters the old way, by forcibly taking land without a court order?
The answer provided by Henry was a proclamation, or assize, saying that in future a ‘disseisin‘ (ie loss of land holding) made ’unjustly and without judgement’ was to be considered as a breach of the Kings peace. It would also be something to be dealt with and enforced by the Justices in Eyre.
For example in 1176 their instructions included the following:
Let the Justices make enquiry about disseisins contrary to the assize, committed since the Lord King returned to England after making peace with his son.
(The last few words refer to the civil war in 1173-4 when Henry’s elder sons and some of the barons rebelled against him.)
It is believed that this process was begin by the Assize of Clarendon in 1166 (named after Clarendon Palace, pictured, where it was promulgated). However the document we have appears to have been drafted later than 1166 and is believed to be a description of the administrative procedures set in place in 1166 (see Warren p282).
The Writ of novel disseisin
A new form of action was then devised to give the man who had been diseissed a swift procedure for recovery of seisin. It was called assize of novel disseisin and used a jury to decide the case. The jury were asked:
1. Had the plaintiff been diseissed unjustly and without judgement?
2. Was the defendant the person who had done it?
Judgment was given according to the jurors replies.
The procedure revolutionised the legal system and was very popular. It was also (for the time) unusually efficient and quick. The sheriff was the officer used and proceeded as follows:
- The plaintiff would purchase a writ of novel disseisin which would order the sheriff to take action
- The sheriff would first take security from the plaintiff
- Then put the property in dispute under royal protection
- He would then empanel the jury, which was of 12 local freemen in the neighbourhood (the defendant could object to the jury members but only if he attended)
- The jurors were then sent to inspect the property (the defendant could attend this if he wished, but they would not wait for him)
- Finally the defendant was summonsed to attend the hearing where the jurors would give their decision (or recognise the facts or make a recognition).
All of this was authorised by the precise wording of the writ. There was a tradition that this wording had taken the King and his advisors many sleepless nights to perfect.
It was also successful because it asked a very simple questions which could easily be answered, i.e. whether the plaintiff had or had not been dispossessed by the defendant.
Although it only dealt with the restoration of the status quo, the writ of novel disseisin was exceedingly important. It dealt with the disorder of self help, brought land disputes into the courts and was a quick remedy for someone who was ejected from land improperly. It became a model for other new writs. For example:
The Writ of Mort d’ancestor
This was another important new procedure and was available to heirs who believed that they had been deprived of their inheritance. As you can imagine, this was a subject dear to Henry’s heart. In his youth, and until he was finally accepted by Stephen as his heir, he had believed himself to be a true heir seeking his inheritance against a usurper.
The idea of an heir having the ‘right’ to inherit land was rather against the whole tradition and feudal system where the identity of a vassal was originally in the sole discretion of the lord. However over time inevitably people wanted their children to inherit the land that they had held, and custom built up.
Henry though took steps to ensure that a ‘rightful heir’ could take sesien even against a hostile lord. In 1176 the instructions to the Justices in eyre included the following:
If any freeholder has died, his heirs should remain possessed of such seisin as their father had of his fief on the day of his death; and they should have his chattels from which they may execute the dead mans bequests; and afterwards they should seek out the lord and pay him the relief and anything else that is due from the fief …
And if the lord of the fief should deny the heirs the seisin of the said deceased which they claim, the Justices of the lord King shall cause an inquiry to be made by twelve lawful men as to what seisin the deceased had on the day of his death; and as that enquiry establishes it, so shall restitution be made to his heirs.
And if anyone shall do anything contrary to this and is convicted of it, he shall be at the Kings mercy.
If there was no Eyre visiting at the time of the problem, the heirs could purchase a Writ of mort d’ancseter.
The petty assizes
These types of writs, which dealt swiftly with recovering sesein were rather like sticking plaster. They simply restored the status quo and did not look behind this at who was really entitled to hold the land. This would have to be dealt with the much more formal and solemn Writ of Right.
However in most cases the proper person HAD been in possession, and the swift action of these writs was all that was wanted. Also the Writ of Right could still be decided by the unpopular trial by battle (where a rich man could distort justice by buying the services of a top champion) and so tended to be avoided if at all possible.
These two forms action along with a third, the Assize of darrein presentment were known as the petty assizes, and remained in existence until they were abolished in 1833.