If the defendant (as in the Battle case) was determined to prevaricate, the case would be dragged out interminably until it could be brought before the King.
With Henry this was difficult – he spent much of his time abroad and even when he was in England, he was furiously busy.
The problem of land ownership
Another difficulty at the start of Henry’s reign was the problem of land ownership. During the civil war in the past 19 years, there had been much transfer of land to supporters of Stephen. Henry was anxious to return things to the way they were at the time of his grandfather King Henry I, but there were difficulties.
Had Henry become King by conquest, things would have been easier – he could then have rewarded his supporters by taking land from Stephen’s supporters. However Henry’s succession had been decided by agreement – the Treaty of Westminster in 1153. So the option of just returning land to those who had held it in his grandfather’s reign was not always practicable. Some of his important supporters, such as the Earl of Leicester and Richard de Lucy had profited during Stephen’s time. Often he had to resolve matters by way of compromise.
With the proliferation of courts throughout the country under the control of different Lords, Henry had to exercise some control over land litigation. He did this by making it a rule that it was necessary to get a royal writ before starting a claim for land. AND that the only way that land disputes could be resolved was through the courts (ie not by self help).
The Writ of Right
The earliest writ was known as the Writ of Right. It was not new, but the requirement that it (or another of the Kings Writs) had to be obtained in land disputes was. This had several unforeseen consequences.
- The number of Writs requested went up dramatically, leading the clerks in the royal chancery to devise a standard format
- The King was forced to consider what he should do if the lord failed to comply with the writ, and
- He also had to think about what he would do when people still used self help measures
The system that finally evolved is described in the Tractatus of Glanvill, the earliest law book we have, generally ascribed to Ranulf de Glanvill, Chief Justiciar of England between 1180 and 1189.
How it worked
A writ would be issued (after payment of the fee) from the Kings Chancery. This is an example of the type of wording:
Henry, by the Grace of God, King of the English …to the Abbott of Thorney, greeting. I order you to do full right without delay to Richard FitzAdam concerning one virgate of land in Twyell, which he claims to hold from you by the free service of five shillings a year, and of which Roger de Bachelor deprives him. And unless you do it, the sheriff of Northampton shall do it, that I hear no further complaint thereof for lack of justice. Witness Ranulf de Glanvill. At Geddington.
This writ, which is an example from towards the end of Henry’s reign, is a lot more specific than those issued earlier in Henry’s reign, which were often rather vague.
If the defendant defaulted and did not comply with the request in the writ, the plaintiff would then lodge a complaint before the Shire Court and produce his writ, authorising the Sheriff to act. The Sheriff would then appoint a servant and four or more Knights of the shire to go with him to the lords court, There he would declare that he had not received justice. The case would then be litigated.
As the Writ of Right was to decide the matter once and for all it was a solemn affair. It was important that both parties attend the hearings, but in medieval times this was not always possible (even if one side was not deliberately prevaricating) so there were endless adjournments.
The new assizes
Trial was normally trial by battle. This was not popular, as it was a chancy affair, and a party with more money could afford to hire a top champion. However one of the big innovations brought about by Henry was the development of the assize.
Here it is described by Maitland:
the action is removed out of the lord’s court and is brought before the king’s justices; four knights of the neighbourhood are summoned to choose twelve other knights who are sworn to say, to “recognise” (recognoscere), whether the demandant or the tenant has the greater right to the land. The name “grand assize” is transferred from the ordinance to the institution that it creates; these twelve recognitors are “a grand assize”.
So instead of being decided by battle (where God, it was hoped, would favour the righteous) the case was decided by 12 local Knights.
This was a massive innovation and very popular. However it was not as popular as the other, new forms of action developed by Henry. I will look at these next time.