ENGLISH ROYAL LAW ("THE COMMON LAW")

Henry II revolutionized the system of law in England primarily by imposing royal jurisdiction, and royal law, upon criminal and civil matters that had previously been under local and feudal jurisdiction and local and feudal law.

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Henry's five major reforms of procedural and substantive law were closely interrelated. (1) The old executive writs were "judicialized." Instead of requiring the defendant or a local official to execute the king's order in behalf of a complainant, the new writs required the defendant to appear before an impartial tribunal to answer the complaint. (2) Community participation was enlisted, in the form of a sworn inquest of neighbors, to decide disputed facts in civil cases arising from disputes over freehold land. (3) Community participation was also enlisted, in the form of a sworn inquest of neighbors, to present to the king's justices for trial all persons suspected of serious breach of the peace amounting to a felony. (4) Through the new judicial writs, forms of action in the king's court were developed that categorized various types of wrongs in terms of the legal remedies available to redress them. (5) The burning question of peaceful protection of rights in land was resolved by the development of the legal doctrine of seisin, a concept similar to but not the same as the Roman concept of possession; disselsin, by force or by fraud, of land held by military or other freehold tenure was brought under the royal jurisdiction, and a body of law concerning it was gradually created.

The Judicialization of the writs. The word "writ," which simply means a writing, is an English translation of the Latin word breve, meaning "something short" and, by extension, "a letter." Short written orders and notices, called writs, had been issued by popes, kings, and other rulers for centuries.

These executive writs were enormously varied in character, each being designed to solve an individual case in which the king had undertaken to intervene. Often they were based on ex parte allegations: "We see the king order some measure on allegations which someone 'instilled into his ear' or 'made him believe'"; sometimes "the king had to retract a measure because it had appeared that the plaintiff had been lying -- and probably... paying well to support his lie." ⁴⁹The practice also developed of addressing royal writs to sheriffs and other local officials ordering them to "do full right" in a particular matter. These, too, "left a great margin of decision to the executive officer... and therefore left the door wide open to arbitrary behaviour on the part of many a local tyrant." 50

Occasionally, especially in cases involving ecclesiastical claims, Henry

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II's predecessors issued writs ordering a bishop or other lord to settle a case, or a sheriff to convene the hundred to decide a dispute. But normally the royal writ did not lead to an adjudication. Prior to the time of Henry II, the English kings had not imitated the writ system which had developed in the ecclesiastical courts in the early part of the twelfth century, whereby a plaintiff obtained a writ from the papal chancery in Rome authorizing the trial of his claim in a bishop's court or by a tribunal of papal legates. (More such papal writs initiated litigation in ecclesiastical courts in England than in any other country of Europe.)

Henry II transformed the royal writ from the command, "Do such and such," to, "Summon an inquest to be before my justices to determine the matter in dispute-and have there this writ." The writ, in other words, was designed (unless the defendant yielded) to lead to a judicial proceeding.

Two examples will illustrate the difference between the older "executive writ" and the newer "judicial writ" (sometimes called "returnable writ," since it had to be brought into court).

The executive writ is from the period 1087-1091:

William, king of the English, to R[anulf], brother of Ilger, greeting. I command and order you to let abbot Herbert have the half hide of land of Sawtry which Ailwin the reeve has held and which Walter de Beaumais now holds by force, as I have ordered by my writ. And see that I hear no further complaint thereof for default of right on £ 10 forfeiture. Witness: Ranulf, the king's chaplain. ⁵¹

The judicial writ is taken from the treatise on English law attributed to Glanvill, written between 1187 and 1189:

The king to the sheriff, greeting. N. has complained to me that R. unjustly and without a judgment has disseised him of his free tenement in such-and-such a vill since my last voyage to Normandy. Therefore I command you that, if N. gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until the Sunday after Easter. And meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. And summon them by good summoners to be before me or my justices on the Sunday after Easter, ready to make this recognition. And summon R., or his bailiff if he himself cannot be found, on the

security of gage and reliable sureties, to be there then to hear the recogni-

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tion.

The judicial writ accomplishes three things: (1) it sets forth a narrow factual test for determining which of two parties has the right to immediate possession of certain land, leaving for another time the more complicated question of who has the right of ownership; (2) it submits the question of fact to a sworn inquest (jury) of neighbors; (3) it establishes royal jurisdiction over the issuance of the writ and over the proceedings of the jury.

The jury of trial. From the eighth century on, Frankish emperors and kings had occasionally summoned inquests of neighbors to answer questions put by itinerant royal officers -- chiefly questions concerning customary royal rights in the locality and violations of royal commands. The Normans had taken over from the Franks the occasional use of inquests. Shortly after the Norman Conquest, William I conducted a mammoth inquest of England, neighborhood by neighborhood, requiring public disclosure of all landholdings and tax assessments, the whole census being recorded as the Domesday Book ( 1085-1086).

Apart from the Frankish and Norman sworn inquest conducted by royal officials, the occasional practice of submitting disputes to a group of neighbors for decision was also a feature of Germanic local law. In addition, church courts in the twelfth century occasionally put questions of guilt or innocence to groups of twelve; and Henry II's father, Geoffrey of Anjou, had made trial by inquest available for important civil cases in Anjou and Normandy. The idea, then, of summoning a group of people -- twelve was considered an appropriate number and perhaps even a magic number -- to give information under oath in a solemn proceeding, and even to give judgment in a case, was by no means new (though it was not very widely practiced) when Henry came to the English throne.

What Henry did that was new was to combine the use of the inquest with his new "judicialized" writ system, and thus to make trial by inquest available, as a regular matter, to the whole public in certain types of civil cases within the royal jurisdiction.

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to answer a question put to them_____ came to be called an assize; finally, justices presiding at inquest

were called "justices of assize," and ultimately sessions of courts on circuit were called "the assizes.")

Gradually, other questions came to be considered appropriate for jury determination. In 1176 it was enacted that the question of who was entitled to possession at the time of the death of a landholder should be decided by an inquest (the assize of mort d'ancestor). Later, the assize of last presentation (darrein presentment) was invented to determine which of two parties had last exercised the right to present a person to a church benefice when it fell vacant. In 1179 the inquest was allowed as an option for the defendant under the "writ of right" -- a writ which raised the issue of full right, and not just prior possession -- as an alternative to trial by battle. Thus the procedure for establishing "right" (in the sense akin to ownership) was assimilated with the procedure for establishing seisin under the so-called possessory assizes, namely, novel disseisin, mort d'ancestor, and darrein presentment.

Four important points should be noted here. First, the regular use of a small group of neighbors to decide cases before royal judges first emerged, in English law, in civil cases, and only two generations later was it taken into criminal law.

The jury of accusation. Neither Anglo-Saxon law nor Frankish law nor Norman law had distinguished between civil and criminal cases. Prosecution of what are today called crimes was generally at the hands of the victim or his near relatives. Trial, whether for breach of the peace or to determine property or other rights, was by ordeal or compurgation; the Normans added battle. In Anglo-Saxon times, the guilty party had to compensate the victim or his relatives, but the Normans changed that in cases of felony: if the defendant lost, he was immediately hanged or mutilated (usually by exoculation), his land escheated to his feudal lord, and his chattels were forfeited to the king. The very concept of felony

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seems to have been introduced into England by the Normans. The term originally referred to a breach of faith between man and lord. Thus not only kinsmen but also a lord or vassal was entitled to bring a prosecution, called an "appeal of felony." (The word "appeal" in this phrase had no such connotations as it has today.)

One obvious disadvantage of the appeal of felony as a means of controlling violence was that it took a high degree of public spirit to initiate proceedings. The "appellor" got nothing if he won, and indeed was fined if he lost. The primary motivation for bringing an appeal of felony was to avenge one's kindred or the feudal relation, or else to induce the other party to make a monetary settlement. If trial was by battle, the risks were enormous: the parties fought from morning to night to the death or until one cried craven -- warriors with swords, the lower classes with heavy clubs and, if they broke, with tooth and nail. If trial was by ordeal, the outcome was speculative: judging from contemporary accounts, most people seem to have been acquitted. Also there were obvious pitfalls in trial by compurgation ("wager of law"): much depended on who had the benefit of proof.

The king, charged with responsibility for keeping the peace, and, in the person of Henry II, determined to subdue violence in the land, could not effectively compel people to bring appeals of felony. One resource for controlling crime which his predecessors had left him was the frankpledge system, under which the royally appointed sheriffs could examine frankpledge groups for unreported crimes and could impose fines; but this did not get rid of murderers, rapists, robbers, private maurauders, and others who were plundering the countryside. In addition, Henry's grandfather, Henry I, had required the presentation of felons to itinerant justices by representatives of hundreds and shires, but this was an intermittent practice.

It should be remembered that the king had no police force, and clearly it would have been impossible for him to create one. He had all he could do to raise an army of reservist knights subject to forty days of military duty per year. Even if he could have paid a police force, he could not have controlled it. He would have had to convert the barons into a civil service, as the pope had converted the bishops into a kind of civil service; but the king had no such relationship to the barons as the pope had to the bishops -- he did not have the power to appoint them, depose them, or transfer them.

The solution which Henry adopted to control crime was once again the use of sworn inquests -- in this case, to report felonies to the itinerant justices. The Assize of Clarendon of 1166 provided that sworn inquests should present to the justices in eyre, when they arrived, all persons suspected of murder, theft, robbery, or of receiving men who committed those offenses, as well as all persons suspected of counterfeiting or arson.

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All such suspects were then to be tried forthwith by the ordeal of cold water. This was a regularization and systematization of the previous intermittent and less well defined practices of Henry I as well as of still earlier Anglo_Saxon Frankish kings. In the past, however, persons presented by their neighbors had been able to clear themselves by compurgation (oath helpers), whereas henceforth they had to be tried by ordeal before royal justices. 53

It should be noted, first, that the justices had available to them records kept by local officials, which they checked before impaneling juries; then they questioned the juries with respect to the various matters so recorded which had arisen since their last visit. Second, if the jurors-large numbers of them being assembled at each visitation, twelve from each hundred, four from each vill -- concealed a crime or made a foolish presentment, they were fined by the justices. Third, appeals of felony were not abolished, but if for some reason an appeal of felony failed because of a technicality (and the technicalities were many), the justices only had to ask the assembled jurors whether they suspected the defendant, and if the answer was affirmative he would be sent to the water. Hundreds of cases could be disposed of in a few days by a single judge (or bench of three). In John P. Dawson's words, the device of the presenting jury "was extraordinarily efficient-a great invention." On the other hand, as Dawson also points out, "it was hardly a safeguard of local liberties." ⁵⁴ Fines for nonpresentment or faulty presentment were extremely numerous and very heavy. As in the frankpledge system, the idea was to compel people to inform on one another.

It is noteworthy that Henry II did not extend trial by jury, as contrasted with accusation by jury, to criminal cases. That only came later, after the abolition of ordeals by the Fourth Lateran Council in 1215. ⁵⁵ Nor did he abolish appeals of felony. However, persons presented by sworn inquests could only be tried by the ordeal of cold water; unlike persons privately accused by appeal of felony, they could not be tried by the ordeal of fire (hot irons or hot water), wager of battle, or wager of law (compurgation).

The forms of action. In considering the legal revolution which Henry II effected, it must continually be borne in mind that prior to his reign royal jurisdiction had been extraordinary jurisdiction -- in both the technical and the nontechnical sense of the word "extraordinary." Apart from ecclesiastical and urban courts, general jurisdiction over ordinary legal matters had been confined to local and feudal courts, which were not professional courts but assemblies of neighbors and of members of the manor. What Henry II did was not to abolish local and feudal jurisdiction, but rather to create a concurrent royal jurisdiction in ordinary cases involving particular types of claims -- and they were fairly numerous -- which had a direct bearing upon peace. Thus in the Assize

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of Clarendon of 1166, Henry listed those particular felonies that were serious enough to justify his direct intervention. Similarly, in property matters he identified, through the writs which he made available to petitioners, what particular types of claims were remediable in the royal courts. Property claims could still be brought in feudal courts. Criminal and civil cases could still be tried in church courts. But for the first time a whole series of particular types of cases could also be tried, as a m atter of right, by the king's justices.

The key to royal jurisdiction was the type of claim involved -- the type of felony to be reported to the justices in eyre by the neighborhood juries or the type of writ granted by the king's chancery to one who sought redress of civil wrongs. In other words, the king did not say that he was prepared to give a judicial remedy to anyone who was wrongfully injured, regardless of the cause. Instead he said that he was prepared to give particular judicial remedies in particular classes of cases. The classification of wrongs actionable in the royal courts in terms of the remedies such courts would grant was the characteristic feature of royal justice, which gave the English common law its peculiar style.

The available alternative was the style of the canon law, which set forth broad theories of legal liability. The bishops' courts would hear any cases in which sin was alleged, and sin was broken down by categories synthesized from Roman law -- breach of contract, injuries to person or property, the withholding of property belonging to another, fraud, and so forth. Henry II was familiar, at least in a general way, with the canon law as it was being practiced in the church courts, and with the Roman law as it was being taught in the universities. Perhaps he would have liked to establish a royal jurisdiction as all-embracing as that of the church. What he did in fact was to declare, at least by 1164, that if a dispute arose as to whether a particular parcel of land had or had not been given to the church, the claimant could go to the king's chancellor for a writ, which would direct the sheriff to assemble a certain number of men from the neighborhood to tell the king's justices whether or not the land had been given to the church; and to declare in 1166 that if a person claimed that he had been seised of freehold land and had been disseised, the chancellor would issue a writ directing the sheriff to assemble a certain number of men from the neighborhood to tell the king's justices whether or not the plaintiff had been seised at a certain time and whether or not the defendant had ousted him; and to say at other times that other types of claims were remediable in the royal courts by writs directing that particular types of questions should be put to inquests summoned by royal justices.

The writ, in short, defined the theory of the plaintiff's case and established the procedure whereby it was to be decided. Its effect, however, extended far beyond the individual case. It was taken for

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granted that similar writs should be granted in similar cases. As aggrieved persons brought new kinds of complaints to the king's chancery, the chancellor invented new kinds of writs, on the stated principle that "where there is a wrong, there is a remedy." The multiplication of stereotyped writs amounted to a substantial legislative activity, clothed in the forms of the judicial process. Thus in the late twelfth century, in addition to remedies for breach of rights of ownership and possession (writs o f right, novel disseisin, mort d'ancestor, and darrein presentment), the chancellor also granted writs of debt for money which the plaintiff claimed as his property, writs of detinue for chattels which the plaintiff claimed as his property, writs of gage for return of land pledged as security for a debt that had been repaid, writs of replevin for recovery of chattels pledged for an obligation that had been

fulfilled, writs of covenant for breach of a sealed instrument. In the thirteenth century many other types of writs were created, the most important of which were various writs of trespass (transgressio, "wrong"), such as trespass for forcible entry onto land, trespass for forcible taking of chattels, and trespass for assault and battery to the person. From the trespass writs there ultimately developed much of the modern English and American law of torts and contracts. 56____________________________________________________

By the year 1300 there were hundreds of different writs, each of which, in effect, was both an assertion of policy (to protect certain interests against infringement) and an assertion of royal jurisdiction. The original basis for these two assertions, namely, to protect the peace of the king against the use of force and arms, had by that time given way to much more complex considerations. What had started as a response to the challenge of anarchy and violence and to the competition of local, feudal, and ecclesiastical courts had become the heart of an entire structure of government.

The doctrine of seisin. The violent struggles over rights in land were not only a contest for wealth but also, and more significantly, a contest for political power, since the right to land carried with it the government of the community that lived on the land and worked it and also carried with it political relationships with superior feudal authorities. To establish a system for resolving such complex economic-political struggles peacefully, Henry II needed more than new techniques of adjudication through professional courts, judicial writs, royal inquests, and forms of action; he also needed a new substantive test of landholding -- one which would cut through the complexity of the economic and political interests involved. He found that test in the concept of seisin.

The classical and postclassical Roman law had distinguished sharply between ownership and possession. Speaking very generally, ownership, in Roman law, was treated as a unitary concept: one either had ownership or one did not; and if one had it, one had full rights of possession,

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use, and disposition. This concept____ even when taken together with various qualifications of it_________________

was inadequate to describe feudal landholding, in which each parcel was subject to the rights of superiors and inferiors in the feudal hierarchy. It was hard to say that a lord "owned" land which wa s granted to him on condition that services be rendered and which would be repossessed by his superior lord upon his death until his heir paid a "relief." It is of the essence of feudal law___________________________________________________________ or at least of

Western feudal law____ that there are divided interests in land, not absolute, indivisible

ownership.

The classical and postclassical Roman conception of possession was also inadequate to meet the problems of feudal land tenures. Under Roman law, possession divorced from ownership received only a limited protection: if a nonowner in possession of land was ejected by armed force (vi et armata) he had a right to be restored, provided the defendant was not himself the owner. Thus the question of ownership lurked in the background even in that case. Also in the case of dispossession not by force but by fraud, the nonowner had an action, but it did not lie against a subsequent holder. Finally, possession in classical and postclassical Roman law was identified with factual occupation and control of tangibles, that is, land and goods: one could not "possess" incorporeal rights such as the right to services or the right to money obligation ("choses in action"), and one could not have a right of possession distinct from the rest of the bundle of rights called by the unitary name "ownership."

The church had for a long time grappled with the problem of possession in a context quite different from that presupposed by the classical Roman doctrines. Disputes had frequently arisen between persons claiming the same bishopric or abbey. Where one of the claimants ousted the other by force, church councils and popes had decreed that the prior possessor was entitled to be restored to possession before the question of who was the rightful claimant could be decided. In this connection it must be stressed that a bishopric or abbey was a new type of legal entity, a foundation, which was not land or goods, but which involved very extensive rights in land and goods and also rights to offices and services as well as other incorporeal rights.

Gratian, in his treatise of 1140, collected the various early decrees on this question and drew out of them a much broader principle than had previously been recognized. Quoting the decrees which dealt with "spoliation" (ejectment) as an affirmative defense in proceedings against bishops and abbots, Gratian then put a concrete case, and analyzed the case in terms of "questions." His first question was, "Whether restitution shall be made to anyone whomsoever who had been despoiled." His answer was in the affirmative. In elaborating it, he declared that anyone (and not only a bishop or abbot) was entitled to restitution of all that had

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been taken from him, including rights and powers as well as land and goods, whether by force or fraud, and that the remedy lay not only against the initial wrongdoer but also against subsequent holders. Gratian's rule was called the canon redintegranda ("rule of restitution"); later glosses interpreted the canon redintegranda as implying not only an affirmative defense but also an independent action, the actio spolii, or "action of spoliation." 57____

Henry II and his lawyers did for English law what Gratian and his successors did for canon law. They developed an action against the dispossessor wholly independent of ownership, an action to which even the defendant's own ownership was no defense. Thus a vassal was protected against a forcible ouster by his own lord. At the same time Henry and his lawyers made this action available for the recovery not only of land but also of chattels and incorporeal rights, and for the recovery of them not only against the dispossessor by force but also against the dispossessor by fraud and against subsequent holders. The plaintiff had only to prove prior possession and a wrongful dispossession. This was the assize of novel disseisin enacted in 1166; it had parallels in the laws of every country of Western Europe.

The broadening of possession to include possession of rights and not only of land and goods, and the broadening of the remedy for dispossession to include restitution even by the true owner, involved a subtle but important transformation of the very concept of possession. A new word was found for this transformed concept, not only in England but all over western Europe: seisin (in Latin, saisina). Seisin was more than factual occupation or control; it was a right to occupy and control, a right to "hold" land, chattels, or incorporeal rights: one could be seised of an office or of a liberty, or of a right of patronage, or of feudal services of various kinds. The scope of the right was defined in part by the remedies available to enforce it, namely, the "possessory" remedies, one of which, novel disseisin, in effect converted the property question into a tort question. That seisin meant more than physical occupation and control is evident from the fact that a plaintiff who went on pilgrimage could, by the writ of novel disseisin, recover his seisin against one who wrongfully occupied his land while he was away. This was called seisin animo ("mental seisin") as contrasted with seisin corpore ("physical seisin").

In Roman law there was no equivalent to the European concept of seisin. The nearest parallel was possession, which in Roman law was merely a fact, or an act, and in itself, with rare exceptions, generated no rights. In Roman law, the source of rights in land and goods, including the right to possess them, was ownership; without ownership, or rights derived from ownership (as in the case of a lease), possession was at best neutral, at worst illegal. In Europe, however, both in ecclesiastical and in feudal property relations, ownership was typically divided -- often

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among many parties. The Europeans developed the concept of seisin to meet the needs of the lawful possessor who did not derive his right of possession from ownership. In one form or another, the action of novel disseisin in England, in Normandy, in Sicily, in France, in the German duchies,

and elsewhere___ gave the lawful possessor, and also one who had a right to possession, a right to be

reseised as against one who had unjustly disseised him.

The assize of novel disseisin, which Bracton, writing some ninety years later, said was "excogitated and contrived after many night watches," was one of Henry II's great devices for wresting jurisdiction over disputes in land from the baronial courts. "The ownership of land may be a matter for the feudal courts: the king himself will protect by royal writ and inquest of neighbours every seisin of a free tenement." ⁵⁸ Henry went further. He decreed that where a person brought suit in feudal court to challenge another's seisin on the ground of ownership, the defendant could remove the case to the king's court to be tried by an inquest of twelve "recognitors," thereby escaping the feudal trial by battle as well as the more solemn and more elaborate inquest called "the grand assize," which was used to try the question of ownership as contrasted with the question of seisin.

Through these and other decrees, Henry II established the principle that no man need answer for his free tenement without royal writ. Through the possessory assizes, the question of seisin could be brought into the king's court by the plaintiff; through the grand assize, the question of right could be brought into the king's court by the defendant whose seisin was alleged to be defective. In the words of a distinguished French historian of English law, " Henry II used the distinction between seisin and right [of ownership -- a romano-canonical distinction-to wrest power from the barons." ⁵⁹

Thus a substantial part of property law and tort law which had previously been a matter of local custom became a matter of royal law, just as a substantial part of local criminal law became "royalized" through the device of the accusing jury. It is this historical expansion of royal jurisdiction in the reign of Henry II that marks the origin of the English common law -- although the phrase "English common law" is itself of later origin. Indeed, in the twelfth and thirteenth centuries, the phrase "common law" (jus commune) was primarily a concept of canon law: it was that part of the canon law (the major part) which was applicable in ecclesiastical courts throughout Christendom, as contrasted with local canonical custom (called lex terrae, "law of the land"), which was applicable locally. The Roman law was also called jus commune, since it was viewed as a body of theoretical principles and rules valid everywhere. Yet the absence of the phrase in English law and its

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subsequent importation from the canon law, or possibly from the Roman law, or from both, does not obscure but rather illuminates the critical point: that Henry II created the English common law by legislation establishing judicial remedies in the royal courts.