Plea Rolls of The Reign of Edward I.
Introduction.
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.