THE TR EATISE ON THE

LAWS AND C U S T O M S
OF THE REALM OF
ENGLAND C O M M O N L Y
CALLED GLANVILL
E D IT E D

with Introduction, N otes and T ranslation

by

G. D. G. H ALL

with
A Guide to Further Reading
by

M. T, CLAN CH Y

CLAR EN D O N PRESS • O X FO R D
 Tractatus de legibus
et consuetudinibus regni Anglie
qui Glanvilla vocatur
O X F O R D M E D IE V A L T E X T S
General Editors
1). K. G R K K N W A Y B. I'\ H A R V B Y

M . I.AIM DGli

G L A N V IL L
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 G E N E R A L E D I T O R S ’ PREFACE (1993)

The treatise on the laws and customs o f the realm o f England commonly
called Glanvill, edited by G . D . G . H all ( 1965 ) is one o f the most
distinguished volum es ever to have appeared in N elson ’s
M ed ieval T ex ts, o r in O x fo rd M edieval T ex ts, w hich continue
and incorporate that earlier series. It is a rem inder o f how
m uch the study o f m edieval history, and in particular legal his­
tory, lost through M r H a ll’s death in 1975, at a tragically early
age. T h e volum e is distinguished, not only b y the exem plary
scholarship o f its editor, but also by the rare sym pathy w hich
has seem ed to exist betw een his m ind and the m ind o f
G lanvill, w h o ever the latter was -a point m ade to us by
Professor M ilsom . In these circum stances, we have decided to
m eet the long-felt need for a reprint b y reissuing the volum e
unchanged, excep t for the addition o f a guide to further read ­
ing by D r M . T . C lan ch y . T h e new item indicates the thrust
o f scholarship in the area o f Glanvill, and o f tw elfth-century
studies m ore generally, since 1965 . It also draws attention to
issues that M r H all m ight have wished him self to address in a
reprint o f the volum e: certainly, the discussion o f m an y o f the
issues touched on here is grou nd ed in his work.
W e are greatly indebted to D r C la n ch y for preparin g the
guide to further reading. W e wish also to thank the President
and Fellows o f C o ip u s C hristi C o llege, O xfo rd , w ho have
readily con cu rred in the proposal to reprint this volum e.

D .E .G .
B .F .H .
M .L .
 ACKNOWLEDGMENTS

In 1950 Professor R . W . Southern published a ‘ N ote on the

T e x t o f “ G lanville ” w hich m ade it clear that a new edition
was needed. H e began work on this and, at an early stage,
invited me to help. His interests turned elsewhere, but the
inspiration was his, and for the trust w hich he put in m e and
the comments he has m ade I am deeply grateful. I t w ill
surprise no m edievalist that I have been constantly encouraged
b y Professor V . H . G albraith, whose optimistic conviction that
I was fit to do the work has been a great support. T h e whole
manuscript was read, criticised and m uch im proved by
Professor C . N . L . Brooke.
I hope that I have m ade proper acknowledgm ent in the
appropriate places o f the generous help w hich I have h ad on
specific points. M ore particularly I should like to thank M r
A . W . B. Simpson for reading and com m enting on the trans­
lation and M r N . R . K e r for sending inform ation about texts
found in unlikely places. I have also had assistance, not
acknowledged elsewhere, from M r P. T . V . M . C haplais, D r
R . W . Hunt, Canon E. W . K em p, the Rev. C . M orris, Professor
R . A . B. M ynors and M r J. K . B. M . Nicholas.
Libraries and librarians have been most kind in allow ing
me to consult manuscripts and in supplying photostats and
microfilms. Special thanks are due to the Benchers o f L in coln’s
Inn for perm itting m e to use one o f their manuscripts as the
basis o f m y text, and to M r C . W . Ringrose, the L ibrarian o f
the In n ; to G ohville and Caius College, C am bridge, for
depositing a m anuscript on long loan in the Bodleian L ib rary;
to M r H . C . Johnson o f the Public R ecord O ffice, and to M r
H . L . Pink o f the C am bridge U niversity L ib rary. In the Bod­
leian Library, the centre o f m edieval studies in O xford, the
staff have, at all levels, been kindness itself.
T h e critical help o f m y wife has been invaluable.
G .D .G .H .
 CONTENTS

List o f A bbreviations viii

List and G ro u p in g o f M anuscripts ix

Introduction
i T h e B ackground xi
II T h e Plan o f the T reatise and its Execution xviii
in A n Assessment xxvii
iv D ate and A uthorship xxx
v Sources xxxiii
vi T h e D evelopm en t o f the T e x t to c. 1200 xl
v ii T h e Later D evelopm en t o f the T e x t lv
viii Later H istory o f the Treatise: Use as a Source;
Editions and Translations lix
ix T h e Present Edition Ixv
x A G uide to Further R ead in g, by M . T . C la n ch y lxxi

Latin T e x t verso 1 1 77

English Tran slation recto 1—177

A dditional Notes *79

A p p en d ix 195
Index o f W rits *99
G en eral Index 203
 A B B R E V IA T IO N S

C .L.J. Cambridge Law Journal.

Concise History T . F. T . Plucknett, A Concise History o f the Common Law,

5th edn. (London 1956).

Dialogus Dialogus deScaccario, ed. Charles Johnson (Edinburgh 1950).

E.E.L.L. T . F. T . Plucknett, Early English Legal Literature (Cambridge

I958)-

E.H.R. English Historical Review.

L.Q..R. Law Quarterly Review.

P & M F.'Pollock and F. W . Maitland, The History o f English Law,

2nd edn., a vols. (Cambridge 1898).

Southern R . W . Southern, ‘A Note on the T ext of “ Glanville” ,’

E.H.R. l x v (1950), 81-9.

S.S. Selden Society.

Stenton D . M . Stenton, Pleas before the King or his Justices, 1198-1202,

vol. 1 (Selden Society, lx v ii, 1953).

V an R . C. V an Caenegem, Royal Writs in England from the

Caenegem Conquest to Glanvill (Selden Society, Lxxn, 1959).

Woodbine Glanvill: De Legibus et Consuetudinibus Regni Angliae, ed.

G . E. Woodbine (Yale 1932).
 L IST OF MANUSCRIPTS

A British Museum Royal 14 C.ii, ff. 226-274.

Ab National Library o f Wales, Aberystwyth, Peniarth 390,
pp. 201-260.
Aba National Library o f Wales, Aberystwyth, Llanstephan 176,
pp. 1-126.
B British Museum Additional 24066, ff. 5-73*’-
Be H. M . Register House, Edinburgh, Berne M S, ff. 1-31.
C British Museum Additional 25005, ff. 2-78'’.
Ca Cambridge University Library Additional 3584, ff. 261-289.
Co Corpus Christi College, Cambridge, 70, pp. 110-169.
Col Colchester Public Library, Harsnett K a 13, end leaf.
D British Museum Additional 14252, ff. 6-85.
E British Museum Additional 35179, ff. 39"-73*
F British Museum Harleian 746, ff. 4-48.
G British Museum Cotton Claudius D. ii, ff. 71 "-n o.
H British Museum Harleian 323, ff. 39-62.
/ British Museum Harleian 1119, ff. 2-13.
J British Museum Lansdowne 467, ff. 86-113.
K British Museum R oyal App. 6, ff. j-41.
L Lambeth Palace Library 429, ff. 106-161.
Lan British Museum Lansdowne 564, ff. 5-6.
Ln Lincoln’s Inn Library, Misc. 3 (formerly Selwyn A-II-6).
Ls London, The Law Society’s Library, unnumbered.
M Cambridge University Library Ee I 1, ff. i2-39r.
TV Cambridge University Library Ii V I 13, ff. 1-53'.
Nf Alnwick, Duke o f Northumberland, 445, ff. 1-48.
No Alnwick, Duke of Northumberland, 445, ff. 62-99.
O Cambridge University Library K k V 33, ff. I-6811.
Or Oriel College, Oxford, 46, ff. 63I’-ioo.
P Cambridge University Library Mm I 27, ff. 2, 4, 30-64'.
Q Cambridge University Library LI I 16, ff. 100-148°.
R Gonville and Caius College, Cambridge, 130/70, ff.1-58.
S Gonville and Caius College, Cambridge, 205/111, pp. 17-200.
T Bodleian Library, Oxford, Bodley 595, ff. 1 -78*'.
V Bodleian Library, Oxford, Bodley 564, ff. 1-51p.
W Bodleian Library, Oxford, Douce 137 ff. 40-91.
Wr Worcester Cathedral Library F 87, ff. 1-20.
X Bodleian Library, Oxford, Rawlinson G 109, pp. 201-250.
T Bodleian Library, Oxford, Rawlinson C 775, pp. 15-102.
Z Balliol College, Oxford, 350, ff. 43-71'.
 G R O U P IN G OF THE M A N U SC R IPTS

Alpha texts
(a) early alpha (p. Ixv); Ca, Ln, X, Z (from which E is descended).
(b) early alpha revised (p. lxvi); A, L (from which / is descended).
(c) other alpha texts; K, M (part French), 0 : Lan and Col (both
fragments).
(d) Guildhall group (p. Ivii); D (early hybrid, p. Iv): Co, G, Or
(all late alpha).

Beta texts
(a) early beta following ECf. (p. Ivii); B, Ls(from these No, W and
Wr are descended).
(£) other beta texts; C and H (Glanvill Continued, p. Ivii): Abi,
Be, F, N , R, V, T, T.

Beta/alpha text (p. Iv); Ab.

Alpha revised (p. lviii); S (from which P was copied).

Alpha translated into French (p. lviii); J , M (part Latin), N f, Q .

 INTRODUCTION

i. T he Background

This treatise o f the laws and customs o f the realm o f

E ngland was written, probably between 1187 and 1189, b y a
man learned in the law and in the current practice and usage
o f the king’s court at the Exchequer, practical but not afraid
to speculate, indebted to civil and canon law for some p art o f
his method and terminology. His L atin is simple and his
m ethod is dilem m atic,1 proceeding by the statement o f alter­
natives and the systematic exhaustion o f each alternative and
o f the dependent alternatives arising out o f it. His book is
concerned prim arily w ith civil litigation b y w rit before the
king’s ju stice s: crim inal pleas are scantily treated. L ittle is
said o f procedure in the county court. T h e details o f litigation
in feudal courts and the treatm ent o f crimes belonging to the
sheriff are expressly excluded. It is the first textbook o f the
comm on law , and its tw o great themes are the king’s court at
the E xchequer2 and writs.
B y the comm on law w e m ean here the settled law o f the
king’s court, comm on to all free men in the sense that it is
available to them in civil causes i f they w ill have it, and
applicable against them in serious crim inal causes whether
they like it or not. It is easy and fruitless to argue about the
details o f such a definition, and about the exact date at w hich
there can first be said to be a com m on law : w hat is clear is
that it is a product o f the twelfth century.3 A t the beginning
o f the century, w hen the Leges Henrici Primi were written, there
were still three great laws— Wessex, M ercia and the D anelaw
1 The term is M aitland’s ; see P & M , I, 166.
* ‘ Curia regis ad scaccarium,’ taken from the beta Incipit to the
treatise (see p. 1). The author says very little about the work of the itiner­
ant justices which is also mentioned there.
8 P & M , 1, 107-10 and 136-73, is a masterly survey: for general back­
ground see also A. L . Poole, From Domtsday Book to Magna Carta (Oxford
1951), pp. 385-424, and the important recent work of V an Caenegem.
xi
XU INTRODUCTION

— and a m ultitude o f local customs and franchisal com plexi­

ties. O ver all, as the author o f the Leges said, was the court o f
the king; but it was a court ‘ for the great men and the great
causes . . . not in perm anent session ’ and it offered only a
‘ flexible, occasional jurisprudence A t the end o f the
century the picture is quite different. L ocal and feudal diversity
rem ained; but there was then a perm anent court o f justices and
a practice o f frequent itineration, and the law o f these judges
was a settled law w hich used the royal w rit and inquest.
G eneral eyres, inquests and writs can all be found under
H enry I, but it was the work o f H enry II to revive and intensify
them after the decay o f Stephen’s reign and to make them
part o f the norm al m achinery o f justice, enforcing the common
law. T h e centre o f interest was the kin g’s court at the E x­
chequer. A lth ough it is clear that H enry II did justice in
person in a court coram rege, it was not a settled court with
fixed rules and a system o f records, and when the king was
absent from E ngland, as he frequently was in his later years,
this court w ent w ith him. T h e regular and ordered adm in­
istration o f justice was conducted in the king’s court at the
Exchequer, under the supervision o f the justiciar, b y a body
o f quasi-professional justices sitting on the ‘ bench \ 2
P robably the chief, and certainly the most exciting,
source o f litigation in this court was the w rit, w hich with
increasing frequency m ight lead to a decision b y an inquest
or assize o f tw elve men. T h e new writs and procedures intro­
duced by H enry II, w hich are the very foundation o f the
com m on law , can only be glanced at here. T h e w rit Precipe,
judicialised3 from its old executive form and available in a

1 P & M, i, 108; for the Leges see below, p. xiv. There seems no reason
to dissent from M aitland’s view of the jurisprudence, but it has recently been
argued that all the essentials of an organised judicature (justiciar, justices
and general eyres), capable o f controlling local justice and taking royal
justice into the country, were present under Henry I but decayed under
Stephen and were not revived until c. 1166; H. G . Richardson and G. O .
Sayles, The Governance o f Mediaeval England (Edinburgh 1963), pp. 173-215.
* G . O . Sayles, The Court o f King’s Bench in Law and History (Selden
Society Lecture, London 1959), p. 8.
* ‘ Judicialisation ’ is an ugly but convenient word much used by V an
 INTRODUCTION xiii
grow ing num ber o f situations, and the new writs for the
possessory assizes1 were all to be pleaded exclusively in the
royal court. T h e rule that no free m an need answer for his
tenement w ithout a royal w rit (de recto tenendo), although it
left undisturbed the initial jurisdiction o f the feudal court in
pleas concerning land, provided in the ‘ nisi feceris ’ clause o f
that w rit the basis for the transfer o f such pleas to the royal
court b y tolt and pone.2 M oreover, the newly devised w rit o f
peace could stop proceedings in feudal or county court, and
left the dem andant to begin afresh in the royal court.3 T h e
assize o f twelve was the m ethod o f trial prescribed in the writs
for the possessory assizes and in the G rand Assize w hich followed
the w rit o f peace. A n d so the old procedures b y plaint or by
‘ undifferentiated appeal *, w hich were to be so im portant in the
developm ent o f thirteenth-century writs,4 were for the moment
o f less interest than these new methods w hich brought to the
royal court a flow o f litigation about property.
Before w e consider in detail how the treatise dealt w ith
this com m on law , w e m ay say something about the legacy o f
English w riting w ith w hich the author was endowed and about
the European influences to w hich he must have been exposed.
T h e English legacy was impressive in bulk but not in quality.
Th ere was, first, the long series o f A nglo-Saxon laws be­
ginning in the seventh century w ith the earliest K entish laws
and proceeding through A lfred and Ine to Canute in the
eleventh century. A t their worst these laws are catalogues in
w hich the items are linked tenuously b y some analogy or
sim ilarity not stricdy legal— lists o f penalties for striking
bishops, priests and deacons— or rules grouped together

Caenegem to describe the process of ‘ imposing judicial safeguards and of

attaching judicial techniques ’ which ‘ turned a section o f the old, protean
executive writs into the well-known originating writs o f the common law ’
(p. vi). For the Precipe see below, i, 6.
1 See xiii, passim 8 See xii, 25 3 See ii, 8
* For the importance o f these procedures see Alan Harding’s review of
Van Caenegem in C. L, J . (1961), 114-18; see also H. G . Richardson and
G . O . Sayles, Select Cases of Procedure without writ under Henry m, S.S. l x , pp.
cxxxv-clv.
x iv INTRODUCTION

because o f a factual or social connection between them in a

m anner still to be found in some modern English law books,
which indulge the prim eval urge to consider ‘ highw ay
cases ’ as a class irrespective o f the legal principles involved.
A t their best these laws resemble a crim inal statute and were
no guide to juristic w riting; their obsession is w ith offences and
the penalties arising from them. From the years after the
Conquest some genuine legislation survived; in addition to
this there were writings in French and L atin w hich trans­
lated the old laws or purported, not always honestly, to give
the laws o f Edw ard the Confessor. T h en, between 1 1 1 3 and
1118 , an ambitious m an projected a work in four parts, to be
called Liber Quadripartitus. 1 T h e first two parts, a L atin trans­
lation o f the A nglo-Saxon laws and a collection o f ‘ necessary
writings for our own d ay ’, still survive. Parts three and four
are now lost (or m ay never have existed) but in their place
stands the same m an’s Leges Henrici Primi, an attem pt to write
a text book o f contem porary law . It was a valiant effort,
m ade at a time w hen not even the most optimistic could
speak o f a common law o f E ngland, and m ade b y a m an whose
enthusiasm was greater than his ability. H e was aware o f great
achievements in other countries and other disciplines, and he
tried to supplement his A nglo-Saxon law and N orm an prac­
tice with the learning o f S t Isidore and Iv o o f Chartres and
w ith the Salic and R ipuarian laws. B ut this subject was too
vast, and his reliance on Isidore unfortunate; it is hardly
surprising that order and m ethod disappeared in a confusion
o f old and new, W essex and M ercia, law and rhetoric.
Except in Lom bardy no juristic works o f good quality on
feudal law were produced in the W est before the end o f the
twelfth century. T h e earliest com pilation o f the Libri
Feudorum2 was m ade in Lom bardy in the m iddle o f that cen­
tury and consists o f several short and earlier tracts to which
were added two letters written by a M ilanese ju d g e, Obertus
1 See E.E.L.L. pp. 24-30
* Edited by K . Lehmann, Consuetudines Feudorum: Compilatio Antiqua
(Gattingen 1892); general account by F. Calasso, Medio Evo del Diritto
(Milan 1954), 1, 554 -5 -
 INTRODUCTION XV

de O rto, to his son Anselm soon after 1136. T h e constant

theme o f the com pilation is the grant, holding and loss o f fees,
w ith arguments about problems o f succession. T h e letters are
a m arked advance on the earlier tracts and the influence o f
R om an law on their technique and content is strong. Th ere is
no evidence that the com pilation was known in E ngland when
our treatise was written. T h e L atin K ingdom o f Jerusalem was
to leave as its legal m onum ent the Assizes o f Jerusalem , a
miscellaneous collection o f legal tracts o f w hich all but
one were w ritten after 1240. T h e exception, the Livre au Roi,
has been dated between 1197 and 1205; but it is now clear
that, although this work was not an official production, it merely
strings together earlier judgm ents and ordinances. It has no
such claim to juristic originality as have the later Assizes o f
Jean d ’Ibelin and Philip o f N avarre.1 T h e only other w ork o f this
period w hich merits mention is the first part o f the Tris Ancien
Coutumier, w hich w as w ritten in L atin in N orm andy about
1199 b y a m an w ho had practical experience o f the w orking
o f the courts and m ay have been a clerk o f W illiam fitz R alph
the seneschal.2 It is shorter than the English treatise, but it
covers m uch o f the same ground; their relative merits will be
considered later.
Th ere was, then, little contem porary w riting o f a juristic
nature on feudal law . Y e t the academ ic study o f law occupied
at this time in Europe the minds o f m any learned m en w ho
w ould, in an earlier age, have concerned themselves w ith
theology or philosophy. T h eir preoccupation was w ith the
revival o f R om an law and the codification o f canon law .3
T h e last and greatest w ork o f im perial Rom an law was the

1 The Assizes were edited by Beugnot in Recueil des Historiens des Croisades:
Lois (Paris 1841-3); for analysis and dating see M. Grandclaude, Etude
critique sur les livres des Assises de Jerusalem (Paris 1923), and ‘ Caractire du
“ Livre au R oi ” ’, Revue historique de droit, 4® s£rie, v (1926), 308-14.
* Edited by E.-J. Tardif, Coutumiers de Normandie, part 1 (Rouen 1881),
PP- 1-57
* For general surveys see H. D. Hazeltine, Cambridge Medieval History,
v (1926), 697-764; G . le Bras (canon law) and E. Meynial (Roman law)
in The Legacy o f the Middle Ages (Oxford 1926), pp. 321-99. F. Calasso,
Medio Evo del Diritto, is detailed and has full bibliographies.
xvi INTRODUCTION

codification m ade by the sixth-century Em peror Justinian.

T h e Institutes is an elem entary textbook; the Codex and Novels
are collections o f im perial legislation; the Digest is an elaborate
mosaic o f juristic writings from the classical period o f R om an
law in w hich the original texts were cut down, altered and
patched together by Justinian’s compilers in an attem pt to
achieve a consistent statement o f the law. In the centuries
w hich followed the final splitting o f the Em pire and the bar­
barian encroachments in the West, R om an law was never
w holly lost. Parts o f Justinian’s work survived and were used,
together with earlier works like the Codex Theodosianus (438), in
legal writings and codes w hich were often barbaric in style
and content, yet sometimes reflected the original purity o f
their source. But the Digest disappeared for five hundred
years. Its rediscovery in the late eleventh century was the
prim e cause o f the revival o f R om an law studies, w hich
flourished most famously in Bologna under Irnerius (c. 1055-
c. 1130) and his disciples, the ‘ four doctors ’ Bulgarus, M ar-
tinus, H ugo and Jacobus.1 T h e Institutes and Codex had, in
previous centuries, indicated to the better legal minds o f the
W est some o f the achievem ents possible when dialectic is put
to work on law — the study o f legal genera and species, and the
form ulation o f rules and principles: but the use o f dialectic as
‘ an instrument o f discovery, suggesting problems w hich have
not actually occurred in practice . . . an eternal dialectical
research ’2 was the supreme contribution o f R om an law
em bodied in the Digest. This difficult, inconsistent and in­
furiating work stimulated the production o f a vast literature
o f glosses, summae, quaestiones and casus. No law yer who was
conversant w ith it could ever again accept com placently legal
writings w hich presented the law as a mass o f single instances.
T h e twelfth-century challenge to canon lawyers was o f a
different kind.3 C onciliar canons, papal decrees, im perial
1 Examples o f their work are printed and studied by H. Kantorowicz,
Studies in the Glossators o f the Roman Law (Cambridge 1938).
* F. Schulz, Roman Legal Science (Oxford 1946), pp. 68-9
8 Stephan G. Kuttner, Harmony from Dissonance (Latrobe i960) is a
short and brilliant introduction.
 INTRODUCTION xvn

statutes, Frankish ordinances, H oly Scripture, liturgical

books, patristic texts and penitential handbooks had all con­
tributed to the mass o f m aterial genuine and spurious, official
and privately inspired, legal and theological. R epeated efforts
were m ade from the sixth century onwards to reform and unify
the canonical tradition; they culm inated in the Concordia
Discordantium Canonum o f G ratian, a Bolognese monk, whose
work m ay have begun as early as 1 105 and was certainly
ended by c. 1 140.1 His Decretum, as it is generally known, attempts
to harmonise the conflicting texts, w hich are used as authorities
for the doctrines which G ratian propounds. T h e authorities
are the preponderant element in the book, but they are
arranged on juristic principles w ith com m ent and reconci­
liation b y G ratian: ‘ the book demonstrated that it was
possible by a process o f reasoning and organization to cast all
the apparently unw ieldy mass o f canons into a system, however
imperfect, o f jurisprudential thought; that it was legitim ate
for such organized thought to find a place, as a discipline o f its
own, somewhere between sacred theology and the legal
science which, in the wake o f the restoring o f the full Corpus
iuris civilis, had just then been reborn in the city o f Bologna. ’ 2
U pon this new foundation and upon the decretals w hich con­
tinued to issue from the popes o f the twelfth century a canonist
literature was rapidly erected w hich resembled in character
and rivalled in extent the work o f the glossators o f R om an law.
In England, as elsewhere, this interest in civil and canon
law had a profound effect.3 Englishmen studied abroad and
learned foreigners cam e to England. M en as famous and as
diverse as John o f Salisbury, Thom as Becket and W illiam
Longcham p had in varying degrees a knowledge o f these laws.
T h e great openings were for canonists: the need for specialised
knowledge in diocesan administration and ju d icial procedure
and the clashes between royal and ecclesiastical courts led
1 Caution made advisable by the work of A . Vetulani which is sum­
marised and commented on by R. Metz in Revue de Droit Canonique, vn
(* 957 ), 62-85.
* Kuttner, Harmonyfrom Dissonance, pp. 26-7
* V an Caenegem, pp. 365-73, covers the ground and cites the literature.
XV111 INTRODUCTION

bishops to send abroad for study and to promote in their

dioceses young clerks w illing to em brace the law . W hat
m ay fairly be called a school o f Anglo-N orm an canonists
was active from the middle o f the century, and they wrote not
m erely practical ordines iudiciorum but also ‘ glosses, summae,
quaestiones, distinctiones, notabilia and miscellaneous minor
treatises.’1 For Romanists the prospects were less good; the
career o f the Lom bard V acarius illustrates this.2 Brought to
E ngland from Bologna c. 1145 b y the household o f Theobald,
archbishop o f Canterbury, he taught pure Rom an law and
wrote, c. 1149, his Liber Pauperum, based on the first nine books
o f the Codex but m aking extensive use also o f the Digest. A t
about this date Stephen prohibited the study o f Rom an law,
and V acarius, though he m ay have returned later to teaching
R om an law , made for him self an ecclesiastical career as
emissary and ju d g e ; his only known later works are a theo­
logical treatise and a canonist Summa de matrimonio. Y et
Rom anist learning and teaching survived, perhaps because it
proved indispensable to the canonists; some use o f it had been
made in the Decrelum, and the procedural tracts rely heavily
on it and are in some cases o f a ‘ m ixed ’ romano-canonical
nature, such as the Practica legum et decretomm (c. 1183-9)
attributed to W illiam Longcham p. Fortunately for English
law the author o f our treatise had, as we will see, some acquain­
tance with this new learning.

2. T he P lan of th e T r e a t i s e a n d it s E x e c u t io n

Writs, and the procedure connected with them, bulk so

large in the treatise that it is tem pting— and the temptation
has not always been resisted— to regard the work as a com ­
m entary on writs. It is m uch more than this. After his Pro­
logue has paid tribute to the work o f the king, the author
states his intention, w hich is to distinguish secular causes into
1 S. Kuttner and E. Rathbone, ‘ Anglo-Norman canonists of the
twelfth century,’ Tradilio, vn (1949-51), 292
2 See the Introduction to the edition of the Liber Pauperum by F. de
Zulueta, S. S. x l i v , p p . xiii-xxiii
 INTRODUCTION x ix

civil and crim inal, royal and vicecom ital: this is done in the
analytical list w hich occupies Book i, cc.1-4.1 T h e relationship
o f this list to the contents o f the treatise can be seen in the
chart overleaf.2 N othing in the manuscript suggests that
the list was added after the treatise was finished, and the
contents o f the treatise vary from the list in a w ay w hich makes
this unlikely. W e m ay then take the list as a plan, and discuss
its execution.
Books xi-xiv can conveniently be disposed o f first. Book xi,
which concerns attornies, is nowhere suggested in the analysis.
Conversely, the author did not seriously intend to consider
the working o f the county courts. So vicecom ital crime is
mentioned only to be dismissed as outside the scope o f the
treatise (xiv, 8). Sim ilarly, the sheriff’s civil jurisdiction is
scantily treated: Book xii indicates that pleas concerning
right m ay come to the county court on default o f seignorial
justice, but there is no account o f w hat will happen there
(cc. 1, 7); a general statement o f the sheriff's jurisdiction as
ju d ge in the county court (c. 9) is followed by a mere catalogue
o f vicecom ital writs for civil pleas (cc. 10-22) and a disclaimer
o f any intent to consider county court procedure (c. 23).
Book xiii deals w ith royal possessory pleas, w hich are thus
postponed to all vicecom ital civil pleas. It is not clear from
the analysis, w hich says that they will be discussed ‘ inferius
loco suo’ , whether this was originally intended: it m ay be
the result o f digression in Book xii, w hich begins w ith pleas
about right w hich come to the royal court from the feudal
court ‘ m ediante com itatu,’ but goes on to discuss county
court work in general.
Book xiv is about crime. T h e first words o f the treatise divide
pleas into civil and crim inal, and it is natural to com pare the

1 The treatise in its original form was divided, if at all, into rubricated
sections (the alpha tradition); in its revised form it was divided into books
and chapters (the beta tradition): see below, pp. lii-liv. It is, however,
necessary to use the book and chapter system because it has been the stan­
dard form of reference since the treatise was first printed in 1554; more­
over, the original alpha sections, which were not numbered, provide no
satisfactory alternative. * A t p. xx
XX INTRODUCTION

L IS T O F PLEAS A S IN B O O K i, 1-4

Place Tractatus1 Cause*

in text in S in Ca
C R IM IN A L
(a ) royal
(a) treason .......................................... xiv, 1 X
(b) concealm ent o f treasure . . . xiv,a X
(c) breach o f the king’s peace
(d) hom icide ... x iv ,3 X
(ie) arson x iv,4 X
(/) robbery .............................. x iv,5 X
(g) rape ......................................... x iv,6 X
(h) falsifying ................ x iv ,7 X

(b ) viceco m ital
(a) theft x iv ,8 X
(b) braw ling, etc. x iv,8 X

C IV IL
(a ) royal (i) r i g h t
(«) baronies
' i-iii I I
w a dvow son s.............................. iv XI n
(c) status .............................. v III xii
w dower unde nihil habet vi-vii IV IV
« fines . . . not observed viii V V
(/) hom age and relief ix, 1 - VI VI
10
purprestures ................ ix ,n - VII VII
end
debts o f laym en ... X VIII (x, VIII
!-«3)
IX (x, 14-
end)
[attom ies] .............................. xi x (xi, VIII
I*-3^
0/
(ii) possession ................ xiii IX

COMITAL
(«) seignorial default o f right x ii,1-8 VIII
(b) de nativis x i i,il VIII
[other vicecom ital writs] ... x ii,10 and VIII
12-22

1 See p. xlix
* See p. 1
 INTRODUCTION xxi

list o f royal crim inal pleas in Book i, c. 2 w ith that in the

Leges Henrici Primi 10, i. T h e list in Book i, c. 2 is shorter
than that in the Leges. In part this results from the separation
o f crim inal from civil pleas: the ‘ iura que rex . . . habet ’ o f
the Leges include, for exam ple, contem pt o f the king’s w rit or
com m and, reliefs o f his barons, default o f justice and unjust
judgm ent, all o f w hich the treatise clearly regards as royal
pleas but does not classify as crim inal. A gain, other matters
w hich have disappeared— for exam ple, stretebreche, flight from
battle, fighting in the king’s house and killing or injuring
members o f his familia— have been w holly or to some extent
subsumed in the list in the treatise under headings like ‘ lesa
maiestatis ’ or ‘ placitum de pace dom ini regis infracta.’
F inally, theft o f all kinds is excluded from the list and given
to the sheriff. M aitland sounded enthusiastic— ‘ In the
disorderly list o f the pleas o f the crown a great simplification has
been effected: hom icide, for exam ple, is now always a plea
o f the crown, and w e can finish the list w ith a ‘ si quae sunt
similia ’ which leaves scope for rationalism .’ 1 N ow it is true
that the spread o f the king’s peace, the virtual disappearance
o f * pre-appointed ‘emendations’ ’2 and the urge to classify and
generalise have all m ade for an attractive surface sim plicity
in the treatise. But franchisal difficulties have been ignored,
the exclusive appropriation o f theft to the sheriff m ay be
misleading, and the ‘ si quae sunt similia ’ on w hich M aitland
relied p robably refers to falsifying in particular and not to
crimes in general.8 Considerations o f this sort m ay have been
in Professor Plucknett’s m ind w hen he said ‘ G lan vill’s dis­
tinction was good enough as the first arresting phrase o f a
treatise, but it bore little relation to the state o f the law in his
tim e.’4 W hatever the merits o f the distinction, or o f the list in
Book i, c. 2, the treatm ent o f crim e in Book xiv, w hich closely
follows the list, is disappointing and occupies only about one-
thirtieth o f the work. It is postponed to the end, although it

1 P & M , 1, 165 * P & M , n, 459

* For theft see p. 177, n. 1; for falsifying see the translation at p. 3
and details in xiv, 7. 4 Concise History, p. 429
xxu INTRODUCTION

cam e first in the analysis, and the author does not sound
interested.
Th ere remain Books i-x, advertised in the analysis as
royal civil pleas concerning right. This is the core o f the work.
N ow the analysis is in effect a list o f original writs w hich
begin in the royal court, and w hat we expect is a com m entary
on these writs. This is exactly w hat happens in Books i-iii.
Im m ediately after the analysis come the words * cum quis
clam at dom ino regi . . . ’ and the author then gives the
Precipe quod reddat for land and goes on to discuss procedure
on the writ— summons, default, essoins, trial b y battle or
G rand Assize, warranties— at length. T h ere are no intro­
ductory explanations about tenure or jurisdiction; w e are
im m ediately at work on the w rit, and kept so for nearly one
quarter o f the treatise. In one place only does the treatise
deviate from the royal court.1 T h e breve de recto tenendo, the
w rit o f right directed to the feudal lord, is nowhere mentioned,
but is reserved for Book xii.
T h e next topic is advowsons (Book iv) and here there is a
change. T h e dilem m atic m ethod, hitherto lim ited to pro­
cedural matters, is now em ployed on the substance. T h e
plan o f the Book, obscured b y early rubric and later chapter
divisions alike, is this. Pleas occur when churches are vacant
and when they are not vacant. I f they are vacant, and the
dispute concerns only seisin o f the right to present, a recogni­
tion is appropriate and this w ill be dealt with later in the
treatise; if vacant, and the dispute is as to the right o f
advowson, the w rit Precipe is appropriate and this (which is
the ‘ excuse ’ for the whole Book) is then given (c. 2) and
discussed (cc. 3-6). I f churches are not vacant, the dispute
can concern only the right o f advowson (cc. 7-11). This ends
the planned discussion. T h e Book ends with writs o f prohibi­
tion to ecclesiastical courts and they have the air o f an after­
thought.
T h e treatment o f villein status (Book v) is at first suggestive
1 In discussing the Grand Assize the author irrelevantly brings in the
writ of peace; see p. 29, n. 1.
 INTRODUCTION XXU1

o f a return to the technique o f Books i-iii— ‘ cum quis autem

petat alium . . . ’— and it is true that the m ain part o f the
Book is concerned with pleading in the de liberlate probanda',
but the Book ends w ith some lengthy observations on methods
o f achieving freedom, and on villeinage by birth, w hich are
outside the lim ited purpose o f a com m entary on writs.
It is, however, in Books vi and vii that a m ajor change
occurs. In the w hole o f these Books there is only one w rit
originating litigation in the royal court, nam ely dower unde
nihil habet. T h e author seized on the w ord ‘ dos ’ . T h e opening
words o f Book vi are ‘ Dos duobus modis dicitur.’ T h e first
m eaning, dower, is then given, and to this topic the rest o f
the Book is devoted. ‘ In alia acceptione accipitur dos sec­
undum leges romanas ’ is the opening o f Book v i i : this other
m eaning corresponds to maritagium (marriage-portion) in
English law , and from this opening flows the w hole o f Book
vii. This was an ambitious design, far rem oved from a com ­
m entary on royal writs. H ow far did it succeed?
T h e treatm ent o f dower is rem arkable in two ways. It
begins w ith a careful definition o f dower, o f the property
w hich can form part o f dower, and o f the wife’s rights in
relation to it; no w rit is mentioned. Such a prelim inary
would be comm on form in any modern law book; but it is
the first essay o f its kind in English law . Th ere follows a dis­
cussion o f w hat happens when the husband dies. Th ree possi­
bilities are envisaged: the dower lies vacant (here the w idow
can step in), or it is all occupied, or part is vacant and part is
not. N ow when all is occupied this is a case for dower unde
nihil habet, a proper subject for discussion as advertised in the
analysis, and this is eventually done in cc. 14-17. But when
part is vacant and part is not, the w rit goes to a-feudal court:
yet, and this is the second rem arkable thing in Book vi, the
w rit is given at c. 5. C ertainly the treatise gets it out o f the
feudal court and through the county court to the royal court
in a very b rief passage; but the w rit, unlike the breve de recto
tenendo w hich found no place in Book i, has been given. T h e
needs o f a systematic substantive treatm ent have broken
x x iv INTRODUCTION

down the exclusive concentration on procedure in royal pleas

w hich dom inated Books i-iii.
In terms o f a plan based on the two meanings o f ‘ dos ’
Book vii is something o f a fraud. T h e second m eaning o f ‘ dos ’
is m arriage-portion. This is defined in one sentence in terms
o f gift, and at once the treatise switches to gifts and the
general problems o f alienation. It moves through gifts to the
subject o f w arranty b y heirs, and so to the kinds o f heirs,
succession o f heirs, observance o f testaments b y heirs, testa­
ments in general, m ajority and m inority o f heirs, wardship o f
various kinds, bastardy and escheat (cc. i - i 7). O n ly at the
end o f the Book does it return to discuss m arriage-portions in
detail (c. 18). Y e t this is a minor criticism w hen considered in
relation to the outstanding m erit o f the Book, w hich in ori­
ginality and scientific curiosity surpasses anything else in the
treatise. T h e difficulties presented b y alienation and inheri­
tance were at this time form idable. T h e rights o f a
tenant vis-a-vis his lord and his heir were in a state o f change;
there was little settled law , few writs existed,1 m any problems
suggested themselves. T h ree m ajor problems are set out and
tackled in this Book,2 and to all o f them some sort o f answer is
proposed. ‘ T h e courage and mastery w hich produced
G lan vill’s Book vii are unsurpassed in our legal history.’3
T h ere is a falling aw ay in Book viii w hich discusses final
concords and introduces the w rit, given in the analysis, for
breach o f a fine m ade in the king’s court. P roof o f the fine
introduces the problem o f record, w hich occupies the rest o f
the Book. Book ix, cc. 1-10, concerns hom age, relief and aids,
and makes use o f the royal w rit for doing hom age and re­
ceiving relief. Th ere is often difficulty here in avoiding a
repetition o f w hat has been said in Book vii, and the two Books
might have been better as one. T h e Book ends w ith pur-
prestures.
1 Only two are used in Book vii, one vicecomital (c. 7) and one to an
ecclesiastical court (c. 14).
* The father with four sons (c. 1; p. 7 a ); the two brothers (c. t ; p.
73); the uncle and nephew, or casus regis (c. 3; p. 77).
* E.E.L.L. p. 38
 INTRODUCTION XXV

T h e treatm ent o f debt in Book x is rem arkable. It begins,

unprom isingly enough, ‘ cum quis itaque de debito . . . queri-
tur’, and gives the w rit summoning the debtor to the royal
court. T h en in c. 3 the author’s urge to systematise, and his
learning in R om an law , prevail. ‘ Pluribus ex causis debitum
petere potest.’ T h e ‘ cause ’ are mutuum, venditio, commodatum,
locatio, defiositum and, rather feebly, ‘ alia iusta causa.’ D ebt
is then discussed under four corresponding heads: loan for
consumption {mutuum), to w hich w e w ill return, is cc. 3-12;
loan for use (commodatum) is c. 13; sale (emptio-venditio) is
cc. 14-17; hire (locatio-conductio) is c. 18: deposit and ‘ alia
iusta causa,’ alas, are not discussed at all. N ow it must be
adm itted that it is not at all clear how far the treatm ent o f
loan for use, hire, and (to some extent) sale represents English
law and how far it is a version or perversion o f R om an law .1
T h e loan for consum ption (money usually) is, however, dis­
cussed throughout in terms o f English law and in sub­
divisions w hich correspond to the proof or security offered by
the creditor: the possibilities are listed at the beginning as
sureties, gage, pledge o f faith, charter, or several o f these
together. This order, obscured by rubric and chapter divisions,2
is followed in the discussion. G age, w hich is the most com ­
plex, merits a closer look (cc. 6 -11). T h e gage m ay be m ovable
(chattel) or im m ovable (land). W hichever it is, possession
m ay pass to the creditor or it m ay not, the gage m ay be for a
fixed term or it m ay not, the arrangem ent m ay be for a dead
gage (mortgage) or it m ay not. T h e w hole subject is then
developed, in the light o f these possibilities, under the two
m ain heads o f movables and im m ovables.3 T h e treatm ent o f
m ovables begins w ith rules on custody and expenses, expressly
stated to be for movables, and continues b y discussing three
situations: delivery for a term w ith or without an agreement

1 See p. xxxvii
* O n ly gage (c. 6) and pledge of faith (c. 12) begin immediately after
a chapter heading; none o f them begins immediately after an alpha rubric.
3 Again, neither main head begins immediately after a rubric or
chapter heading; movables begin in the middle of c.6 and immovables in
the middle of c. 8.
xxvi INTRODUCTION

as to the effect o f non-paym ent, delivery for no fixed term,

agreem ent without delivery. It is clear1 that all this is part o f
the section on movables, but the discussion o f the three sit­
uations is, probably intentionally, all in terms o f a gage o f
‘ res aliqua ’ : and so, when he comes to imm ovables and has
com pared vivum and morluum vadium, the author can say that
the other rules for imm ovables are as for movables— he is
referring back to the three situations.2 H e then goes on to deal
w ith other problems peculiar to the gage o f imm ovables. This
is an intricate and successful piece o f legal writing.
Before we conclude this survey o f the work, some minor
points o f arrangem ent, error and omission should be men­
tioned.8 A rrangem ent was a prim e difficulty for the author,
and his uncertain vacillation between a procedural and a
substantive approach had some m inor consequences o f w hich
the curious placing o f Book xii, cc. 24-5 is a good example.
N ovel disseisin also seems oddly placed at the end o f Book xiii,
but this m ay be explicable. T h e arrangem ent o f Book ii, cc.
17-19 is not good. T h e writs o f prohibition at the end o f
Book iv and the note on episcopal and abbatial baronies at
the end o f Book vii, c. 1 look like late thoughts. Errors and
omissions are surprisingly few for a work w hich constantly
refers back and forward. T h e gloss4 took an interest in this,
and claim ed to discover four errors and three omissions. As
to errors, it is right in objecting to the non-correspondence o f
w rit and context in Book xiii, c. 16, and to the irrelevance o f
the conclusions in Book xiii, c. 30 to the discussion and writ
in cc. 28-9. It is w rong in attacking the generalisation in Book
ii, c. 16 and probably wrong in com m enting on essoins against
a minor in Book xiii, c. 12. It m ight, however, have added a

1 From the mention of loss or damage, and from the wording of the
writ in c. 7; support comes from a gloss in B which considers cc. 6-8 as all
dealing with movables.
* Modern writers on the gage of land assume that the rules for the three
situations apply to immovables, but without considering that they appear
in a discussion about movables.
8 Detail, where necessary, is in the notes to the translation.
1 See p. liii
 INTRODUCTION x x v ii

note on the change o f subject in Book v, cc. 2 -3 and the non­

correspondence o f w rit and context in Book vii, cc. 1 3 - 1 4 :
there are also several writs w hich on m anuscript authority
make nonsense unless the initials are changed, but this m ay
not be original sin. O f the three omissions alleged by the gloss
only that in Book x, c. 5 seems to be a true case: the gap in
Book i, c. 271 is the result o f a scribal omission com m on to all
beta manuscripts (for w hich the gloss was m ade), and the
supposed omission o f two topics in Book xiii, c. 11 flows
from careless reading and, once again, unhelpful rubrics
and chapter headings. N o other omissions have been
noticed.

3. A n A sse ssm e n t

W e have discussed the treatise in terms o f a plan and its

execution. But it has become clear in the course o f discussion
— and this is the most rem arkable conclusion that can be
draw n from the study— that the author w rote at two levels.
H e m ay seem best to execute his plan w hen he writes, as he
does in dealing w ith the Precipe for land and the possessory
assizes, an account o f procedure in the royal court on royal
writs, considering with loving care and affection all the possi­
bilities into w hich dilatory dem andant and recalcitrant
tenant can lead the court. Y e t it is when he leaves this plan
and sets o ff on a new venture into substantive law , defining
dower, puzzling over alienation and inheritance, and analysing
debt, that he is most impressive. These discussions lift the
treatise from the level o f clarity and competence to that o f
originality and distinction.
Nothing o f this sort was to be found in the Leges Henrici Primi.
N or did the Continental works on feudal law come up to this
level. It must be adm itted that the quality o f O bertus de
O rto ’s letters in the Libri Feudorum is high ; definition, dis­
tinctions and intelligent argum ent are all present. T h e scope
o f the letters is, however, restricted to the acquisition and loss
1 See p. xiii
xxvm INTRODUCTION

o f fees, and there is no attem pt to w rite a general treatise

em bracing civil and crim inal law and procedure. M ore am bi­
tious was the first p art o f the Tris Ancien Coutumier whose
author faced problems similar to those w hich had confronted
his predecessor in England. His editor, T ardif, suggested
‘ une certaine analogie n in the ordering o f the two works;
but the N orm an evidently did not know, or was incapable o f
profiting from, the English treatise. His plan is never ex­
plicitly stated, and T a r d if’s generous reconstruction gives to
the N orm an the benefit o f m any doubts. T h e work is dis­
organised and scrappy, long-winded (little stories preface
rules o f law) and sentimental (mortgagors are rich, mort­
gagees are poor). It is a dam p contrast to the professional
crispness o f the English lawbook.
Some credit must clearly go to the civilian and canonist
influences w hich w e have previously m entioned. W ithout
some knowledge o f the w ay in w hich the jurists put dialectic
to work on law the treatise could never have been written.
Like his learned contem poraries the author based his work,
as any law yer must, upon authorities. In his case the authorities
were writs, the legislation o f H enry II, the practice o f the
king’s court and the opinions o f its judges. As we have seen,
he vacillated between two different methods o f treating his
subject. W hen he is w riting in the m anner w hich predominates
in Books i-iii and xiii, he comes near to com m enting on auth­
ority (writs) in the Continental m anner, though with the
significant difference that his account is derived from personal
observation and vouches no texts for its reliability. Those
w ho have stressed the writ-com m entary aspect o f the work
have even suggested that contem porary ordines iudiciorum m ay
have inspired the treatise. It is true that the dilem m atic
method, w hich runs through both the procedural and sub­
stantive parts o f the treatise, was m uch used in the ordines.
But the ordines deal only w ith procedure and do so by gen­
eralisation about all actions: the treatise goes beyond pro­
cedure, and when confined to procedure it deals seriatim with
1 Coulumiers de Normandie, p. Ix
 INTRODUCTION x x ix

specific causes o f action.1 T h e author’s other method is that

o f the modern legal textbook, w hich sets out to give a sys­
tem atic exposition o f a subject in terms o f substantive law and
supports it w ith such authorities as m ay be available and
pertinent; authority is subordinate to exposition, and lack o f
authority no bar to speculation. This is very unlike the summae
o f the canonists and civilians which, however original in form,
were in content generally a mosaic o f earlier w ritings.2 It m ay,
however, be urged that there is a parallel with G ratian’s
Decrelum, w hich has been described as a textbook to w hich
the authorities are the footnotes. But the author o f our
treatise was free o f the tradition and necessity o f extensive
textual quotation w hich weighed down G ratian and so,
even w hen texts must have been readily available (e.g. the
Constitutions o f Clarendon) they are not given; instead, the
results are w oven into the argum ent as in a modern textbook.
This m ay be dismissed as no more than a difference o f em­
phasis, but it reflects a freedom to innovate and a reliance on
the fruits o f practical experience which were im portant char­
acteristics o f early comm on law.
These new influences had to be supplemented by courage
and originality. A t this very time m uch work was still being
done in England on the old laws, both genuine and false.3
Som e substantially genuine laws o f W illiam I (W l. art.) had
been join ed w ith the privately produced and untrustworthy
Leges Edwardi Confessoris (ECf. retr.) and w ith a N orm an
genealogy to form the w ork called Tripartita. U nder H enry
II a rubricator was m aking headings for W l. art. and E Cf.
1 V an Caenegem, p. 377, seems preferable to the earlier authorities
cited there.
! See, for example, the tract ‘ De lure Dotium ’ o f Martinus, printed
(pp. 255-66) and commented on (pp. 94-102) by H. Kantorowicz, Studies
in the Glossators.
8 The authority is Felix Licbermann and the modes of reference are
his. T h e most important of his works, in this context, are Vber die Leges
Anglorum . . . Londoniis collectae (Halle 1894); ‘ Eine Anglonormannische
Uebersetzung des 12. Jahrhunderts von Articuli Willelmi, Leges Eadwardi
und Genealogia Normannorum’, Zeitschrift fur romanische Philologie, xix
(1895), 79-83; Vber die Leges Edwardi Confessoris (Halle 1896). P & M , 1,
97-104, summarises much of this.
XXX INTRODUCTION

P robably in 1 192/3, Tripartita was translated into French.

Before the death o f H enry II in 1189 a forger was inventing
forest laws attributed to Canute. As late as Joh n ’s reign both
W l. art. and E C f. were worked over and heavily interpolated
by a Londoner. W hile this honest and dishonest antiquarian-
ism was engaging the attention o f his contemporaries, the
author o f the treatise did his work. Nor does the contrast in
quality seem to have worried the compilers w ho cam e after him,
for his treatise was, as w e shall see,1 com m only circulated in
com bination with writings o f lower calibre. In the thirteenth
century, Bracton tried to interest English lawyers in the scien­
tific statement o f substantive law in terms o f prin cip le;2
some years later, and more hum bly, the author o f Fet Assaver
did the same. Y e t the century ended w ith works like Casus
Placitorum, Novae Narrationes and the earliest Y e a r Books,
narrowly self-sufficient, ‘ insular, lay and French,’ in which
substantive law and principle are heavily masked by procedure
and pleading. T h e m edieval and Renaissance future o f
English legal w riting was in the Inns o f Court, remote from
Universities and Continental influences.8

4. D ate and A u t h o r s h ip

Both the date and the authorship o f the treatise are un­
certain. T h e Incipit attributes the work to the time o f H enry II,
and the eulogy in the Prologue is appropriate to him. T h e
treatise itself assumes that H enry II is king: K in g H enry is
several times referred to as grandfather o f the present kin g;4
moreover, the writs o f mort d ’ancestor (xiii, 3-6) require the
ancestor to have died ‘ post prim am coronationem m eam ,’
w hich must refer to 1154 (H enry II) and not 1189 (R ichard I)
for in Joh n’s reign the lim itation is still ‘ post prim am corona­
tionem regis Henrici patris domini regis.’ 6 T h e discussion
o f record without any reference to plea rolls makes it likely
1 Below, p. Iv 2 See p. lix
3 The quotation is from E.E.L.L. p. 114; further comments by G . D.
G. Hall (reviewing E .E .L .L .) in Journal of the Society of Public Teachers of
Law, n.s. iv (1957-8), 243.
* iv, 6; ix, 13-14; xii, 16 5 Stenton, no. 3540
 INTRODUCTION XXXI

that the work was written before 1189.1 T w o final concords,

one m ade in the king’s court and the other recorded there,
are given as examples, and in all but one o f the early m anu­
scripts these are dated respectively 29 Novem ber and 2 N ov­
em ber 1187.“ Th ere is nothing in the treatise inconsistent
with a date anywhere between 29 Novem ber 1187 and 6 J u ly
1x89, when H enry II died.
Th ree justiciars have at various times been put forward
as candidates for authorship.3 T h e state o f the argum ent can
be briefly indicated, R an n u lf G lanvill was an obvious but
unlikely choice. His appointm ent in 1180 as justiciar is re­
corded in M S B .M . R oyal 14 C . ii (the best m anuscript o f
H ow den’s Chronica), w hich adds ‘ cuius sapientia condite
sunt leges subscripte quas Anglicanas uocam us.’ T h e laws
w hich follow in this manuscript include a copy o f the treatise
(^4) w hich is preceded by other laws w hich were certainly not
the work o f G lan vill.4 Even i f ‘ condidit leges ’ is to be
lim ited to the treatise, it is perhaps a ‘ strange phrase w hereby
to describe the com pilation o f a treatise.’ 6 T h e Incipit, whether
original or not, is not in GlanvilPs favour, for it m erely puts the
composition in the time o f his justiciarship:6 but it does
sufficiently account for the tradition dating from the thirteenth
century w hich calls the work ‘ G lanvill ’.7
H ubert W alter, w ho was to becom e justiciar in 1193, was

1 S. E. Thorne, ‘ Notes on Courts o f Record in England,’ West Virginia

Law Quarterly, x l (1934), 351
* viii, 2; viii, 3, which D dates 2 November 1198
‘ Full bibliography in V an Caenegem, p. 10, n. 2
4 See p. lvi
* P & M , 1, 163, n. 1; caveat by Lady Stenton in Cambridge Medieval
History, v (1926), 579
8 Not all manuscripts do this. Ca (early alpha) has merely ‘ R ’ ; in Ls
(early beta) ‘ Rado de Glanuil ’ is written in black over an erasure in the
original, red, Incipit. T he Guildhall group (Co, Or, G) in the fourteenth
century have * R. de N .’ as justiciar; ‘ diligent searchers ’ of Selden’s time
read this as ‘ E. de N .’, and attributed the work to E. de Narbrough:
J. Selden, Opera Omnia (London 1726), in, 1669. The claims o f ' R. de N .’
and E. de Narbrough did not seem to Selden, and do not now seem,
worth pursuing.
’ M S Harleian 1704 (c. 1325) says it is called ‘ Glanuilla’, and P
(Edward I) ends ‘ Explicit summa que uocatur glaunuyle.’ Other titles
XXX11 INTRODUCTION

suggested by M aitlan d1 as the author because Bracton, when

illustrating a point o f pleading, coupled w ith his own name
' the rare nam e o f a man who has been dead these fifty years ’ ;
the coupling m ay therefore indicate that Bracton wished to
comm emorate the w riter o f a book to w hich he was m uch in
debt. Y e t the name, rare as it was, cannot have faded from
legal m em ory; the mention o f fifty years is m isleading, for
Bracton was the heir through W illiam R aleigh and M artin
o f Pattishall to the traditions o f Simon o f Pattishall, who was a
ju d g e when H ubert W alter was still justiciar; H ubert’s name
appears in cases used b y Bracton for his Note Book.2 M ore­
over, Bracton used a copy o f the treatise when m aking his own
book,8 and there are, excluding French translations, seven
surviving manuscripts o f the treatise in w hich H ubert W alter
is quoted as an authority in text or m argin.4 M aitlan d ’s
argum ent is not convincing.
G eoffrey fitz Peter is the most recent candidate. His
special claim , as stated by L ad y Stenton, is that the second
final concord in the treatise was made in his own court and
afterwards recorded in the king’s court on 2 N ovem ber 1187.
T h e tripartite chirograph o f w hich the foot was kept for record
purposes was still in the future, ‘ so that G eoffrey’s own part o f
the chirograph must have provided the copy for the treatise.’6
This, perhaps rightly, ignores the possibility that R oger fitz
Reiner, the other party, m ight have supplied it; certainly
it does not explain the presence o f the first final concord
between the prior o f the Hospitallers and W illiam fitz
Norman. M oreover, there must have been am ple opportunity
for others to copy the chirograph during the proceedings.
T h e three men had in common, at the relevant time,

were ‘ Leges Henrici Secundi ’ (Co, Or, G) and ‘ Regia Potestas * (Explicit
of 0 ; contents page of W). T he unique use of ‘ Liber Gurialis’ in Ab is
discussed below, p. lvi. 1 P & M , 1, 164
• Nos. 1387 and 1596 8 See p. lix * See p. xliv
5 Professor Southern thinks it ‘ unlikely . . . that Hubert Walter can
have been the author ’ (Southern, p. 81), and his reason seems to be that the
names quoted in the treatise were the work of the author; on this see p. xliii.
e Stenton, p. 9
 INTRODUCTION XXX111

ability, authority and knowledge. T h e objections urged

against G lan vill,1 that as justiciar and voyaging emissary he
was too busy to write and too much a man o f affairs to spec­
ulate as did the author, can be urged in some measure against
the others. H ubert W alter had already been active as a baron
o f the Exchequer and was said to be sharing w ith G lanvill in
the governm ent o f E ngland; Geoffrey fitz Peter was sheriff o f
N ortham pton and had already considerable experience as a
judge. This line o f objection suggests that all the attributions
have been aim ed too high and that the author was a lesser
figure. W e should, perhaps, be looking for a royal clerk, not
necessarily a ju d g e but certainly attending the royal court,
possibly a man with some academ ic training behind him and
w ith his main career yet to come. T h e field o f choice is wide
and the question is, as M aitland said, ‘ interesting rather than
im portant,’ for there is no doubt that the treatise presents the
w ork o f the royal court in an authoritative w a y .2

5. S ources

T h e literary sources o f the treatise have never been system­

atically investigated: w hat follows is a prelim inary sketch. It
is clear that the author used a collection o f writs, for there are
m ore than seventy writs in the treatise. T h e collection m ay
have been in the form o f a book or Register. M aitland3
noted a similarity between the main outlines o f the arrangem ent
1 P & M , 1, 164
* It can be argued, from the faults of construction and from the ques­
tions left unanswered, that the treatise as we have it is a draft which the
author allowed to circulate. This sort of thing happened often enough,
but it is dangerous to urge such a thesis based on evidence of this kind
where, as here, it is unsupported by M SS in different stages of development
which can be attributed to the author. I do not propose it. But, if it were
true, it might lead us to look for an author whose work was interrupted in
1189. Both Glanvill and Hubert Walter went on crusade then; many
‘ lesser figures ’ went with them. O f intermediate stature was Godfrey de
Lucy, who had been a judge for more than a decade and was made Bishop
of Winchester in 1189 (interruption?); he is an intriguing possibility
because his father, Richard de Lucy, was the one justice long dead whose
name is mentioned in the margin, perhaps by the author (see p. xliv).
8 ‘ The Register of Original Writs,’ Collected Papers (Cambridge 1911),
11, 126-30
3
xxxiv INTRODUCTION

in the treatise and in the later Registers o f W rits. T h e

earliest extant Register is that o f 1227 w hich was sent to
Ireland, but it is possible that by 1187-9 suc^ collections al­
ready existed; they m ight well have contained, as did later
Registers, not only writs in common form and use but also
experim ental forms such as those found in Book xii, cc. 19 and
20. It is, o f course, equally possible that the author used a
collection o f actual writs. A t least some o f the writs used as
models were p robably justiciar’s writs; in all cases in the
treatise the w rit purports to come from the king, but occa­
sionally the original alpha text o f the w rit (corrected by beta)
uses expressions like ‘ per breue dom ini regis ’ and ‘ regis
H enrici aui dom ini regis ’ w hich are appropriate to a ju s­
ticiar’s but not to a king’s w rit.1
T h e Prologue describes the laws o f E ngland as unwritten.
O f course m uch old law, genuine and spurious, had been
written down and was, as we have seen, still being copied and
‘ revised ’. But, in contrast to B racton,2 there is no sign that
any o f this served as a literary source for the author.3 T h e
treatise does, however, rely heavily on the legal reforms o f
H enry II, most o f w hich were probably written down though
few have survived.4 ‘ Constitutio ’ is used generally for the
enactments establishing the possessory assizes, and specifically
with reference to novel disseisin.5 T h e G rand Assize is the
result o f a ‘ constitutio ’ w hich is referred to six times.6 * Per
assisam regni ’ an ecclesiastical ju d g e is forbidden to deal with
lay debts and tenements ‘ ratione fidei interposite ’ : this is a
clear reference to cc. 9 and 15 o f the Constitutions o f Clarendon
1 ix, 7; ix, 14. See the collection of justiciar’s writs for 1190-1200 in
Stenton, pp. 350-418.
8 He used the third (London) recension o f the Leges Edwardi Confessoris',
H. G. Richardson, ‘ Studies in Bracton,’ Traditio, vi (1948), 75-8.
s Some faint echoes o f the Leges Henrici Primi were noted by F. Lieber-
mann in his edition of the Leges, but the only point at which there is sub­
stantial verbal similarity is when both works discuss the formula for homage
(ix, 1 ; Leges 55, 3), and here the formula is the common source.
4 Most of the references which follow were collected by G. B. Adams,
Council and Courls in Anglo-Norman England (Yale 1926), p. 145, n. 33.
6 xiii, 1; xiii, 32 and 38
8 ii, 7 has four references; also ii, 12 and ii, ig.
 INTRODUCTION XXXV

o f 1164.1 In this last case the legislation itself, and in the pre­
vious cases the results o f the legislation, are well known to us
from other sources. But there are other cases for w hich the
treatise seems to be the sole au th o rity: three rules concerning
the records o f minor courts are said to be established ‘ per
assisam ’2; m ort d ’ancestor w ill not lie for burgage tenements,
and this is ‘ per aliam assisam . . . in regno constitutam ’3;
clerks presented to a church b y those w ho usurped the advow ­
son in time o f w ar shall nevertheless hold the church for life,
and this ‘ statutum est eciam in regno domini regis.’4 T h e
discussion o f crim e m ight be expected to refer extensively to the
Assizes dealing with presentment (Clarendon 1166 and N orth­
am pton 1176), but it does not. Th ere is m erely a puzzling
statement that presentment for concealm ent o f treasure does
not involve purgation by ordeal unless certain conditions are
satisfied ‘ licet aliter per assisam fieri posset ’ ;B and there is a
note on the need for speedy hue and cry in homicide ‘ iuxta
assisam super hoc proditam .’ 6 Y e t the w hole discussion o f
crim e assumes presentment as an accepted alternative to appeal
in cases o f serious crimes, and the Assizes o f 1166 and 1176 must
have been known to the author. T h e answer m ay well be that
these Assizes were neither revolutionary nor intended to be
permanent, but m erely added severity and comprehensiveness
to an already existing scheme o f presentment w hich was part
o f the ‘ lex regni V T h e treatise itself contrasts this ‘ lex
regni ’ with ‘ assisa ’ in the treatm ent o f treasure trove8;
elsewhere ‘ consuetudo regni ’ is used in the same sense to
indicate old-established law .9 T o conclude, the author m ay
have had a collection o f written legislation: he comes nearest
to quotation in his use o f the Constitutions o f Clarendon; he
also refers to the constitution establishing the G rand Assize in
a w ay w hich suggests that he m ay have had a text, for he

1 x, 12; the treatise elsewhere relies, but without referring to any

‘ assisa’, on cc. 1, 9 and 12 of the Constitutions. ! All in viii, 9
• xiii, 11 * iv, 10; an early use of this verb * xiv, 2
• xiv, 3 ’ See p. 171, r. 1 8 xiv, 2
• e.g. in xii, 25. W hat is ‘ consuetudo ’ in the treatise may, as perhaps
in this case, have had its origin in legislation.
X XX vi INTRODUCTION

speaks o f the penalty as ‘ ipsi regali constitution! eleganter

inserta.’1 But the plan o f the work rejects any com m entary
on legislative texts; the results o f legislation are w oven into
the texture o f the treatise.
T h e Dialogus de Scaccario, probably complete in its original
form by 1 1 79, must have been known and available to the
author. Its purpose was to do for the Exchequer w hat the
treatise later did for the royal courts o f law , to set out in plain
language w hat happens. T h e Dialogus m ay, then, have
inspired the w riting o f the treatise.2 Some o f the language o f
the Prologue to the law treatise is reminiscent o f the Dialogus,
whose Prefalio has the same antithesis o f w ar and peace, the
same declared intention to w rite in simple style about nec­
essary m atters.3 T h ere is, moreover, in the body o f the Dia­
logus a eulogy o f H enry II w hich speaks, in language similar
to that o f the legal work, about the spread o f the king’s fame
and the reasons for it.4 But there is little exact verbal parallel,
and the sentiments are com m onplace enough. T h e impetus
to writing, although unproven, remains as a more im portant
possibility than these decorative likenesses.
W e have already considered in general terms the influence
o f civilian and canonist learning on the treatise; here w e
exam ine it more closely. T h e Preface to Justinian’s Institutes
is the basis for the opening words o f the Prologue, and the
influence o f R om an law is evident throughout in matters o f
arrangement, term inology and content.6 T h e arrangem ent o f
Book x, already discussed, is clearly indebted to the treatm ent
o f contract in the Institutes. ‘ Stray elements o f R om an
1 ii, 19 * So V an Caenegem, p. 378
* For the Dialogus see the edition and translation by Charles Johnson
(Edinburgh 1950), in which the Pre/atio is at pp. 1-3. T he intention to
write simply is also stated in the Prologus o f the Dialogus at pp. 5-6. The
war/peace antithesis is, o f course, in the Preface to Justinian’s Institutes,
* Dialogus, pp. 75-7. If the passage is interpolated and may be as late
as 1189 (H. G. Richardson, ‘ Richard fitz Neal and the Dialogus de
Scaccario,’ E.H.R. x lh i (1928), 339-40), the borrowing could be either
way. The Dialogus clearly refers to the events of 1173-5, but there is less
reason to suppose (as does Johnson, Dialogus, p. 75, n. 1) that the legal
treatise, which makes no mention of difficult children, also does so.
5 Fuller discussion in Van Caenegem, pp. 379-82.
 INTRODUCTION XXXVII

term inology,’ such as lesa maiestas, crimen falsi, uocandi sunt sorores,
abound, and have been collected b y V a n C aenegem .1 For
content, as for arrangem ent, Book x is illum inating; the de­
finitions o f mutuum, commodatum, locatio-conductio and emfitio-
uenditio show a knowledge o f Rom an law . T h e use m ade o f
it is hard to evaluate. N o law yer acquainted with the Corpus
Juris can w rite in L atin about law w ithout em ploying the
language o f a Rom anist; but he m ay not use, or m ean to use,
the L atin words in their precise R om an law sense, nor m ay he
intend to reproduce the R om an law rules as he finds them in
the authorities.2 T o take a simple exam ple, infamia in R om an
law was a technical term covering certain disabilities attaching
to a sharply defined group (infames) w ho had been guilty o f
wrongful or unseemly conduct. T h e w ord is twice used in
this sense in the treatise, to refer to the disabilities o f appellors
who lose a battle and o f recognitors convicted o f false swearing
in the G rand Assize3; it is also, but quite correctly in the
context o f English law , used in the different sense o f notoriety
or ill-fame in the discussion on presentment o f concealm ent o f
treasure.4 In the absence o f the first two uses it m ight have
been tem pting to accuse the author o f failing to understand
the technicalities o f infamia. T h is is an easy case: more diffi­
cult is an assessment o f the use o f R om an law in Book x. O n
the whole, the author behaved sensibly.8 A p a rt from defini­
tion there is little R om an law here; and w hen he departs from
his model (as in the definition o f sale), or refuses to follow it all
the w ay (as in the discussion o f penalties for w ithdraw ing from

1 pp. 379-80: infamia (discussed immediately below) and in iure confessio

(ii, 19) can be added to his list.
* T h e dispute about Roman law in Bracton should be a sufficient
warning; there is a considerable and acrimonious literature.
s xiv, 1; ii, 19 * xiv, a
* V an Caenegem takes a sterner view. He is perhaps too severe in
alleging a failure to distinguish commodatum and mutuum (p. 381; ' the dis­
tinction is clear from the definitions given, although the common availa­
bility o f debt in both situations obscures the distinction in English law-— see
P & M , n, 304-05), in saying that the author contradicts his own statement
that sale is established by mere consent (p. 381; the author qualifies by
adding a necessary proviso), and in his implied criticism of the treatment
o f penalties for withdrawal from sale (p. 382; see P & M , 11, ao8, n. a).
xxxvrn INTRODUCTION

a sale where earnest has been given), it is because his law is

not the same as the Rom an. A particular illustration is the
treatment o f cause debendi. M oney or a thing m ay be owed,
and claim ed in an action o f debt. In such an action the causa
petendi o f the plaintiff is the same as the causa debendi o f the
defendant, i.e. it is the performance by the plaintiff o f his
part o f the transaction. T h e cause debendi, then, are mutuum
(money or consum able goods lent: m oney or an equivalent o f
the consumed goods is owed), commodatum (thing lent gratui­
tously for use: the thing lent is owed), emptio (price paid by
b u y e r: the seller owes the thing), venditio (thing delivered by the
seller: the buyer owes the price), locatio (thing let out by
letter: hirer owes the hire rate) and conductio (hire rate paid
by hirer: thing owed by letter). N ow in R om an law , as in
the treatise, actions on mutuum and commodatum depend on
performance by the plaintiff; they are real and not con­
sensual contracts. Contrast emptio-venditio and locatio-conductio:
in R om an law they are consensual contracts enforceable on
proof o f agreement, but in English law debt is only available
to a plaintiff w ho can show performance. H ence, as we have
seen, the treatise insists in the case o f these two contracts that
there are different cause debendi for the two parties. G iven that
the notion o f agreements enforceable by mere consent was w holly
foreign to English law at this time, this seems to be an ingenious
adaptation o f R om an law rather than a m isapplication.1
1 ‘ M isa p p lica tio n ’ is used in Concise History, p. 627. H orst K a u fm a n n
argu es in ‘ “ C a u sa d e b e n d i ” u n d “ cau sa p eten d i ” b ei G la n v ill so w ie im
rom isch en u n d ka n o n isch en R e c h t sein er Z e it,’ Traditio, x v n (1961), 108-13,
th at the causa debendi is in a ll cases th e c o n tra c t a n d n ot th e p e rfo rm an ce b y
the p la in tiff. T h e v ita l d ifferen ce is th at, o n his v ie w , in sale a n d in h ire
th ere is on e causa o n ly — emptio-venditio in sale, locatio-conductio in hire. H is
a rg u m e n t can n o t be re p e ated h ere. A g a in st it a re (i) x, 3 : * A u t en im
d e b e tu r a liq u id e x cau sa m u tu i, a u t ex u en dition is cau sa , a u t ex com m o-
d a to , a u t ex lo ca to ’ (venditio a n d locatio as cause): (ii) x , 14: ‘ E x cau sa
q u o q u e em p tion is uel u en d ition is d e b e tu r a liq u id ’ — o n ly A an d L o f all
the M S S su p p ort the 1 em p tio n is et u en d ition is ’ o f p reviou s p rin te d texts
on w h ic h K a u fm a n r relies: (iii) the c h a p te r h ea d in gs o f x , 14 a n d x , 18
(beta a n d th erefore p erh a p s irrele v an t, bu t used b y K a u fm a n n ) sa y ‘ de-
b en tu r ex causa em p tio n is uel u en dition is ’ a n d ‘ e x cau sa lo ca ti uel co n d u cti ’
(see W o o d b in e , p p . 36-7). D r K a u fm a n n kn ow s o f these criticism s a n d is
n ot p ersuaded.
 INTRODUCTION x x x ix

T h e only explicit reference to canon law is to the decretal

o f A lexander I I I on legitim ation b y subsequent m arriage
(vii, 15). Less direct references are in iv, 10, where the treatise
states w hat w ill happen in the ecclesiastical court to a clerk
w ho has backed the w rong patron, and in ii, 12, w here the
reader is assumed to know the grounds for rejecting witnesses
in an ecclesiastical court. Canon law influence on the content
is part o f the wider problem o f its im pact on English law as a
whole, w hich is not strictly in question here. T h ere have been
exhaustive discussions about novel disseisin and the actio
spolii.1 R ecently the im pact on procedure has been considered:
there is, however, little or nothing on this point in the language
o f the treatise to suggest canonist influence beyond a small
and inevitable use o f similar terminology, and the changes
in the content o f procedure tentatively attributed to canon law
b y V a n Caenegem depend on an interpretation o f earlier
English texts w hich strains them considerably.2 In truth,
these are insoluble problems. T o insist on the independent
growth o f English law is to ignore the fact that canon and
common lawyers were in constant contact and often the same
people. Y e t the search for literary antecedents and verbal
parallels in foreign systems can become a cloistered pastime
out o f touch with practical law -m aking; there is a tem ptation
to compare the finished product with that o f other systems
and to ignore the slow native developm ent w hich went before3;
there is a tendency to forget that similar problems m ay beget

1 Summarised and commented on in V an Caenegem, pp. 386-90.

F. Jotton des Longrais has deplored the tendency, exemplified by V an
Caenegem, to underestimate the importance o f romano-canonical pro­
cedure in the reforms of Henry II; see p. 193.
* The discussion is in V an Caenegem, pp. 382-6, with texts listed at
p. 385, n. 1. The influence is said to be shown in the change in English law
from an award of ownership (to plaintiff when defendant defaults) to an
award o f possession only; but it is not clear that the old texts are all re­
levant, nor that they award ownership on default.
8 Contrast the approach to the Praecipe o f the Romanist Schulz (‘The
writ “ Praecipe quod reddat ” and its continental models,’ Juridical Review,
l i v (1942), 1-20), who stresses Frankish and even Ptolemaic parallels, with
that in V an Caenegem (pp. 121-6 and 239-48), where gradual judicialisa-
tion is the theme.
xl INTRODUCTION

similar solutions b y men o f original mind who, though not

ignorant o f foreign methods, are caught up in the legal logic
and atmosphere o f their own law .1

6. T h e D e v e l o p m e n t o f t h e T e x t t o c . 12 0 0
The priority o f alpha
T h e text survives in over thirty manuscripts. M ost o f these
fall into one or other o f two groups w hich, following Professor
W oodbine,2 w e call alpha and beta. T h e principal differences
between them can be briefly stated. T h e alpha text is divided
into a large num ber o f rubricated sections: the beta text is
divided into fourteen books w hich are sub-divided into chapters
w hich often, but not always, correspond to the rubricated
sections o f the alpha tradition. Alpha has a num ber o f internal
cross-references in the text, often in terms o f tractatus, a word
which corresponds in different contexts to the w hole treatise,
to one or more beta books, or to a beta chapter: in beta m any o f
these references are in the same form, but others are in terms
o f books; e.g. * in prim a distinctione huius tractatus ’ in
alpha is ‘ in prim o libro ’ in beta (iv, 6) and ‘ in prim o tractatu ’
appears variously and correctly as ‘ in prim o libro ’ (xi, 5)
and ‘ in secundo libro 5 (ix, 6 ).8 Lastly, the language o f alpha
and beta is different; one o f them has been com pletely re­
written to make the other, but in such a w ay that legal, as
distinct from stylistic, differences between them are negligible.
Professor W oodbine followed earlier printed editions when
he printed a text based on beta. Convincing reasons have been
given by Professor Southern for believing that alpha cam e first,
and it is not necessary to repeat them here in full. T h e m ajor
point is this: i f w e say that beta cam e first, w e have to suppose
1 e.g. Horst Kaufmann contends that the equation in Book x o f causa
debendi with causa petendi (above, p. xxxviii) must be derived from romano-
canonical literature because, although no model for it can be found there, it
is not in Justinian’s Corpus Juris nor in the early glossators, and the author
o f the treatise had not sufficient interest in theory nor the systematising
ability to invent it for himself (Traditio, xvn (1961), 138-58): but is this fair
comment on the author?
* Woodbine, p. 16 * Details in Southern, pp. 83-6
 INTRODUCTION x ii

a reviser who was confronted b y a division into books and

chapters, and b y a set o f cross-references some o f w hich were
to specific and identifiable books and chapters and others o f
w hich w ere to tractatus o f uncertain size and position; he aban­
doned the books and chapters for rubricated sections, and
replaced the references to books and chapters b y further vague
references to the uncertain tractatus or b y a mere ‘ ut infra ’ -1
This is so im probable that very convincing reasons w ould be
needed to make it credible; these do not exist. W oodbine
found such reasons in the language o f the two versions, and
claim ed that alpha ‘ represents a more finished and somewhat
expanded version, m ade, we have some grounds for believing,
by an ecclesiastic, possibly a foreigner, w ho objecting to a too
uncouth diction and the technical expressions o f the English
courts, preferred to im prove his text, as he thought, by the use
o f explanatory phrases and some o f the term inology o f the
ecclesiastical courts.’ 2 O n this view the language o f beta more
nearly corresponds to the intention o f the Prologue— ‘ stilo
uulgari et uerbis curialibus utens ’— than does that o f alpha.
N ow nobody can doubt that in the context o f contem porary
writings in Latin, and in comparison even w ith the practical
Dialogus de Scaccario, alpha and beta both em ploy a ‘ stilus uulgaris ’ .
M oreover, the points o f difference relied on for this thesis w ill
not serve: Professor Southern’s proof o f this can be am plified,
b u t is sufficient.3 In particular there is no w arrant for supposing
a canonist predilection in alpha for the w ord ‘ causa ’ as
opposed to * placitum ’ : so the difference between the last
sentence o f the Prologue in the two traditions— alpha is going
to distinguish the kinds o f secular causes and beta is going to
divide the w ork into books and chapters— is most simply
explained i f w e rem em ber that in alpha the m ain text, w ith its
distinction between the kinds o f plea, follows im m ediately after
this sentence, whereas in beta a list o f books and chapters is
1 In place o f the ‘ ut infra, capitulo proximo post capitulum prox-
imum ’ o f beta in viii, 7. * Woodbine, p. 18
•Southern, pp. 82-3; amplification by Horst Kaufmann in Traditio,
xvn (1961), 158-62, whose concern is merely to rebut the claims of beta
and not to advance those o f alpha.
 x iii INTRODUCTION

interpolated between Prologue and text: there is no need to

see a revising canonist in the words ‘ causarum secularium
T o these m ajor reasons for thinking that alpha cam e first
we can add some minor indications. T h e Incipit m ay not be
original to the treatise, but it is present in all the early alpha
manuscripts except L , and in all the early beta manuscripts.
In every case beta has the extra sentence beginning ‘ E t illas
solas leges . . . ’ w hich states the lim ited scope o f the treatise.
T h e obvious inference is that beta used, and added to, an
alpha m anuscript w hich had the shorter Incipit: w h y should
alpha drop the extra sentence? A gain, although alpha is often
more w ordy than beta this is always as easily explicable in terms
o f tidying by beta as in terms o f expansion b y alpha: on the
other hand certain extra phrases in beta do seem to represent
an attem pt to elucidate an obscure alpha text, e.g. the additions
o f ‘ qui adeptus est huius tenementi saisinam ’ in Book xiii,
c. 28, and o f ‘ qui feodum esse dixit ’ in Book xiii, c. 30, both
at a point where the treatise is badly arranged and needs
explanation, as w e have already seen.2 Th ere are, moreover,
two im portant omissions comm on to all beta manuscripts.
T h e first, in Book i, c. 27, has already been noticed as mis­
leading the glossator into thinking that the treatise was de­
fective.3 T h e other is at the end o f Book i, c. 3 1 .4 T h eir
absence from all beta manuscripts makes it hard to suppose
that beta cam e first; there are no such cases in the reverse
direction.5 Finally, we have already noticed6 that beta twice
1 Horst Kaufmann, ibid. 160-1, stresses the English precedents (e.g.
Leges Henrici) for this usage.
* Above, p. xxvi; Woodbine, p. 287, saw the difficulty.
8Above, p. xxvii; see p. 15. T he words are in all alpha texts and in no
beta-, they are in the text in Woodbine, p. 50.
* See p. 20. The words are in all alpha texts except L and I, and in no
beta-, they are a footnote to p. 23 of the 1780 edition, but are not noticed
in Woodbine. For further discussion, in connexion with L, see p. lxvii, n. 2.
* An apparent exception occurs at the end of vi, 17. A ll alpha M SS
except A and L follow Ln and Z> A agrees with L, all beta M SS agree with
B (see p. 68). This could be the result of homoeoteleuton (‘ quam . . .
quam ’) in copying alpha from beta, but it is more probably an attempt by
beta to harmonise the wording of this sentence with the form of the follow­
ing writ. No such explanation will cover the converse cases of the two
omissions in beta. 6 Above, p. xxxiv
 INTRODUCTION x liii

changes the w ording o f writs w here the models used in alpha

were probably issued by the justiciar.

The names
A t this point it is appropriate to mention the names w hich
are vouched as authorities, sometimes in the text and some­
times in the m argin or as interlineations, in some o f the m anu­
scripts. W oodbine1 noted some o f these in Z (an alpha
m anuscript), and regarded them as late additions. Professor
Southern has objected that ‘ the more interesting hypothesis,
that these names were included in the earlier recension and
later dropped, is also the more likely b y far.’ 2 H e found names
in several alpha manuscripts, and regarded as conclusive the
presence in the text o f Z an opinion b y the men o f W iltshire,
which ‘ obscure detail ’ could never have been added later:
so the names were an additional reason for thinking that alpha
cam e first. Consideration o f these two opposing views re­
quires the table on the next page, w hich sets out the names
and the manuscripts in w hich they occur.
Names appear not only in early alpha manuscripts (Ln, X ,
Z) but also in the earliest beta manuscripts (B, Ls). Some
early alpha manuscripts (A, Ca, L) have no names at all. Z *s
the only8 early alpha manuscript w ith names in the text:
in Ln and X they are interlined or m arginal: some later alpha
manuscripts (Ab, E , French M SS) have them in the text. In
beta the names are always in the m argin. Th ere is great var­
iation in the num ber o f names found in individual manuscripts,
but the names when given are always the same.4
It is clear that W oodbine’s thesis o f late addition w ill not
d o : it is based solely on names found in the text o f vi, i o and
17 in Z) w hich he seems m istakenly to have placed in the late
thirteenth century. N or can Professor Southern’s argum ent
stand. H e noticed only alpha manuscripts; but the names
appear early in the margins o f both alpha and beta. M oreover,
1 Woodbine, p. 220 a Southern, p. 87
3 W ith the exception of Col for i, 32
4 The apparent exception (vii, 3) appears only in the alpha and not in
the beta texts; most probably Lucy held one view and Glanvill the other.
x liv INTRODUCTION

T h e N am es in t h e M an u scripts

Book i, 32 (3 opinions)
1. W . B. interlin. Ln.
2. O sbert fitz H ervey interlin. Ln: es fil text, O sbert fitz
H ervey marg. Col.
3. H ubert W alter interlin. L n : arch (?) marg. Col.

Book vi, 10 (2 opinions)

1. H ubert W alter text Z , E , Ab, French M SS; interlin. and
marg. Ln.
2. O sbert fitz H ervey and H ugh B ard o lf text Z , E , Ab, D ,
French M S S ; interlin. and marg. Ln.

Book vi, 17 (1 opinion)

H ubert W alter text Z , E .

Book vii, 3 (2 opinions)

1. R a n n u lf G lanvill marg. E , B , Ls, R, V, T, Wr.
2. R ich ard de L u cy marg. E , B , Ls, R, V, T , Wr: R an n u lf
G lanvill (and) R ichard de L u cy text French M S S 1; marg.
Ln, Z ; interlin. X.

Book x, 5 (1 opinion)
M en o f W iltshire (quidam de W iltesir’) text Z'- R obert
o f W heatfield marg. E , B , Be, Ls, R, V, T , Wr;
interlin. Ln.

Book xi, 3 (1 opinion)

H ubert W alter text French M S S ; interlin. Ln; marg. B ,
Ls, Wr.

N ote: alpha texts: Ln, Z> E, Ab, X , French M SS, Col.

beta texts: B , Be, Ls, R, V, T , Wr.
m ixed text: D .

1 Except Nf, which omits the chapter

 INTRODUCTION x iv

N otes o n t h e N ames

W .B .
Possibly W illiam Briwer: justice itinerant and in curia
regis from 1187; d. 1226.
More probably W illiam Bassett: justice itinerant and in
curia regis, 1168-c. 1185;
or W illiam de Bendings: justice itinerant and in curia
regis, 1179-C.1189.

O sbert fitz H ervey

Justice itinerant and in curia regis from 1182; bench
justice under Jo h n ; d. 1206.

H ubert W alter
In curia regis from e.1185: ju d icial activity from 1189;
justiciar, 1193-8 (1186 dean o f Y o rk ; 1189 bishop o f
Salisbury; 1193-1205 archbishop o f C an terbu ry; 1199-
1205 chancellor); d. 1205.

H ugh B ardolf
D apifer regis from c.118 1; justice itinerant and in curia
regis, 1184-1203; d. c.1203.

R a n n u lf G lanvill
Justice itinerant and in curia regis from 1175 ; justiciar,
1180-9; d. 1190*

R ich ard de L u cy
Joint justiciar, c.i 154-1168; sole justiciar, 1168-78; d. 1179.

R obert o f W heatfield
Justice itinerant and in curia regis, 1179-92; d. c.1192.

The above notes give an outline of the judicial activity of the men
named. Further details can be found in general histories, in the Curia
Regis and Pipe Rolls, and in final concords; see also E. Foss, Lives of the
Judges (London 1848-64); H. G . Richardson in E.H.R. x l i i i (1928),
167-71 and in the Introduction to Memoranda Roll, 1 John (Pipe Roll Society,
n.s. xxi, 1943); Handbook o f British Chronology (2nd ed., R oyal Historical
Society, 1961), pp. 67-71.
x lv i INTRODUCTION

his reliance on Z is open to question. Z alone o f all early

manuscripts (alpha and beta) has names in the text. N ow even
i f w e agree with Professor Southern that names included in
the m argin o f an early recension are likely to have been
dropped later, it does seem im probable that names already
in the text will be removed into the m argin b y a scribe1 : yet
this is w hat w e must postulate i f % is to have prim acy. T h e
case o f ‘ the m en o f W iltshire ’ is crucial. It was perhaps
never very probable that the author would invoke the opinion
o f ‘ quidam de W ilte sir’ on a difficult legal point; the
evidence now available makes it clear that this is an incorpor­
ation into the text o f Z o f a misreading o f the m arginal ‘ R . de
W itefeld,’ whose ‘ R .’ m ay have been cropped from the m argin
o f ^ ’s exem plar.” Z an early text from a good home, but it
abounds in peculiar readings and cannot be very close to the
beginnings3: it seems probable that it took over all its names
from the m argin o f an earlier m anuscript, putting some in
the text and leaving others in the margin.
T h e names, then, cannot be used to establish priority for
alpha or beta. W hat conclusions can be draw n ? As can be seen
from the notes to the table, the names can all, w ith the excep­
tion o f W .B ., be certainly identified w ith im portant royal
justices o f the last quarter o f the twelfth century: all but
L ucy and (perhaps) W . B. were active w hen the treatise was
written. T h e fact that the manuscripts always agree in the nam e
w hich they attach to an opinion makes it possible that one
m an was responsible. M oreover, it was probably done very
early: the use o f ‘ H ubertus W alter ’ rather than ‘ D om .
C an t.’ or ‘ A rch .’ suggests a date before H ubert becam e
archbishop in 1193,4 and the reference to L ucy, w ho had died
in 1179, also points to an early date. I f we can feel happy
w ith an author w ho resorted to the m argin and with scribes

1 Professor Southern did not distinguish margin and text in his hypo­
thesis.
* The late manuscript E, which clearly had the same ultimate source
as Z, has ‘ R. de Witefeld ’ in the margin. 8 See p. lxvii
1 I am indebted to M r H. G. Richardson for this suggestion. In i, 3a
Col perhaps reads ‘ arch ’.
 INTRODUCTION x lv ii

w ho dropped names w hich w ere in their exemplars, then there

is no difficulty in saying that the author him self wrote the
names, that Ln comes nearest to his work (one nam e only
is missing), and that other manuscripts to a greater or lesser
degree fell aw ay from the original. T h e author’s resort to the
m argin w ould be no more than m ildly surprising, the scribal
nam e-dropping quite characteristic. M oreover, in every
place in the treatise w here a reference to conflicting authori­
ties is m ade in a w ay w hich invites names, one or more m anu­
scripts has them 1 ; this completeness also suggests that the
author was responsible. O f course there are other possibilities.
T h e early manuscripts probably belonged to quite a small
circle o f lawyers, and w e know from Z and D that there was
comparison between alpha and beta.* A contem porary, per­
haps in consultation w ith his friends, m ight w ell have known
or thought he knew the names o f the judges concerned. In a
case like the representation controversy or casus regis (vii, 3)
this is very probable; but, assuming as w e must that the names
were not mere frivolous guesses, it is m uch less likely w ith the
three views on the consequences o f default b y a dem andant
(i, 32), w hich was a comm on enough situation but not a
m ajor issue o f law and politics. So there is at least a good case
for thinking that the names were original. W hat is quite clear
is that we have, as Professor Southern noted, a uniquely early
indication o f personal views in the royal court, and that in one
case, the casus regis, they are o f general historical interest.

The early alpha text

W e are now in a position to consider the early developm ent
o f the treatise. It was written w ith an alpha text; the proof for
alpha priority has been given. T h e Incipit does not sound
original, and was very likely added after the death o f H enry II

1 An apparent exception is i, 32 (last paragraph): ‘ secundum quosdam

. . . secundum alios . . . etc.’ The two opinions seem to be a repetition of
the first two of the three views stated just previously in i, 32, for which
names are given in Ln, and the ‘ etc.’ suggests that the third view existed
here also; so it was not necessary to repeat the names.
* See p. Iv
x lv iii INTRODUCTION

(‘ tempore regis H enrici Secundi compositus ’ ) but before

beta was m ade,1
Rubrics are found in most early alpha m anuscripts.2 Y et
it is hard to believe that they are the work o f the author.
Som e incidental illustrations o f the w ay in w hich they often
obscure the plan o f the work have already been given. A n
excellent exam ple is the treatm ent o f heirs, in w hich the
treatise first distinguishes and then discusses the three cases o f
full age, m inority, and doubt as to full age or m inority. T h e
distinction and discussion are all contained in w hat is now
Book vii, c. 9. In the alpha texts there are two rubrics. No
rubric precedes the initial distinction; the first rubric announces
correctly the discussion o f heirs o f full age; the discussion
moves on to minor heirs without any rubric to say so; pre­
ceding the very last sentence on minor heirs, and relevant
only to that sentence, there comes the second rubric; the
discussion then shifts to the third case (doubt) w ith no rubric
to m ark the shift. T h e almost invariable practice o f rubricating
writs is another factor w hich makes for obscurity, because a
m ajor change o f subject w hich occurs ju st before a w rit often
goes unrubricated, possibly on the principle that rubrics must
not com e too close together. It seems likely, then, that the
rubrics were not original, but were added at an early stage;
although there is a considerable degree o f consistency, the
variations (e.g. the rubrics in the early part o f L, printed as
notes to the present text) suggest a willingness to experim ent
which m ay sometimes have been dictated b y shortage o f space.
T h e rubrics are not num bered in the early manuscripts,
but there is a trace o f an early num bering in a passage (now
xii, 23-5) w hich is repeated, in a form with unique variant
readings, at the end o f the treatise in £ .3 T h e passage is here in
1 Only L among the early alpha M SS lacks the Incipit, but A, also very
early (sec p. Ixvi) and closely related to L, has the Incipit.
a They vary slightly in placing and, sometimes considerably, in
wording, as a study of those in Ln, L and Z (printed in this volume) shows.
There are none in X and many are missing in Ca; for these early alpha
MSS see below, p. lxv.
8 Noted by Southern, p. 86; they are also found at the end o f E (a
late descendant o f Z) in the same words but without numbers.
 INTRODUCTION x lix

two sections, w hich are not rubricated but are numbered

clxiiia and clxiiii3. This would not correspond to the num ber­
ing o f Z itself, had it been num bered: nor is it the same as
that o f the only other alpha manuscripts w hich are numbered
— Co, Or and G, three manuscripts o f the fourteenth century
belonging to the G uildhall group,1 w hich have the rubricated
divisions o f alpha num bered consecutively as chapters. In Z
the num ber w ould be cxliii, in the G uildhall group it is c x lv i;
in these four manuscripts, as in alpha generally, the passage
forms a single section. In a beta m anuscript consecutively
num bered the passage would form three chapters, clxxxix-cxci.
So the repetitious addition in Z maY have come from an early
alpha m anuscript, perhaps not rubricated, w hich had been
more extensively sub-divided into sections than was to happen
w hen rubrication took place, but less extensively than was to
be the case when beta was divided into chapters.2 N o other
trace o f it now survives. It cannot be relied on as belonging to
an * interm ediate stage ’* between alpha and beta because the
variants in the text are not to be found in beta, w hich agrees at
this point w ith alpha.
T h e tractatus referred to in the text o f alpha correspond to
no outward and visible signs o f division in the manuscripts
except for a possible correspondence w ith an early division
into Cause in Ca and w ith the later division into Tractatus in
the version w hich M aitland called ‘G lanvill Revised’ (S and P ).
T h e division into Tractatus in S (P is a copy o f S) m ay have
been m ade about 1230 as part o f the original revision o f the
treatise, or as part o f a subsequent revision in the 1260s.4
T h e titles o f the Tractatus correspond in w ording to the list
o f civil pleas given in Book i, c. 3. U p to and including the
beginning o f Tractatus V I I I they are a sensible attem pt to
reconstruct the author’s original plan. But Tractatus I X ‘ De
placitis que super possessione loquuntur ’ (covering Book x,
1 See p. Ivii
* Shown, both for the work as a whole and for the additions here in
question, by the numbering: Z cxliii; Z odd. clxiii*, clxiiiia; beta clxxxix,
cxc, cxci. * Southern, p. 86
* See chart, p. xx. For * Glanvill Revised ’ see p. lviii.
1 INTRODUCTION

cc. 14-end) and Tractatus X ‘ De placitis que per recognitiones

terminantur ’ (covering Book xi, cc. 1-3) are foolish attempts
to fit w hat remains o f the list in Book i, c. 3 on to a truncated
version o f the treatise.
Ca is m uch earlier, probably soon after 1200. A later hand
has put numbered Capitula I I I - V I I I where S has the corres­
ponding Tractatus divisions. M uch more interesting, however,
is a contem porary division, spasm odically done in rubric
and m argin, from which it seems that an attem pt was being
m ade to provide this alpha text with a rudim entary and re­
m arkable cross-reference system. T h e evidence is a rubric to
Book xiv (‘ De placitis crim inalibus: Causa x ’); a series o f
consecutively numbered Questiones (Q,°i, Q fii, etc.) in the
margin o f Books x, xi and xiii; and a num ber o f m arginal
cross-references in Books ix— xiv w hich are in the form o f
Causa, Questio and initial word o f a sentence, e.g. ‘ C . ix, Q . ix,
Postremo.’ W ith allowance for error the system can be re­
constructed. There were ten m ajor divisions or Cause.1 These
were subdivided into Questiones w hich correspond simply to
those places in the text where the author asked a question.
T h e word at the end o f each reference leads to the exact
point o f text inside each Questio to w hich reference is being
m ade. So the exam ple above is a reference to Book xiii, c. 32,
for the ninth Causa is Book xiii, the ninth and last question
noted in the m argin falls in c. 30 o f that Book (‘ Q ueri autem
potest utrum in hac recognitione . . . ’), and ‘ Postremo ’ is
the first word o f c. 32. It is an astonishing perversion o f the
canon law method o f reference, in which Questio has a wholly
different and more rational significance.
T h e conclusion is that the treatise was originally written
in undivided form with an alpha text, to w hich at an early
date the Incipit and rubrics were added by someone other than
the author; in a lost and perhaps unrubricated version the
sections were num bered; quite early, and again later, an
attem pt was made to reconstruct the original plan by dividing
the work into Cause and Tractatus.
1 See chart, p. xx. For Ca see p. Ixv.
 INTRODUCTION li

Beta and the gloss

Beta was m ade from an alpha m anuscript not unlike A .1
M any o f the changes made have already been noted in the
discussion on priority. W e m ay summarise them by saying that
the Incipit was expanded, the treatise was revised, and books
and chapters were superimposed. N othing further need be
said about the expansion o f the Incipit. T h e other two changes
were probably m ade as part o f one operation; the revision o f
the text m ay have been the first step— the beta chapter heading
to ii, 21 is so worded as to presuppose the revised beta text2—
but all the surviving beta texts are divided into books and
chapters.
T h e revision merits closer inspection. T h e evidence
already adduced in the discussion on priority can be used to
demonstrate that revision was o f two kinds. Th ere was ex­
tensive rewriting o f no legal significance (on w hich W oodbine
relied in part for his beta priority, and w hich can be seen in
copious variants printed in his edition) ; and there was
am plification and change (positive— the extra phrases and the
changes from ‘ tractatus ’ to ‘ liber ’ ; negative— the beta
omissions). T h e revision was thorough, as a study o f W ood­
bine’s variants shows; yet from a legal point o f view the
changes are surprisingly few, and it is not clear that some o f
these were intended. A n exam ination o f the significant var­
iants from B for Books i and ii w hich have been printed in the
present edition w ill illustrate this. These variants do not include
the very considerable num ber o f purely stylistic changes: we
can, moreover, exclude interesting but minor changes such as
‘ inuerecundi ’ for ‘ uerecundi ’, ‘ legalium hominum ’ for
‘ hom inum ’, ‘ institutio ’ for * constitutio ’ . W hat is left ?
Beta corrects an error in the addressee o f a w rit, and a con­
fusion between dem andant and tenant.8 Precision is im proved

1 Described below, p. lxvi

* The heading is ‘ Quid iuris sit si nulli uel pauciores duodecim
fuerint inuenti qui rei ueritatem sciant.’ This is based on the first sentence
o f the chapter in which ‘ uel pauciores duodecim ’ is in beta and not in
alpha.
* i, 8; i, 32
lii INTRODUCTION

by an explanatory phrase.1 A different and possibly correct

period o f time is given for essoins w hen on pilgrim age to
Jerusalem .8 But beta is probably w rong in an amendment
to procedure on essoins de infirmitate ueniendi, in a difficult
passage on summoners, and when dealing w ith tenants who
appear once and then default.® This is a small harvest, and is
typical o f the work as a whole. Throughout the treatise the
balance is fairly even between author and reviser, w ho made
mistakes but was plainly an able m an with a good knowledge
o f the subject. A uthor and reviser were almost certainly not
the same man. It is possible that the explanatory additions
and some o f the amendments found in beta m ight be the work o f
the author, but m uch less likely that he w ould be responsible
for some o f beta’s misunderstandings, for the addition to
the Incipit or for the two omissions found in all beta texts.4
M oreover, it is surely im probable that anyone w ould under­
take such an extensive (and, frankly, often poindess) stylistic
revision o f his ow n w ork when he had expressly disclaimed for
it any literary m erit.6
A list o f book and chapter headings is found im m ediately
after the Prologue in the earliest and most other beta m anu­
scripts.6 T h e chapters m ay not at first have been num bered;
the reference in Book vii, c. 7— 1 ut infra capitulo proxim o post
capitulum proxim um ’— suggests that they were not. This
m ay explain w h y the beta revision stopped short o f changing
any tractatus references in alpha which corresponded to a chapter
and not to a book. O n ly in Book xiii, c. 31 does the beta text
refer to chapters by num ber, and this is almost certainly a part
o f the gloss w hich early got into the text, and is found now even
1 ii, 21 1 i, 29 * i, 12; i, 30; i, 21
* This could result from the author’s use o f a defective manuscript
when revising, but the omissions (especially that in i, 27) so impair the
sense that it seems unlikely.
6 But Professor Southern, to whom I put this comment on the stylistic
revision, found it a reason for thinking that author and reviser might be the
same person.
• Some (e.g. R and V) have the lists of chapter headings for each book
immediately before the text of that book. In Wr there is no book and
chapter list, but the headings of the books and chapters appear as rubrics
at the beginning o f each book and chapter in the text.
 INTRODUCTION li ii

in those beta manuscripts w hich have no gloss. C ertainly the

num bering cam e early,1 by about 1200 at latest. Th ere are
m ore chapter divisions in beta (238) than rubricated divisions
in alpha (about 180), and the chapter headings are generally
different and longer than the rubrics. O n the w hole they
represent an im provem ent, but like the rubrics they often
obscure m ain divisions.
O ne o f the main purposes, if not the whole point, o f num ­
bering the books and chapters must have been to m ake possible
cross-references and comments on the treatise. This was done
at an early date in w hat we have called the gloss. It is fullest
in B and Ls (good, early and closely related) and in Wr (later,
but very clcsely related to B ), and is also found less fully but
w ith some different entries in several other beta m anuscripts.2
T h e following analysis is based on B . Th ere are 234 entries
in the m argin. O f these, 152 are simple cross-references by
book and chapter w ithout any com m ent or additional infor­
m ation, e.g. * supra li.x0 c° iii° ’. Alm ost all o f these are correct
or can quickly be corrected; they have been invaluable as a
basis for the cross-references in the present edition. Th ere
are 51 entries w hich give a reference and add a note on the
information to be found at the place referred to, e.g. ‘ infra li.
x° c° v iii0 idem dicitur de eo qui m oritur m ortuum uadium
habens ’ : these references show a thorough knowledge and
understanding o f the text. Five entries expand or explain
w ithout giving a cross-reference, four are mere headings, four
are names, eight are o f the ‘ O biectio ’, ‘ Solutio ’, ‘ Questio ’
type. Th ere remain ten entries o f a critical or argum entative
nature. Those w hich claim to point out errors and omissions
have already been discussed.3 O ne o f the rem aining three
suggests (‘ m ihi uidetur ’) that m any o f the objections w hich
w ill prevent m ort d ’ancestor from proceeding can also be
urged in darrein presentment.4 T h e other two both make the
1 Both B and Ls (c. 1200) are numbered.
* R, V, T; fragments in Be and F.
* Above, p. xxvi
4 xiii, 20: this was incorporated, with the fatal substitution of ‘ non ’
for ‘ mihi ’, into the text o f R and V.
liv INTRODUCTION

interesting point that some people m ay interpret ‘ the d ay on

which he died ’ in mort d ’ancestor as including the w hole o f
the period o f fatal illness preceding death.1
T h e gloss is, then, efficient and intelligent. But the dis­
cussion has so far assumed manuscripts in w hich there is a
gloss, and in w hich the books and chapters are num bered, and
correctly so,2 in the text. T h e facts are otherwise, as some
examples w ill show. Th ere is a perfect num bering o f the
chapters in the text o f F; but F has virtually no gloss.3 There
is a gloss o f about 150 entries in T, and the chapter divisions
are correct throughout the text; but there is no numbering,
so nobody can ever have worked the gloss. T h e gloss in V is
very like that in T , but here there are serious mistakes in
num bering the chapters in Books i, xii and xiii which would
obstruct the w orking o f the gloss. Finally, B , w hich has the
gloss already analysed, has errors in num bering in Books i,
ii and xiii; and Wr, which has an almost identical gloss, has
errors in five o f the fourteen books. So the gloss remains an
efficient instrument w hich was too often not worked at all, or
m ade difficult to w ork by careless num bering.4

1 xiii, 3 and 11; accepted in a case of 1221 (D. M . Stenton, Rolls o f the
Justices in Eyre . . .for Gloucestershire, Warwickshire and Staffordshire, 1221-1222,
S. S. i.ix, no. 474).
8The correct numbering is derived from the lists of book and chapter
headings which precede most of the beta texts and are often numbered;
error has occasionally crept in, but there is a high level of consistency.
s Four entries on f. 9
* With any edition later than 1604 there would be two difficulties in
working the gloss. Woodbine (pp. 25-41) printed a list o f book and chapter
headings which, although it is unnumbered and without manuscript
authority, is a correct medieval list. It has 34 chapters f<4r Book i, as
against 33 in the Woodbine text: cc. 14 and 15 of the medieval text were
run into one chapter, the present c. 14, in the first edition o f 1554. The
list has 10 chapters for Book viii, as against 11 in the Woodbine text: the
medieval c. 8 was split into the present cc. 8 and 9 in the second edition of
1604; this explains why the reference in the beta text of viii, 7 to the modern
viii, 10 reads, correctly, ‘ ut infra, capitulo proximo post capitulum pro-
ximum ’— a reference to the medieval viii, 9.
 INTRODUCTION lv

7. T h e L a t e r D e v e lo p m e n t of th e T e x t

Experiments and grouping

Several manuscripts o f the two traditions alpha and beta
survive from the early years o f the thirteenth century. In the
course o f that century and in the first h a lf o f the fourteenth
century the treatise was copied, adapted, translated and used
in the m aking o f other legal works.
From the beginning those w ho m ade, or had m ade for
them, copies o f the treatise showed w hat m ay be called either
a disrespect for the original or an im proving zeal. Q uite
apart from the m ajor re-writing which produced beta there
are m any, but seldom legally significant, variations in the early
alpha manuscripts. Th ere are, moreover, some curious hybrids.
T h e addition o f a beta fram ework o f books and chapters to the
alpha £ is a m ild case.1 In Ab, w hich begins with a beta Pro­
logue, book and chapter list, and text, there is a switch to the
alpha text at Book ii, c. 13, and so it continues for the rest o f
the treatise.2 M ost curious o f all is D , written in the reign o f
John. T h e text is m ainly alpha, but there are some beta
variants, and some beta glosses with num bered chapter ref­
erences appear in the text. Th ere is a beta Prologue and book
and chapter list; the sections are rubricated in the alpha
m anner up to Book viii, c. 3, and then this m ethod gives w ay
to an attem pt to num ber the chapters, w hich persists in wild
incom petence for the rest o f the work.8 T aken in conjunction
w ith the gloss this activity suggests that there were m any
copies, and m uch interest in the treatise.
V e ry soon after it was written the treatise becam e attached
to other works, and it circulated along with them. Felix
Lieberm ann drew attention to several such groupings. T h e
best known case is the collection, already referred to, w hich is
found in one manuscript o f H ow den’s C h r o n ic a H ere, under

1 See Southern, pp. 86-7

* For the Incipit of Ab see below, p. lvi
s Further comments on D are at p. Ivii
* British Museum, R oyal 14 G. ii (above, p. xxxi); for Tripartita see
Iv i INTRODUCTION

the year 1180, and after a rubric ‘ Incipit liber de legibus

Anglie . . .’, it is said that by the wisdom o f R an n u lf G lan vill
‘ condite sunt leges subscripte quas Anglicanas uocam us’ : there
follows Tripartita, then a glossary o f A nglo-Saxon legal words
and the present treatise. A fter the treatise come the words
‘ E xplicit liber legum A n glie.’ T h en follow texts o f the
Assizes o f the Forest and o f Clarendon, probably spurious. In
one other m anuscript o f the Chronica1 there is the same rubric,
followed by Tripartita alone. T h e ‘ liber de legibus A nglie ’ or
‘ liber legum A nglie ’ is not referred to elsewhere. H owever, in
two thirteenth-century manuscripts o f the Chronica under the ,a
year 1176, the Assize o f N ortham pton is om itted, and in its
place are the words ‘ Si quis tamen eas uidere aut legere
desiderat, in libro qui dicitur curialis querat et ibi plenarie
eas inueniet.’ N ow the use o f ‘ liber curialis ’ for a legal
collection is not unknown in continental literature, but the
only English exam ple so far discovered relates to the present
treatise: Ab begins ‘ Incipit prologus in librum qui uocatur
curialis in quo continentur leges A n glie.’ It is not easy to
make anything o f these bits o f evidence, but there m ay once
have existed a collection known as ‘ liber curialis ’, containing
not only the legal m aterial found under the year 1180 in
H owden but also the Assize o f N ortham pton.3
Probably in 1192/3 Tripartita was translated into French,
and Lieberm ann thought it very likely that the treatise was
attached to this in the same w ay as it had been attached to

above, p. xxix. It is probable that almost all o f this collection is apocryphal;

H. G. Richardson and G. O . Sayles, The Governance o f Mediaeval England,
p p . 447-8.
1 British Museum, Arundel 69
s British Museum, Arundel 150 and Inner Temple 511.2
* A t p. 199* in Ab is a letter from H. S. Milman saying that ‘ Liber
Curialis is the proper name of this treatise, which is commonly called
‘ Glanville.’ The proper name is found in this M S only.’ H e gives no
reasons. In Ab the treatise begins as beta and switches to alpha (see above,
p. Iv); the Register of Writs which follows in the same hand was probably
made in the early years of Henry III but not copied until after 1244. The
evidence, then, is not in favour of Milman’s assertion.
 INTRODUCTION I v ii

the L atin original.1 It also seems likely that the treatise ori­
ginally followed the Consiliatio Cnuti and an unrevised version
o f the Leges Edwardi Confessoris in the m anuscript from w hich
M S H arleian 1 704 was d erived ; all that now remains is a note,
evidently based on the Incipit, w hich records the m aking by
R a n n u lf G lanvill o f a book ‘ qui G lanuilla uocatur,’ w hich is
now (c. 1325) obsolete.8
In another group o f manuscripts an early and good beta
text is followed by a version o f the unrevised Leges Edwardi
Confessoris w hich stops at c. 34, 1 a ; to this class belong B , Ls,
No, W and Wr.s T h e G uildhall group presents a collection of
laws m ade in London in the time o f John in w hich the treatise
comes near the end o f a comprehensive and miscellaneous
collection in Latin , ranging from Ine to John. T h e hybrid D,*
w ritten about 1210, occurs in the m anuscript w hich is the
earliest surviving witness o f this collection. G, Co and Or,
alpha texts w hich are in no w ay related to D , com e from four-
teenth-century versions o f this collection to w hich later
statutes, beginning with M agn a C arta, have been added;
the com bination o f old and new was unusual for that time
and m ay be the result o f the antiquarian tastes o f A ndrew
H orn the C ham berlain.6

Continuation, translation and revision

Attem pts to make the treatise m ore serviceable took
several forms. Som ewhere about 1240 a C hancery clerk
copied out a beta text and added at the end a list o f 21 ordi­
nances (from the C harter o f 1225 to the Provisions o f M erton
o f 1236) and a Register o f W rits w hich can probably be dated

1 Zetechriftfilr romanische Philologie, x ix (1895), 81; the sole witness o f the

translation is in M , where it precedes the treatise.
* F. Liebermann, Vber die Leges Edwardi Confessoris, pp. 124-5
* F. Liebermann, op. cit. pp. 125-6. Ls (c. 1200) was unknown to
Liebermann and I am grateful to M r N. R. K er for telling me of it.
* See above, p. Iv
5 F. Liebermann, Vber die Leges Anglorum . . . Londoniis collectae and ‘ A
Contemporary Manuscript of the “ Leges Anglorum Londoniis collectae
E.H.R. xxvm (1913), 732-45; H. G . Richardson and G. O . Sayles, ‘ T he
lviii INTRODUCTION

before 1235. This collection survives in two manuscripts, C

and H, both w ritten about 1300.1
Probably in the second h a lf o f the thirteenth century a
French translation was m ade, based on the alpha text. It has
a prefatory note by the translator, who claims to be doing his
work ‘ pur mes amys asenser e par une requeste plus que nuls
autres comaundements he writes ‘ en un com m un romaunz
sanz rym e fors pleynem ent.’ It must have had some success
for there are still three com plete versions— J , Q and N f — and
one incomplete— M .'1
T h e only thoroughgoing attem pt to keep ‘ G lanvill ’ alive
is the version w hich M aitland called ‘ G lanvill Revised ’,
whose author began the work ‘ with the intention o f explaining
difficulties, correcting statements w hich had become anti­
quated, and inserting new writs and new rules at appropriate
places.’3 T h e revision, attributed by M aitland to c. 1265,
shows little awareness o f the changes in English law since
‘ G lanvill ’. M aitland thought that the reviser ‘ discovered
that the work was beyond his powers, or perhaps grew w eary
o f it,’ and broke o ff the revision to copy out a Register o f
Writs. It is probable, however, that the original revision was
done c. 1229, and that the Register and m uch o f the useless or
erroneous qualifying and correcting (to w hich M aitland
rightly objected) were added later.4 I f this is so, most o f M ait­
land’s criticisms lose their force: the basic revision contained
additional comments and writs o f practical value for readers in
the 1230s and also some helpful re-ordering o f the material.

Early Statutes,’ L.Q .R . l (1934), 223. For a brilliant reconstruction o f the

original collections from their present divided state see N. R . Ker, ‘ Liber
Custumarum,’ The Guildhall Miscellany, in (1954), 37 -45 -
1 H. G. Richardson, ‘ Glanville Continued,’ L.Q.R. l i v (1938), 381-99
* N f was discussed and attributed (wrongly and without reasons) to
John’s reign by A. Cutbill, The Academy, vm (1875), 172. M has a Latin
alpha text with alpha rubrics for Book i, a Latin alpha text with beta chapter
headings for Book ii, cc. 1-18, and a French alpha-based textwith Latin
beta chapter headings for the rest of the treatise.
s Collected Papers, n, 266-89, at 271; many o f the importantrevisions
are printed by Maitland in this article.
4 For detail see the Appendix, p. 195
 INTRODUCTION lix

8. L ater H is t o r y of the T r e a t is e : U se as a Source;

E d it io n s and T r a n s l a t io n s

Use as a Source
W hile these unknown men were at their work o f continuing,
translating and revising the treatise, Bracton was using it in his
great book.1 T h e earlier treatise influenced Bracton in a
num ber o f ways. Bracton’s book exhibits two major divisions,
into A cquisition o f Things (ff. 7^ 98) and C ivil Actions
(ff. isgb -e n d )2; in the first o f these there is a serious attem pt,
obscured b y Rom anism , to state the substantive rules o f pro­
perty law , while in the second there is an elaborate discussion
o f procedure on writs designed to protect property. The
substantive treatm ent is the successor o f the method found in
Books v i and vii o f the earlier w o rk ; the procedural comm en­
tary is directly descended from the m ain part o f ‘ G lanvill ’ and,
as in that work, writs concerning possession are separated
from those concerning right. O f course Bracton im proved
m atters; unlike his predecessor, w ho began w ith a writ-
com m entary technique and seems to have stum bled almost
by accident into the substantive treatm ent found in the middle
part o f the treatise, Bracton clearly planned in advance his
separation o f substance and procedure. In m any passages it
is clear that Bracton is using a copy o f ‘ G lan vill’. T h is is
particularly so in the substantive treatment at ff. 7b*98; the
discussions o f wardship, hom age and relief, sale and hire, and
testaments have woven into them whole sentences and parag­
raphs. Probably he used an alpha text o f ‘ G lanvill’ .3 Th ere is
a curious parallel here. Bracton wrote his work in rubricated
titles and paragraphs, ‘ sub ordine titulorum et paragraphorum ,

1 Discussion and references in E.E.L.L. pp. 42-79

2 The rest is Introduction and Persons (ff. 1-7B), Actions Generally
and Criminal Actions (ff. g8b-i5gb).
* Woodbine’s proof for this is rather naive (pp. 229-30); there are
contrary indications in the passages chosen by him and elsewhere, and
his argument assumes that Bracton, who frequently rewrote whole passages
of ‘ Glanvill ’, could not have made the minor changes which beta made
when revising alpha.
Ix INTRODUCTION

sine preiudicio melioris sententie.’ By chance, one o f the few

manuscripts w hich had grafted a book and chapter arrange­
ment on to this structure was chosen for the first printing;
the same thing happened with ‘ G lanvill’ .1
A t some date between the m aking o f * G lanvill ’ and the
middle o f the fourteenth century a Scots law yer wrote a
treatise called, b y its opening words, ‘R egiam M aiestatem ’. It has
often been printed, but there is no modern scholarly edition.2
T h e date o f composition has, in recent years, been variously
determ ined as c. 1230-50,3 c. 1240,4 and after 1318.6 W ith
this difficult enquiry, and with the uncertainties as to the
exact form and order o f the original, we are not directly
concerned. T h e author incorporated some Scottish laws, and
he embellished his work with borrowings from A zo, Tancred
and R aym ond o f Penaforte: but his ch ief source and model
was ‘ G lan vill’ . It seems clear that the text used was o f the
alpha type and was not unlike, though certainly it was not,
X 6 T h e use m ade o f the earlier treatise was not uniform. In
the early part o f the Regiam the borrowings are carefully
revised; in the m iddle there is a light revision only, w ith the
writs left out; the end is native law , with no ‘ G lanvill ’ at all.
This general pattern is spasm odically interrupted by chapters
based w holly on canon or civil law , or on some source as yet
unknown. In one place (Book ii, c. 13) there is an almost

1 Paradoxically, Woodbine’s edition o f Bracton (Yale 1915-42) re­

jected the book and chapter divisions, while his edition o f Glanvill perpet­
uated them for that treatise; he thought of Bracton as rejecting the plan
o f ' Glanvill ’ (Bracton, I, 43-50).
* The classic and bad text is that of Skene (1609). Thomas Thomson
printed a text in 1844 in Acts o f the Parliaments o f Scotland, 1, 597-641. Lord
Cooper printed a text (based on Skene) and translation in Regiam Mqjestatem,
Stair Society, x i (1947).
* Lord Cooper, ibid, pp. 43-5
* H. G. Richardson, ‘ Roman Law in the Regiam Majestatem,’ Juridical
Review, lx v ii (1955), 160-2
* A . A. M. Duncan, ‘ Regiam Majestatem,’ Juridical Review (1961), 199-
217.
•John Buchanan, ‘ The M SS. o f Regiam Maiestatem,’ Juridical
Review, x l ix (1937), 2 17 -3 1; H. G . Richardson, art. cit. p p. 167-9. F o r -S'
see p. Ixv
 INTRODUCTION lxi
verbatim transcript o f the w hole o f ‘ G lanvill ’ on dower
(Book vi), com plete w ith writs. T h e Regiam is a curious book
whose purpose and inspiration are uncertain. I f the work was,
in fact, w ritten before the m iddle o f the thirteenth century,
then w e have seriously to consider M r. Richardson’s sugges­
tion that the author shares the point o f view o f Bracton, and is
indeed ‘ a precursor, a m an o f similar training and o f a simi­
lar standpoint, w ho was working in Scotland.’1 But i f the true
date is after 1318, w e have a fourteenth-century Scot who
passed over Bracton and the E dw ardian writers on English
law , and took as his basis a book about one hundred and fifty
years old, perhaps because that book had more in common
w ith the law o f fourteenth-century Scotland after the struggle
for independence.2 W hichever is the case, the extent to w hich
the law taken from ‘ G lanvill ’ represented the law o f Scotland
is uncertain, and likely to rem ain so; but even in the fully
revised passages one suspects that the author must often have
been stating lex ferenda rather than lex lata.
T h e Prologue to ‘ G lanvill ’ had a vogue w hich has aroused
interest. T h e opening sentences o f Bracton’s book make a
lim ited use o f it. Th ere survives, however, one Bracton m anu­
script w hich begins w ith the complete Incipit (adjusted .co fit
Bracton) and Prologue o f the earlier treatise. It has been
suggested that this m anuscript m ay have served as model for
the m an w ho in Edw ard I ’s reign wrote the abridgm ent o f
Bracton called Fleta, in w hich the m ajor part o f the Prologue
to ‘ G lanvill ’ appears. Th ere is nothing in this suggestion:
the Incipit and Prologue o f this Bracton m anuscript are beta,
and Fleta used an alpha version.3 N or does the use o f the
‘ G lanvill ’ Prologue in the Regiam, in Fleta and in a single
Bracton m anuscript make it sensible ‘ to ask w hether perhaps

1 art. cit. p. 162

* A . A . M . Duncan, art. cit. pp. 216-17
* T he suggestion was made by Woodbine (Bracton, I, 17, n. 1 and
Glanvill, p. 184) and convincingly criticised by E. H. Kantorowicz, ‘ The
Prologue to Fleta,' Speculum, x x x i i (1957), 231-49. For the Prologue to
Fleta see the edition by H. G . Richardson and G. O . Sayles, S. S. l x x h ,
PP- i- 3 -
Ixii INTRODUCTION

the G lanvillian Prologue survived independently as a piece o f

panegyric rhetoric ; the writer o f the Regiam required a com­
plete ‘ G lanvill ’ to do his work at all, and the other cases are
more simply explained by the m any surviving manuscripts o f
the late thirteenth century in w hich ‘ G lanvill ’ and Bracton are
bound up together. Th ere is, however, at least one
genuine case o f independent survival; the passage on curtesy
in Book vii, c. 18 becam e, in m angled form, one o f the apo­
cryphal Statutes o f U ncertain D ate.2

Editions and Translations

A lthough 1 G lanvill ’ continued to be copied, it was over­
shadowed and outdated by Bracton, and both works were in
a liberal tradition w hich was out o f favour after the end o f
the thirteenth century. English legal w riting turned from
universal Latin to a particular and technical French, from
continental and civilian influence to insular constructions o f
great com plexity. T h e unity o f English substantive law and
the vigorous excitem ent o f the Y e a r Books can be set as profits
against this loss, but for ‘ G lanvill ’ there was a dark age o f
more than two centuries. T hen, in about 1554, Richard
Tottell published, w ithout preface, the first edition o f the
treatise. T h e text o f this and o f all subsequent editions was
based on a beta manuscript. T h e second edition (1604) is
substantially a reprint o f the first3: the Preface alleges that
the first edition was printed ‘ b y the procurement o f Sir
W illiam Stam ford.’ This is probably true. Stam ford (or
Staunford) was a m em ber o f G ra y ’s Inn, and R eader there in
1545 and 1551. H e was a ju d ge o f the Com m on Pleas from
1554 until his death in 1558. His Exposition o f the King’s Prero­
gative, posthumously published in 1567, has a Preface b y him
dated 6 Novem ber 1548; the work contains several references to
and quotations from ‘ G lanvill ’ and was very likely his

1 E. H. Kantorowicz, art. cit. p. 249

* Statutes of the Realm, I (1810), 220
* The changes which these editions made in the medieval numbering
of the chapters have been noted above, p. liv, n. 4
 INTRODUCTION Ixiii
R eading at G ra y ’s Inn in Lent 1545. His Pleas o f the Crown
(1557) also has a few references to ‘ G la n v ill’ .1
T h e antiquarian fervour o f the seventeenth century ex­
tended to ‘ G lanvill It was at this time that T ate and Cotton
were dissecting and exchanging the G uildhall manuscripts, a
process w hich left T a te w ith Or and Cotton w ith G. Cotton
gave M to T a te in 1609; T a te also owned L r.2 Sir Edw ard
Coke paid a handsome tribute to the work in the Preface to
his Eighth R eport, and made extensive and unhistorical use
o f it in his Institutes. Th ere was a reprint in 1673. In 1776
M . H ouard gave the same text, and provided some notes in
French.3 John R ayner printed the same text in 1780, but
added variant readings from four manuscripts w hich had
‘ formed part o f the amusement o f a gentleman o f the pro­
fession some years ago.’4 T h e text printed by Phillips in 1828
took no account o f these variants, but was preceded by a dis­
cussion o f the work itself.5
In 1884 Sir Travers Twiss was commissioned to do an
edition and translation for the Rolls Series. W hen he died in
1897 the work was complete, but had not been published.
In 1900 it was decided to suppress the edition; but three
copies, dated 1896, survive in the Public Record O ffice.6

1 For Staunford’s career see E. Foss, Biographical Dictionary 0/ the Judges

o f England (London 1870), p. 630; for his Readings see S.E. Thorne,
Prerogativa Regis (Yale 1949), p. li.
* So Tate had an alpha text with numbered chapters (Or), a text partly
in Latin and partly in French (M), and a beta text with an extensive gloss
(Ls); it would be interesting to know whether, in his unpublished writings,
he drew any conclusions from this variety. O n Tate, Cotton and the
Guildhall M SS see N. R . Ker, ‘ Liber Custumarum,’ The Guildhall Mis­
cellany, m (1954), 41-2.
s D. Houard, TraiMs sttr les coutumes Anglo-Normandes, 1 (Rouen 1776),
375 -5 8 i.
4 The manuscripts used were called H(arleian) — H, C(ottonian) —G,
B(odleian) — V, and M(illes, Dr.) = D . The variants were quite sensibly
chosen. The ' gentleman o f the profession ’ is traditionally supposed to be
John Wilmot, a master in Chancery; P. H. Winfield, The Chief Sources of
English Legal History (Harvard 1925), p. 258.
5 G. Phillips, Englische Reichs- und Rechtsgeschichte, 1 (Berlin 1827), 231-42
(discussion) and 11 (Berlin 1828), 335-473 (text).
6 Twiss wrote often and with increasing sadness to Sir Henry Maxwell
Lyte at the P .R .O . between 1888 and 1896 to enquire after the progress of
Ixiv INTRODUCTION

Criticism o f the work is easy: the Introduction is full o f factual

errors large and sm all; the text printed is, notwithstanding
Tw iss’s knowledge o f the manuscripts, the traditional text,
with footnote mention o f better readings chosen in a random
w ay from various manuscripts. But Tw iss’s great achievement,
set out in his Introduction, was his realisation that the treatise
began as a text w ith rubrics (he took A as his example) for which
a book and chapter structure was later substituted (he took the
‘ liber curialis ’, Ab, to represent the last stage).1
T h e edition b y Professor W oodbine in 1932 was based on a
beta text, a choice w hich has already been discussed. T h e work
done on the manuscripts b y Twiss and Lieberm ann seems to
have been unknown to W oodbine; but his discussion and
collation o f the manuscripts established the division into alpha
and beta. Th ere are elaborate and valuable notes.
T h e earliest translation was the work o f John Reeves;
the early part o f his History incorporates a workm anlike
translation o f the whole treatise, w ith sparse com m ent and
some changes o f order.2 In 18x2 Joh n Beames published a

his work. When Twiss died, in January 1897, M aitland was asked to give
an opinion on the edition, which he did with characteristic shrewdness,
criticising the scholarship severely but pointing out the difficulty o f justi­
fying to a possible parliamentary committee a decision to suppress after all
the expense had been incurred. Meantime I. S. Leadam had volunteered
himself as editor; his offer was accepted (unwisely, to judge from his
jejeune comments on Twiss’s work), but after four years he urged suppres­
sion. In December 1900 six copies were sent to the P .R .O . and the rest
destroyed; the work was removed from the catalogue o f Record Publica­
tions. Three of the copies stayed in the P .R .O .; one went to Sir Henry
Maxwell Lyte, and is now lost; two went to Leadam and thence to the
U .S.A ., and it was a note by Winfield (Chief Sources o f English Legal History
p. 258) on the Harvard copy which was the starting point in this detective
story. Details are in P .R .O . 37/47, 37/52 and 37/65. I am most grateful
to the staff of the P .R .O ., and in particular to M r H. C . Johnson, for
enabling me to see the correspondence and to use a copy o f ‘ Twiss ’ before
the Act of 1958 gave public access to these documents. M aitland’s Letters
(including those to Lyte) have now been edited for the Selden Society
by G. H . S. Fifoot (Supplementary Series, vol. 1, 1965).
1 It is fairly clear that the revision o f the text which preceded or accom­
panied this change, and which is the other name distinguishing feature
between alpha and beta, escaped Twiss’s notice.
* History of the English Law (London 1787), 1, 97-203
 INTRODUCTION lx v

translation.1 Selected passages have recently appeared in a

translation w hich draws heavily on the w ork o f Beam es.2

9. T he P r e s e n t E d it io n

The manuscripts
For reasons already given an alpha m anuscript must be the
basis o f the present text. It m ay be repeated at this point
that there is a considerable, but seldom legally significant,
variation in wording even am ong the alpha manuscripts; it is
m uch greater than is evident from W oodbine’s apparatus,
w hich was m ainly concerned to emphasise the alpha/beta
division. For this and other commonsense reasons, no attem pt
has been made to construct a tree or diagram . T h ere are six
alpha manuscripts w hich were probably written before 1220.
T w o o f these can quickly be dismissed.
X (Bodleian, R aw l. G 109, pp. 201-50)3 is b o u n d 'u p w ith
a collection o f twelfth-century L atin poems, and excerpts from
O vid. It was written about 1210. It is unrubricated, and the
Incipit was probably added later, both facts suggesting descent
from a very early manuscript. But it is a careless text w ith
m any gaps and corrections, and it ends abruptly w hile dis­
cussing purprestures (Book ix, c. 12). T h e connection w ith
the m anuscript used in w riting the Regiam has already been
noticed.4
Ca (Cam bridge U niversity L ib rary, A dd. 3584, Jflf. 261-89),8
w hich was written in the early thirteenth century, is bound up
with legal m aterial o f Edw ard I ’s time. I t has, generally,
spaces for rubrics, w hich are often unfilled. T h e Incipit is
there; it has no names. T h e text is com plete, but it is badly

1 A Translation o f Glanville (London 1812); reprinted with Intro­

duction by J. H. Beale (Washington, D .C . 1900).
* D. C . Douglas and G. W . Greenaway, English Historical Documents,
n (1042-J189), nos. 58 and 268
* F. M adan, Summary Catalogue o f Western Manuscripts in the Bodleian
Library, m (Oxford 1895), 432-3 (no. 15479)
* Sfee p. Ix
* Card-catalogue in Cambridge University Library; M r H. L. Pink
kindly told me of the manuscript.
Ixvi INTRODUCTION

written and abounds in ambiguous and inconsistent abbrev­

iation, and has been extensively corrected in a (not much)
later hand. T h e division into Cause and Questiones has already
been discussed.1
T h e discussion o f the rem aining manuscripts is based on a
complete collation o f all four. T h e argum ent depends on
evidence from this collation, some o f w hich is available in
W oodbine’s edition and a little in the textual notes to the
present edition; but full proof for the m ajor assertions w hich
follow w ould be burdensome.
A (British M useum , R o ya l 14 C . ii, ff. 226-74) was written
‘ certainly earlier than 1213, p robably as early as 1201,’ 2 as
one item in the legal appendices to the year 1180 in H ow den.3
T h e treatise has the Incipit and is rubricated throughout;
there are no names. It is clearly written, but there are m any
foolish errors and omissions.
L (Lam beth Palace, 429, ff. 106-61 ) 4 was m ade in the early
thirteenth century. It is preceded and followed b y legal
m aterial o f a later date in a different hand. Th ere is no Incipit
and there are no nam es; it is rubricated throughout. It is
well written and has few scribal mistakes.
A and L are closely related. Both have omissions w hich
make it impossible that either was the exem plar for the other,
or for any other surviving manuscript, alpha or beta. Y e t the
argum ent for using them as the basis for the text is prima facie
a strong one. It is almost always possible to correct the mis­
takes o f the one b y using the other. A has a distinguished
origin w hich impressed Stubbs. M oreover, the lack o f Incipit
in L m ay be a sign o f closeness to the original. T h ere are,
however, difficulties. As W oodbine pointed out, and as a
1 See p. 1
1 Chronica Magistri Rogeri de Houedene, ed. W . Stubbs (Rolls Series), 11
(London 1869), xxiii, and see also Stubbs’ comments, 1 (London 1868),
lxxiv-lxxvii; G. F. Warner and J. P. Gilson, Catalogue o f Western M S S in the
Old Royal and King’s Collections, 11 (London 1921), 133.
8 See p. xxxi
4 M. R. James and C. Jenkins, A descriptive Catalogue o f the manuscripts
in the Library of Lambeth Palace, iv (Cambridge 1932), 590-3. V ery close to
L, but later and lacking Book ii, c. 3 to Book vi, c. 18, is I.
 INTRODUCTION lx v ii

study o f his printed variants makes clear, there are m any

places in w hich A and L alone am ong the alpha manuscripts
have a reading w hich is found in beta.1 I f A and L are to be
taken as the basis for the text, w e have to suppose a develop­
ment on the following lines: A/L, the ultim ate source o f A
and L , was fully revised to make beta*; subsequently A/L
was lightly revised (in those places in w hich A and L alone have
a reading found in beta) to make w hat w e m ay call alpha*;
from this revision all surviving alpha manuscripts, except A
and L (and the later I), are descended. N ow this is perfectly
possible. But a more natural explanation o f the facts is that
alpha*, from which all but A , L and / descend, was the original
and was lightly revised to make A/L, from w hich was m ade
beta V T h e freedom to make verbal changes which is most
obviously expressed in the complete revision found in beta,
and w hich was also manifested in the early alpha manuscripts,
makes the problem insoluble; but the second explanation has
been preferred here and leads to the rejection o f A and L as
basis for the text.
Z (Balliol C ollege, 350, ff. 43-71 ') 3 was written c. 1200, and
is bound up w ith an earlier Hereford D om esday and a m uch
later Britton. It is a handsome, illum inated text. Th ere are
fewer obvious errors than in A , but more than in L. T h ere is
an Incipit, and it is rubricated throughout. T h e text ‘ deserves
attention for several reasons H: it m ay have been in the E x­
chequer in the early thirteenth century ; it has a beta Incipit and
book and chapter list inserted before the alpha Incipit; it has
names. None o f these is a reason for preferring the text o f£ , and
there are sound reasons for not doing so. It has a very high

1 Woodbine, pp. 3-16

* The fact that L alone o f the early alpha M SS (and in company only
with the closely related I among all alpha M SS) omits the passage at the
end o f i, 31, which is missing from all beta M SS, may seem to support this
view; but A has the passage, which must therefore have been in AjL;
moreover, the mistake results from homoeoteleuton, and could have happen­
ed independently in L (whence it passed to /) and in the exemplar of beta*.
* R . A . B. Mynors, Catalogue o f the manuscripts o f Balliol College, Oxford
(Oxford 1963), pp. 347-8; see also V . H. Galbraith in Herefordshire Domesday
(Pipe R oll Society, n.s. x x v , 1950), p. xv. 4 Southern, p. 86
lx v iii INTRODUCTION

num ber o f readings w hich cannot be called errors, but w hich are
unique (save where found in E w hich is a late descendant);
they are hardly ever o f any legal interest, but generally involve
the use o f a synonymous w ord or equivalent expression in
place o f the norm. For Z t0 be preferred it w ould need even
better credentials than it has.
Ln (Lincoln’s Inn, M isc. 3), w hich is alone in the
volum e, is catalogued as ‘ a quarto, very fairly w ritten and
illum inated about the close o f the fourteenth century.’ 1 It
was probably w ritten in the first quarter o f the thirteenth
century, and m ay be as early as c. 1200. It is w ritten in single
colum n, and rubricated throughout in red. It has the Incipit.
Th ere are m ore names, interlined or in the m argin but never
in the text, than in any other m anuscript. T h ere are no in­
dications as to provenance or early history. T h e presence
o f Incipit and rubrics m ay be arguments against the earliness
o f Ln from the point o f view o f form. A n d although w e are
inclined to think that the author wrote the names, their
proliferation in Ln is certainly not a sufficient reason for giving
it prim acy. B ut the text is excellent. T h ere are very few omis­
sions or obvious errors. It has neither the beta leanings o f A
and L nor the unique readings w hich abound in Z • F ° r these
reasons it has been chosen as the basic m anuscript.

The construction o f the text

T h e text here printed is intended to m ake legal sense.
Ln, L , Z (ail alpha) and B (an excellent beta m anuscript, c.
1200)2 have been used. T h e text departs from Ln and relies
on L and/or Z where legal sense or the author’s style makes
their reading preferable. W here alpha is plainly in error, beta
(represented b y B) is printed. W here all four manuscripts
make nonsense an editorial substitution is given.
Ln has been printed in entirety as text or variant. G enerally,
1 Rev. Joseph Hunter, A catalogue of the manuscripts in the Library o f
Lincoln's Inn (London 1838), p. 154 (no. xlvii); this may explain why the
Woodbine collation, pp. 3-16, ignores Ln (called Selwyn A-II-6) after p. 9.
•British Museum, Additional 24066: Catalogue o f Additions to the
Manuscripts in the British Museum 1854-75, n (London 1877), 4-5; see p. Ivii
 INTRODUCTION lxix

where it agrees with both L and Z there is no textual note.

W here it agrees with either L or Z but not both, there is no
note unless there is doubt as to the correct reading or unless
the m inority reading is accepted as correct. T h e readings o f
all four manuscripts are given w here the text is derived from
only one o f the alpha manuscripts (whether or not supported
b y B ), or from B alone, or is an editorial substitution. L and Z
have been sparingly used, and the notes give no picture o f
their peculiarities. N o attem pt has been m ade to present
the beta text, which is available in W oodbine’s edition; but,
in addition to the cases given above, readings from B are also
given where they make different law , or where the alpha text
has references by tractatus.
T h e Incipit, perhaps not original, has been printed in the
text. So too have the rubrics: where L and/or Z has a rubric
not in Ln it appears in the text i f it serves a useful purpose.
T h e names vouched in Ln, Z and B have been given in the
notes. T h e book and chapter numbers o f the modern
editions are in square brackets for reference.
T h e writs are frequently and inconsistently abbreviated in
all manuscripts. In two cases (xiii, 4-6 and 35-7) it is fairly
clear that the abbreviation was original, and it has been
retained. In all other cases the w rit has been given
in full: only the Ln readings are noted w here the expansion
is in comm on form ; where the expansion is conjectural,
manuscript or other authority is given.1
1 The ending of writs of right directed to a feudal lord is a difficulty
(vi, 5; xii, 3-5). The choice is between ‘ defectu recti ’ and ‘ defectu
iusticie A survey of all the M SS shows that, in the few cases where they
are not abbreviated, alpha has ‘ recti ’ and never (with the exception of A
in xii, 3) ‘ iusticie and beta has ‘ iusticie ’ and never ‘ recti e.g. in vi, 5
‘ recti ’ is in 3 alpha and ‘ iusticie ’ in 4 beta M SS. This has been taken to
justify the use of ‘ recti ’ in the text of these writs. This agrees with the
evidence of the writs in V an Caenegem, nos. 7, 10, 12, 17, 18 (all ‘ penuria
recti’) and especially no. 24 (‘ defectu recti’, probably 1188: see ibid. p.
212). Moreover, ‘ defectu r e c ti’ is the logically correct ending; the
‘ rectum ’ o f ‘ breue de rccto ’ (writ of right), ‘ plenum rectum facias ’ (do
full right) and ' defectu recti ’ is the same in each case: so ‘ defectu recti ’
has been translated ‘ default o f right ’ instead o f the commoner ‘ default of
justice ’. ‘ Defectu iusticie ’ finally prevailed as the ending, perhaps as an
infection from vicecomital writs o f the kind given in xii, 12-18.
Ix x INTRODUCTION

T h e spelling is that o f Ln, w hich is not consistent: serui-

cium/seruitium, nihil/nichil/nil, summone/sumone/submone,
numquam /nunquam and releuium/relleuium are am ong the
commonest variations. Abbreviations are extended in the
spelling most often used b y Ln.
T h e paragraphing o f the manuscripts varies w idely.
Those in the text are editorial and are designed to assist in
restoring the author’s plan.
T h e general notes, unlike those in W oodbine’s edition,
are not intended to serve as a com m entary on the relationship
o f the treatise to contem porary law . T h e y are prim arily con­
cerned w ith m aking the text intelligible by providing a system
o f cross-reference and by explaining obscurities. T h ey also
refer to the principal legal discussions o f the issues raised by
the text; for this purpose they concentrate on M aitlan d ’s
great book and on recent work o f special interest such as that
o f D r. V a n Caenegem (where there is a detailed bibliography).1
T w o near-contem porary sources, the Dialogus de Scaccario and
the justiciar’s writs for c. 1199,2 have been frequently used
for illustration and contrast.

1 V an Caenegem, pp. xxxiii-xlix

a Printed in Stenton, pp. 350-418
 io . G u i d e t o F u r t h e r R e a d i n g

M. T. Clanchy

Derek H all’s lucid translation o f ‘Glanvill’ has made the rules

o f Henry II’s courts o f law accessible to new generations o f
readers, much as the original author aimed ‘to provide know­
ledge o f them’ (p. 3) eight centuries ago. Derek Hall died in
1975 at the early age o f 50. In his obituary Sir Kenneth
W heare pointed out the harmony in approach between the
author o f ‘Glanvill’ and his translator. For both men, ‘there are
no unnecessary words, no large assertions, no self-importance
or fuss. There is just a sense o f definitiveness’ (Wheare 1976:
430). This ‘definitiveness’ is best exemplified in the texts o f the
royal writs which the author o f ‘Glanvill’ provides. T h e short
Latin words o f command (writs are appropriately called brevia)
are echoed in H all’s translation: ‘If he does not do so, summon
him by good summoners to be before me . . .’ (Book i, c. 6).
H ow this quality o f ‘definitiveness’ is to be explained has
proved the main focus o f research and publication on
‘Glanvill’ since the appearance o f H all’s edition in 1965.1
Is the definitive quality o f ‘Glanvill’ due to the author
himself? In that case, who was he (Turner 1990: 97-127)? H ad
his experience primarily been as a schoolman in Latin and in
Rom an law, or as an advocate in French language and custom
(Hyams 1981a: 77-92)? W ho was the author writing for: a little
group o f royal judges and officials (Clanchy 1993: 96); or the
legal profession and their clients as a whole, the ‘apprentices at
law and those who had business in the royal courts’ (Warren
1987: 118)? H ow influential were the kings themselves in the
making o f law? Does the ‘definitiveness’ o f ‘G lanvill’ stem from
the character o f H enry II, ‘that man o f genius— the word is
not too strong— who was by instinct a law yer’ (Van Caenegem
1988: 100)? O r does G lanvill’s statement that he is writing
about laws and customs which ‘have long prevailed’ (p. 3) lead
us back to H enry I (Green 1986; Chibnall 1986: 161-83), and
1 I am grateful to D r Paul Brand for commenting on the paragraphs which
follow,
Ixxii INTRODUCTION

beyond him to the Anglo-Saxon kings (Wormald 1986; K eynes

1990)? Anyw ay, the author’s definitive tone m ay be an illusion,
a peculiarity o f Latin rhetoric. W as there, perhaps, no con­
scious system or purpose? T h e making o f English com m on law
was ‘a series o f accidents, o f course, not really a human
achievement: but still something was created’ (Milsom 1981: 1).
O r, to the contrary, is it ‘difficult to resist the conclusion that
H enry II and his advisers possessed a vision o f the legal system
they wished to create in England’ (Brand 1990: 222)?
These questions have exercised academics and their stu­
dents, in law schools as much as history departments, in
Britain and Am erica since 1965. Behind debates about the
meaning o f particular passages in ‘G lanvill’ lie larger questions
concerning the role o f law in society and the legitimacy o f the
state. ‘J ustice’, ‘lordship’, ‘ordeal’, ‘profession’, ‘property’, these
are the key-words in the current bibliography o f ‘G lanvill’.
T h e subject has attracted Am erican scholars in particular
because it concerns two themes o f world-wide historical
significance: the nature o f feudalism and the power o f the
English state over the centuries. If the law described by the
author o f ‘G lanvill’ developed through ‘a series o f accidents’
(as Milsom argues), that suggests that it contributed to the
(allegedly) new market econom y which allowed landlords to
capitalize on the concept o f ‘property’ (Palmer 19856). ‘T h e
adversary system, writ process, and pleading o f the comm on
law constitute the structural foundation o f market capitalism’
(Cantor 1991: 71).
English law became the rival o f Rom an law, not by being its
equal in intellectual coherence, but because the values o f the
common law have taken root— for better or worse— across the
world in Britain’s ex-colonial territories. T h e use o f ju ry trial
in North Am erica is the best example o f this. T h e author o f
‘G lanvill’ wrote at the time when ju ry trial was still in the
process o f being experimented with (Groot 1982). Jury verdicts
‘Yes or N o ’ certainly have the quality o f ‘definitiveness’ which
has been identified with ‘Glanvill’, and they also relieved the
 INTRODUCTION lxxiii

king’s judges o f the odium o f making unpopular decisions.

Jurors were selected because they were Tree and lawful men o f
the neighbourhood’ (xiii, 3-7); their verdicts embodied lawful­
ness in social terms (Green 1985: 19) however arbitrary or
unjust they might be. Judging from his prologue (pp. 1-2), the
author o f ‘G lanvill’ was not concerned to distinguish between
law and justice. In the king’s court his ‘justiciars’ like R annulf
Glanvill embodied justice, as their name implied.
A preliminary difficulty concerns whether the quality o f
‘definitiveness’ is really inherent in ‘G lanvill’s’ Latin text, or
whether it is a product o f H all’s translation? Hyams (1981a: 82)
questions whether Hall has got ‘GlanvilPs’ tone right; does
‘G lanvill’ speak with the ring o f command which H all’s trans­
lation suggests? T h e author o f ‘Glanvill’ often uses the future
tense in Latin. Does he mean by this that something ‘will’ hap­
pen (simple future tense), or that it ‘shall’ happen (by com ­
mand o f the law)? There is a similar difficulty in translating
gerundives: for example, does distinguendum (p. 15) mean ‘must
b e’ distinguished (as in H all’s translation) or the less forceful
‘should be distinguished’? Hyams (1981a: 82-3) draws attention
in particular to ‘GlanvilPs’ use o f generaliter. Hall translates gen-
eraliter vemm est (p. 59) as ‘it is a general rule’, whereas the less
assertive ‘generally it is true’ is closer to the Latin. W as the
author o f ‘G lanvill’ intending to lay down rules o f law, or
merely to describe some o f the practices o f the king’s court?
T h e author’s aims, as stated in the prologue (p. 3), look modest
enough; the word ‘rules’ (p. 3) does not occur in the Latin text
in quite the way it does in H all’s translation. T h e parallel
Latin-English format allows the reader to compare the text
with the translation. Readers may (Hall would probably have
said ‘should’) disagree with it on points o f detail. T h at is the
purpose o f making the translation.
T h e repeated search by scholars for the identity o f the
author o f ‘G lanvill’ is motivated by the hope that questions
about his tone and m eaning might be resolved by knowing
more about him. R annulf Glanvill, the justiciar, was related to
Ixxiv INTRODUCTION

two o f the other putative authors, O sbert fitz H ervey and

H ubert W alter (pp. xliv xiv) (Mortimer 1981: 10; Turner 1985:
80). It used to be thought that it would have required a cleric
to write ‘Glanvill’, whereas most o f the candidates for author­
ship are laymen, even if they were lawyers. It m ay indeed have
required a clerk to put the text o f ‘G lanvill’ on to parchment,
because writing was a specialized business. Even so, a layman
could well have been the author o f the work in the sense o f
composing it by dictation. This may have been done in either
French (Hyams 1981a) or Latin, as a number o f knights at
court were literate (Turner 1978). Possibly there never was a
single author, but only an editor or compiler who brought
together into a single volume the diverse ‘treatises’ (tractatus)
referred to in the work (Turner 1990; 119).
T o substitute on the title-page o f the book, in place o f ‘the
illustrious R annulf G lanvill’ (p. 1), the name o f another distin­
guished justiciar (such as Godfrey de Lucy, H ubert W alter, or
Geoffrey fitz Peter) does not advance our knowledge o f the
author’s purpose v e iy much. Later in the thirteenth century
the work called ‘Bracton’ replaced ‘G lanvill’ as a lawbook for
the king’s court. ‘Bracton’ explicitly states in its prologue that
it is the work o f ‘I, H enry de Bracton’ (Thorne 1968: 19). But
it has been demonstrated that H enry de Bracton, who was a
judge o f H enry I l l ’s court C oram Rege, was not the author o f
this book but only its reviser (Thorne 1977). Attributions o f
authorship are often com plex in medieval manuscript books
because ‘author’ and ‘writer’ meant different things before the
invention o f printing (Minnis and Scott 1988), when no two
books were the same and the author’s text could not readily be
distinguished from later additions. A book might be given a
name to identify it and endow it with authority. T h e names
‘Glanvill’ and ‘Bracton’ associated their books, in each case,
with justices o f the king’s court reputed for their wisdom. T h e
heading at the beginning o f ‘Glanvill’ (p. 1) assures the reader
that the book is reliable; whether it names the author is a
different matter.
 INTRODUCTION lx x v

Although scholars’ views about who wrote ‘G lanvill’ con­

tinue to differ, all critics agree that it emanates from the king’s
court, though ostensibly not as an official publication, since the
author writes in the first person. ‘G lanvill’ therefore carries
greater authority than the earlier compilations misleadingly
entitled ‘Laws o f H enry I’ \Leges Henrici Primi] (Downer 1972)
and ‘Laws o f William the Conqueror’ [ I m Willelme] (Short
1991: 243), but less than M agna C arta which was circulated
thirty years later (Holt 1992: 493, no. 6) to every royal officer
from sheriffs down to village bailiffs. H ow widely ‘Glanvill’ cir­
culated in Henry II’s reign, or was intended to circulate, is a
difficult question. T h e laws and rules o f procedure on royal
writs introduced in H enry II’s reign do not seem to have been
issued in masses o f copies like M agna Carta. T h e emperor
Frederick II in 1231 issued his ‘August Book’ o f Laws [Liber
Augustalis] (Powell 1971) to every court throughout his kingdom
o f Sicily. ‘G lanvill’ is not a comprehensive lawcode or official
promulgation o f the king, like the Liber Augustalis, even though
it concerns the royal court. Nevertheless, within its stated limi­
tations, the author certainly considers that his work should
prove ‘very useful’ (p. 3) to ‘m any’ (‘most’ in H all’s translation)
people. T o achieve this purpose, numerous copies should have
been made and ‘Glanvill’ needed to circulate widely. T h e vari­
ety o f manuscripts discussed by Hall (pp. xH viii) suggest that
perhaps it did so.
It is evident from the plea rolls (when these first come to
light in the 1190s) that litigants across England were familiar
with much that is in ‘G lanvill’. This does not mean, however,
that they or their legal advisers had read it. It might simply
confirm that ‘Glanvill’ did indeed contain ‘ancient customs’, as
the prologue claimed (p. 1), which were already well known.
Knowledge o f the law had been disseminated since Anglo-
Saxon times, not primarily through the king’s central court, but
in the localities at the regular meetings o f county and hundred
courts. T h e legal profession, if it was yet a ‘profession’ (Palmer
1976; Brand 1992), could learn o f new procedures through
lxxvi INTRODUCTION

these local courts and advise their clients accordingly.

Although lawbooks in multiple copies m ay have been used in
the counties since Alfred’s reign or earlier (Keynes 1990:
232-3), some advisers o f litigants may not have found a book
like ‘G lanvill’ sufficiently useful for day-to-day business.
Practising lawyers have never put much trust in books, how ­
ever authoritative, because they become out o f date.
Practitioners rely on today’s information, which they learn
from the talk o f colleagues; this was likely to have been an
even more common practice in the local courts o f twelfth-cen­
tury England, whose ‘records’ were deliberately oral (viii, 6-11).
Some practitioners m ay also have found ‘G lanvill’ too depen­
dent on Rom an law (De Zulueta and Stein 1991; Stein 1976:
136) and too theoretical (particularly in Book vii) for their lik­
ing or comprehension.
T h e book or document which all litigants and their advisers
did need by the end o f the twelfth century was not ‘G lanvill’,
but a register o f royal writs giving their texts in full. O nce the
number o f writs in comm on forms had multiplied in Henry
II’s reign, and once remedies in the king’s court had begun to
be structured round them, a list o f texts was essential. W hen
K in g John established English legal procedure in Ireland in
1210, it is probable that he sent to Dublin a register o f writs
together with directions about their enforcement (Brand 1981).
This was now the most economical w ay o f describing the
essentials o f the law. T h e content o f the document sent to
Ireland was probably the same as that now identified as ‘T h e
Irish Register’ (published by De Haas and Hall 1970: 1—17),
which contains the texts o f fifty-seven royal writs. H all’s ‘Index
o f W rits’ in ‘G lanvill’ (pp. 199-201) shows how they recur
throughout the book, though not in the order in which they
come in the extant registers. There are nearly a hundred
different writs in ‘G lanvill’ (though some are no more than
variations or dependents-of others), and the great majority o f
these seem to have been first used in H enry II’s reign. This
emphasis in ‘G lanvill’ suggests that the author was familiar
 INTRODUCTION lxxv ii

with registers o f writs, and perhaps he had one or more in

front o f him. Certainly, the texts o f the writs and the explana­
tions o f their use are the features o f ‘G lanvill’ which most
explicitly endow it with royal authority and make it useful to
lawyers.
Because the authorship o f ‘Glanvill’ cannot be attributed to
a particular royal justiciar, some historians have credited the
book’s ‘definitiveness’ to K in g H enry II himself, in whose reign
it was very probably written. V an C aenegem ’s opinion that he
was ‘by instinct a lawyer’— a ‘genius’ indeed— has already
been cited (Van Gaenegem 1988: 100). W arren (1973: 630) con­
cluded, in his biography o f H enry II, that he was ‘not far
below the subtle-souled Odysseus’. ‘Genius was at work . . .’,
agreed Lady Stenton (1965: 26), ‘as the king’s plans moved
majestically forward after 1166.’ Such hyperboles from sober
historians o f law and institutions conceal the dearth o f explicit
contemporary evidence that H enry II played an active part in
law-making or that he did any planning. His reputation in his
lifetime was not for ‘definitiveness’ in legal business, but for
prevarication and delay (Clanchy 1983: 152) ‘as was his custom’
(Gillingham 1992: 171).
H enry II had no reputation as a lawmaker in the medieval
period. He is referred to in ‘G lanvill’ only in general terms; in
‘Bracton’ he is not referred to at all. ‘Surprising if lawyers
active in the decades either side o f 1200 had regarded him as
the C om m on L aw ’s founding father— not so surprising if they
hadn’t’ (Gillingham 1992: 169). H enry II’s conflict with Becket
had raised all sorts o f legal questions and matters o f principle,
but the king is not known to have been interested in them. ‘A
modern student o f the conflict will supply Henry with many
reasons for attacking privilege o f clergy and may be surprised
that he failed to mention them ’ (Smalley 1973: 163).
Contem porary sources, which are admittedly fragmentary and
partial, suggest that in the Becket conflict the driving force
behind H enry II was something fiercely personal rather than
lawyerly. T h e writs in ‘G lanvill’ might indeed suggest that
lxxviii INTRODUCTION

their original drafters ‘possessed a vision o f the legal system

they wished to create’ (Brand 1990: 222) and that they ‘im ag­
ined an organized, central pow er’ (Biancalana 1988: 534). But
if that is so, it makes it less likely that H enry II was personally
involved, as the style o f the writs does not accord with his con­
temporary reputation. T h e comm anding tone o f the writs in
‘Glanvill’ need not have been the creation o f anyone at H enry
II’s court, as it can be traced back to H enry I and probably to
the Anglo-Saxon kings (Clanchy 1983: 74-5, 81-2).
Milsom (1976; 1981) overcomes the difficulties in reconciling
the dubious reputation o f H enry II with the definitive quality
o f the writs in ‘G lanvill’ by arguing that vision and im agina­
tion were not required. Milsom generalizes about lawyers and
law-making as a whole. New law is not produced in reality by
the genius or majesty o f kings, but by litigants and their advis­
ers trying to find ways round existing rules (Milsom 1981: 6).
Lawyers are paid to gain advantages for their clients, not to
have vision; they ‘have always been preoccupied with today’s
details, and have worked with their eyes dow n’ (Milsom 1981:
7). This picture accords with much that is in ‘G lanvill’ . It
explains w hy the author gives no dates or places o f prom ulga­
tion for the rules he discusses. He is concerned only with
‘today’s details’: what if this problem arises, what if that (see,
for example, Book vi, 10). Unlike the Anglo-Saxon lawcodes or
the Liber Augustalis o f Frederick II, ‘G lanvill’ contains no moral
precepts and neither has it anything to say (outside the pro­
logue) about justice as such. Lawyers learn that litigants are
not concerned with justice, but only with winning. ‘G lanvill’
tells the reader how to gain access to the king’s court ‘and
what to do when there’ (Baker 1990: 16).
M ilsom ’s enduring contribution to the interpretation o f
‘G lanvill’ is to reveal the ‘three-dimensional’ terrain, which
exists below its surface. T h e third dimension is the ‘seignorial
dimension’ (Milsom 1976: 7). T h e writs in ‘Glanvill’, notably
Precipe (i, 6), mort d ’ancestor (xiii, 3) and novel disseisin (xiii,
33), were directed primarily against lords, although they do not
 INTRODUCTION lx x ix

make this immediately explicit in their texts (Milsom 1976: 7-8;

Milsom 1981: 139-40). These writs had the effect o f undermin­
ing lordship, though M ilsom (1976: 186) insists that this had
not been their intention: ‘the only intention behind writ o f
right, mort d’ancestor, and novel disseisin was to make the
seignorial structure work according to its own assumptions.’
Sutherland (1973: 34) had shown that we cannot be so sure
what was intended and Milsom points out elsewhere (1976:
14-15) that ‘we can hardly hope to know what H enry II was
aiming at, still less can we learn the thoughts o f our litigants’.
Exactly so: ‘H enry II’s intentions were an enigma to his con­
temporaries, and they must therefore remain an enigma to us’
(Clanchy 1983: 151).
Even harder than to gauge the intentions behind the writs in
‘Glanvill’ is to assess what preceded them, as the author does
not tell us. Because the procedures described are presented as
the ‘ancient customs o f the realm ’ (p. 1), ‘G lanvill’ scarcely
ever points out differences between past and present practice.
In this, ‘Glanvill’ differs from the Dialogus de Scaccario which
explicitly describes changes made in Henry II’s time, while
insisting on the venerable antiquity o f its rules. T h e least
secure part o f M ilsom ’s argument is his axiom that, before
‘Glanvill’, there had been a stable ‘seignorial world’ guarantee­
ing ‘conclusive seignorial title’ to property (Milsom 1976: 186).
Milsom (1976: 8, 183) is explicitly influenced here by Sir Frank
Stenton’s The First Century o f English Feudalism. In maintaining
that ‘feudalism’ had its ‘first century’ in England after 1066,
Stenton was following the lead o f the Victorian controversial­
ist, J. H. Round. M edieval historians now argue that ‘feudal­
ism’ is a word to use with caution, if at all (Brown 1974;
Reynolds 1991), because it is anachronistic and imprecise.
M ilsom ’s terms ‘seignorial world’ (1976: 37) and ‘seignorial
structure’ (1976: 186) acknowledge this by avoiding the word
‘feudal’, though the essentials o f Stenton’s picture remain in
place.
Does ‘G lanvill’ concern a ‘seignorial world’? Lords had eco­
Ixxx INTRODUCTION

nomic power over unfree labourers and this is acknowledged

in ‘Glanvill’ (Book v), where it is explained how villeins m ay be
claimed in court; there was probably little new in this (Hyams
1980: ch. 13). But the power o f lords over their villeins had
limits— in theory at least— because in certain matters the king
had rights ‘over all m en’. This was not a new principle, as it
had been spelled out in the Leges Henrici Primi (Downer 1972:
108, ch. 10) and went back to Anglo-Saxon law. In practice, it
meant that the king had jurisdiction over crime. H enry I and
Henry II can be argued to have had much in com m on in their
administration o f justice (Hudson 1989: 80). T h e essentials o f
the judicial system had ‘long prevailed’ and were monarchical,
the author o f ‘Glanvill’ asserts in his prologue (p. 2). Like-the
author o f ‘Glanvill’, some recent historians have highlighted
the monarchical rather than the seignorial aspects o f twelfth-
century English governm ents Green (1986) is able to describe
The Government o f England under Henry I without referring to a
seignorial structure at all. Chibnall (1986: 173) in Anglo-Norman
pMgland 1066-1166 denies that the lord’s court was ‘an enclosed
and self-sufficient world’. It is possible, however, that some­
thing like a seignorial structure was introduced by K in g
Stephen as a deliberate experiment in ‘decentralization’
(Warren 1987: 92); but'this proved as transitory and unstable
as K in g Stephen himself. M ilsom ’s insight that ‘G lanvill’
evokes a lost ‘seignorial w orld’ m ay reflect not the actual state
o f affairs in H enry II’s time, but ‘an Angevin lawyers’ ideal o f
how lordships ought to have been run in the old days’ (Hyams
i978: 858).
Certainly the twelfth century is the time when lordship was
first schematized and written about (Ullmann 1975: 219-22).
‘Glanvill’ is part o f that development. But this does not mean
that ‘G lanvill’ is full o f novelties. ‘T h e effect o f the great intel­
lectual developments o f the twelfth and thirteenth centuries
may have been less to create new legal norms than to clarify
the distinctions in the old ones’ (Reynolds 1981: 224). An
answer to some, though by no means all, o f the questions
 INTRODUCTION lx x x i

about ‘Glanvill’s’ purpose and significance may lie in its associ­

ation with the Exchequer. As Hall pointed out (p. xxxvi), the
prologues to ‘G lanvill’ and the Dialogus de Scaccario have similar­
ities. ‘Glanvill’ (p. 2) says that the king deigns to be ‘guided by
those o f his subjects most learned in the laws and customs o f
the realm’ . T h e author o f the Dialogus de Scaccario (Johnson
1983: 2-3) describes the king being so concerned about
Exchequer procedure that he sent for an opinion from the old
bishop o f Ely, who had formerly been in charge. This anec­
dote suggests that what the king did not do when he was con­
cerned about something was to work out the details himself;
instead -he followed precedent and consulted experts. T h e
Dialogus de Scaccario maintains that the tradition o f the king
relying on expert opinion went back to Henry I’s reign or ear­
lier. If this is how the king proceeded in matters o f accoun­
tancy, he may have done likewise in questions o f law.
Exchequer and judicature were intimately linked in ‘G lanvill’s’
time (Kem p 1973). Both were controlled by the chief justiciar
and they used the same premises; they have been described as
‘the same institution’ (Brand 1990: 209).
Sir Richard Southern, who did preparatory work on H all’s
edition o f ‘G lanvill’ (p. vi), has characterized ‘G lanvill’ and the
Dialogus de Scaccario as works which were more than textbooks:
‘they aspired in some degree to invest the routine o f govern­
ment with an intellectual generality’ (Southern 1970: 176). W hy
such unusual books were written in H enry II’s reign, and what
they signify in the development o f law and government, are
questions that are likely to continue to exercise historians in
future. Views about the meaning o f ‘Glanvill’ will differ, but
not about the excellence o f H all’s translation and edition
which makes this difficult book accessible to today’s students.

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 L A T IN TEXT

and

E N G L IS H T R A N S L A T IO N
I ncipit* tractatus de legibus et consuetudinibus regni Anglie
tempore Regis Henrici Secundi compositus, iusticie gubernacula
tenente illustri uiro Rannulfo de Glanuilla, iuris regni et
antiquarum consuetudinum eo tempore peritissimo.4

PROLOGUS
Regiam potestatem non solum armis contra rebelles
et gentese sibi regnoque insurgentes oportet esse decor-
atam, sed et legibus ad subditos et populos pacificos
regendos decet esse ornatam, ut utraque tempora, pacis
scilicet et belli, gloriosus rex noster ita feliciter transigat/
ut effrenatorum et indomitorum dextra fortitudinis
elidendo superbiam et humilium et mansuetorum
equitatis uirga moderando iusticiam, tam in hostibus
debellandis semper uictoriosus existat quam in subditis
tractandis equalis iugiter appareat.
Quam eleganter autem, quam strenue, quam callide
hostium obuiando' maliciis excellentissimus rex noster
hostilitatis tempore armatam exercuerit miliciam nemini
uenit in dubium, cum iam in omnem terram exierit laus
eius et in omnes fines orbis/ terre magnalia eius. Quam
iuste eciam, quam misericorditer et quam discrete erga
0 In cip it. . . peritissimo om. L
4 Et illas solas leges continet et consuetudines secundum quas placitatur
in curia regis ad scaccarium, et coram iusticiis ubicumque fuerint. add. B
c et gentes om. B
d Ln, Z> transeat L, B
• Ln, Z ’> om. L, B
f Ln, om. L, B
1
 Here begins the treatise on the laws and customs o f the realm o f
England, composed in the time o f King Henry the Second when
justice was under the direction o f the illustrious Rannulf
Glanvill, the most learned o f that time in the law and ancient
customs o f the realm.

PROLOGUE

Not only must royal power be furnished with arms

against rebels and nations which rise up against the king
and the realm, but it is also fitting that it should be
adorned with laws for the governance of subject and
peaceful peoples; so that in time of both peace and war
our glorious king may so successfully perform his office
that, crushing the pride of the unbridled and ungov­
ernable with the right hand of strength and tempering
justice for the humble and meek with the rod of equity,
he may both be always victorious in wars with his
enemies and also show himself continually impartial
in dealing with his subjects.
No-one doubts how finely, how vigorously, how
skilfully our most excellent king has practised armed war­
fare against the malice ofhis enemies in time ofhostilities,
for now his praise has gone out to all the earth and his
mighty works to all the borders of the world. Nor is
there any dispute how justly and how mercifully, how

1
 2 PROLOGUS

subditos suos tempore pacis ipse pads auctor et amator

se habuerit non ambigitur, cum tante equitatis sit sue
celsitudinis curia quod in ea nullus iudicum tarn attrite
frontis tarn temerarie sit presumptionis quod a iusticie
tramite aliquatenus declinare aut uiam«ueritatis ullatenus
presumat excedere. Ibi etenim pauperem non opprimit
aduersarii potentia, nec a liminibus* iudiciorum propellit
quemquam fauor uel gratia. Legibus namque regni et
consuetudinibus de ratione introductis et diu obtentis
et, quod laudabilius est, talium uirorum licet subditorum
non dedignatur regi consilio, quos morum grauitate in
peritia* iuris et regni consuetudinibus peritissimos sue
sapientie et eloquencie prerogatiua alios nouit precellere,
et ad causas mediante iusticia decidendas et lites
dirimendas, nunc seuerius nunc micius agendo prout
uiderint expedire/ ipsis rerum* argumentis comperit
cum ratione promptissimos.
Leges autem Anglicanas licet non scriptas leges
appellari non uideatur absurdum, cum hoc ipsum lex sit
‘quod principi placet, legis habet uigorem,’ eas scilicet
i v quas super / dubiis in concilio diffiniendis, procerum
quidem consilio et principis accedente auctoritate,
constat esse promulgatas.i Si enim ob solum scripture
defectum leges minime censerentur, maioris pro-
culdubio auctoritatis robur ipsis legibus uideretur
accomodare scriptura quam uel decernentis/ equitas aut
ratio statuentis.

« Ln, Z\ om- L, B
h Ln, Z ; limitibus L, B
‘ in peritia: impericia Ln
d prout uiderint expedire om. B
• rei B
/uel decernentis Ln, Z\ uel decernentibus L; discementium B

1 Fritz Schulz thought that the words ‘ cum hoc ipsum . . . constat
 PROLOGUE 2

prudently he, who is the author and lover of peace, has

behaved towards his subjects in time of peace, for his
Highness’s court is so impartial that no judge there is so
shameless or audacious as to presume to turn aside at all
from the path ofjustice or to digress in any respect from
the way of truth. For there, indeed, a poor man is not
oppressed by the power of his adversary, nor does
favour or partiality drive any man away from the
threshold of judgment. For truly he does not scorn
to be guided by the laws and customs of the realm which
had their origin in reason and have long prevailed; and,
what is more, he is even guided by those of his subjects
most learned in the laws and customs of the realm whom
he knows to excel all others in sobriety, wisdom and
eloquence, and whom he has found to be most prompt
and clear-sighted in deciding cases on the basis ofjustice
and in settling disputes, acting now with severity and
now with leniency as seems expedient to them.
Although the laws of England are not written, it
does not seem absurd to call them laws—those, that is,
which are known to have been promulgated about
problems settled in council on the advice of the mag­
nates and with the supporting authority of the prince—
for this also is a law, that ‘ what pleases the prince has
the force of law.’1 For if, merely for lack of writing, they
were not deemed to be laws, then surely writing would
seem to supply to written laws a force of greater author­
ity than either the justice of him who decrees them or
the reason of him who establishes them.

esse promulgatas ’ were probably interpolated (f Bracton on K in gsh ip ’,

E.H.R. i x (1945), 171)" The words are in all the manuscripts. His argu­
ment, which assumes that authors always write clearly, could be used to
dispose o f substantial parts o f the treatise.
 3 [I, I - 2]
Leges autem et iura regni scripto uniuersaliter«
concludi nostris temporibus omnino quidem impossibile
est, turn propter scribentium ignoranciam turn propter
eorundem4 multitudinem confusam. Verum sunt que-
dam in curia generalia et frequentius usitata, que
scripto commendare non mihi uidetur presumptuosum,
sed plerisque perutile et ad iuuandum memoriam
admodum necessarium. Horum utique particulam
quandam in scripta redigere decreui, stilo uulgari et
uerbis curialibus utens ex industria ad eorum noticiam
comparandam eis qui in huiusmodi uulgaritate minus
sunt exercitati. Ad quorum euidentiam causarum
secularium genera« in hunc modum duxi disting-
uendum:

[LIBER I]
Distinctio causarum secularium* 1
[1] Placitorum aliud criminale aliud ciuile. Item
placitorum criminalium aliud pertinet ad coronam
domini regis, aliud ad uicecomites prouinciarum. Ad
coronam domini regis pertinent ista:
Capitula•
[2] Crimen quod in legibus dicitur crimen lese maie-
statis, ut de nece uel seditione persone domini regis uel
regni uel exercitus; occultatio inuenti thesauri frau-
dulosa; placitum de pace domini regis infracta;
homicidium; incendium; roberia; raptus; crimen
falsi, et si qua sunt similia: que scilicet ultimo puniuntur
supplicio aut membrorum truncatione./
a L , B\ utiliter L ; u tc Ln b Ln, L\ earundem Z> earuro B
‘ causarum . . . genera: totum opus sequens libris et eorum capitulis B
d rubric Ln, Z> De diuersitate placitorum L
• rubric Ln, Z\ De maiestate lesa L f cruciatione Ln
 [I, I - 2] 3
It is, however, utterly impossible for the laws and
legal rules of the realm to be wholly reduced to writing
in our time, both because of the ignorance of scribes
and because of the confused multiplicity of those same
laws and rules. But there are some general rules fre­
quently observed in court which it does not seem to me
presumptuous to commit to writing, but rather very
useful for most people and highly necessary to aid the
memory. I have decided to put into writing at least a
small part of these general rules, adopting intentionally
a commonplace style and words used in court in order
to provide knowledge of them for those who are not
versed in this kind of inelegant language. To make
matters clear, I have distinguished the kinds of secular
cause in the following manner:

[BOOK I]
The division o f secular causes1
Pleas are either criminal or civil. Some criminal [i]
pleas belong to the crown of the lord king, and some to
the sheriffs of counties. The following belong to the
crown of the lord king:

The chapters
The crime which civil lawyers call lese-majeste, [2]
namely the killing of the lord king or the betrayal of
the realm or the army; fraudulent concealment of
treasure trove; the plea of breach of the lord king’s
peace; homicide; arson; robbery; rape; the crime
of falsifying and other similar crimes: all these are
punished by death or cutting off of limbs.
1 For the analysis in cc. 1-4 see Introduction, p. xx
 4 [I, 2 - 4 ]
Excipitur crimen furti quod ad uicecomites pertinet
et in comitatibus placitatur et terminatur. Ad uice­
comites etiam pertinet per defectum dominorum
cognoscere de melletis, de uerberibus, de plagis etiam
nisi accusator adiciat de pace domini regis infracta.

Distinctio causarum ciuilium•

[3] Placitum ciuile aliud in curia domini regis tantum
placitatur et terminatur, aliud ad uicecomites prou-
inciarum pertinet. In curia domini regis habent ista
tractari:

Capitulab
Placitum de baroniis; placitum de aduocationibus
F.a ecclesiarum; questio status; / placitum de dotibus
unde mulieres ipse nihil penitus perceperunt; querela
de fine facto in curia domini regis non obseruato; de
homagiis faciendis et releuiis recipiendis; de pro-
presturisi; placitum de debitis laicorum. Et ista
quidem placita solummodo super proprietate rei prodita
sunt. De illis autem que super possessione loquuntur
et per recognitiones terminantur inferius* suo loco
dicetur.

Placita ciuilia ad uicecomites pertinentia*

[4] Ad uicecomites* pertinent ista: placitum de recto de
liberis tenementis per breue domini regis ubi curie
dominorum probantur de recto defecisse, quod qualiter

“ rubric Ln, De placitis domini regis etuicecomitum L

b rubric Ln, om. L
‘ rubric Ln, Z\ De placitis uicecomitum L
i prouinciarum add. Ln
 [I, 2 - 4] 4
The crime of theft is not included because this be­
longs to the sheriffs, and is pleaded and determined in
the counties. If lords fail to do justice, then sheriffs also
have jurisdiction over brawling, beatings, and even
wounding, unless the accuser states in his claim that
there has been a breach of the peace of the lord king.

The division o f civil causes

Some civil pleas are to be pleaded and determined [3]
only in the court of the lord king; others belong to the
sheriffs of counties. The following must be dealt with
in the court of the lord king:

The chapters
Pleas concerning baronies; pleas concerning advow-
sons of churches; the question of status; pleas of dower,
when the woman has so far received none; complaints
that fines made in the lord king’s court have not been
observed; pleas concerning the doing of homage and
the receiving of relief; purprestures5; debts of laymen.
All these pleas concern solely claims to the property
in the disputed subject-matter: those pleas in which
the claim is based on possession, and which are deter­
mined by recognitions, will be discussed later* in their
proper place.

Civil pleas belonging to the sheriffs

The following belong to the sheriffs of counties: [4]
pleas concerning the right to free tenements, begun by
a writ from the lord king, where default of right is
proved against the lords’ courts in the manner stated
1 i.e. encroachments on royal lands; see ix, n .
* xiii, passim
 5 [I, 4 - 7]
fieri debeat inferius1 dicetur; placiturn de natiuis, sed per
breue domini regis.8

Placitorum initio*
[5] Cum quis clamat se domino regi aut eius iusticiis de
feudo uel libero tenemento suo, si fuerit loquela talis
quod debeat uel dominus rex uelit earn in curia sua
deduci, tunc is qui queritur tale breue de submonitione
habebit8:

Breue de prima summonitione facienda*

[6] Rex uicecomiti salutem. Precipe N. quod iuste et
sine dilatione reddat R. * unam hidam terre in ilia
uilla unde idem R. < queritur quod predictus N. sibi
deforciat.*' Et nisi fecerit, summone* eum per bonos
summonitores quod sit ibi in crastinum post octabas
clausi Pasche coram me uel iusticiis meis ostensurus
quare non fecerit. Et habeas ibi summonitores et hoc
breue. Teste Rannulfo de Glanuill’ apud Clarendunam.

Q uid iuris sit a d primam summonitionem quando

summonitus neque uenit neque essonium m ittitf
[7] Summonitus autem ad diem prefixum aut uenit aut
non uenit. Item si non uenit, aut nuncium aut* essonium
mittit* aut neutrum. Si neque uenit neque mittit,
aduersarius eius qui petit aduersus eum die statuta coram
iusticiis appareat et se aduersus eum liti offerat, et ita
“ rubric Ln; De feodis uel liberis tenements per breue domini regis Z l
om. L b rubric Ln, Z> Breue de recto L
‘ B; N. a d deforciauit Ln ‘ con. from submone Ln
f rubric Ln, Z\ De summonitis L i et Ln h cotr.from mittat Ln

' xii>7
2 With this inadequate statement o f the sheriff’s jurisdiction compare
the comprehensive generalisation at the end o f xii, 9. An account of the
 [I, 4 - 71 5
below1; pleas concerning villeins begun by a writ from
the lord king.*
Here begins the discussion o f pleas
When anyone complains to the lord king or his [5]
justices concerning his fee or free tenement, and the case
is such that it ought to be, or the lord king is willing that
it should be, tried in the king’s court, then the complain­
ant shall have the following writ of summons3:
The writ fo r making the first summons
The king to the sheriff, greeting. Command N. to [6]
render to R., justly and without delay, one hide of land
in such-and-such a vill, which the said R. complains
that the aforesaid N. is withholding from him. If he
does not do so, summon him by good summoners to be
before me or my justices on the day after the octave of
Easter, to show why he has not done so. And have there
the summoners and this writ. Witness Rannulf Glanvill,
at Clarendon.

W hat the law is when the party summoned neither comes

nor sends an essoiner in response to the first summons

On the appointed return day the party summoned [7]

either comes or does not. If he does not come, then he
sends a representative or an essoiner, or neither. If he
neither comes nor sends anyone, the other party who is
claiming against him should appear before the justices
on the appointed return day and present his case

sheriff’s judicial activity, based on the writs in the treatise, is given by

V an Caenegem, pp. 204-06, and criticised as unfair to the sheriff by
G. D. G . Hall, E.H.R. l x x v j (1961), 318-19.
* See p. 179
6
 6 [I> 7 - 8]
in curia per tres dies expectabit.1 Si uero nec quarta
die uenerit, apparentibus summonitoribus et asserentibus
se bene eum summonuisse, et idem probare se offerenti-
bus iuxta considerationem curie, tunc secundum consi-
derationem curie iterum per aliud breue summonebitur
per interualla quindecim dierum ad minus. Et erit
F.2 »breue ut ueniat respon/surus tam super capitali placito
quam super eo quod ad primam summonitionem non
uenit.
Et ita tribus summonitionibus sub hac forma
emissis, si nec ad terciam summonitionem uenerit neque
miserit, capietur terra in manum domini regis et ita per
quindecim dies remanebit. Et si infra illos quindecim
dies non uenerit, aduersario eius adiudicabitur saisina
ita quod de cetero non audietur nisi super proprietate
per breue de recto. Si uero infra illos quindecim dies
uenerit uolens replegiare2 tenementum, precipietur ei
quod ad quartum diem ueniat et habebit quod de iure
habere debebit, et ita poterit saisinam recuperare si
uenerit.
Si uero ad terciam summonitionem uenerit et
premissas summonitiones recognouerit, statim amittit
saisinam nisi dies saluare possit per dominum regem
guarantum, et per breue quod incontinenti ostendat:

Breue de saluando die per regem warantuma

[8] Rex iusticiis1salutem. Warantizo N. quod fuit apud
a rubric Ln, (regis) Z'> Breue per regem warantum L
b B\ uicecomiti “

1 Here, and throughout the discussion of essoins, I have distinguished

‘ return days * (appointed by the court and separated by intervals of not
less than a fortnight) from ordinary ‘ days ’ (the normal sense involved in
‘ he shall wait three days ’). The Latin has ‘ dies ’ for both meanings.
2 i.e. redeem it on giving sureties
 [I, 7 • 8] 6
against the tenant; and he shall wait three days in
court.1 If the tenant does not come on the fourth day,
but the summoners appear and allege that he has been
properly summoned and offer to prove this in whatever
way the court may decide, then the court shall direct
that the tenant be summoned again by a further writ
to come on a return day at least a fortnight later. This
writ shall direct him to come and answer both as to the
principal plea and as to his not coming at the first
summons.
Three summonses shall be sent out in this way. If
the tenant neither comes nor sends anyone at the third
summons, then the land shall be taken into the lord
king’s hand, and shall remain thus for a fortnight; if
the tenant does not come within the fortnight, seisin
shall be adjudged to the other party, and the tenant
shall not be allowed to reopen the issue except on the
question of property by means of a writ of right. If,
however, the tenant comes within the fortnight and
wishes to replevy2the tenement, he shall be ordered to
come on the fourth day, when he shall have justice done
to him; and so, if he comes then, he can get back his
seisin.
If the tenant does come at the third summons and
admits the previous summonses, he immediately loses
his seisin unless he is able to save the previous return
days by royal warrant; this is done by showing straight
away the following writ:

The writ fo r saving a return day

by royal warrant

The king to his justices, greeting. I warrant that by [8]

 7 [I, 8 - ii ]
iliumlocumper preceptum meumillo die in seruicio meo,
et ideo coram uobis eo die assisis uestris interesse non
potuit. Et uobis mando quod pro absentia sua illius diei
eum non ponatis in defaltam nec in aliquo sit perdens.
Teste etc’.
[g] aSi summonitiones omnes negauerit, pro qualibet
iurabit duodecima manu1; et si unus iuratorum die
statuta defecerit aut persona alicuius eorum iuste excipi
possit sine recuperatione alterius, eadem hora saisinam
amittit propter defaltam. Si uero sufficienter iuratum
fuerit, eodem die de placito respondebit.
[10] Si ad primum diem2 non uenerit summonitus sed se
essoniauerit, si essonium fuerit rationabile recipietur.
Et ita tribus uicibus continue poterit se essoniare. Et
quia uariis ex causis contingit aliquem se essoniare et
iuste, de diuersis generibus essoniorum uideamus.3

D e essoniis*
[u] Essoniorum aliud prouenit ex imfirmitate, aliud
aliunde prouenit. Item, cum ex imfirmitate, quandoque
ex imfirmitate ueniendi, quandoque interuenit ex imfir­
mitate de reseantisa.

a rubric De iuramentis propter essonia Ln\ De negante reo contra sum-

monitores L (both misleading); om. Z
4 rubric “

1 i.e. with eleven compurgators or oath-helpers; see P & M , i i , 6oi,

n. 2. O n compurgation or wager o f law see generally P & M , n, 634-6.
* See p. 6, n. 1.
 [I, 8 - i i ] 7

my command N. was in my service at such-and-such a

place on such-and-such a day, and therefore could
not appear before you on that day at your assizes.
Therefore I command you that you shall not put him in
default for his absence on that day, nor shall he in any
way lose thereby. Witness, etc.
If the tenant denies all the summonses, he shall swear [9]
twelve-handed1 in respect of each of them. If any
one of the oath-helpers defaults on the appointed day,
or if a lawful and unanswerable objection can be made
to one of them on personal grounds, then the tenant
loses his seisin at once on account of the default. If,
however, the oath-helping is duly accomplished, then
the tenant shall answer to the plea on that same day.
If the party summoned does not come on the [10]
first return day,8but essoins himself, the essoin shall be
received if it is reasonable. He can essoin himself in
this way on three successive return days. Now, since
essoins can lawfully be cast for a variety of reasons, let
us look at the different kinds of essoins.8

Essoins

Some essoins are based on sickness, and some on [11]

other grounds. The former may be for sickness on the
way to court, or for house-sickness.

* Essoins are excuses for non-appearance in court, and were available

to both parties. Medieval law, looking at civil litigation as a contest
between the parties, was reluctant to proceed to judgment in absence unless
contumacy could be proved, and the long delays which resulted from
essoining were a product o f this reluctance; see Stenton, pp. 150-70. T he
parallel system o f ‘ excusationes ’ in the Exchequer is discussed in the
Dialogtts, pp. 81-4.
 8 [I, 12]

F«3 Essonium de imfirmitate ueniendi“j

[12] Summonitus itaque si ad primum diem per imfirmi-
tatem ueniendi fecerit se essoniari, erit in electione
aduersarii presentis uel exigere probationem legitimam
illius essonii ab eo essoniatore et eodemdie, uelplegium“
inueniet aut fidem dabit quod ad diem nominatum
habebit warantum suum de illo essonio.4 Et ita tribus
uicibus continuis poterit se essoniare hoc modo. Et si
tercio die non uenerit sed sic* se essoniauerit, tunc
considerabitur quod ad alium diem sit in propria
persona aut pro se sufficientem responsalem mittat ad
lucrandum uel ad perdendumloco suo. Et sic quicumque
die statuta loco suo uenerit offerens se defensioni illius
cum literis eius, uel sine literis si nOtum sit eum esse
coniunctam personam absentis, pro eo recipietur in
curia ad lucrandum uel perdendum. Si uero ad quartum
diem post tria essonia uenerit et omnia essonia waranti-
zauerit, probabit quodlibet essonium iurando propria
et unica manu, et sic de placito eodem die respondebit.
Si ad quartum diem neque uenerit neque responsalem
miserit, capietur tenementum in manum domini regis,
misso a curia ad uicecomitem illius prouincie ubi
tenementum illud est quodam breui in hec uerba3:

“ rubric Ln, Z> De summonitis L

h alterum plegium B
c sed sic: neque B

1 Maitland admitted (P & M , 11, 185, n. a) that ‘ in modem times we

use the word pledge when a thing is given by w ay o f security,’ but never­
theless translated ‘ plegius ’ as ‘ pledge ’ ; I have preferred ‘ surety ’ as an
unambiguous translation. But, like Maitland, I have used * gage ’ rather
than ‘ pledge ’ as a translation o f ‘ uadium ’ which is used in the treatise
not only for chattels but also for land; we do not nowadays ' pledge ’ land.
 [I, 12] 8
The essoin fo r sickness on the way to court
If the party summoned essoins himself on the first re- [12]
turn day by means of the essoin for sickness on the way to
court, then the other party if present has a choice.
Either he can require the essoiner to furnish on the
same day a legal proof of that essoin, or else the essoiner
shall find a surety1 or pledge his faith that on an
appointed day he will have his principal in court to
warrant the essoin.2 He can essoin himself in this way
on three successive return days. If he does not come on
the third of these days but essoins himself, then the
court shall direct him to appear on another return day
either in person or by sending in his place an attorney
with power to gain or lose. Thus, if anyone comes on
that next return day offering to defend the case on
behalf of the absent tenant with letters of authority
from him, and even without letters if he is known to be
a connection of his, he shall be received in court to
gain or to lose for him. But if the tenant himself comes
on the fourth return day and warrants all three previous
essoins, he must prove each essoin by swearing on oath
single-handed; and then he shall answer to the plea on
that same day. If the tenant neither comes nor sends an
attorney on the fourth return day, the tenement shall be
taken into the lord king’s hand by means of a writ, which
is sent from the court to the sheriff in whose county the
tenement lies, and which is in the following forms:

* A different translation by Stenton, p. 154, is perhaps based on R and T

which read ‘ altero ’ for the usual beta ‘ alterum the last sentence o f i, 23
supports the present version.
• The initials in the writs in cc. 13-15 and 17 have, where necessary,
been amended to make a consistent scheme in which M . sues R . for dower,
F. is the essoiner o f R ., and N. is the surety o f F. The writ in c. 13 is known
as the Grand Cape; for examples see Stenton, nos. 3502, 3515 and 3548.
 9 [I, i3 - 14]
Breue de capiendo tenemento in manum domini
regis propter defaltama
[13] Rex uicecomiti salutem. Precipio tibi quod sine
dilatione capias in manum meam medietatem terre de
ilia uilla quam M. clamat ad dotem suam uersus R.,
et de qua placitum est inter eos in curia mea, et diem
captionis iusticiis meis scire facias.1 Et summone per
bonos summonitores predictum R. quod sit coram
iusticiis4 meis apud Westmonasterium a crastino octa-
barum clausi Pasche in quindecim dies auditurus inde
iudicium suum. Et habeas ibi summonitores et hoc
breue. Teste Rannulfo de GlanuilP apud Westmonas­
terium.
Et preterea precipietur uicecomiti illius comitatus
ut essoniatores ‘ illos capiat et tanquam falsarios retineat
per hoc breue:

Breue de capiendo j,also essoniatored

[14] Rex uicecomiti salutem. Precipio tibi quod sine
dilatione diligenter queras per comitatum tuum F. * qui
F.3 v falso essoniauit R. uersus / M./ in curia mea, et saluo
facias eum custodiri donee aliud inde habueris precep-
tum. Teste etc’.*
Et preterea interim summonebitur principalis reus
quod sit coram domino rege uel iusticiis eius, ostensurus
quare essoniatorem suum non warantizauerit et de
capitali placito responsurus. Preterea summonebitur
plegius essoniatoris inde per hoc breue:
0 rubric Ln, (manu) Z> De placito dotis L
4 me uel iusticiis B
c essoniores Ln
d rubric Ln, (qui falso essoniauerit add.) Z\ De falso essoniatore L
•B; R . «
fed.', Willelmus a; W. B
‘ Teste etc’, om. Ln
 [I> 13 - J4 ] 9
The writ fo r taking a tenement into the lord king's
hand on account o f default
The king to the sheriff, greeting. I command you to [13]
take into my hand without delay half of the land of
such-and-such a vill which M. claims as her dower
against R. and concerning which there is a plea
between them in my court. You are to see that
my justices are told the date of this seizure.1
And summon the aforesaid R. by good summoners to
be before my justices at Westminster on the morrow of
the fourth Sunday after Easter to hear judgment in his
case. And have there the summoners and this writ.
Witness Rannulf Glanvill, at Westminster.
The sheriffof that county shall also be commanded by
the following writ to seize and keep in custody the false
essoiners:

The writ fo r seizing a fa lse essoiner

The king to the sheriff, greeting. I command you [14]
to seek, with care and without delay, throughout your
county for F. who falsely essoined R. against M. in my
court. And cause him to be safely kept in custody until
you have further orders. Witness, etc.
Moreover, the tenant himself shall meanwhile be
summoned to appear before the lord king or his justices,
to show why he has not warranted his essoiner and also
to answer to the principal plea. Lastly the essoiner’s
surety shall be summoned by the following writ:

1 cf. ibid. no. 3503

 10 [I, 1 5 - 1 6 ]

Breue de summonendo plegio essoniatoris*

[15] Rex uicecomiti salutem. Summone per bonos
summonitores N. quod sit coram me uel iusticiis meis
apud Westmonasterium a clauso* Pascha in quindecim
dies, ostensurus quare non habuit R.c coram me apud
Westmonasterium ad clausum Paschad ad warantum de
essonio quod F. * pro eo fecit in curia mea uersus M.,
sicut plegiauit eum ad habendum ipsum. Et habeas ibi
summonitores et hoc breue. Teste etc’.
[16] Si ergo infra quindecim dies uenerit uolens replegiare
tenementum, precipietur ei quod sit ad diemnominatum,
ut tunc habeat quod de iure habere debet. Et ita si
uenerit, sub plegiatione saisinam recuperabit et retinere
poterit. Si omnes summonitiones et omnia essonia
negauerit et hoc idem probauerit iuramentis duodecima
manu pro singulis diebus faciendis, uel si primam
summonitionem recognouerit et tria essonia warantiz-
auerit et quartum diem per dominum regem warentum
saluare potuerit per breue quod habeat incontinenti,
sic quoque poterit saisinam suam retinere. Si uero
infra quindecim dies non uenerit, ad diem proximam
adiudicabitur saisina eius aduersario, ita quod ille
numquam audietur inde, nisi de recto per breue de
recto. Mittetur autem aduersarius in saisinam illius
tenementi a uicecomite/per hoc breue:

a rubric Ln, Z> De waranto essonii L

b a clauso: ad clausum Ln
‘ B-, N. «
d in quindecim . . . Pascha marg. Ln
' ed.; N. «; B. B
/ a uicecomite Z\ a(i uicecomitem Ln, L, B
 [1 , 15- 163 10

The writ fo r summoning the

essoiner's surety
The king to the sheriff, greeting. Summon N. by [15]
good summoners to be before me or my justices at
Westminster on the third Sunday after Easter, to show
why he did not, in accordance with his pledge, have R.
before me at Westminster on the Sunday after Easter,
to warrant the essoin which F. made for him in my
court against M. And have there the summoners and
this writ. Witness, etc.
If the tenant comes within the fortnight and seeks [16]
to replevy the tenement, he shall be commanded
to appear on an appointed day to have justice done to
him. If he comes, then he shall recover seisin on giving
sureties, and may keep it. He can also recover his seisin
if he denies all the summonses and all the essoins and
proves this by swearing on oath twelve-handed in
respect of each return day; so also if he admits the first
summons, warrants the three essoins and can immediate­
ly save the fourth return day by a warrant of the lord
king contained in a writ which he has with him. If,
however, he does not come within the fortnight, seisin
shall be adjudged to the other party on the next return
day, and he shall never in future be allowed to reopen
the issue except on the question of right by means of
a writ of right. The sheriff will put the other party in
seisin of the tenement by the authority of the following
writ:
 [I, 1 7 - 1 9 ]
Breue de facienda saisina alicui propter defectum
aduersariia
[17] Rex uicecomiti salutem. Precipio tibi quod sine
dilatione saisias M. de tanta terre in ilia uilla, de qua
placitum fuit in curia mea inter ipsam et R., quia
saisina illius terre adiudicata est eidem M. in curia mea
pro defectu R. b Teste etc’.

Essonium de infirmitate de reseantisac

[18] De infirmitate uero de reseantisa si quis se essoniare
uoluerit, hoc tribus uicibus facere poterit, dum tamen
tercia die ante datam diem essoniator essonium suum
representauerit loco competenti et coram persona
idonea. Et si ad terciam summonitionem non uenerit,
F.4 considerabitur ut uideatur utrum infirmitas ilia sit lang- /
uor an non. Quod ut fiat, precipietur uicecomiti per
hoc breue1:

Breue de uidenda infirmitate utrum sit languor

an noni
[19] Rex uicecomiti salutem. Precipio tibi quod sine
dilatione mittas quatuor legales milites de comitatu tuo
ad uidendum si infirmitas N., unde se essoniauit uersus
R. in curia mea, sit languor an non. Et si uiderint quod
sit languor, tunc ponant ei diem a die uisionis in unum
annum et unum diem, quod sit coram me uel iusticiis
a rubric Ln, Z> Breue pro defectu recti L b recti L
c rubric Ln, Z> De reseantisa L
d rubric Ln, (de infirmitate consideranda) Z> Item breue de recto L

1 The writ seems to allow for three possibilities: (i) serious illness
(languor, confining to bed), for which a year and a day are given; (ii) genuine
but non-serious illness (infirmitas de reseantisa not amounting to languor), in
which case the knights will, in effect, forecast a recovery date; (iii) fake
illness (alleged infirmitas proved false), in which case the knights presumably
 [I, 17 - * 9]
The writ fo r delivering seisin to one party
on account o f the other party's default
The king to the sheriff, greeting. I command you to [17]
put M. without delay in seisin of so much land in such-
and-such a vill, concerning which there was a plea
between her and R. in my court, because seisin of that
land has been adjudged to the said M. in my court on
account of R.’s default. Witness, etc.

The essoin fo r house-sickness

If anyone wishes to essoin himself for house-sickness, [18]
he can do this on three successive return days, provided
that on the third day before each return day the essoiner
present his essoin before a suitable person in a proper
place. If the party has not come at the third summons,
the court will rule that it shall be ascertained whether
the sickness is bed-sickness or not. To enable this to be
done, the sheriff is given orders by the following writ1:

The writ fo r ascertaining whether the

sickness is bed-sickness or not
The king to the sheriff, greeting. I command you to [19]
send without delay four lawful knights fromyour county,
to ascertain whether the sickness for which N. essoined
himself against R. in my court is bed-sickness or not.
If they ascertain that it is bed-sickness, they shall
appoint him a day, one year and one day distant from
the day when they viewed him, to be before me or my

order the faker to court at once. Hence the translation distinguishes between
house- and bed-sickness. But the Tres Aticien Coutumier of Normandy
(1199-1200) seems to assume in c.xlii that the only possibilities are languor
and shamming (ed. E.-J. Tardif, pp. 35-6). For examples see Stenton, nos.
3479, 3493 and 3501, and comment, ibid. pp. i i-ia .
 12 [I, I9-2I]

meis uel sufficientem responsalem* mittat. Et si uiderint

quod non sit languor, tunc ponant ei certum diem quo
ueniat uel sufficientem responsalem mittat inde respon-
surus. Et summone per bonos summonitores predictos
quatuor milites, quod tunc sint ibi ad testificandumuisum
suum et quem diem ei posuerint. Et habeas ibi sum­
monitores et hoc breue. Teste etc’.
Notandum etiam quod duo essoniatores necessarii
[20] sunt ad hoc essonium faciendum ad minus. Preterea
notandum quod duo prima essonia possunt esse de
infirmitate ueniendi et tercium de reseantisa; quod
si sic euenerit, mittetur ad uidendum utrum sit languor
an non. Sin autem duo prima fuerint de infirmitate de
reseantisa, tercium de infirmitate ueniendi, considera-
bitur tanquam omnia essent de infirmitate ueniendi,
quia secundum naturam ultimi essonii semper est
iudicandum.

D e absentia tenentis postquam

respondent in curiaa
[21] Si quis aliqua uice in curia respondent et illi presenti
ibi dies prefixus fuerit, si ad ilium diem neque uenerit
neque essonium* miserit, capietur tenementum in
manum domini regis sine replegiatione, et summonebitur
ille ut ueniat auditurus inde iudicium suum ad diem
nominatum. Et ita, siue ueniat siue non, amittet
saisinam propter defaltam, quia de cetero summoni­
tionem diffiteri non poterit, nisi breue domini regis incon-
tinenti ostendat quo diem non seruatum saluare possit.
“ rubric Ln, (respondit) Z\ De tenemento capiendo in manum domini
regis L
b responsalem B

1 Skl- p. 192
 [I, 1 9 - 2 1 3 12

justices or to send a competent representative.1 If they

ascertain that it is not bed-sickness, then they shall
appoint him a certain day on which he is to come or
send a competent representative to answer in the case.
And summon the aforesaid four knights by good
summoners to be there then to attest their view, and to
state what day they appointed him. And have there the
summoners and this writ. Witness, etc.
It should be noted also that at least two essoiners
are necessary for making this essoin. It should be [203
noted, moreover, that the first two essoins can be for
sickness on the way to court and the third for house-
sickness, in which case knights will be sent to ascertain
whether it is bed-sickness or not. If, ho.wever, the first
two were for house-sickness and the third for sickness
on the way to court, the court will direct that all are to
be treated as for sickness on the way to court, because
the ruling must always depend on the nature of the last
essoin.

Absence o f the tenant after he hast replied

in court
If anyone has at any time replied in court and, [213
while present there, has had a day appointed him, on
which day he neither comes nor sends an essoin, his
tenement shall be taken into the hand of the lord king
without any right to replevy-it, and he shall be sum­
moned to come on an appointed day to hear judgment
in his case. Whether he comes or not on that appointed
day, he will lose his seisin on account of his default,
because the summons can no longer be denied, unless
he immediately shows a writ of the lord king by virtue
 13 [I, 21 - 23]

Sed licet aliqua uice in curia respondent, si licite

recesserit ad tria essonia recuperare poterit, nisi pactum
aliud inducat. Si uero post se essoniauerit quis, secundo
neque uenerit neque se essoniauerit, precipietur uice­
comiti quod essoniatorem ilium attachiet0 tanquam
falsum per prescriptum1 breue.
22] F.40 Sciendum autem quod cum quis / se essoniat,
essoniator poterit se essoniare rationabili essonio. Si
quis enim, uolens se rationabili modo essoniare, et4
essoniatorem ad se essoniandum transmiserit et ille
obiter in aliquod rationabile impedimentum incident
quo minus ad diem statutum uenire possit, expectabitur
usque in quartum diem sicut et dominus eius. Qui si
infra quartum diem uenerit, recipietur eius essonium
quocumque die uenerit, et poterit saluare dies preteritos
eisdem causis quibus et dominus.
[23] Poterit etiam, si id elegerit, se essoniare per alium
essoniatorem ipse principalis essoniator, ita tamen
quod ipse secundus essoniator dicat in curia ipsum
tenentem proposito essonio racionabili detentum non
posse ad ilium diem uenire nec pro perdere nec pro
lucrari, et ad id se inde essoniandum ilium alium desti-
nasse, et ipsum essoniatorem in tale impedimentum
incidisse quod ad diem ilium uenire non potuerit; et hoc
paratus sit probare secundum considerationem curie.
Sic autem recipietur essonium tale, et dabitur ipsi
tenenti dies per talem etiam essoniatorem, ita quod
assecurabit ad habendum inde warantum suum ad
diem datum. Et ita ad diem ipsum oportebit ipsum

“ L, attachiat Ln, B
4 interim. Ln
 [I, 21 - 23] *3
of which he can save the return day on which he de
faulted. But if he has at any time replied in court and
has then been allowed to withdraw, he can have re­
course to three essoins unless there is an agreement
otherwise. If, however, after he has essoined himself, he
neither comes nor essoins himself on the second return
day, the sheriff shall be commanded to attach the
essoiner as a false essoiner, by the writ set out above.1
Note that when anyone essoins himself, his essoiner [22]
too can essoin himself by a reasonable essoin. If anyone
wishing to essoin himself in a reasonable manner has
sent for this purpose an essoiner, who has met on the
way with an accident which reasonably prevents him
from coming on the appointed return day, he will be
waited for until the fourth day from then, as would
his principal. If he comes within the four days, his
essoin will be received on whatever day he comes, and
he can save the days on which he defaulted with the
same reasons as can his principal.
Moreover, the original essoiner can if he wishes [23]
essoin himself by another essoiner, in the following way:
the second essoiner shall say in court that he is ready to
prove, in such way as the court shall award, that the
tenant is detained in some way which has been ex­
pounded and which is reasonable cause for an essoin,
and is unable to come on that day either to gain or to
lose; and that the tenant instructed another named
person to essoin him in the case; and that this essoiner
met with such an accident that he cannot come on that
day. In such a case this essoin will be received, and the
tenant will be assigned a day by this essoiner, provided
that he gives security for having his warrantor there on
the appointed day. And thus on that day the tenant
 14 [I, 2 3 - 2 6 ]

tenentem principalem essoniatorem warantizare, et eius

essonium solito modo probare, et primum essoniatorem
similiter secundum, nisi primo die ipsemet essonium
suum probauerit ad petitionem aduersarii.
[24] Si uero post essonium suum propositum in curia
infra quartum diem uenerit uolens inde agere uel
respondere ipse tenens, si per essoniatorem prius fuerit
dies datus in curia et pars aduersa sic recesserit a curia,
nullum habebit inde recuperare quantum ad ipsum
diem preteritum.

Essonium de esse ultra marea

[25] Est et aliud genus essoniandi et necessarium cum
quis essoniatur de esse ultra mare, et tunc, si recipiatur
essonium, dabuntur ipsi essoniato quadraginta dies ad
minus. Si uero ulterius illo uel alteriusmodi essonio
rationabili se essoniauerit, de cetero solitus cursus serua-
bitur in respectu dando.

Essonia de saluandis quatuor diebus quibus

expectatur aduersarius in curia4
[26] Sunt et alia essonia, que locum fortassis habere
possunt ad saluandos illos trescl dies uel aliquem
illorum per quem uel quos expectatur aduersarius in
curia, ut subita aquarum inundatio, aut alius casus
repentinus qui preuideri non poterat.

8 rubric Ln, Z \ De essonio de ultra mare L

*>rubric Ln, (Essonium) Z> Essonium pro aquarum inundatione L
‘ Ln, Z\ quatuor L, B
 [I, 2 3 - 2 6 ] 14

must warrant the original essoiner and prove his essoin

in the customary manner; and the original essoiner
must do likewise for the second essoiner, unless the
second essoiner has already proved his essoin on the
original return day at the request of the other party.
If an essoin has been cast for the tenant in court and, [24]
within the four days, he comes and wishes to do some
act or to reply, then if a day has already been assigned
in court through the essoiner and the other party has
in consequence left the court, the tenant shall have no
recovery of that lost return day.

The essoin fo r being overseas

There is another and necessary kind of essoining, [25]
which happens when anyone is essoined for being
overseas. If tliis essoin is received, then at least forty
days will be given to the essoinee. If, however, he
essoins himself again by this or some other reasonable
essoin, then the customary practice of the court will be
followed in assigning the delay.

The essoins to save the four days during which the

other party is waited fo r in court
There are also other essoins which may be used to [26]
save the three1 days, or any one of them, during which
the other party is waited for in court: for example, a
sudden flood of water, or some other unexpected and
unforeseeable accident.

1 The conflict between three and four (cf. also the rubric) may merely
reflect different ways o f counting: both principal (i, 7) and essoiner (i, 22)
should come on the first day but can delay until the fourth, and can save
the three/four missed days in the ways suggested here. I owe this suggestion
to Lady Stenton.
 i5 [I, 27]

Essonium per seruitium domini regis«

[27] Per seruicium domini regis item rationabiliter se
essoniat quis, et cum in curia probatur hoc essonium et
admittitur, remanebit loquela sine die, donee constiterit4
F.5 eum ab illo seruicio domini regis redisse. Vnde / hii qui
assidue sunt in seruicio domini regis ut seruientes ipsius
hoc essonio non gaudebunt. Ergo circa eorum personas
obseruabitur solitus cursus curie et iuris ordo.
Sed circa predictum essonium hoc modo distin-
guendum est. Qui per seruicium domini regis se esson­
iare facit, aut prius comprehendit eum submonitio unde
aduersarius querit eum ponere in placitum, aut prius
iuit in seruicium domini regis et postmodum submonitus
est. Si prius fuerit in seruicio domini regis et interim de
placito summonitus, indistincte uerum est et obtinet
quod superius dictum est. Si uero prius ponatur quis in
placitum etc postea1 se facit essoniare per seruicium
domini regis, refert utrum is per mandatum domini regis,
uel preceptum generale uel speciale, ex necessitate sit in
illo seruicio, an alias. Si ex precepto domini regis ad
illud seruicium fuerit uocatus, tunc quoque idem iuris
erit quod in superiori casu. Si uero alias ex uoluntate
non ex precepto domini regis in seruicium ipsius de
nouo se ingesserit, distinguitur utrum ierit ultra mare in
seruicium illud an citra mare remanserit.
Si ultra mare, dabitur ei respectus quadraginta
dierum ad minus. Qui si infra illos quadraginta dies
non redierit, obseruabitur solitus cursus curie et iuris
ordo. Et quandocumque in curia apparuerit uel per se
a rubric Ln, (pro seruitio) L 4 consistent Ln
c interim . . . et om. B: see Introduction, p. xlii

1 The omission in beta makes it seem as if the converse case (summons

first, service afterwards) has been left out; the gloss in B makes this point.
 [ 1 , 27] *5
The essoin fo r being in the service o f the lord king
Being in the service of the lord king is reasonable [27]
cause for an essoin, and when this essoin is proved and
accepted in court the plea shall be postponed indefinite­
ly, until it is established that he has returned from being
in the service of the lord king. It follows that those who
are permanently in the service of the lord king, such as
his sergeants, shall not have the benefit of this essoin;
and therefore in respect of them the customary practice
and legal procedure of the court shall be observed.
The following distinction must be made with
reference to this essoin: when anyone essoins himself
as being in the service of the lord king, either he first
receives the summons by which the other party seeks
to implead him, or else he has first gone into the service
of the lord king and is summoned afterwards. If he was
first in the service of the lord king and afterwards sum­
moned about the plea, the law stated above undoubtedly
applies. If, however, he is first impleaded and then
afterwards1 essoins himself as being in the service of the
lord king, it depends whether he is compulsorily in that
service because of a command of the lord king, be it a
general or special order, or whether he is not. If he
was called to that service by order of the the lord king,
then again the law is the same as in the case above. If,
on the other hand, he has newly gone into that service,
not by order of the lord king but voluntarily, then a
distinction is made according to whether he has gone
overseas in that service or has remained in the country.
If he has gone overseas, he will be assigned a delay
of at least forty days, and if he has not returned within
those forty days the customary practice and legal pro­
cedure of the court shall be observed; whenever he does
 i6 [I, 2 7 - 2 9 ]

uel per responsalem, oportebit eum habere breue domini

regis ad warantum suum de essoniis premissis quod
incontinenti exhibeat. Si citra mare fuerit in seruicio
domini regis, tunc in uoluntate iusticiarum domini regis
erit et beneplacito breuiorem terminum dare ei uel
ampliorem, secundum quod uiderint domino regi
expedire, dum tamen obseruetur iuris ordo.

Essonium quod dicitur de eadem uillaa

[28] Contingit preterea aliquem essoniari in curia per
infirmitatem qua quis detinetur in eadem uilla cum
illuc uenerit ad placitum suum prosequendum. Et tunc
consideratur in curia quod in crastino ueniat, et ita per
tres dies expectabitur. Et ex hac causa respectum trium
dierum habebit. Qui si tercio die ita se inde essoniauerit,
tunc mittentur quatuor milites ad eum per considera-
tionem curie ad uidendem utrum sit in tali statu quod
possit uenire ad curiam uel non. Et si uiderint quod
possit, tunc ei precipient quod ad curiam ueniat et ibi
F.5v faciat quod facere debet. Et si uiderint / eum non posse
uenire, et hoc in curia testati fuerint, tunc habebit alium
diem rationabilem et ita respectum quindecim dierum
ad minus.

Essonium de esse in peregrinationeb

[29] Est preterea essonium quod quandoque in curia

presentatur, scilicet de esse in peregrinatione. Sed
distinguendum est utrum is qui ita se essoniat fuerit
positus inde in placitum antequam iter ipsum arripuerit
uel non. Quod si prius inde summonitionem habuerit,

a rubric Ln, Essonium per infirmitatem L

b rubric Ln, (esse >n om-) L
 [I, 27 - 29] 16

appear in court, whether in person or by attorney, he

must have with him and show immediately a writ of
the lord king as his warrant for the essoins he has cast.
If he has stayed in the country in the service of the
lord king, then it shall be at the will and pleasure of
the lord king’sjustices to assign a shorter or longer term
of delay, as may be expedient for the lord king, pro­
vided that the usual legal procedure be observed.

The essoin which is called [sickness] in

the same vill
It sometimes happens that a party essoins himself [28]
in court for a sickness by which he is detained in the
same vill when he has come there to prosecute his plea.
In such a case the court will rule that he shall come on
the next day, and in this manner he is waited for during
three days and for this reason he shall have a delay of
three days. If on the third day he essoins himself in the
same way, then the court will rule that four knights
shall be sent to him to ascertain whether he is fit to
come to court or not. If they ascertain that he is
fit, then they shall command him to come to court and
to do there what he ought to do. If they ascertain that
he cannot come and attest this in court, he shall have
another reasonable return day assigned him, and thus a
delay of at least a fortnight.

The essoin fo r being on a pilgrimage

There is another essoin which is sometimes pre- [29]
sented in court, namely for being on a pilgrimage. A
distinction must be made, dependent on whether he
who is essoining himself was impleaded before he
undertook the journey or not. If he first had the
 i7 P> 2 9 - 3 0 ]
obseruabitur cursus curie et iuris ordo. Si uero nullam
prius inde habuerit summonitionem, tunc iterum dis-
tinguendum est utrum iuerit in peregrinationem uersus
Ierusalem uel ad alium locum. Si uersus Ierusalem
iuerit in peregrinationem is qui se essoniare facit, tunc
solet ei dari respectus unius anni“ ad minus. De aliis
uero peregrinationibus solet dari respectus pro uoluntate
et beneplacito domini regis uel eius iusticiarum pro
longitudine uel breuitate itineris prout uiderint
temperandum.
D e intelligenda hac clausula in breui contenta,
* E t habeas etcetera ’ b
[30] Apponitur autem in breui de summonitione facienda
uicecomiti directoc hec clausula, ‘ Et habeas ibi sum­
monitores et hoc breue.’ Ideoque ab initio querendum
est ad diem datum in curia, offerente se liti eo qui petit,
utrum uicecomes breue et summonitores ibi habeat an
non. Et si habeat, d tunc testata est summonitio et pro-
cedendum erit in placito sicut premonstratum est. Si
uero die ilia presens non fuerit uicecomes nec infra
quartum diem uenerit, tunc precipietur ei iterum per
breue domini regis quod tenentemsummoneat de capitali
placito per breue de secunda summonitione, et quod ille
ueniat ostensurus quare per primum breue summoni­
tionem illam non fecerit. Est autem breue de secunda
summonitione continens breue de prima summonitione
et preterea hanc clausulam, ‘ Et tu ipse tunc sis ibi
ostensurus quare summonitionem illam ei non feceris
sicut tibi preceptum fuit per aliud breue meum, et
habeas ibi hoc breue et illud aliud breue.’
“ et unius diei add. B
4 rubric Ln, (habeas summonitores et hoc breue etcetera) Z i De breui
et summonitoribus habendis L ‘ ed. ; directa M SS d ibi habeat Ln
 [I, 2 9 - 3 0 ] 17
summons in the case, then the usual practice and legal
procedure of the court will be observed. If, however,
he did not first receive any summons in the case, then a
further distinction must be made, dependent on whether
he has gone on pilgrimage toJerusalem or to some other
place. If he has gone on pilgrimage toJerusalem he will
be assigned a delay of at least a year. For other pil­
grimages he will be assigned such a delay at the will and
pleasure of the lord king or his justices as seems approp­
riate to the length or brevity of the journey.

The meaning o f the clause in the writ :

‘ And have etc. ’
In the writ sent to the sheriff, directing him to make [30]
the summons, there is the following clause: ‘ And
have there the summoners and this writ.’ Therefore,
when the demandant appears to present his case in
court on the appointed return day, it is necessary first
to discover whether or not the sheriff has there the writ
and the summoners. If he has, then the summons is
attested and the plea shall proceed as explained above.
If, however, the sheriff is not present on that day and
does not come by the fourth day, he shall be commanded
again by a writ of the lord king to summon the tenant
in the principal plea by a writ of second summons, and
to come himself and show why he did not make that
summons in accordance with the first writ. The writ
of second summons contains the text of the writ of first
summons, and also the following clause: ‘ And you
personally are to be there to show why you did not
summons him as you were commanded to in my other
writ, and you are to have there this present writ and that
other writ.’
 i8 [I, 30]
Ad diem autem ilium 1 ueniens uicecomes, aut dicet
se exsecutum fuisse preceptum domini regis aut confite-
bitur se illud non fuisse exsecutum. Si confitebitur se
illud non fuisse executum, tunc remanet in misericordia
domini regis, et ille qui petit primum diem ita intelli-
getur amisisse, et de nouo summonendus est ille qui tenet.
F.6 Si uero dixerit se summonitionem primam legitimis /
summonitoribus faciendam iniunxisse, et idem ibi
presentes sint hoc ipsum confitentes, tam uicecomes
quam illi in misericordia remanent si summonitionem
non fecerint sicut earn facere tenebantur. Et primus dies
petenti ita erit inutilis.
Sin autem illi quos uicecomes summonitores nomi-
nauerit presentes sint asserentes hoc eis a uicecomite non
fuisse iniunctum, tunc distinguendum est utrum uice­
comes submonitionem illam eis faciendam iniunxerit in
comitatu, sicut semper fieri debet ita quod si ante
comitatum presentetur loquela attachiabitur usque ad
comitatum et tunc plene fiet submonitio, an alio modo.
Si in comitatu hoc eis iniunxerit, et hoc fuerit recte®
testatum, illi in misericordia remanent quia comitatui
in hoc contradicere non possunt. Si uero extra comi­
tatum minus publice quam fieri deberet hoc eis iniun­
xerit uicecomes, et illi hoc negauerint, uicecomes in
misericordia remanet quia preceptum domini regis ut
debuit non est executus. Huiusmodi enim publici actus,
scilicet summonitiones iniungere, plegios de clamoribus
prosequendis et de stando ad rectum capere, publice
debent celebrari ne, si super his que preparatoria esse
debent ad expedienda negocia posset fieri contentio,
diutius protrahendi negocia ea ipsa fierent occasio.
“ iuste Ln
1 i.e. the day assigned in the second w i t
 [ 1 , 30] 18

When the sheriff comes on that day1 he will either

say that he executed the command of the lord king, or
admit that he did not. If he admits that he did not
execute it, he shall be liable to amercement by the lord
king; the demandant shall be deemed to have lost the
first return day, and the tenant must be summoned
afresh. If, however, he says that he ordered the first
summons to be made by lawful summoners who are
present in court and admit this, then both they and the
sheriff shall be liable to amercement if they did not make
the summons as they were bound to; and in consequ­
ence the first return day shall be lost to the demandant.
If, however, those whom the sheriff has named as
summoners are present in court and say that the sheriff
did not give them the order, then a distinction must be
made. Either the sheriffordered themin the county court
to make the summons, which is the way it ought always
to be done, in order that, if the plaint is presented
before the county court sits, the tenant will be attached
until the sitting and then the summons openly made;
or else the sheriff did it in another way. If he gave
them the order in the copnty court, and this is properly
attested, the summoners shall be liable to amercement,
for they are not allowed to contradict the county in this
matter. If, however, the sheriff gave them the order
outside the county court less publicly than he ought,
and they deny that he gave the order, he shall be liable
to amercement because he did not execute the command
of the lord king as he ought to have. For public acts of
this kind, namely ordering summonses to be made and
the taking of sureties for prosecuting claims and appear­
ing in defence, should be performed in public, lest
dispute over matters which ought to be preparatory
 19 [I, 3 ° ■ 3 1]
Si uero ad diem ilium*1 idem summonitores assint4
asserentes se legitime fecisse primam summonitionem, et
ad primum diem suos habuerint <essoniatores qui et eos
essoniauerint et adiecerint quod summonitionem recte
fecerint, tunc primus dies petenti iudicabitur utilis, et
illi in misericordia remanebunt eo quod ad primum
diem non aderant ad testandam summonitionem sicut
eis fuit iniunctum, nisi primum diem saluare possint per
dominum regem warantum. Sed notandum quod ex-
cusare2se possunt legitime summonitores illi ad primam
diem uterque uel alteruter eorum, et tunc primus dies
petenti similiter utilis computabitur.

D e absentia tenentis per plegios attachiatU

[31] De absentia tenentis quedam premissa sunt, que tunc
locum habent quando tenens ipse sine plegiorum
datione simpliciter est summonitus. Si uero fuerit
loquela talis quod tenens ipse plegios inuenerit standi
ad rectum, tunc si recordatum fuerit recte per iusticias
uel per comitatum eum plegios inde inuenisse, quod
F.6 v contingit / in ciuili negocio de fine facto in curia domini
regis coram rege uel iusticiis eius et non obseruato et in
nouis desaisinis,3 tunc quidem si tenens ipse ad primum
diem neque uenerit neque se essoniauerit, plegii con-
siderandi sunt in misericordia domini regis, et super
capitali placito plegii* eciam afforciabuntur/: et ita
tribus uicibus, eo semper absente, in placito illo erit
0 diem ilium: primum diem B b non assint B
‘ L, B; habuerit Ln, Z
d rubric Ln, Z\ De plegiis standi ad rectum L
• L, Z; plegios Ln, B
f L , Z , afforciabunt (corr.from afforciabuntur) Ln, B
1 Seemingly the day assigned in the second writ o f summons.
2 For failure to make the summons?
8 The writs at viii, 4 and xiii, 33 illustrate this.
 [I> 3 0 - 3 1 ] *9
and serve to speed up the business should make these
very matters the cause of delaying the business.
If, however, the summoners are present on that
day1 and say that they made the first summons in due
form, and if they had essoiners who essoined them on
the first return day and who said, moreover, that they
had made the summons in due form, then the first re­
turn day shall be adjudged good in favour of the de­
mandant; and the summoners, because they were not
present on the first return day to attest the summons
as ordered, shall be liable to amercement unless they
can save the first return day by the lord king’s warrant.
It must be noted that either or both of the summoners
can on the first return day provide a lawful excuse,2
and in that case similarly the first return day will be
counted good in favour of the demandant.

Absence o f a tenant who has been attached by sureties

Something has already been said about the absence [31]
of a tenant who is summoned simply, that is, without
giving sureties. Sometimes the case is of such a kind
that the tenant finds sureties for appearing in defence,
for example, in a civil case concerning a fine made in
the lord king’s court before the king or his justices and
not observed, and in cases of novel disseisin.3 In such a
case, where it is duly recorded by the justices or the
county court that the tenant has found sureties, if the
tenant neither comes nor essoins himself on the first
return day, the court will rule that the sureties shall be
liable to amercement by the lord king, and they will
increase the number of sureties in the original plea.
The plea shall proceed in this way, in the continued
absence of the tenant, for three successive return days,
 20 [I. 31 - 32]
procedendum. Et si ad terciam summonitionem non
uenerit, capietur tenementum ipsum in manum domini
regis et retinebitur eo modo quo predeterminatum est,1
plegiis eciam in misericordia remanentibus, qui et
summonendi sunt quod sint ad certum diem in curia
audituri suum iudicium.
Sin autem fuerit negocium criminale ut de pace
domini regis infracta, tunc secundum iuris ordinem ut
in superiori casu erit et hie procedendum,«nisi quia hie
si rettatus ad terciam summonitionem non uenerit
corpus suum attachiabitur. De consilio tamen ut festi-
nantius* puniatur rettatus propter curie contemptum,
statim si ad diem primum non uenerit <capietur corpus
eius, plegiis remanentibus in misericordia.
D e absentia petentisd
[32] Expeditis hiis que circa absentiam eius qui tenet
frequentius solent contingere, de hiis que de absentia
petentis fiunt restat inspicere. Et quidem si ad primum
diem non uenerit is qui petit, essoniare se poterit eisdem
rationabilibus essoniis quibus et tenens et eisdem modis.
Sed si nec uenerit nec se essoniauerit, tunc iuxta con-
siderationem curie dimittetur tenens si presens fuerit uel
per se uel per alium ut debet sine die, ita ut petens tale
recuperare habeat uersus eum si iterum inde placitare
uoluerit quale inde habere debeat. Et si iterum placitum
illud uersus eundem uelit mouere, quero quid iuris ibi
sit et qualiter punienda sit ipsius defalta? Ad hoc autem
diuersi diuersis modis respondent. Dicunt enimquidam*
a hie p ro ce d e n d u m : sic p ro ce d e n d u m est Ln
h f'estinatius Ln
‘ corp u s . . . u en erit om. L , B: see Introduction, p. x lii
d rubric “
‘ YV.B. interim. Ln: see Introduction, p. x liii, for this and the next two notes
1 >. 7
 [I, 3 1 - 3 2 ] 20

and if he does not come at the third summons the

tenement shall be taken into the hand of the lord king
and kept there, in the manner already explained1; the
sureties shall be liable to amercement, and shall, more­
over, be summoned to appear in court on a certain day
to hear judgment against them.
If, however, it is a criminal case, for example, breach
of the lord king’s peace, then the legal procedure shall be
the same here as in the previous case, except that if the
accused does not come at the third summons he shall be
arrested. Indeed, in order to punish more speedily his
contempt of court, it may be ruled that if the accused
does not come on the first return day he shall immedi­
ately be arrested, and his sureties liable to amercement.

Absence o f the demandant

The problems which most often arise in connection [32]
with the absence of the tenant have now been discussed
and it remains to look at those connected with the
absence of the demandant. If the demandant does not
come on the first return day, he can essoin himself by
the same reasonable essoins and in the same way as can
the tenant. If, however, he neither comes nor essoins
himself, then the court will rule that the tenant, if
present in person or by an attorney as he ought to be,
shall be sent away without any day being assigned him.
The demandant may still have justice done to him in
the case if he is willing to begin the plea again; if he is
so willing, I put this question: what is the law on the
matter, and how is his default to be punished? Differ­
ent people give different answers to this. Some say
that the demandant shall lose only his costs and
expenses and the first writ, but not the whole case, and
 21 [I, 32 - 33]

quod non nisi custum et expensas et primum breue

amittet, loquelam autem non; sed de nouo placitum
incipiet. Alii“dicunt quod loquelam uersus aduersarium
penitus sine omni recuperatione amittet, et propter curie
contemptum in misericordia domini regis remanebit.
Alii uero* dicunt quod in misericordia domini regis erit
de cetero et in beneplacito utrum uelit eum ad illud
placitum amplius admittere uel restituere uel non, et
quando. Hec itaque simpliciter sufficiunt ubi loquela
F.7 sine plegiatione procedit./
Si uero ille qui petit plegios inuenerit de clamore suo
prosequendo, et diem suum neque per se neque per
alium quemcumque seruauerit, tunc is qui tenetc dimit-
tetur sine die, et petens* illud breue secundum quosdam
et totum custum amittet, et plegii eius in misericordia ut
supra1; aut secundum alios loquelam suam amittet, et
plegii etc’. Sed hec ita obtinent si loquela sit tantummodo
sua, quod sepius contingit in ciuilibus negociis. Verum
si fuerit loquela non tantum sua sed eciam domini regis,
ut in criminali negocio de pace domini regis infracta,
tunc quia loquelam illam non nisi sibi amittere potest,
immo eciam illam prosequi tenetur, corpus eius de cetero
in prisonem mittetur et saluo custodietur donee appel-
lum< suum prosequi uelit, et plegii eius preterea in
misericordia remanebunt.
D e absentia utriusque partis f
[33] Quandoque contingit utrumque abesse, et tunc in
uoluntate domini regis uel eius iusticiarum erit si uoluerit
uersus utrumque prosequi contemptum curie uel falsum
clamorem.
a os. fil. er. interim. Ln b H.W . interlin. Ln
CB; petit “ dB; aliud Ln, L: alius Z
‘ Z, B'> appellatum Ln, L f rubric Ln, Z\ De absentia petentis et rei L
 [I> 32 - 33] 21

that he can begin the plea again. Others say that he

shall completely lose the case against the other party
with no right to reopen it, and shall be liable to amerce­
ment by the lord king for his contempt of court. Others,
however, say that he shall, from the moment of default,
be liable to amercement by the lord king, who can at
his pleasure decide whether, and when, to admit or
restore the demandant to the original plea. This is
sufficient discussion of cases not involving sureties.
If, however, the demandant has found sureties for
prosecuting his claim, and does not keep the appointed
day either in person or by any kind of representative,
then the tenant shall be sent away without any day
being assigned him ; according to some, the demandant
shall lose all his costs, and his sureties be liable to
amercement as above1; or, according to others, he
shall lose the whole case and his sureties, etc. These
rules apply if the case is entirely his own, as is generally
so in civil cases. If, however, the case is not only his but
also the lord king’s, as in a criminal case for breach of
the lord king’s peace, then, since he must not prejudice
anyone but himself by defaulting in the case and is
indeed bound to prosecute it, he shall immediately be
put in prison and kept in safe custody until he is willing
to prosecute his appeal, and his sureties shall, moreover,
be liable to amercement.

Absence o f both parties

S o m e tim e s b o th p a rtie s a re a b se n t, a n d th e n it is [33]
w ith in th e d is c re tio n o f th e lo rd k in g o r his ju s tic e s to
p ro se c u te b o th o f th e m fo r c o n te m p t o f c o u r t o r false
c la im .
1*>33
8
 22 [II, I * 31
[LIBER II]
De presentia utriusque partisa
[1] Utroque autem tarn petente quam tenente apparente
in curia et petente uersus tenentem tenementum petitum
clamante, poterit tenens petere uisum terre. Sed ad hoc
ut detur ei inde respectus, distinguitur utrum is qui tenet
habeat plus terre in ilia uilla ubi terra ilia que petitur
est, an non. Et si plus ibidem non habuerit, nulla
dabitur ei inde dilatio. Sin autem plus terre ibi habuerit,
tunc dabitur ei respectus, et alius dies ei dabitur in curia.
Et cum ita recessum sit a curia, ad tria essonia is qui
tenet de nouo recuperare poterit rationabilia, et precipi-
etur uicecomiti illius prouincie ubi tenementum illud
est quod mittat liberos homines de comitatu suo ad
uidendum terram illam per hoc breue1:
Breue de faciendo uisu terreb
[2] Rex uicecomiti salutem. Precipio tibi quod sine
dilatione mittas liberos et legales homines de uisneto*
de ilia uilla ad uidendum unam hidam terre in ilia uilla,
quam N. clamat uersus R. et unde placitum est inter eos
in curia mea. Et habeas quatuor ex illis coram me uel
iusticiis meis eo die ad testificandum uisum suum. Teste
etc’.*'
Loquela petentis •
[3] Post tria essonia rationabilia uisum terre comitancia
F.7« utroque lit/igantium iterum/ apparente in curia,
petens ipse loquelam suam et clamium ostendit in hunc
modum: ‘ Peto uersus istum N. feodum dimidii militis et
« rubric Ln, Z\ De utroque in curia apparente L
h rubric Ln, Z> Breue de uidendo tenemento L
c uidneto Ln d Teste etc’ , om. Ln
• rubric Ln\ De modo rem petendi L\ Vtroque litigantium apparente
in curia quomodo procedendum sit post uisum terre Z
 [II, I - 3] 22

[BOOK II]
Presence o f both parties
When both demandant and tenant appear together [1]
in court and the demandant claims the disputed tene­
ment from the tenant, the tenant can ask for a view of
the land. To decide whether this postponement can be
allowed to him it is necessary to distinguish whether the
tenant has other lands in the vill where the disputed
land lies or not. For if he has no other lands there, this
delay shall not be granted him. If, however, he has
other lands there, a postponement shall be allowed to him,
and another day assigned him to be in court. In such a
case, when the tenant has left the court he can again
have three reasonable essoins, and the sheriff of the
county wherein the tenement lies shall be commanded
by the following writ to send free men from his county
to view the land1:

The writ fo r holding a view o f the land

The king to the sheriff, greeting. I command you to [2]
send without delay free and lawful men from the neigh­
bourhood of such-and-such a vill to view one hide of
land in that vill, which N. claims against R. and con­
cerning which there is a plea between them in my court.
And you are to have four of them before me or my
justices on a certain day, to attest the view. Witness, etc.

The demandant's claim

When both parties appear again in court after the [3]
three reasonable essoins and the view, the demandant
sets out his claim and suit as follows: ‘ I claim against
/ B', interim «
1 cf. Stenton, nos. 3478, 3480 and 3484, and comment, ibid. p. 12
23 [II, 3]
duas caruccatas terre in ilia uilla sicut ius meum et
hereditatem meam, unde pater meus uel auus meus fuit
saisiatus in dominico suo sicut de feodo tempore Regis
Henrici Primi, uel post primam coronationem domini
regis,1 et unde cepit commoda ad ualentiam quinque
solidorum ad minus, ut in bladis et fenis et aliis com-
modis; et hoc promptus sum probare per hunc liberum
hominem meum H.“, et si quid de eo male contigerit per
ilium uel ilium* tertium ’—et quot uoluerit ita poterit
nominare, sed unus tantum uadiabit duellum—‘ qui hoc
uidit at audiuit.’ Vel per alia uerba sic: ‘ Et hoc
promptus sum probare per hunc liberum hominem
meum H.c, cui pater suus iniunxit in extremis, agens in
fide qua filius tenetur patri, quod si aliquando loquelam
de terra ilia audiret, hoc diracionaret sicut id quod
ipsemet uidit et audiuit.’
Audita uero loquela et clamio petentis, in electione
ipsius tenentis erit se uersus petentem' defendere per
duellum, uel ponere se inde in assisam domini regis et
petere recognitionem quis eorum maius ius habeat in
terra ilia.2 Si uero per duellum se defendere uoluerit,
tunc tenetur defendere ius ipsius petentis de uerbo in
uerbum sicut uersus eum ostendit, uel per se uel per
aliquem alium hominem idoneum. Sed nota quod post-
quam duellum inde fuerit uadiatum3 oportebit eum qui
tenet' terram defendere per duellum: non enim de
cetero poterit se inde in assisamponere. Et post uadiati-
onem duelli poterit iterum se tribus uicibus rationabiliter
essoniare continuis ex persona ipsius, et aliis tribus uici­
bus ex persona campionis sui.

‘ ed.-, N. M SS 4 uel ilium bis Ln

‘ ed.-, N. M SS d tenentem Ln
‘ et add. Ln
 [II, 3] 23
this N. the fee of half a knight and two carucates of
land in such-and-such a vill as my right and my in­
heritance, of which my father (or grandfather) was
seised in his demesne as of fee in the time ofKing Henry
the First (or since the first coronation of the lord king),1
and from which he took profits to the value of five
shillings at least, in corn and hay and other profits: and
this I am ready to prove by this free man of mine, H.,
and if any evil befalls him then by this other man or by
this third man, who saw and heard it.’ (He can name
as many as he likes but only one of them shall wage
battle.) Or the claim may be in other words, thus: ‘ And
this I am ready to prove by this free man of mine, H.,
whose father in his last minutes enjoined him, by the
faith binding son to father, that if ever he heard of a suit
concerning this land, he should offer to prove it as
something seen and heard by the dying man.’
When the plaint and claim of the demandant have
been heard, it is for the tenant to choose whether he will
defend himself against the demandant by battle, or will
put himself upon the assize of the lord king and seek a
recognition to determine which of the parties has the
greater right in the land.2 If he chooses to defend him­
self by battle, then he himself, or some suitable person
on his behalf, must deny the right of the demandant word
for word as he has set it out. It should be noted that once
the battle has been waged3 the tenant must defend the
land by battle, and cannot any longer put himself upon
the assize. After the battle has been waged the tenant
can again have three reasonable essoins himself, and
another three in the person of his champion.
1 See p. 180 * See p. 180
* T o be distinguished from ‘ fought ’ ; battle is waged when the parties
have given security for proceeding with the fight.
 24 [II, 3]
Factis autem omnibus essoniis que recte fieri possunt,
antequam duellum inde feriatur necesse habet petens
ut in curia appareat et campionem suum ibi habeat
paratum ad pugnandum. Nec sufficiet eum alium tunc
demum producere campionem quam unum eorum super
quos posuit suam dirationationem. Non enim alium pro
eo poterit cambire post primam uadiationem.* Si uero
ille qui duellum uadiauit interim pendente lite obierit,
si morte naturali, et hoc fuerit per uisnetumb declaratum
ut semper fieri debet si de hoc dubitetur, poterit petens
F.8 ad unum eorum super quos posuit dirationa/tionem
suam recuperare, uel ad alium eciam idoneum et si
nullum alium nominauerit dum tamen sit inde testis
idoneus, et sic de nouo placitum incipietur: si uero sui
culpa interierit, loquelam ita dominus amittet.
Item, quero utrum campio ipsius petitoris alium loco
suo posset ponere in curia ad faciendam illam dirationa­
tionem quam ille susceperat ? Et quidem secundum ius
regni et consuetudinem antiquam non licet nisi filium
suum.c Et notandum quod talis debet esse campio illius
qui petit quod sit et esse possit inde testis idoneus. Nec
in propria persona licebit ipsi petitori prosequi appellum
suum, quia id fieri non potest nisi per idoneum testem
audientem et uidentem. Defendens autem defendere se
poterit uel per se ipsum si uoluerit, uel per alium ad hoc
idoneum si hoc elegerit. Si uero per alium se defendere
elegerit et idem interim1 moriatur, quero quid iuris ibi
sit; utrum is qui tenet possit se per alium defendere, an
loquelam debeat amittere, an tantum saisinam ? Hie
distinguendum ut prius. Notandum eciam quod campio
“ post primam uadiationem: qui primam fecit uadiationem B
b uidnetum Ln c legitimum add. B

' i.e. between wager and fight

 [II, 31 24

When all the available essoins have been cast, then,

before the battle can be fought, the demandant must
appear in court and bring his champion with him
ready to fight. The champion must be one of those on
whom he relied for proof in his claim and, once battle
has been waged, he cannot substitute another in his
place. However, if the champion who waged the
battle dies a natural death before the fight and this is
attested by the neighbourhood, as it ought always to
be if there is any doubt about it, then the demandant
may have recourse to one of those on whom he relied
for proof in his claim, or even to another suitable
person notwithstanding that he originally named no
other, provided that this other is a suitable witness:
in this way the plea shall begin again. If the champion
dies through his own fault, his principal shall lose his
case.
I put this question: may the demandant’s champion
produce a substitute in court to make the proofwhich he
himself undertook? The answer is that according to the
law of the realm and ancient custom he may not do so,
unless it is his son. Note that the demandant’s champion
must be one who is a suitable witness of the facts. The
demandant is not allowed to prosecute his appeal in
person, because prosecution can only be by a suitable
witness who heard and saw the facts. The tenant, how­
ever, can choose whether he will defend himself in
person, or by another who is suitable for the task. If he
chooses to defend himself by a champion who dies in the
meantime,1 I question what the law is; that is, whether
the tenant can defend himself by another, or whether he
loses the case, or loses only seisin? Here the previous
distinction must again be made. It should, moreover,
 25 [II, 3]
defendens non poterit ponere loco suo in curia alium ad
defensionem illam suscipiendam nisi filium suum.
Contingit autem multociens quod campio conducti-
cius in curia producitur ad dirationationem faciendam
pro mercede. Et si idem contra illius personam excipiat
pars aduersa, dicens eum minus idoneum et propter
hoc quod premiuminde accepit ad illam dirationationem
faciendam, et hoc paratus sit probare uersus eum si id
negare uoluerit autaper se aut per alium uidentem ubi
inde premium accepit, super hoc audietur et remanebit
principale duellum. Si uero super hoc conuictus fuerit
et per duellum uictus, tunc dominus suus loquelam suam
amittet: et ille campio tanquam uictus omnem legem
terre amittet, scilicet quod in curia numquam de cetero
admittetur ut testis, et ita dirationationem pro alio per
duellum de cetero facere non poterit; pro se autem
poterit, uel corpus suum defendendo, uel atrocem iniuri-
am sui proprii corporis prosequendo ut de pace domini
regis infracta. Ius eciam suum uersus alium per duellum
defendere poteiit de feodo et hereditate sua.
Finito autem duello pena sexaginta* solidorum
imminebit uicto nomine recreantise, et preterea legem
terre amittet. Et si defensor uictus fuerit, dominus eius
terram petitam cum fructibus et cum commoditatibus
F.8 v tempore saisine / in feudo illo repertis restituet, num­
quam de cetero in curia inde audiendus. Ea enim que
in curia domini regis per finem duelli terminata sunt
negocia perpetuam habent firmitatem. Et deinde uice-
comiti precipietur ut uictori terram dirationatamf

“ parare add. and del. Ln

4 quadraginta L
‘ diratiocinatam Ln
 [II, 3] 25
be noted that the tenant’s champion cannot produce a
substitute in court to undertake the defence, unless it
is his son.
It often happens that a hired champion is produced
in court to make the proof for reward. If the other
party objects to him on this ground, saying that he is
not suitable because he took a reward for undertaking
the proof, and saying further that he is ready to prove
this against the champion (should he deny it) either in
person or by another who saw the champion when he
took the reward, then this objection shall be heard and
the principal battle shall not take place. If the champion
is convicted of taking the reward by being defeated in
battle, then his principal shall lose his suit and the
champion, as a vanquished man, shall lose all his law;
that is to say, he shall never again be allowed as a
witness in court and therefore can never make proof for
anyone by battle; he may, however, do battle on his
own behalf either in defending himself, or in prosecuting
an outrageous injury to his own body amounting to a
breach of the lord king’s peace; he may also defend by
battle his right to his fee and inheritance.
When the battle has been fought, the vanquished
champion is liable to a penalty of sixty shillings for
crying craven, and shall also lose his law. Moreover, if
the tenant’s champion is defeated, his principal shall
restore the disputed land with the fruits and profits found
on the fee at the time when seisin is delivered, and shall
never again be allowed to bring this same plea in court.
For those matters which have been determined in the
lord king’s court as the result of a battle are settled for
ever. Then the sheriff shall be commanded by the
following writ to see that the victor is given the land he
 26 [II, 3 - 6]
habere faciat, et inde eum in saisinam mittat per tale
breue:

Breue de facienda saisina alicui post finem duellia

[4] Rex uicecomiti salutem. Precipio tibi quod sine
dilatione saisias M. de una hida terre in ilia uilla de qua
placitum fuit inter ipsum et R. in curia mea, quia ilia
hida terre adiudicata est ei in curia mea per finem duelli.
Teste Rannulfo etc’.
[5] Et hoc ita si petens obtinuerit in duello. Si uero
idem uictus fuerit per campionem suum uictum, tunc
tenens quietus clamabitur de eius clamio sine recupera-
tione eiusdem petentis.

D e magna assisab
[6] Si per duellum tenens se defendere elegerit contra
petentem, predicta predicto* modo procedunt. Sin
autem in magnam assisam domini regis* se ponere
maluerit is qui tenet, aut petens similiter se in assisam
inde ponet aut non.1 Si semel in curia concesserit quod
se inde in assisam posuerit, et hoc uerbo coram iusticiis
in banko residentibus expresserit, de cetero non poterit
resilire, sed per assisam ipsam oportebit eum perdere uel
lucrari. Si uero in assisam se ponere noluerit, tunc
oportebit eum aliquam causam monstrare quare assisa
inter eos inde esse nequeat, quemadmodum si fuerint
consanguinei et ex illo eodem stipite parentele 2 unde
hereditas ipsa mouetur. Et si hoc petens ipse obiecerit,
tenens hoc ipsum aut confitebitur aut non.
Si uero hoc in curia concesserit, remanebit eo ipso
assisa et per uerba placitabitur et terminabitur negocium
a rubric Ln, Z\ Breue de saisina adiudicata L
b rubric Ln, Z> De duello et magna assisa L
c corr.from predicatero Ln * domini regis om. Ln
 [II, 3 - 6] 26

has recovered by his proof, and to put him in seisin of it:

The writ fo r delivering seisin after a battle
has been fought
The king to the sheriff, greeting. I command you to [4]
put M. without delay in seisin of one hide of land in
such-and-such a vill concerning which there was a plea
between him and R. in my court, because that hide of
land has been adjudged to him in my court as the
result of a battle. Witness Rannulf, etc.
This is what is done if the demandant wins the [5]
battle; but if he is beaten in the person of his cham­
pion, then the tenant shall go quit fromthe demandant’s
claim for ever.
The Grand Assize
If the tenant chooses to defend himself by battle [6]
against the demandant, then the procedure is as stated
above. But if the tenant prefers to put himself upon the
lord king’s Grand Assize, then the demandant will either
do the same, or he will not.1 Once the demandant
has stated in court that he has put himself upon the
assize, and has expressly said this to the justices sitting
on the bench, he cannot afterwards retract, but must
stand or fall by the assize. But if he is unwilling to put
himself upon the assize he must show some cause why
there should be no assize between them, for example,
that they are of the same blood, and descended from the
same parentelic stock2 from which the inheritance has
descended. If the demandant makes this objection,
the tenant will either admit it or not.
If he admits it in court, then the assize shall not
proceed, and the case shall be verbally pleaded and
1 See p. 180 s See p. 184
 27 [II, 6]

in curia ipsa, quia tunc legitime inquiretur quis eorum

propinquior sit ipsi stipiti et ita heres iustior. Et per
hoc ius suum dirationabit heres propinquior, nisi ad-
uersarius in curia aliquid dicere possit quare ius suum
ille alius uel perpetuo uel ad tempus amiserit uel aliquis
antecessor suus, ueluti si donauerit aut uendiderit uel
escambierit uel alio modo rite alienauerit, aut si per
feloniam ille uel antecessores sui ius in uniuersum
amiserint, unde latius inferius1 tractabitur. Et sic si
F.g super aliquo istorum articulorum arestetur loquela, /
poterit ex incidenti per uerba hinc inde proposita ad
duellum recte perueniri.
Verum si omnem parentelam inter se et petentem
defenderit is qui se in assisam posuit, uel saltern quod
non sint de eodem stipite de quo mouetur hereditas,
tunc decurrendum erit ad communes eorum consan-
guineos, qui ad hoc uocandi sunt in curia ut per eos
disquiratur eorum parentela. Qui si concorditer affir-
mauerint eos de eodem stipite unde mouetur hereditas
descendisse, eorum super hoc stabitur assertioni, nisi
alteruter litigancium pertinaciter contradicat; et si hoc,
tunc decurrendum erit ad uisnetum, cuius cum consan-
guineis super hoc omnino adquiescendum erit testimonio.
Idem quoque fiet si parentes ipsi inueniantur discordes,
quia tunc ad uisnetum erit recuperandum et eius uero-
dicto credendum. Facta ergo predicto modo diligenter
inquisitione, si inuenti fuerint et probati litigantes de
eodem stipite unde mouetur hereditas descendisse, cessat
quidem assisa et per uerba ut predixi procedet loquela.
Sin autem constiterit curie et iusticiis domini regis in

1 xiv, i
 [II, 6] 27

determined in court by means of a due enquiry as to

which of them is nearer to the original stock and there­
fore the more rightful heir. In this way the nearer heir
will prove his right, unless the other party can show in
court that the nearer heir or one of his ancestors lost
his right, whether temporarily or for ever, by making a
gift or sale or exchange or other effective alienation, or
can show that by reason of a felony (and this will be
discussed below1 in greater detail) he or his ancestors
have completely lost all right. If for any of these
reasons the case cannot proceed, then the verbal allega­
tions may lead to determination by battle.
If the tenant who has put himself upon the assize
denies that he is in the same parentela as the demandant,
or at least denies that they are from the same stock
from which the inheritance has descended, recourse
must be had to their common blood relatives, who must
be summoned to court so that the parentela of the parties
may be investigated on the basis of their evidence. If
they all join in affirming that the parties are descended
from the same stock as the inheritance, this statement is
to be accepted unless one of the parties strongly denies
it; in that case recourse must be had to the neighbour­
hood, whose testimony, if it confirms that of the blood
relatives, shall be conclusive. The same course is to be
followed if the kindred cannot agree among themselves;
in that case recourse must be had to the neighbourhood,
whose verdict shall be conclusive. When a careful in­
vestigation has been made in this way, if it is found
and proved that the parties are descended from the
same stock as the inheritance, the assize shall not pro­
ceed, and the case shall be tried by verbal allegation,
as I have already said. On the other hand, if the court
 28 [II, 6 - 7 ]
contrarium, tunc petens qui hoc obiecit, scilicet quod
fuerint de eodem stipite, ut assisam maliciose adimeret,
loquelam amittet.
Nullo auteminterueniente quare assisa ipsa procedere
non debeat, tunc per earn tam finaliter ut per duellum
terminabitur negocium.

Quid sit magna assisaa

[7] Est autem assisa ilia regale quoddam beneficium
clemencia principis de consilio procerum populis indul-
tum, quo uite hominum et status integritati1 tam
salubriter consulitur ut in iure quod quis in libero soli
tenemento possidet retinendo duelli casum declinare
possint homines* ambiguum. Ac per hoc contingit
insperate et premature mortis ultimum euadere suppli-
cium, uel saltern perhempnis infamie obprobrium illius
infesti et uerecundi* uerbi quod in ore uicti turpiter
sonat consecutiuum. Ex equitate autem maxima prodita
est legalis ista constitutio. d Ius enim, quod post multas
et longas dilationes per duellum uix euincitur, per bene­
ficium ipsius constitutionis commodius et acceleracius
expeditur. Assisa enim ipsa tot non expectat essonia quot
duellum, ut ex sequentibus2 liquebit. Ac per hoc et
laboribus hominum parcitur et sumptibus pauperum.3
I’.9v Preterea, quanto magis ponderat in iudiciis plurium /
idoneorum testium fides quam unius tantum, tanto
maiori equitate nititur istaconstitutio quamduellum: cum
enim ex unius iurati«■ testimonio procedat duellum, duo­
decim ad minus hominum/ exigit constitutio iuramenta.
a rubric Ln, De assisa L b in add. Ln
c inuerecundi B d institutio B
' interlin. Ln f legalium hominum B
1 A reference to the ‘ loss of law ’ which followed defeat in battle;
see ii, 3.
 [II, 6 - 7] 28

and the lord king’s justices take the contrary view,

then the demandant, who by pleading that the parties
were of the same stock maliciously attempted to frus­
trate the assize, shall lose his case.
If nothing happens to prevent the assize from pro­
ceeding, then the case will be as conclusively settled by
assize as by battle.
The nature o f the Grand Assize
This assize is a royal benefit granted to the people [7]
by the goodness of the king acting on the advice of his
magnates. It takes account so effectively of both
human life and civil condition! that all men may pre­
serve the rights which they have in any free tenement,
while avoiding the doubtful outcome of battle. In this
way, too, they may avoid the greatest of all punish­
ments, unexpected and untimely death, or at least the
reproach of the perpetual disgrace which follows that
distressed and shameful word which sounds so dis­
honourably from the mouth of the vanquished. This
legal constitution is based above all on equity; and
justice, which is seldom arrived at by battle even after
many and long delays, is more easily and quickly attained
through its use. Fewer essoins are allowed in the assize
than in battle, as will appear below,2and so people gen­
erally are saved trouble and the poor are saved moneys
Moreover, in proportion as the testimony of several
suitable witnesses in judicial proceedings outweighs that
of one man, so this constitution relies more on equity
than does battle; for whereas battle is fought on the
testimony of one witness, this constitution requires the
oaths of at least twelve men.
1 ii, la and 16
* cf. the praise o f itinerant justices in the Dialogus, p. 77
 Peruenitur autem ad assisam ipsam hoc ordine, quia
is qui se in assisam posuit ab inicio perquiret breue de
pace habenda,1 ne de cetero ab aduersario ponatur in
placitum per breue quo prius inter eos placitum fuit de
tenemento unde tenens posuit se in assisam. Breue
autem de pace habenda tale est:

Breue de prohibendo placito propter assisam“

Rex uicecomiti salutem. Prohibe N. ne teneat
placitum in curia sua que est inter R. et M. de una hida
terre in ilia uilla, quam idem R. clamat aduersus pre-
fatum M. per breue meum, nisi duellum inde uadiatum
fuerit; quia M. qui tenens est ponit se inde in assisam
meam, et petit recognitionem quis eorum maius ius
habeat in terra ilia. Teste etcetera.
Si uero fuerit placitum de seruitio unde is qui tenet
ponit se in assisam, quod facere licet, tunc erit breue
tale:
Alteriusmodi breue de eodemb
Rex uicecomiti salutem. Prohibe N. ne teneat
placitum in curia sua quod est inter eum et M.< de
seruicio duorum^ solidorum et unius sextariia mellis
et duabus stikis3 anguillarum, que prefatus N. <
• exigit

“ rubric Ln, Z> (de prohibitione placiti) L

b rubric Ln, Z\ Item placiti prohibitio L
‘ eu m et M .: M. et R. B d octo B ' M. B

1 The writ o f peace stops the proceedings, and it is for the demandant
to restart them with the writ summoning four knights (ii, 11). The writ of
peace is appropriate and necessary where the case is in a feudal or county
court, both of which need a royal warrant to stop a case begun by royal writ.
It is presumably not necessary where the case is already in the royal court:
the account of its working by H. G. Richardson, ‘ Glanville Continued’,
I..Q.R. i,IV (1938), 384.-99, says nothing about such a situation, and a
simple directive by the court would suffice to authorise the summons of
the four knights (as in Bracton’s Note Book, no. 248). But the author, in order
 [II, 7 - 9] 29
The preliminaries of the assize are as follows: the
tenant who has put himself upon the assize should first
purchase a writ of peace,! to prevent the other party
from proceeding further with the case by means of the
original writ which began the plea between them about
the tenement in question. The writ of peace is as
follows:

The writ prohibiting a plea on account

o f the assize
The king to the sheriff, greeting. Prohibit N., [8]
unless battle has already been waged, from holding in
his court the plea between R. and M. concerning one
hide of land in such-and-such a vill, which the said R.
is claiming against the aforesaid M. by my writ; be­
cause M., who is tenant, puts himself upon my assize,
and seeks a recognition to determine which of them has
the greater right in the land. Witness, etc.
If the tenant, as he may lawfully do, puts himself
upon the assize in a plea concerning service, then the
writ shall be as follows:

A variant o f the same writ

The king to the sheriff, greeting. Prohibit N., [9]
unless battle has already been waged, from holding in
his court the plea between himself and M. concerning
the service of two shillings and a sester* of honey and
two sticks* of eels which the aforesaid N. is demanding

to work in the writ o f peace, switches without warning from proceedings

on a Precipe for land in the royal court to proceedings on a writ o f right for
land or services in a feudal court.
* A liquid measure, generally used for beer, wine and cider; about
six gallons
* A measure of quantity in small eels; about 35 or 26
 30 [II, 9- ii]
a prefato M.«de seruicio annuo de libero tenemento suo
quod de eo tenet in ilia uilla, de quo tenemento idem M.*
cognoscit se debere ei octo solidos per annum pro omni
seruicio, nisi duelluminde uadiatum sit: quia M. c, a quo
seruitium illud exigitur, ponit se inde in assisam meam,
et petit recognitionem utrum inde debeat octo solidos
per annum pro omni seruitio/ uel octo solidos et insuper
duos solidos et« unum sextarium mellis et duas stikas
anguillarum. Teste etcetera.
[10] Per talia autem breuia pacem perquirit is qui
tenet et in assisam se posuit, donee aduersarius ad
curiam ueniens aliud breue perquirat, scilicet ut per
quatuor legales milites de comitatu et de uisneto eli-
gantur duodecim legales milites/ de eodem uisneto,
qui super sacramentum suum dicant uter litigancium
maius ius habeat in terra petita. Breue autem de
quatuor militibus summonendis tale est1:

Breue de summonendis quatuor militibus ad

eligendum duodecim milites*
[11] Rex uicecomiti salutem. Summone per bonos sum­
monitores quatuor legales milites de uisneto de Stoke,
quod sint ad clausum Pascha coram iusticiisA meis
apud Westmonasterium ad eligendum super sacramen­
tum suum duodecim legales milites de eodem uisneto
qui melius ueritatem sciant, ad recognoscendum super
F.io sacramentum / suum utrum N. an R. maius ius habeat
in una hida terre in Stoke, quam N. clamat uersus R.
per breue meum,et unde R. qui tenens est posuit se in
“ R. B I>L; N . L n , Z \ R- B
c R. B d nisi duellum . . . seruitio marg. Ln
e duos solidos et om. B /d e comitatu . . . milites marg. Ln
« rubric Ln, Z\ Breue de quatuor militibus eligendis L
h me uel iusticiis B
 [II, 9- ii] 30
from the aforesaid M. as annual service from the free
tenement which he holds of him in such-and-such a vill,
and for which tenement the said M. acknowledges
that he owes him eight shillings a year for all service.
For M., from whom that service is demanded, puts
himself upon my assize and seeks a recognition to
determine whether he owes eight shillings a year for all
service, or eight shillings and in addition two shillings
and a sester of honey and two sticks of eels. Witness, etc.
The tenant who has put himself upon the assize [10]
secures peace by such writs until the demandant comes
to court and purchases another writ, which provides
that four lawful knights of the county and of the
neighbourhood shall elect twelve lawful knights of the
same neighbourhood, who are to declare on oath which
of the parties has the greater right in the land in ques­
tion. The writ for summoning the four knights is as
follows1 :

The writ fo r summoning four knights to

elect twelve knights
The king to the sheriff, greeting. Summon by good [u]
summoners four lawful knights from the neighbourhood
of Stoke, to be before my justices at Westminster on the
Sunday after Easter to elect on oath twelve lawful
knights from the same neighbourhood who best know
the truth of the matter, and who are to declare on oath
whether N. or R. has the greater right in one hide of
land in Stoke, which N. is claiming against R. by my writ,
and in respect of which R. the tenant has put himself
upon my assize and seeks a recognition to determine

1 cf. Stenton, nos. 3516 and 3517, and comment, ibid. pp. 12-13
 31 [11,11-12]
assisam meam, et petita inde recognitionem quis eorum
maius ius habeat in terra ilia: et nomina eorum1
imbreuiari facias. Et summone per bonos summonitores
R. qui terram illam tenet, quod tunc sit ibi auditurus
illam electionem. Et habeas ibi summonitores et hoc
breue. Teste* etc’.

D e essoniis tenentis post assisam summonitam ‘

[12] Ad diem autem ilium tenens ipse poterit se essoniare
et ita iterum ad tria rationabilia essonia recuperare;
quod uidetur recte posse fieri quia, ut in superioribus2
dictum est, quotiens aliquis in curia apparuerit et ibi
facit quod ibi de iure facere debet, iterum de nouo ad
essonia sua recuperat. Sed tunc ita eueniet uel euenire
poterit quod tot uel plura essonia interuenire poterunt
per magnam assisam quot per duellum, quod premissis3
non est consonum.
Esto enim quod tenens ipse tribus uicibus se possit
essoniare continuis contra electionem duodecim militura
per quatuor milites faciendam. Post ilia tria essonia,
eo ad curiam ueniente, aliquis illorum quatuor militum
uel aliqui eo die poterunt se essoniare. Et si hoc, post
eorum essonia poterit iterum tenens ipse se de nouo
essoniare. Et ita uix aut numquam assisa ipsa ad effec-
tum perduceretur. Sed notandum quod apparentibus
in curia quatuor militibus die sibi prefixa paratis duo­
decim eligere, de bono et equo prodita est quedam
constitutio iuxta quam de consilio ita solet res expediri
quod, siue uenerit siue non is qui tenet, nihilominus
per illos quatuor milites et super eorum sacramentum
fiet electio ipsa. Verum quia si presens esset tenens ipse
a pctiit Ln h ibi summonitores . . . Teste om. Ln
c rubric Ln, (magnam assisam) -Z> De essoniis tenentis contra magnam
assisam L
 [11,11-12] 31
which ofthemhas the greater right in the land. And you
are to cause their names1to be endorsed on this writ. And
summon by good summoners R. the tenant to be there
at that time to hear the election. And have there the
summoners and this writ. Witness, etc.
The tenant's essoins after the assize has
been summoned
On the appointed day the tenant may essoin himself [12]
and again have recourse to three reasonable essoins;
and this is lawful because, as was said above,2whenever
a person appears in court and does there what he is
legally bound to do, he can have recourse to his essoins
again. But this might lead to as many essoins in the
Grand Assize as in trial by battle, which is inconsistent
with what was said above.3
Suppose, for example, that the tenant essoins himself
on three successive return days appointed for the election
of twelve knights by the four knights. When he comes to
court after the three essoins, any one or more of the
four knights may essoin himself or themselves on that
day. If this happens, then, when their essoins are ex­
hausted, the tenant can begin again to essoin himself.
In this way the assize would seldom, if ever, be brought
to a conclusion. Note, however, that a certain constitu­
tion has been ordained for good and equitable reasons;
this provides that when the four knights appear in court
on the appointed day, ready to elect the other twelve,
the court may expedite the proceedings by directing
that the four knights shall make the election on their
oath, whether the tenant has come or not. Now, if the
tenant were present in court he might be able to take
1 i.e. the four knights * i, a i 8 ii, 7
 32 [II, 1 2 - r 3]
contra aliquem uel aliquos eorum duodecim aliquid
iuste excipere posset, et super hoc in curia audiretur, de
consilio et ad absenti inde satisfaciendum non tantum
duodecim eligentur sed tot eciam ut sine omni contra-
dictione et causatione possit absenti cum redierit satis­
fied. Excipi autem possunt iuratores ipsi eisdem modis
quibus testes in curia christianitatis iuste repelluntur.
Preterea notandum* quod si uenerit is qui se in
magnam assisam posuit, licet non omnes illi quatuor
milites uenerint, de consilio et communi litigancium
assensu per unum eciam illorum militum poterunt illi
duodecim eligi, adhibitis illi duobus uel tribus aliis
militibus de eodem comitatu si in curia fuerint inuenti,
licet ad hoc non fuerint uocati. Ad maiorem eciam
F.iov cautelam / et ad omnem cauillationem deuitandam
solent sex uel plures milites ad eleccionem ipsam faci­
endam ad curiam uocari. Ad hec autem taliter expedi-
enda plus proficit sequi consilium quam iuris et curie
cursum seruare consuetum, unde prouidencie comittitur
et arbitrio domini regis uel eius iusticiis rem istam
utilius et equius temperare.

D e quibus rebus possit se ponere aliquis in magnam

assisamb
[13] Potest autem quis se ponere in assisam de terra, de
seruicio, et de superdemanda seruicii, et de iure aduo-
cationis alicuius ecclesie, non solum uersus extraneum
sed eciam uersus dominum; scilicet ut recognoscatur
utrum dominus maius ius habeat tenendi in dominico
uel uassallus tenendi de eo.1 Facile est autem inde
a nota Ln
b rubric Ln, -Assisa tam aduersus dominum quam aduersus extraneum
L
 [II, I 2 - l 3] 32

legal exception to one or more of the elected twelve,

and would be entitled to have this objection heard;
therefore it is best, when he is absent, to choose not just
twelve, but as many more as will beyond doubt or
question satisfy him when he returns. The grounds for
taking exception to thesejurors are the same as those for
rejecting witnesses in an ecclesiastical court.
Note, moreover, that if the tenant who has put
himself upon the Grand Assize comes to court, then, with
the consent of the parties, the court may award that,
although all four knights have not come, one of them
may elect the twelve by joining with two or three other
knights of the same county if any such can be found in
court, even if they were not summoned for that purpose.
For greater safety and to avoid all quibbling it is cus­
tomary for six or more knights to be summoned to court
to make the election. For the effective settlement of
these points it is far better to rely on the discretion of
the court than to insist on the settled law and custom of
the court; in this way it is left to the foresight and
judgment of the lord king or to his justices so to adjust
this assize as to make it more practical and equitable.

The cases in which a party can put himself

upon the Grand Assize
A party can put himself upon the assize in cases [13]
concerning land, or services, or excessive demands for
services, or the right to the advowson of a church. He
can do so not only against a stranger but even against
his own lord, as in the case of a recognition to deter­
mine whether the lord has the greater right to hold in
demesne or the tenant to hold in demesne of the lord.*
1 T h e writ is at ix, 7.
 33 [II, i 3 - i 6 ]
formare breuia iuxta diuersa negocia.
Quid contineatur in sacramento duodecim
milituma
[14] Facta electione duodecim militum, summonendi
sunt illi ut ueniant ad curiam parati supra sacramentum
suum dicere quis eorum, id est an petens an tenens,
maius ius habeat in sua demanda. Et per tale breue
fiat summonitio:

Breue de summonendis duodecim militibus propter

assisam electis*
[15] Rex uicecomiti salutem. Summone per bonos sum­
monitores illos duodecim milites, scilicet A. <et B.rf et
sic de singulis, quod sint eo die coram me uel iusticiis
meis ad ilium locum, parati sacramento recognoscere
utrum N. uel R. maius ius habeat in una hida terre, uel
in alia re petita, quam predictus R. clamat uersus pre­
dictum N., et unde predictus N. qui rem illam tenet
posuit se in assisam meam, et petiit inde recognitionem
quis eorum maius ius habeat in re petita. Et interim
terram illam uel tenementum ipsum unde exigitur
seruicium uideant. Et summone per bonos summoni­
tores N. qui rem ipsam tenet, quod tunc sit ibi auditurus
illam recognitionem. Teste etc’.'

Quod die ad assisam capiendam prefixa non possit

se tenens essoniaref
[16] Die autem duodecim militibus prefixa ad recogniti­
onem faciendam, siue uenerit is qui tenet siue non, sine
“ rubric Ln; De duobus militibus summon’ L; Qualiter summonendi
sunt duodecim milites Z h rubric Ln, Z\ om. L ‘ ed.; R. M SS
d ed. ; N. M S S ’ Teste etc’ , om. Ln
f rubric Ln, Z\ Tenente etiam non adueniente procedet assisa L
 [II, i 3 - i 6 ] 33
It is easy to formulate writs to fit the different circum­
stances.
The content o f the oath which the twelve
knights swear
When the twelve knights have been elected, they [14]
must be summoned to come to court ready to declare
on oath which of the parties, that is whether the de­
mandant or tenant, has the greater right in his claim.
The summons shall be by the following writ:

The writ fo r summoning the twelve knights

who have been electedfo r the assize
The king to the sheriff, greeting. Summon by good [15]
summoners the following twelve, namely A. and B.
and so on, to be before me or my justices at such-and-
such a place on a certain day, ready to declare on oath
whether N. or R. has the greater right in one hide of
land (or other thing claimed) which the aforesaid R.
claims against the aforesaid N., and in respect of which
the aforesaid N., who is tenant, has put himself upon
my assize and has sought a recognition to determine
which of them has the greater right in the thing claimed.
And meanwhile the twelve shall view the land (or
tenement from which the services are demanded). And
summon by good summoners N., who is tenant, to be
there to hear the recognition. Witness, etc.

The tenant cannot essoin himself on the day

appointed fo r taking the assize
On the day appointed for the twelve knights to make [16]
the recognition the assize shall proceed without delay,
whether the tenant comes or not, and he shall not be
 34 [II, 16 - 17]
dilatione recognitio ipsa procedet, nec ei locus patebit
se essoniandi. Non enim necessaria est eius presentia,
quin sine ea possit fieri recognitio, cum si presens esset
nihil dicere posset quare remaneret qui iam in curia
in ipsam assisam se posuit. Secus tamen est de absentia
petentis, quia si ille se eodem die essoniauerit, quod
fieri potest, eo ipso remanebit assisa ad ilium diem et
F .u alius dies da/bitur in curia; quia perdere potest quis
per defaltam, lucrari uero nemo poterit omnino absens.1

Quid iuris sit si quidam iuratorum sciant rei

ueritatem quidam now
[17] Procedente autem assisa ad faciendam recognitionem
ipsam, aut bene notum est ius ipsum ipsis iuratoribus
omnibus, aut quidam sciunt et quidam nesciunt, aut
omnes ignorant. Si nulli eorum rei ueritatem inde
scierint, et hoc in curia super sacramentum eorum
testati fuerint, ad alios decurrendum erit donee tales
inueniantur qui rei ueritatem inde scierint. Sin autem
quidam eorum rei ueritatem sciant quidam non, reiectis
ignorantibus alii quidem uocandi erunt ad curiam donee
duodecim ad minus reperiantur inde concordes. Item
si quidam eorum dixerint pro uno quidam pro alio liti-
gantium, adiciendi sunt alii donee duodecim ad minus
in alterutram partem concorditer adquieuerint. Iurare
autem quilibet eorum debet qui ad hoc uocati sunt quod
non falsum dicent inde nec ueritatem tacebunt scienter.
Ad scientiam autem eorum qui super hoc iurant inde
habendam, exigitur quod per proprium uisum suum et
“ rubric Ln, (rei om.) Z\ De modo recognitionis L

‘ The gloss in B says that xiii, 10 is to the contrary, but this merely
shows that an absent tenant may stay in seisin if the recognitors in mort
d’ancestor find in his favour; can he, strictly, be said to gain thereby?
 [II, 16 - 17] 34
allowed to essoin himself. His presence is not indispen­
sable to the making of the recognition because, even if
he were present, he would not be allowed to allege any
reason why the assize upon which he had put himself in
court should not proceed. It is otherwise if the de­
mandant is absent; for if he, as he lawfully may,
essoins himself on the appointed day, then the assize
shall be postponed for that day, and another day in
court assigned him; the reason is that one may lose by
defaulting, but may not gain while wholly absent.*

What the law is when some jurors know the

truth o f the matter and some do not
When the assize reaches the stage where the recog- [1
nition is made, then either the true legal position is well
known to all the jurors, or else some know and some do
not, or else none of them knows. If none of them knows
the truth of the matter, and they have stated this on
their oath in court, recourse shall be had to others until
such as do know the truth of it are found. If, however,
some know the truth of the matter and some do not,
those who do not shall be rejected and others summoned
to court until at least twelve can be found to agree on it.
If some of them declare in favour of one party and
some in favour of the other, then further jurors are to be
added until at least twelve agree together in favour of
one party. Each juror summoned for this purpose must
swear that he will not declare falsely, nor knowingly
suppress the truth. The knowledge required from the
jurors is that they shall know about the matter from
what they have personally seen and heard, or from
 35 [II, 17-19]
auditum illius rei habuerint noticiam, uel per uerba
patrum suorum et per talia quibus fidem habere tene-
antur ut propriis.

Qualiter procedet assisa ubi omnes duodecim de

rei ueritate sunt certia
[18] Cum autem apparuerint duodecim milites ad recog­
nitionem ipsamfaciendam de rei ueritate certi, tunc pro­
cedet assisa recognitura quis eorum, uel petens uel tenens
scilicet, maius ius habeat in terra petita. Qui si dixerint
ipsum tenentem maius ius inde habere, uel alia dixerint
per que sufficienter constet domino regi uel iusticiis suis
quod idem maius ius habeat in terra petita, tunc quidem
per considerationem curie dimittetur ipse quietus a
clamio petentis in perpetuum, ita quod petens ipse nun-
quam de cetero inde audietur in curia cum effectu.
Lites enim per magnam assisam domini regis legitime
descise nulla occasione rite resuscitantur in posterum.
Sin autem per assisam ipsam pro petente fuerit iudica-
tum in curia, tunc aduersarius suus terram petitam
amittet cum fructibus et commoditatibus omnibus in
terra ipsa tempore saisine inuentis eidem restituendam.

F. 11 v D e pena temere iurantium in magna assisab j

[19] Pena autem temere iurantiumin hac assisa ordinata*
est et ipsi regali constitution^ eleganter inserta. Si

a rubric Ln, (procedat magna assisa) Z \ om. L

4 rubric Ln, Z , (in magna assisa om.) L
CZ> ordinaria Ln, L, B
d Ln, Z; imtitutioni L, B
 [II, i 7"i 9] 35
statements which their fathers made to them in such
circumstances that they are bound to believe them as if
they had seen and heard for themselves.

How the assize proceeds when all twelve

are certain o f the truth o f the matter
When twelve knights who are all certain of the truth [18]
of the matter appear to make the recognition, then the
assize shall proceed to declare which of the parties, de­
mandant or tenant, has the greater right in the land
claimed. If they declare that the tenant has the greater
right therein, or make some other form of declaration
from which it sufficiently appears to the lord king or his
justices that this is the case, then the court shall award
that the tenant be sent away, quit for ever from the
demandant’s claim; moreover, the demandant shall
never again effectively be heard in court on this matter.
For suits decided in due form by the Grand Assize of the
lord king shall on no account be revived again in future.
On the other hand, if the judgment of the court based
on the assize is in favour of the demandant, then the
other party shall lose the land in question, and shall
restore with it all fruits and profits found on it at the
time seisin is delivered.

The penalty fo r those who swear rashly in

the Grand Assize
A penalty for those who swear rashly in this assize [19]
is ordained by, and appropriately set out in, the royal
 36 [II, 1 9 - 20]

enim ipsi iuratores deierasse in curia fuerint conuicti1

legitime uel in iure confessi,2 omnibus0catallis et rebus
mobilibus spoliabuntur, domino regi eisdem applican-
dis, de dementia principis maxima saluis eis* liberis soli
tenementis. Preterea in carcerem detrudentur et ibi
per annum ad minus in prisone detinebuntur. Insuper
de cetero legem terre3 amittentes perpetuam infamie4
notam inde merito incurrent. Que pena ideo rectee
constituta est, ut quoslibet ab illiciti prestatione iura-
menti in tali casu coherceat similitudo supplicii. Notan-
dum* eciam quod nusquam potest duellum esse ubi
assisa nequit' esse, nec e conuerso. Mittetur^ autem
petens, si adiudicetur ei tenementum, ad uicecomitem
illius prouincie ubi tenementum illud est, ad saisinam
suam accipiendam per hoc breue:

Breue de facienda saisina alicui de aliquo tenemento

disrationato per hanc assisam f
[20] Rex uicecomiti salutem. Precipio tibi quod sine
dilatione saisias M. de una hida terre in ilia uilla quam
petiit uersus N. et unde idem N. posuit se in assisam
meam, quia idem M. dirationauit terram illam in curia
mea per recognitionem. Teste Rannulfo etc’.
a confessi omnibus con. from confessionibus Ln
b saluis eis con. from saliseis Ln c iuste Ln
d Nota Ln • nequid Ln
f rubric Ln; Breue de mittendo petitore in saisinam de tenemento . . .
(as Ln) Breue de assisa per recognitionem L
1 Preferred to ‘ attainted ’ notwithstanding Woodbine, pp. 204-05.
The distinctive feature o f attaint procedure is the use o f a jury o f twenty-
four to pronounce on the correctness of the first verdict. It was commonly
used in the petty assizes like novel disseisin, the first evidence coming from
1202 (H. G. Richardson and G. O. Sayles, Select Cases o f Procedure without
writ under Henry III, S.S. l x , p. lxxxvii). The evidence for its use against
the recognitors of the Grand Assize is unconvincing: the case invoked by
Woodbine was a very special one in which the loser gave ten marks to have
a jury o f twenty-four, and the recognitors successfully offered 315 marks
not to have it (Richardson and Sayles, pp. clvi-clviii: important additional
 [II, 1 9 - 20] 36
constitution. If the jurors are duly convicted1 in court
of perjury, or confess to it in court,2then they shall be
deprived of all their chattels and movable goods which
shall pass to the king, by whose great mercy their free
tenements are excepted from this forfeiture. They shall,
moreover, be cast into prison and kept there for a year
at least. In addition they shall lose their law3for ever,
and thus rightly incur the lasting mark of infamy.4
This penalty is justly ordained, so that the fear of such
punishment shall prevent all men from swearing a false
oath in such a case. It should be noted that there can
never be a battle where there cannot be an assize, and
the converse is also true. If* the tenement is adjudged
to the demandant, he shall be sent to the sheriff of the
county in which the tenement lies to receive seisin by
authority of the following writ:
The writ fo r delivering to anyone seisin o f a
tenement recovered by this assize
The king to the sheriff, greeting. I command you to [20]
put M. without delay in seisin of one hide of land in
such-and-such a vill which he claimed against N., and in
respect of which the said N. put himself upon my assize,
because the said M. has recovered that land in my court
as the result of the recognition. Witness Rannulf, etc.

references are Pipe R oll Society, n.s. xx, 123; n.s. xxii, 47-8); the cases
cited by Richardson and Sayles (p. lxxxviii, m. 1 and a) do not seem to
concern the Grand Assize; the treatise makes no mention of a ju ry of twenty-
four.
* A reminiscence o f the Roman law distinction between ‘ confessio in
iure ’ and ‘ confessio in iudicio ’ which is inappropriate here.
3 Explained in ii, 3
4 See Introduction, p. xxxvii, for this use o f ‘ infamia \
•T h is sentence follows naturally on the end o f c. 18: the preceding
discussion of rash swearing interrupts the argument, and would have come
better after c. 17.
 37 [II, 21 : III, i]
Quid iuris sit si nulli duodecim, inueniri possint
de uisneto rei ueritatem scientesa
[21] Si uero nulli reperiantur milites de uisneto nec in
comitatu ipso* qui rei ueritatem inde sciant, quid erit?
Numquid eo ipso obtinebit is qui tenet uersus petentem?
Sed si hoc est, ergo petens ipse ius suum si quod inde
habuerit amittet. Super hoc eciam potest procedere
dubitatio. Esto enim quod duo uel tres legales homines
uel plures sint, dum tamen pauciores sint duodecim,
qui se testes huius rei faciant et se ad id dirationandum
offerant in curia; si fuerint eius etatis quod per duellum
dirationationem facere possint, et omnia uerba in curia
presentent per que solet duellum considerari in curia,
numquid super hoc audietur aliquis eorum?

[LIBER III]
D e diuersis warantiscl
[1] Ordo placitandi qui obseruatur in curia is est quem
prediximus quando eius qui tenet solummodo presentia
necessaria est et non alterius ad respondendum inde.
Exigitur autem presentia* alterius quam tenentis si idem
dicat in curia rem petitam suam non esse, sed earn
F .ia tenere ut sibi commodatam, uel / custodie causa com-
mendatam, uel sibi locatam, uel in uadium datam, uel
aliquo alio modo sibi tamen ut alienam deputatam;
aut si rem illam dicat suam esse, sed tamen inde aliquem
warantum habere ut ex cuius donatione, uel uenditione,
uel in excambium datione, uel ex aliqua huiusmodi
causa rem ipsam habeat. Si modo dicat in curia rem
a rubric Ln; Quid iuris sit si nulli inueniantur qui ueritatem inde sciant
Z ; De eodem L * uel pauciores duodecim add. B
c rubric Ln, Z\ De diuersis modis placitandi L d absentia Ln
 [II, 2i : III, i] 37
What the law is i f there cannot be found
twelve knights from the neighbourhood
who know the truth o f the matter
If, however, there cannot be found twelve knights [21]
from the neighbourhood, or even in the county court,
who know the truth of the matter, what is to be done?
Does it follow that the tenant shall prevail against the
demandant? If he does so, then the demandant will
lose whatever right he may have. This difficulty gives
rise to the following problem. Suppose that two or three
lawful men, or more (but less than twelve), claim to be
witnesses of the matter and offer to prove it in court,
and suppose further that they are of an age to make
proof by battle, and that they pronounce in court all
the words required for the court to award battle; shall
any of them be allowed to make proof in this way?

[BOOK III]
The various kinds o f warrantor1
When only the tenant and no-one else needs to be [1]
present to answer to the case, the order of pleading
which is observed in court is that which we have stated
above. The presence of a third party is, however, re­
quired if the tenant says in court that the thing claimed
is not his, but that he holds it as lent to him for use, or
deposited to be looked after, or let to him, or given
as a gage, or in any other way which implies that it is
not his; similarly, if the tenant says that it is his, but
that he has in respect of it a warrantor from whom he
got it as a gift, or by sale, or in exchange, or some
other such way. If he says in court that it is not his
1See p. 181
10
38 [III, i]
suam non esse sed alienam, tunc ille cuius earn esse
dixerit summonebitur,* sed per aliud breue consimile/
et sic de nouo iterum uersus eum incipietur placitum.
Et cum tandem in curia apparuerit, aut similiter confi-
tebitur rem illam suam esse, aut dicet earn suam non
esse. Si uero dicat suam non esse, tunc is qui eandem
suam fuisse prius in curia asseruerat terram illam eo
ipso sine recuperatione amittet, et summonendus erit
ut ueniat in curiam auditurus inde iudicium suum. Et
sic, siue ipse uenerit siue non, saisinam recuperabit
aduersarius.
Cum uero aliquem inde warantum uocauerit is qui
tenet in curia, tunc rationabilis dies ponetur ei in curia
ad habendum ibi ilium warantum suum; et ita ad
essonia sua de nouo, scilicet ad tria ex persona sui ipsius
et alia tria ex persona sui waranti, poterit recuperare.
Tandem uero apparente eo in curia qui inde uocatus est
warantus,1 aut rem illam ei warantizabit aut non. Si
ei warantizare earn uoluerit, tunc cum eo inde omnino
placitabitur, ita quod de cetero sub eius persona omnia
que ad placitum ipsum exigentur procedent. Vndee
si ante hoc se essoniauerit, per essonium suum non
poterit se defendere is qui eum warantum uocauerat,
quin per absentiam suam ponatur in defaltam.
Verum si presens in curia de waranto ei defecerit
qui eum inde ad warantum traxerat, tunc inter eos inde
placitabitur; ita quod per uerba hinc inde proposita
poterit ad duellum inde perueniri, siue cartam suam
inde habuerit is qui eum uocauerat warantum siue non,
dum tamen testem inde idoneum ad dirationationem
“ con. from submonebitur Ln * consimili Ln
c Verum B
1 ‘ Vouchee to warranty ’ and ‘ warrantor ’ are alternative terms to
describe the same person.
 [ I ll, I] 38
but another’s, then that other shall be summoned by a
further writ similar to the original writ; and thus the
plea will begin again against that other, who, when he
eventually appears in court, will either agree in ad­
mitting that the thing is his, or will say that it is not.
If he says that it is not his, then the tenant, who pre­
viously alleged in court that it was, shall in consequence
lose that land without any right to recover it, and shall
be summoned to come to court and hear judgment
against him in the case. Thus the other party, whether
he has come to court or not, shall recover seisin.
When the tenant in court vouches another to
warranty, a reasonable return day is assigned him in
court on which to have there this warrantor of his;
and thus he can again have recourse to his essoins,
namely three for himself and another three for his
warrantor. When the vouchee to warranty1 eventually
appears in court he will either warrant the thing for the
tenant or not. If he is willing to warrant it for him, then
the demandant shall plead solely with the warrantor, in
whose name, from that moment, all the requisite
pleading shall be done. It follows that if the tenant has
prior to this essoined himself, he cannot rely on his
essoin to prevent himself from being deemed in default
on account of the warrantor’s absence.
If the warrantor is present in court and defaults in
his warranty to the tenant who brought him there to
warrant, then there shall be a plea between them,
which may, in consequence of the formal words alleged
therein, result in battle; and this is so whether the
tenant who vouched him to warranty has a charter of
his or not, provided that he has a witness who is suitable
for proving the case and is willing to do so. Note also
 39 [III. i - 4]
ipsam faciendam habuerit qui et hoc dirationare uolu­
erit. Et notandum quod, cum constiterit eum qui
trahitur ad warantum debere ei warantizare rem illam,
de cetero non poterit earn perdere is cui earn* waran­
tizare debet, quia si res ilia in curia dirationetur, tene-
F.mv bitur ei ad competens / escambium si habuerit unde id
facere possit.
Quid iuris sit cum is qui uocatur warantus nolit ad
curiam uenireb
[2] Contingit autem quandoque quod is qui uocatus est
warantus in curia nolit ad curiam uenire ad waranti-
zandum ei rem ipsam, uel ad monstrandum ibi quod
earn ei warantizare non debet. Ideoque ad peticionem
eius qui eum inde uocauit warantum de consilio et
beneficio curie iusticiabitur ad id faciendum, et per tale
breue inde summonebitur1:
Breue de summonendo warantoe
[3] Rex uicecomiti salutem. Summone per bonos
summonitores N. quod sit coram me uel iusticiis meis
ibi eo die ad warantizandum R. unam hidam terre in
ilia uilla, quam clamat de dono eius uel de dono M.
patris sui, si ei warantizare uoluerit, uel ad ostendendum
quare earn illi warantizare non debeat. Et habeas ibi
summonitores et hoc breue. Teste etcetera.
Vi(rum warantus possit se essoniared
[4] Die statuta aut poterit se essoniare ille warantus aut
non. Si non, tunc denegatur ei ius quod aliis' conceditur
a ille earn Ln
h rubric Ln; De waranto L; Quid iuris sit si warantus nolit uenire ad
warantizandum Z c rubric Ln, Z\ Breue de waranto L
d rubric Ln, Z> De esson’ waranto L 4Ln, Z i alii L, B
1 cf. Stenton, no. 3496, and comment, ibid. p. 13
 [Ill, I - 4] 39

that when it is established that he who is brought to

warrant is bound to warrant the thing, then from that
moment he for whom he ought to warrant it cannot
lose it, because, if the demandant proves in court that
the thing is his, the warrantor shall be bound to give to
him who vouched him an equivalent in exchange, if he
has property out of which he can do this.

What the law is when the vouchee to warranty

is unwilling to come to court

It sometimes happens that he who has been vouched [2]

to warranty in court is unwilling to come to court, either
to warrant the thing or to prove there that he is not
bound to do so. In such a case the court, at the request of
the party who vouched him to warranty, and in exercise
of its discretion and pleasure, shall compel him to come,
and he shall be summoned by the following writ*:
The writ fo r summoning a warrantor
The king to the sheriff, greeting. Summon N. by [3]
good summoners to be before me or my justices at
such-and-such a place on a certain day to warrant for
R., if he is willing to do so, one hide of land in such-and-
such a vill, which R. claims as a gift from N. (or from
M. the father of N.); or to show why he is not bound to
warrant it for him. And have there the summoners and
this writ. Witness, etc.

Whether the warrantor is allowed to essoin

himself
On the appointed day the warrantor must either [4]
be allowed to essoin himself or not. If not, then a right
which is conceded to others is denied to him and
 40 [H I, 4 - 5]
et sine culpa sui, quod est inconueniens et eciam
uidetur iniquum. Si uero se essoniare poterit, esto quod
tribus uicibus recte se essoniauerit et tercio secundum
ius et consuetudinem curie consideretur quod ad quar­
tum diem ueniat uel responsalem mittat: qui si ad ilium
diem neque uenerit neque responsalem miserit, quero
quid iuris ibi sit? Quia si caperetur tenementum in
manum domini regis, hoc uideretur iniquum et contra
ius ipsius tenentis, cum ipse inde non fuerit iudicatus in
defalta. Si uero id non fiat, tunc uidebitur ius ipsius
petentis si quod inde habet iniuste differri. Et quidem
ita fiet1 secundum ius et consuetudinem regni, quia si
alius terram ipsam uel saisinam ipsius terre per defaltam
waranti sui amiserit, warantus ei tenebitur inde ad com-
petens escambium, et per hoc distringi poterit ad curiam
uenire et tenementum ipsum warantizare uel aliquid
monstrare quare ei warantizare non debet.

Quid, iuris sit quando quis warantum suum in curia

uocare omittita
[5] Contingit eciam quandoque quod is qui tenet,4licet
warantum habeat, tamen inde in curia nullum uocat
warantum/ sed ius ipsius petentis omnino per se de-
fendit. Sed si hoc fecerit et terram illam amiserit per
duellum, nullum recuperare de cetero inde habebit
uersus warantum. Sed secundum hoc queri poterit, si
per duellum se defendere poterit sine assensu et presentia
F.13 waranti, / utrum se inde in assisam magnam domini
regis preter assensum et presentiam waranti ponere
a rubric Ln, Z\ om. L
4 et add. Ln
c tamen . . . warantum marg. Ln

1 i.e. the tenement is taken into the king’s hand.

 [H I, 4 - 53 40

without any fault of his, which not only is inconvenient

but seems unjust. On the other hand, if he is allowed to
essoin himself, I put this question: suppose that he
essoins himself lawfully three times and that on the third
occasion, in accordance with the law and custom of the
court, he is directed to come or to send an attorney on
the fourth return day; if he neither comes nor sends an
attorney on that day, what is the law on this point? If
the tenement is taken into the hand of the lord king, this
seems unjust and contrary to the rights of the tenant,
for he was not personally judged to have defaulted;
yet if this is not done, then such rights as the demandant
may have seem to be unjustly postponed. The answer
is that the former possibility prevails,1 in accordance
with the law and custom of the realm, because, if the
tenant loses the land or seisin of the land by default of
his warrantor, the latter is bound to give him equivalent
lands in exchange, and can therefore be constrained to
come to court either to warrant the tenement or to show
cause why he is not bound to warrant for the tenant.
What the law is when a party fa ils to
vouch his warrantor in court
It sometimes happens that the tenant, although he [5]
has a warrantor, does not vouch any warrantor in
court, but undertakes the denial of the demandant’s right
by himself alone. If he does this and loses the l^nd after
a battle, he shall have no further rights against the
warrantor. This may give rise to a question: if the
tenant can defend himself by battle without the consent
or presence of his warrantor, can he likewise put him­
self upon the Grand Assize of the lord king without such
 4i [III, 5 - 6]
possit? Et quidem per assisampoterit se defendere pari«
ratione ac per duellum.

D e dilatione placiti propter absentiam capitalium

dominorumb
[6] Solet preterea plerumque differri negocium per ab­
sentiam dominorum; quando scilicet petens ipse clamat
tenementum petitum pertinere ad feodum unius, et is
qui tenet dicit se idem tenere de feodo alterius domino­
rum: et tunc summonendus est uterque illorum domi-
norum ad curiam1 ut illis presentibus loquela ipsa
audiatur et modo debito terminetur, ne illis absentibus
iniuria aliqua inferri uideatur. Ad diem autem qua
summoniti sunt ad curiam uenire, poterit se uterque
illorumc uel alter licite essoniare et tribus uicibus more
solito.
Esto modo quod tribus uicibus essoniato domino
tenentis, consideretur quod ipse ueniat uel responsalem
mittat; qui si nec tunc uenerit neque responsalem
miserit, considerabitur quod tenens ipse inde respondeat
et defensionem inde suscipiat; et si per defensionem
uicerit, sibi quidem terram illam retinebit et seruicium
domino regi de cetero inde faciet, quia dominus suus
seruicium suum per defaltauH amittet donee ueniat et
ibi faciat quod inde facere debet.
Eodem modo poterit dominus ipsius petentis se
essoniare; quo demum apparente in curia, quero utrum
dominus tenentis possit iterum de nouo se essoniare: et
quidem poterit donee semel in curia apparuerit, quia
tunc oportebit eum dicere aliquid quare non oportebit
“ om. Ln h rubric Ln, Item de eodem L
‘ eorum Ln J suam add. Ln
1 Presumably the county or royal court; see xii, 8.
 [H I, 5 - 6] 41
consent or presence? The answer is that, as with battle,
so by the assize he can defend himself.

Postponement o f the plea on account o f the

absence o f chief lords
Moreover, a case is often delayed by the absence of [6]
lords; for example, when the demandant claims that
the tenement in question belongs to the fee of one lord,
and the tenant says that he himself holds it as of the fee
of another lord. In such a case both lords shall be
summoned to court,1 so that the case may be heard and
determined in due form in their presence, lest in their
absence some injustice may seem to be done them. On
the return day for which they are summoned to come
to court, both or either of the lords may lawfully cast
essoins, and can do this on three successive return days
in the customary manner.
Suppose that the tenant’s lord has essoined himself
three times, and has been directed by the court to come
in person or send an attorney; if he neither comes nor
sends an attorney, the court will rule that the tenant
shall answer in person and undertake the denial; if he
is successful in his denial, he shall retain the land for
himself and shall in future do the service for it to the lord
king because his own lord shall, on account of the default,
lose his service until such time as he comes to court and
does there what he is bound to do.
The demandant’s lord is also allowed to essoin
himself in the same manner; when eventually he comes
to court, the question arises whether the tenant’s lord
can begin again to essoin himself: the answer is that he
can do so until he has once appeared in court, for then
he is bound to show cause why he need not wait any
 42 [III, 6 - 7]
eum amplius expectare. Et hoc similiter tenendum est
circa personam alterius dominorum. Si uero post tria
essonia sua absens fuerit dominus petentis, quero quid
iuris ibi sit: et quidem si se prius inde essoniauerit,
capientur essoniatores ipsi et corpus eciam ipsius at-
tachiabitur propter curie contemptum, et ita distringetur
ad curiam uenire ut ibi audiatur quid inde dicere uelit.

D e responsione capitalis domini tenentisa

[7] Si uero presens fuerit uterque dominorum, dominus
ipsius tenentis aut warantizabit quod terra ilia petita
de feodo suo sit, aut id negabit. Si id warantizauerit,
tunc in eius uoluntate erit defensionem inde suscipere
aut earn tenenti committere, et utrumistorumfiat saluum
erit ius utriusque, scilicet tam ipsius domini quam sui
tenentis, si in placito uicerint4: si uero uicti fuerint,
et dominuse seruicium et tenens terram illam sine re-
cuperatione amittet.
Si uero dominus ipsius tenentis in curia presens de
F.13 v waranto eidem defecerit, / poterit inter eos placitum
conuerti si dicat tenens dominum suuminiuste de waran­
to ei inde deficere, et ideo iniuste quia ei inde fecit
seruicium nominatum et tantum tanquam domino
illius feodi uel antecessores sui ei uel antecessoribus
suis, et de hoc habeat audientes et uidentes et aliquem^
idoneum ad dirationationem inde* faciendam, uel
aliam idoneam et sufficientem probationem iuxta con-
siderationem curie faciendam.

a rubric Ln, Z; De eodem L

b con. from uincerint Ln
c SaP ° f one Hnefollows in Ln (nihil def marg.)
d Ln, L; testem add. Z> B
• interlin. Ln
 [ I ll, 6 - 7] 42

longer. The same rule applies to the other lord. If,

however, the demandant’s lord is absent after his three
essoins, I question what the law is in such a case: the
answer is that, if he has previously essoined himself, the
essoiners shall be imprisoned and he shall also be
attached in person for his contempt of court, and in this
way compelled to come to court, where whatever he
wishes to say shall be heard.

The reply o f the tenant’s chief lord

When both lords are present the tenant’s lord will [7]
either warrant that the land in question is of his fee, or
he will deny it. If he warrants it, then he shall have a
choice between undertaking the denial himself and com­
mitting it to the tenant; whichever he does, his rights
and those of his tenant will be preserved if they are
successful in the plea; but if they are defeated, then the
lord shall lose his service and the tenant the land without
any right to reopen the issue.
If, however, the tenant’s lord is present in court and
fails to make good to the tenant his warranty, then the
plea can be changed into a plea between tenant and
lord: for this to happen the tenant must say that his
lord unjustly fails to make good to him as lord of that
fee the warranty— ‘ unjustly ’ because the tenant per­
formed for him in respect of the land a specified service
of such-and-such an amount (or because his ancestors
performed it for him or his ancestors)—and must pro­
duce persons who heard and saw this and some person
suitable for proving it, or else some other suitable and
sufficient proof of whatever kind the court may direct.
 43 [ I I I # : IV, i]
D e responsione capitalis domini ipsius petentisa
[8] Circa personam domini petentis simili modo distin-
guendum est. Eo apparente in curia, aut enim terram
petitam ad feodum suum clamat, aut non. Et ita si
clamium petentis warantizauerit et terram illam ad
feodum suum clamet, in eius uoluntate erit aut se ad
dirationationem petentis tenere, si hoc elegerit, aut per
se ius suum uersus alium dirationare saluo iure utriusque
illorum, scilicet tam ipsius quam petentis, si uicerint. Si
uero uicti fuerint, uterque illorum inde erit perdens.
Si uero clamium ipsius petentis minime warantizauerit,
tunc is qui eum inde in curia ad warantum uocauerat
in misericordia domini regis remanebit propter falsum
clamorem suum.

[LIBER IV]
D e aduocationibus ecclesiarumb 1
[i] Placitum de aduocationibus ecclesiarum moueri solet
turn ecclesiis ipsis uacantibus turn ecclesiis non uacan-
tibus.
Cum itaque ecclesiam aliquam uacare contigerit, et
is qui se aduocatum illius ecclesie gerit ad eandem
ecclesiam personam presentauerit, si quis eius presenta­
tion! contradixerit et ipsam presentationem clamauerit,
distinguo utrum fiat contencio super aduocatione ipsa,
id est super iure ipso presentandi personam, uel super
ultima presentatione, id est super saisina iuris presen­
tandi personam.
Si super ultima presentatione tantum fiat contencio,
ita quod is qui clamat dicat se uel aliquem antecessorum
a rubric Ln, Z \ De eodem L
b rubric Ln, Z , Placitum de aduocatione L
1See p. 18a
 [Ill, 8 : IV, i] 43
The reply o f the demandant's chief lord
A similar distinction must be made in respect of the [8]
demandant’s lord. When he appears in court he will
either claim the land in question for his fee or not.
Again, if he does warrant the demandant’s suit and
claims the land for his fee, he shall have a choice between
relying on the proof offered by the demandant and
personally proving his right against the tenant; in either
case both his right and that of the demandant will be
preserved if they are successful in the plea. If, however,
they are defeated, both will lose thereby. On the other
hand, if the lord does not warrant the demandant’s
claim, then he who vouched him to warranty in court
shall be liable to amercement by the lord king for
making a false claim.

[BOOK IV]
Advowsons o f churches1
A plea concerning the advowsons ofchurches is begun [i]
sometimes when the churches are vacant, sometimes
when they are not vacant.
When any church has fallen vacant and he who
claims to be patron of that church has presented a
parson to it, then, if anyone disputes his presentation
and claims it for himself, I distinguish between a dis­
pute about the advowson itself—that is, the right to
present a parson—and a dispute about the last pre­
sentation—that is, seisin of the right to present a
parson.
If the dispute concerns only the last presentation,
the claimant saying that he or one of his ancestors had
the last presentation, then that case shall be dealt with
 44 [IV, i]
suorum ultimam inde habuisse presentationenv tunc
per assisam de aduocationibus ecclesiarum proditam
loquela ilia tractabitur, et summonebitur inde assisa ad
recognitionem inde faciendam, scilicet quis aduocatus
tempore pacis ultimam personam mortuam ad ecclesiam
ipsam presentauerit. Et de hac assisa plenius inferius 1
cum aliis recognitionibus agetur. Ille autem qui per
assisam ipsam ultimam presentationem in curia dirati-
onauerit eo ipso saisinam presentationis ecclesie uacantis
super qua contentio est dirationabit, ita quod personam
ad eandem ecclesiam presentabit, saluo iure et clamio
alterius4super iure aduocationis.
4 Si uero ius aduo/cationis tantum petatur, tunc is
qui petit adiciet se uel aliquem antecessorum suorum
habuisse ultimam presentationem ipsius ecclesie, uel
aduersarium suum uel aliquem ex antecessoribus aduer-
sarii sui habuisse eandem presentationem concedet, uel
dicet quod aliquis* tercius earn habuerit, uel quod
nesciat quis ultimam presentationem habuit. Quicquid
autem istorum dicat, aduersario clamante ultimam pre­
sentationem ex sua persona uel ex persona* alicuius
antecessorum suorum, procedet semper recognitio nisi
in uno solo predictorum casuum, quando scilicet is qui
petit concedit aduersario quod ille uel aliquis anteces­
sorum suorum ultimam presentationem inde habuit:
tunc enim sine recognitione unam personam presentabit
ad minus. Dirationata autem ultima presentatione per
assisam uel alio modo legitime, et persona ad eius pre­
sentationem qui dirationauit in curia in ecclesia ipsa
instituta, tunc is qui super iure aduocationis placitare
uoluerit tale breue habebit:
“ Ln, donationem uel presentationem L; donationem et presenta­
tionem B b peter.tis B
c alius add. Ln d uel ex persona om. Ln
 [IV, I] 44

by the assize which has been promulgated concerning

advowsons of churches, and an assize will be summoned
to make a recognition about it, namely to declare
which patron in time of peace presented to that church
the last parson, who is now dead. And this assize will
be dealt with more fully below1 when the other recog­
nitions are discussed. However, he who has proved in
court by this assize that he made the last presentation
thereby recovers seisin of the presentation of the vacant
church in dispute, and so he may lawfully present a
parson to that church, saving the right and claim of the
other party as to the right of advowson.
On the other hand, if only the right of advowson is
claimed, then the demandant will add to his claim that he
or one of his ancestors made the last presentation to
that church; or he will concede that the other party
or one of the other party’s ancestors made that pre­
sentation; or he will say that a certain third party
made it, or that he does not know who made the last
presentation. However, whichever of these he says, if
the other party claims the last presentation, whether as
made by himself or by one of his ancestors, then the re­
cognition shall proceed in all save one of the above
cases, namely when the demandant concedes that the
other party or one of his ancestors made the last pre­
sentation; for then, without any recognition, the other
party shall present one parson at least. When the
question of the last presentation has been decided by
the assize, or by some other lawful method, and a parson
instituted to the church at the presentation of the
successful party, then he who wishes to plead about the
right of advowson shall have the following writ:
1 xiii, 18-22; assize of darrein presentment
 45 [IV, 2 - 4]
Breue de summonitione facienda de aduocationibus
ecclesiaruma
[2] Rex uicecomiti salutem. Precipe N. quod iuste et
sine dilatione dimittat R. aduocationem ecclesie in ilia
uilla quam clamat ad se pertinere, et unde queritur
quod ipse ei iniuste difforciat. Et nisi fecerit, summone
eum per bonos summonitores quod sit ibi eo die coram
me uel iusticiis meis ostensurus quare non fecerit. Et
habeas ibi summonitores et hoc breue. Teste etc’.*
[3] Summonitus autem eisdem essoniis essoniare se
poterit que supra1 in tractatu de placitisc terre tradita
sunt et eisdem modis. Esto ergo quod tribus uicibus se
essoniauerit is qui aduocationem illius ecclesie deforciat,
nec ad quartum diem ueniat neque responsalem mittat:
quid igitur iuris erit? Et quidem capienda est saisina
presentationis eiusdem ecclesie in manum domini regis
et per hoc breue:

Breue de capienda saisina presentationis ecclesie

propter defaltam in mam domini regis*
[4] Rex uicecomiti salutem. Precipio tibi quod sine
dilatione capias in manum meam presentationem ecclesie
de ilia uilla quam N. clamat uersus R., et de qua
placitum est in curia mea inter eos. Et diem captionis
scire facias iusticiis meis. Teste etc’.

“ rubric Ln, Z\ Breue de aduocacione L

k Teste etc’, om. Ln
‘ de placitis om. B
d rubric Ln, Z\ Aliud de eodem L
 [IV , 2 - 4] 45
The writ fo r making a summons concerning
advowsons o f churches
The king to the sheriff, greeting. Command N. justly [2]
and without delay to release the advowson of the
church in such-and-such a vill to R., who claims that it
belongs to him and complains that N. unjustly with­
holds it from him. If he does not do this, summon him
by good summoners to be at such-and-such a place on a
certain day before me or my justices, to show why he has
not done it. And have there the summoners and this
writ. Witness, etc.
The party summoned is allowed to essoin himself [3]
by the same essoins and in the same ways as are
described above1 in the treadse concerning pleas of
land. Suppose, then, that he who is withholding the
advowson of the church essoins himself three times, and
neither comes nor sends an attorney on the fourth day:
what then will be the law? The answer is that seisin of
the church is to be taken into the hand of the lord king
by the following writ:

The unit fo r taking seisin o f the presentation

o f a church into the hand o f the lord king on
account o f a default
The king to the sheriff, greeting. I command you to [4]
take into my hand without delay the presentation of the
church of such-and-such a vill, which N. claims against
R. and concerning which there is a plea between them
in my court. You are to see that my justices are told
the date of this seizure. Witness, etc.

1 i, 10-29
11
 4 6 [IV, 5 - 6 ]
[5] "Tenetur autem uicecomes preceptum illud exe-
qui in hunc modum: debet quidem ad ecclesiam acce-
dere et ibi publice coram probis hominibus protestari se
saisiasse in manum domini regis presentacionem ipsius
ecclesie. Et sic per quindecim dies remanebit saisina in
manu domini regis, ita quod infra illos quindecim dies
F.1411 uolens earn replegiare tenens / ipse poterit earn recuper-
are eo modo quo determinatum est supra1 in prima
distinctione huius tractatus.4
[6] Excursis autem omnibus essoniis quibus se essoniare
poterit is uersus quem placitum mouetur, ad diem
placitantibus in curia prefixum aut uterque adest,
uel neuter, aut unus adest et reliquus abest. De absentia
unius tantum aut utriusque iudicandum erit ad simili-
tudinem eorum que superius2 dicta sunt in tractatu de
placito terre.'
Utroque uero presente in curia, is qui petit ius suum
in hec uerba uersus aduersarium suum proponet:
‘ Peto aduocacionem illius ecclesie sicut ius meum et
pertinentem ad hereditatem meam, et de qua aduoca-
tione ego fui saisitus uel aliquis antecessorum meorum
fuit saisitus* tempore regis Henrici aui domini Henrici
regis, uel post coronationemdomini regis; et ideo saisitus
quia ad eandem ecclesiam uacantem presentaui per­
sonam aliquo predictorum temporum, et ita presentaui
quod ad presentationem meam persona fuit in ea
instituta. Et si quis hoc uoluerit negare, habeo probos
homines qui hoc uiderunt et audierunt, et qui parati
sunt hoc dirationare secundum considerationem curie,
et maxime ilium N. et ilium et ilium N.’

a no rubric Ln, L; Quomodo uicecomes capiet in manum domini regis

aduocationem ecclesie Z 1 supra . . . tractatus: in primo libro B
‘ in tractatu . . . terre so a, B d uel . . . saisitus om. B
 [IV , 5 - 6] 46

The sheriff is bound to execute this command in [5]

the following way: he must go to the church and there,
publicly in the presence of trustworthy men, announce
that he has seized the presentation of that church into
the hand of the lord king. For a fortnight seisin will
remain in the hand of the lord king, provided that, if
the tenant wishes to replevy it within the fortnight, he
can recover it in the manner described above1 in the
first distinction of this treatise.
When the tenant has used all the essoins by which [6]
he can essoin himself, then on the day appointed
for the parties to be in court either both are present, or
neither, or one is present and the other absent. The
absence of one only, or of both, must be judged in the
same way as is described above2 in the treatise con­
cerning a plea of land.
When, however, both parties are present in court,
the demandant will state his claim against his opponent
in these words: ‘ I claim the advowson of such-and-
such a church as my right and appertaining to my in­
heritance and I (or one of my ancestors) was seised of
this advowson in the time of King Henry, grandfather
of the Lord Henry who is now king (or since the cor­
onation of the lord king); and the evidence of this
seisin is that I presented a parson to the said church,
being vacant, at one of the above times, and I presented
to such effect that at my presentation he was instituted
parson to that church. If anyone wishes to deny this I
have trustworthy men who saw and heard it, and who
are ready to prove it in such manner as the court may
direct, and in particular N. here, and this man and N.
there.’
*i, 7-3a
 47 [IV, 6 - 8]
Audito autem clamio ipsius petentis, poterit se
defendere per duellum is qui tenet, et secundum hoc
precedent“ omnia de cetero sicut superius1 expedita
sunt. Sin autem in assisam magnam se ponere uoluerit
is qui tenet, bene licet ei hoc, et procedet inde assisa sub
forma supradicta.2

D e conteniione super ecclesia non uacantei

[7] Ecclesia uero non uacante, poterit esse contencio
super aduocatione eiusdem si persona, uel is qui se per­
sonam gerit in ecclesia ipsa, aduocet se per unum adu-
ocatum, et alius credens se esse rectiorem aduocatum
eiusdem ecclesie clamet eandem aduocationem: tunc
ad eiusdem petitionem dabitur ei tale breue:

Breue de summonendo clerico tenente ecclesiam

unde contentio este
[8] Rex uicecomiti salutem. Summone per bonos sum­
monitores clericumiliumN. personamillius ecclesie quod
sit coram me uel iusticiis meis apud Westmonasterium
ad ilium terminum, ostensurus quo aduocato3 se tenet
in ecclesia ilia cuius aduocacionem miles ille M. ad se
clamat pertinere. Summone eciam per bonos summon­
itores ipsum R.rf qui aduocationem ipsam ei4 deforciat,
quod tunc sit ibi ostensurus quare aduocationem ipsam
a proccdunt Ln
b rubric Ln, Z ; De ecclesia uacante L
‘ rubric Ln, Z ; De persona ecclesie et eius aduocato L
Jed.; N. MS S

1 », 3-5
* li, 5-21
* In the earliest plea rolls this writ of quo aduocato is usually directed
against the clerk alone and is later followed by a writ o f right of advowson
(iv, 2) against the rival patron whom the clerk has named. But the present
quo aduocato summons both clerk and rival patron together. Possibly there
 [IV, 6 - 8 ] 47
When the demandant’s claim has been heard, the
tenant is allowed to defend himself by battle; if he
does so, then all the proceedings which follow will be
in the manner explained above.1 If, however, the
tenant wishes to put himself upon the Grand Assize, he
is certainly free to do this, and the assize will proceed
in the form stated above.2

A dispute about a church which is not vacant

Even when a church is not vacant there can be a [7]
dispute about the advowson of it, if the parson, or he
who is acting as parson in that church, vouches one
man as his patron, and another man, believing himself
to be more lawfully patron of the same church, claims
the same advowson. In such a case the latter shall, on
request, be given the following writ:

The writ fo r summoning a clerk who is holding

a church about which there is a dispute
The king to the sheriff, greeting. Summon by good [8]
summoners the clerk N., parson of such-and-such a
church, to be before me or my justices at Westminster
at a certain term, to show by which patron* he main­
tains himself in that church of which the knight M.
claims the advowson. Summon also by good summoners
R., who is withholding that advowson from him,* to be

has already been a quo aduocato against the clerk, who has appeared and
named a patron; the writ given here now summons them both, the clerk
to see whether he will stick to his original statement, the patron to see whether
he claims the advowson if the clerk persists in naming him. Sir Cyril
Flower’s suggestion (Introduction to the Curia Regis Rolls, S.S. lx ii, pp. 204-05)
that quo aduocato was a prelude to the assize of darrein presentment is mis­
leading, for it could only be so used as a device to show that the church
was not vacant and that therefore the assize would not He.
4 i.e. M.
 48 [IV, 8 - 9]
ei deforciat.* Et habeas ibi summonitores et hoc breue.
Teste etc’.4

[9] Clericus autem summonitus si ad diem statutum

F.15 neque / uenerit neque miserit neque ad primam neque
ad secundam neque ad terciam summonitionem, quero
quo modo distringi debeat quod ad curiam ueniat,
maxime si nullum laicum feodum habeat? Simili modo
queri poterit quid de eo sit faciendum, cum se tribus
uicibus essoniauerit in curia et quarto die neque uenerit
neque responsalem miserit. Sed in utroque istorum
casuum precipietur episcopo loci, uel official! si nullus
fuerit ibi episcopus, quod uel eum distringat ad curiam
uenire uel defaltam suam sua manu puniat capiendo
ecclesiam in manum suam, uel alio modo secundum
quod poterit eum de iure distringat.
Tandem uero ad curiam ueniens clericus ipse, aut
tenebit se ad ilium aduocatum qui aduocationem ipsam
petit et se ad suam presentationem fuisse institutum uel
ad presentationem alicuius antecessorumsuorum asseret,
uel se ad alium aduocatum tenebit.
Si ad ilium aduocatum se teneat qui aduocationem
ipsam petit, tunc remanebit placitum in curia domini
regis. Et si aduocatus ipse neget id quod dicit—se fuisse
ad suam presentationem institutum uel ad presentation­
em alicuius eius antecessorum—si super hoc uersus
clericum ilium placitare uoluerit, coram suo iudice ec-
clesiastico placitum sequetur.
Si uero alium nominauerit aduocatum qui inde
summonitus fuerit( uenire ad curiam, tunc summonitus
ipse aut uenit aut non uenit.
a quod tunc . . . deforciat marg. Ln
4 ibi summonitores . . . etc’ .: etc’ ut supra Ln
 [IV, 8 - 9] 48

there then to show why he does so. And have there the
summoners and this writ. Witness, etc.
If the clerk who has been summoned neither comes [9]
himself nor sends anyone on the appointed return
day in response to the first, second or third summons, I
put this question: in what manner ought he to be
constrained to come to the court, particularly if he
has no lay fee? A similar question is this: what is to be
done about him when he essoins himself three times in
court, and on the fourth return day neither comes nor
sends an attorney? In both the above cases the bishop
of that place, or the official if there is no bishop there,
shall be commanded to constrain the clerk to come to
court either by threat of seizing the church into his
hands as a punishment for default, or by any other
available lawful means.
When the clerk at last comes to court, either he will
claim to hold through the patron who is suing for the
advowson and assert that he was instituted at the pre­
sentation of him or one of his ancestors, or he will claim
through the other patron.
If he claims through the former, then the case shall
not proceed in the lord king’s court; and if this patron
denies the clerk’s assertion that he was instituted at the
presentation of him or one of his ancestors, and wishes
to begin a plea against the clerk about this, he shall
prosecute the plea before the appropriate ecclesiastical
judge.
If, however, the clerk names the other patron who
was summoned to come to court, the procedure will
depend on whether he comes or not when summoned.
 49 [IV, 9]
Si non uenit neque ad primam neque ad secundam
neque ad terciamsummonitionem, uel si primo et secundo
et tercio se essoniauerit in curia et ad quartum diem
neque uenerit neque responsalem miserit, quo modo
distringetur uel quo modo punietur defalta ipsius? Et
quidem capietur aduocatio ipsius ecclesie unde conten-
cio est in manum domini regis et per quindecim dies ita
remanebit. Qui si infra illos quindecim dies non uenerit,
tunc is qui aduocationem ipsam petit saisinam ipsam
habebit. Sed quid erit tunc de clerico ipso? Nunquid
ecclesiam ipsam eo ipso amittet?
Sin autem ad curiam ueniat is qui summonitus est,
aut dicet se aduocatum ipsius ecclesie aut nullum ius
in aduocatione ipsa clamabit.
Si nullum ius inde clamet, tunc remanebit in curia
domini regis placitum illud, et erit placitum inter aduo­
catum et clericum sed in curia christianitatis. Lite uero
F.15 »pendente, si ecclesia / ipsa uacare ceperit quero cuius
sit interim^ presentatio? Et quidem si nulla fuerit
dubitatio mota super ultima presentatione quin is uersus
quem petitur ius aduocationis habuerit ultimam presen-
tationem uel aliquis antecessorum* eius, tunc ipse per­
sonam interim presentabit donee saisinam ipsam amise-
rit. Ex quo patet quod si saisiata fuerit aduocatio
alicuius ecclesie in manum domini regis propter defaltam
aduocati et infra illos quindecim dies uacare ceperit,
non amittet presentationem suam aduocatus ipse infra
illos quindecim dies.
Si uero ius aduocationis suum esse dicat et illud
tanquam suum defendere uoluerit, tunc quidemprocedet
loquela eo ordine quo supradictum est.1 Qui si obtinuerit,
0 iterum Ln b antecessor Ln
1 iv, 6
 [IV, 9] 49
If he comes neither at the first, second nor third
summons, or if he essoins himself in court on the first,
second and third return days and on the fourth return
day neither comes nor sends an attorney, in what
manner shall he be constrained to come or how shall his
default be punished? The answer is this: the advowson
of the disputed church shall be seized into the hand of
the lord king and shall remain so for a fortnight, and,
if the absent patron does not come within the fortnight,
then the demandant shall have seisin of the advowson.
But what will happen then to the clerk? Shall he auto­
matically lose the church because of this?
On the other hand, if the party summoned does
come to court, either he will say that he is patron of the
church, or he will claim no right in the advowson.
If he claims no right, then the plea shall cease in
the lord king’s court and there will be a plea between
the patron and the clerk, but in an ecclesiastical court.
If the church should fall vacant while this suit is pending,
I put this question: who shall have the presentation in
the meantime? If no doubt has been raised about the
last presentation, which is agreed to have been made by
the tenant in the action or one of his ancestors, then he
shall present a parson in the meantime until he loses
seisin. It follows from this that if the advowson of any
church is seized into the hand of the lord king on account
of the patron’s default and falls vacant within the fort­
night, that patron shall not lose his presentation within
the fortnight.
If, however, the patron says that the right of ad­
vowson is his, and wishes to defend it as his, then the
case will proceed in the order set out above.1 If he is
 50 [IV, 9- ii]
tam ipse quam persona sua ab aduersarii clamio
liberabitur. Si uero placitum perdiderit, tunc ipse
aduocationem ipsam perpetuo perdet et omnes heredes
eius.
[10] De clerico autem persona eiusdem ecclesie quid
erit faciendum qui se personatum eiusdem ecclesie0
habuisse per eius presentationem dixit in curia? Et
quidem in curia domini regis nihil amplius inde agetur,
nisi quod de aduocatione ipsa inter aduocatos iudicabi-
tur; sed in curia christianitatis aduocatus qui de nouo
ius aduocationis euicit uersus clericum ipsum coram
episcopo suo uel eius officiali placitabit, ita quod si
tempore presentationis credebatur patronus is per quem
fuit presentatus, tunc remanebit ei ecclesia ilia omnibus
diebus uite sue.1 Statutum est eciam super hoc in regno
domini regis de clericis illis qui ecclesias obtinent per
tales aduocatos qui se in aduocationes ecclesiarum tem­
pore werre uiolenter intruserunt, ne ecclesias ipsas
quamdiu uixerint amittant. Et ita soluta est questio
supraposita.2 Sed post tempora eorum ad rectos aduo­
catos reuertantur presentationes ipsarum ecclesiarum.
[11] Iuxta predicta autem queri potest, cum quis aduo­
catus dirationauerit aduocationem in curia domini
regis uersus aliquem et postea processu temporis persona
ipsius ecclesie obierit, utrum ille uersus quem dirationata
fuit ipsa aduocatio possit de nouo querere assisam de
ultima presentatione; et si breue de assisa perquisierit

“ personatum eiusdem ecclesie: paratum (del.) ecclesie personatum

eiusdem Ln

1 For different views on the relation between this rule and Decretals,
iii, 38, 19 (Alexander III, 1173/6) see M . Cheney, ‘ T he Compromise of
Avranches of 1172 and the Spread of Canon L aw in England,’ E.H.R.
lv i (1941), 193-4, a n d j. W. Gray, ‘ The Ius Praesentandi in England from
 [IV, 9 - II] 50
successful, both he and his parson will be free from the
claims of the demandant. If, however, he loses the plea,
then he and all his heirs shall lose the advowson for
ever.
However, what is to be done about the clerk who [10]
is parson of that church, and who said in court that
he was parson of the church by presentation of this
losing party? The answer is that nothing more will be
done in the lord king’s court beyond what is decided
between the patrons as to the advowson; but the patron
who has just proved his right of advowson shall pro­
ceed against the clerk in an ecclesiastical court before
the bishop, or the bishop’s official, and if it appears that
at the time of presentation he who presented was be­
lieved to be patron, then the clerk will keep the church
for the rest of his life.1 On this subject it has been or­
dained in the realm of the lord king that clerks presented
to churches by patrons who have usurped the advowsons
of those churches by violence in time of war shall not
lose those churches as long as they live. This is the
answer to the question posed above.2 But when such
clerks die the next presentations to those churches shall
be made by the rightful patrons.
What has been said above may give rise to a question, [i i]
If a patron has proved his right to an advowson against
another in the lord king’s court, and afterwards in the
course of time the parson of the church dies, can he
from whom the advowson was successfully claimed
now demand an assize of darrein presentment; and if

the Constitutions of Clarendon to Bracton,’ E.H.R. lx v ii (1952), 488, n. 4.

’ iv, 9
 5* [IV, n]
ita quod assisa sit inde summonita, quid0 deinde sit
aduersario faciendum? Esto enim quod ille numquam
personam ad ecclesiam ipsam presentauerit sed pater
suus uel aliquis antecessorum suorum, et quod obiciatur
ei ab aduersario quod recognitionem inde habere non
debeat eo quod aduocationem ipsam in curia uersus eum
per iudicium perdiderit; numquid igitur eo ipso reman-
F.16 ebit assisa? / Et non uidetur quod ideo remanere
debeat, quia cum ille saisinam ipsius aduocationis num­
quam habuerit, eo quod non ultimam presentationem,
uidetur quod recte petere possit saisinam patris sui non
obstante aliquo quod factum sit super iure ipso presen-
tandi. Si uero iterum de nouo placitare poterit super
ilia ultima presentatione, tunc non uidetur quod per-
petuo firma sint ea que in curia domini regis per
iudicium semel sunt terminata negocia: si enim prius
abiudicata fuerit alicui aduocatio alicuius ecclesie, non
uidetur quod aliquo modo de cetero aliquam saisinam
inde iuste recuperare debeat in curia ipsa uersus ilium
maxime qui aduocationemipsamdirationauit, nisi aliqua
noua causa interuenerit quare super hoc audiri debeat.
Respondetur ad hoc quod si ita summonita esset assisa,
super hoc remaneret1 eo ipso quod concedi posset ab
aduersario ilium uel antecessores suos habuisse ultimam
presentationem; sed dicet quod si quid iuris ille uel
antecessores sui inde habuerunt, illud amiserunt in curia
domini regis per iudicium, et hoc probato per recordum*
curie loquelam amittet et preterea in misericordia
domini regis remanebit.
“ quidem Ln
b recordationem Ln

1 i.e. it would be stopped in the demandant's favour, as in the first

example in xiii, 11.
 [IV, II] 51
he has purchased such a writ and the assize has been
summoned, what is to be done by the other party?
Suppose that the plaintiff himself has never presented
a parson to the church but that his father or one of his
ancestors has done so, and suppose further that the
defendant objects that he ought not to have a recogni­
tion because he has already lost the advowson to him by
judgment in that court; shall the assize not proceed for
these reasons? Surely it should proceed, for although
he did not make the last presentation and so never had
seisin of the advowson, it seems that he could lawfully
claim upon the seisin of his father, notwithstanding
anything that may have been decided about the right
to present. Yet if he can now litigate about the last
presentation, then it does not seem that disputes which
have once been ended by judgment in the court of the
lord king are firmly settled for ever: for if the advowson
of any church has once been taken away from any person
by judgment, it does not seem right that he should in
future be able to recover seisin of it by any means in
court, especially against him who has already recovered
the advowson, unless any new circumstance has arisen
on account of which he ought to be heard. The answer
to the whole question is that if the assize were summoned
to decide this matter it would not proceed1 if the de­
fendant merely conceded that the plaintiff or one of his
ancestors had the last presentation; but he will in fact
say that if the plaintiff or his ancestors had any right in
this church they lost it by judgment in the lord king’s
court, and when this has been proved by record of the
court the plaintiff shall lose his case and, moreover, be
liable to amercement by the lord king.
 52 [IV, r a - 13]
[12] Notandum preterea quod quandoque contingit
quod cum clericus aliquis mouet controuersiam alii
clerico super ecclesia aliqua* in curia christianitatis, si
per diuersos aduocatos aduocent se clerici illi in ilia
ecclesia, ad petitionem alterius aduocatorum defende-
tur1 placitum illud in curia christianitatis donee dira-
tionetur in curia domini regis ad quem aduocatum
pertineat aduocatio eiusdem ecclesie, et per hoc breue:

Breue de prohibendo placito in curia christianitatis

propter aduocationemb
[13] Rex iudicibus illis ecclesiasticis salutem. Indicauit
mihi R. quod, cum I. clericus suus per suam presenta-
tionem teneat ecclesiam de ilia uilla que de sua aduo-
catione est ut dicit, N. clericus eandem petens ex
aduocatione H. militis ipsum I. coram uobis inde trahit
in placitum in curia christianitatis. Si uero prefatus N.
prefatam ecclesiam dirationaret ex aduocatione predicti
H., palam est quod iamdictus R. iacturam de sua
aduocatione incurreret. Et quoniam lites de aduocati-
onibus ecclesiarum ad coronam et ad dignitatem meam
pertinent,* uobis prohibeo ne in causa ilia procedatis
donee dirationatum sit in curia mea ad quem illorum
aduocatio illius ecclesie pertineat. Teste etc’.*
Si uero post prohibitionem illam in causa proces-
F. 16 v serint, tunc summonebuntur / quod ueniant inde res-
ponsuri in curia domini regis.

“ interim. Ln
b rubric Ln, Z\ V bi rex defendit placitum ecclesiasticum L
‘ Teste etc’, om. Ln
 [IV, 12 ■ 13] 52
It should be noted, moreover, that when, as [12]
sometimes happens, one clerk disputes with another
about a church in an ecclesiastical court, they may
claim to derive their titles as clerks of that church from
different patrons: in such a case the ecclesiastical court
may be prohibited1 on the request of either patron from
hearing the plea, until it has been decided in the lord
king’s court to which patron the advowson of the church
belongs. The appropriate writ is as follows:

The writ fo r prohibiting a plea about an

advowson in an ecclesiastical court
The king to such-and-such ecclesiastical judges, [13]
greeting. R. has informed me that whereas I. his clerk
holds by his presentation the church of such-and-such
a vill, the advowson of which R. claims as his, now N. a
clerk, claiming to hold the same church as of the ad­
vowson of H. a knight, has impleaded the said I. before
you in an ecclesiastical court. Now if the aforesaid N.
proves his right to the church as of the advowson of
the aforesaid H., it is clear that the said R. will incur
the loss of his advowson. Therefore, since suits con­
cerning the advowsons of churches belong to my crown
and dignity,2 I prohibit you from proceeding in that
cause until it has been decided in my court to which of
them the advowson of that church belongs. Witness, etc.
However, if they have proceeded with the cause after
this prohibition, then they shall be summoned to come
and answer for it in the lord king’s court.

1 For these writs of prohibition see G. D. FlahifF, ‘ The Writ of Pro­

hibition to Court Christian in the Thirteenth Century,’ Mediaeval Studies
(Toronto), vi (194,4), 274-6 and vii (1945), 26a.
* Constitutions of Clarendon (1164), c.l
 53 [IV , i 4 : V , i]
Breue de eodem si indices in causa processerint
post prohibitionema
[14] Rex uicecomiti salutem. Prohibe iudicibus illis ne
teneant placitum in curia christianitatis de aduocatione
illius ecclesie, unde R. aduocatus illius ecclesie queritur
quod N. eum inde trahit in placitum in curia christiani­
tatis; quia placita de aduocationibus ecclesiarum ad
coronam et ad dignitatem meam pertinent.1 Et sumone
per bonos sumonitores ipsos iudices quod sint coram me
uel iusticiis meis eo die, ostensuri quare placitum illud
tenuerunt contra dignitatem meam in curia christiani­
tatis. Sumone etiam per bonos sumonitores prefatum
N. quod tunc sit ibi, ostensurus quare prefatum R. inde
traxit in placitum in curia christianitatis. Et habeas ibi
summonitores et hoc breue.4 Teste Rannulfo etc’.

[LIBER V]
Placitum de questione status* *
[1] Sequitur de questione status placitum, quod est inter
aliquos quando scilicet aliquis trahit alium a libertate
ad uilenagium, uel quando aliquis in uilenagio positus
petit libertatem. Gum quis autem petat alium in uilen­
agio positum tanquam natiuum suum, habebit breue
de natiuis3 uicecomiti directum, et coram uicecomite
loci eundem per breue illud clamabit uersus ilium qui

« rubric Ln, (in placito) Z\ Breue de placito ecclesie defenso L

4 summonitores . . . breue: etc’ Ln
c rubric Ln, Z> Placitum de statu L

1 Constitutions of Clarendon (1164), c.i

8 See p. 18a
 [IV, 14 : v , I] 53
A writ on the same subject where the judges
have proceeded with the cause after a prohibition
The king to the sheriff, greeting. Prohibit such-and- [14]
such judges from holding a plea in an ecclesiastical
court about the advowson of such-and-such a church,
concerning which R., the patron of that church, com­
plains that N. is impleading him in an ecclesiastical
court; for pleas concerning the advowsons of churches
belong to my crown and dignity.1 And summon those
judges by good summoners to be before me or my jus­
tices on such-and-such a day, to show why they held
that plea in an ecclesiastical court against my dignity.
Summon also the aforesaid N. by good summoners to be
there then, to show why he impleaded the aforesaid R.
in an ecclesiastical court. And have there the summon­
ers and this writ. Witness Rannulf, etc.

[BOOK V]
Pleas concerning the question o f status2
There now follow pleas concerning the question of [1]
status, which arise when any person seeks to reduce
another to villeinage from freedom, or when any person
of apparent villein status seeks his freedom. When
anyone claims that a person of apparent villein status
is his villein he shall have a writ of naifty3 directed to
the sheriff, and by that writ he shall, before the sheriff
of that place, claim the villein against the person who
•T h is writ (xii, it) is available to the claimant lord both where the
fugitive is enjoying freedom and also where a ‘ new lord ’ is holding him.
The discussion here assumes the latter case, but in cc. 2-3 the interests of
the ‘ new lord ’ seem to be forgotten and the case is treated as if only
claimant lord and fugitive were involved. For the relationship between this
writ and the writ de libertate probanda (v, 2) see V an Caenegem, pp. 336-44.
12
 54 [V, I - 2]
eum in uilenagio tenet. Et si uillenagium suum coram
uicecomite in comitatu non contradicatur, tunc placitum
illud dea natiuo illo coram uicecomite procedet sicut
inferius1 dicetur inter clamantem et tenentem natiuum
ilium.*
Si uero liberum hominemse esse dixerit is qui petitur,
et super hoc monstrando securum fecerit uicecomitem,
tunc remanebit loquela ipsa in comitatu, quia uicecomes
ipse amplius se de placito illo de iure intromittere non
debet. Verumptamen si super hoc idem uicecomes
loquelam ipsam audire uoluerit/ tunc is qui petitur
ad uilenagium clamet se iusticiis domini regis; et habe-
bit breue domini regis quod, si fecerit uicecomitem
securum de demonstranda libertate sua, tunc ponatur
loquela ipsa coram iusticiis domini regis in curia
domini regis, et interim pacem habeat is qui libertatem
petit. Breue autem tale erit:

Breue de eodemd
[2] Rex uicecomiti salutem. Questus est mihi R. quod
N. trahit eum ad uillenagium, desicut ipse liber homo
est ut dicit: et ideo tibi precipio quod si prefatus R.
F.17 fecerit te securum de clamore suo prosequendo, tunc /
ponas loquelam illam coram me uel iusticiis meis eo die,
et eum inde interim pacem habere facias. Et sumone
per bonos sumonitores predictum N. quod tunc sit ibi
ostensurus quare eum trahit ad uillenagium iniuste. Et
habeas ibi sumonitores et hoc breue.' Teste R. etc*.
a super Ln
b clamantem . . . ilium : clamantem (et tenentem marg.) et natiuum
ilium Ln
c corr.from noluerit Ln
d rubric Ln; Breue de statu L\ Breue tale erit de eodem Z
' etc’ add. Ln
 [V, X - 2] 54
holds him in villeinage. If his villein status is not dis­
puted before the sheriff in the county court, then the
plea concerning that villein between the person claiming
and the person holding him shall proceed before the
sheriff in the manner set out below, i
If, however, the man who is claimed as a villein says
that he is a free man, and gives security for proving this
to the sheriff, then the case shall not proceed in the
county court, because the sheriff cannot lawfully
meddle further with that plea. If, notwithstanding this,
the sheriffwishes to hear the case, then he who is claimed
as a villein shall complain to the lord king’sjustices, and
shall have a royal writ to this effect: that if he gives
security to the sheriff for proving his free status, then
the plea shall be transferred before the lord king’s jus­
tices in the court of the lord king, and that meanwhile
he who seeks his freedom shall go in peace. The writ
shall be as follows:

The appropriate writ

The king to the sheriff, greeting. R., who claims to [2]
be a free man, has complained to me that N. seeks to
reduce him to villein status. Therefore I command you,
if the aforesaid R. gives you security for prosecuting his
claim, to transfer that plea before me or my justices on
such-and-such a day, and to see that he goes in peace
meanwhile. And summon the aforesaid N. by good
summoners to be there then, to show why he unjustly
seeks to reduce him to villein status. And have there the
summoners and this writ. Witness R., etc.

1 Presumably xii, 1 1 ; but only the writ is given there

 55 [V, 3 - 4 ]
[3] Sumonebitur itaque per idem breue is qui clamat
ilium ad uillenagium, et ei dies ponatur quo clamium
suum prosequatur. Die autem statuta, is qui petitur ad
uillenagium aut uenit aut non uenit. Si non uenit neque
nuncium uel essonium miserit, fiet inde iuxta formam
superius1 expressam in tractatu illo de loquelis per
plegios attachiatis.a Si uero se essoniare uoluerit, hoc
ei licet eisdem scilicet essoniis et totidem uicibus ut
predictum est.2 Si uero is qui alium ad uillenagium
clamat eodem die neque uenerit neque miserit, dimit-
tetur alius3 sine die si presens fuerit sub tali forma:
scilicet quod is qui clamat tale recuperare habeat quale
de iure habere debeat, unde superius* plenius dictum
est. Interim autem in saisina libertatis erit is qui ad
uillenagium clamabatur.
[4] Vtroque autem presente in curia, tam eo scilicet
qui ad uillenagium trahitur quam illo qui eum clamat,
hoc modo libertas dirationabitur. In curia producet
itaque is qui libertatem petit plures de proximis et de
consanguineis suis de eodem stipite unde ipse proces-
serat exeuntes, per quorum libertates si fuerint in curia
recognite* uele probate liberabitur a iugo seruitutis is
qui in* libertatem proclamat. Si uero contradicatur
status libertatis eorundem productorum uel de eo dubi-
tetur, ad uisnetum erit recuperandum ita quod per eius
uerumdictum scietur utrum illi liberi homines sint an
non, et secundum hoc dictum* iudicabitur. Si uero
alios produxerit is qui eum ad uillenagium trahit ad
0 in tractatu . . . attachiatis so a and (illo om.) B
4 re (interim.) cognite Ln
1et B
d interlin. Ln
• L, Z> deinde Ln, B

* i, 10-29
 [V, 3 - 4 ] 55
He who claims the man as his villein will also be [3]
summoned by the same writ, and a day assigned to him
on which to prosecute his claim. On the appointed day
he who is claimed as a villein either comes or does not
come. If he does not come and sends neither represent­
ative nor essoiner, then the procedure should be in the
manner explained above1 in the treatise concerning cases
where sureties for appearance have been given. If,
however, he wishes to essoin himself, he may do so by the
same essoins and the same number of times as stated
above.4 On the other hand, if he who claims the man as
his villein neither comes nor sends anyone on that day,
then the other party,3 if present, shall be sent away
without any day being fixed, and the demandant shall
have such recovery as he lawfully ought to have, a
formula which has been fully explained above.* Mean­
while he who was claimed as a villein shall enjoy free
status.
When, however, he who is sought as a villein and [4]
he who claims him are both present in court, free status
shall be proved as follows. He who claims to be free
shall produce in court several near blood relatives
descended from the same stock as himself, and if they
are admitted or proved in court to be free, then the claim­
ant himself will be freed from the yoke of servitude. If,
however, their free status is denied or doubted, recourse
must be had to the men of the neighbourhood by whose
verdict it may be known whether they are free men or not,
and judgment will be given according to this verdict.
However, he who seeks to reduce the claimant to villein
• Is this the man currently holding the villein (the ‘ new lord ’) or
the villein himself? Probably the villein, because v, 4 begins with ‘ utroque
gee p. 53, n. 3.
4i>3*
 56 [V , 4]
probandum contrarium, eo scilicet quod illi homines
quos ibi producit natiui sui sunt, ita quod de uno
communi stipite cum illo quem ad natiuum clamat
exierunt, tunc similiter si utrimque producti recognos-
cantur communes consanguinei, disquiretur per uisne-
tum qui illorum eidem sint proximiores, et secundum
hoc iudicabitur. Simile quoque fiet si ex una parte
producti recognoscantur eius esse consanguinei et ex
altera parte producti negentur eundem in aliqua con-
sanguinitate contingere, uel si dubitetur super hoc;
omnis huiusmodi dubitatio per uisnetum absoluitur.
F.i7» Probata / autem libertate in curia sufficienter, tunc
is de cuius libertate contencio est a clamio ipsius qui
eum ad uillenagium clamauerat absoluetur et perpetuo
liberabitur. Si uero in probatione sua defecerit, uel si
ab eius aduersario disrationetur tanquam natiuus, sine
recuperatione aliqua domino suo adiudicabitur cum
omnibus catallis suis.
Sub hac eadem forma et eodem ordine tractandum
est placitum istud quando aliquis in libertate constitutus
ad uillenagium trahitur, uel quando aliquis in uillenagio
positus propria sua deliberatione petit libertatem. Ob
id enim ad curiam ueniens ille de cuius libertate agitur,
impetrabit loquelam ipsam in curia domini regis deduci.
Quo impetrato, sub forma dicta loquela procedet.
Notandum eciam quod in placito isto locum non habet
duellum ad libertatem alicuius probandam uel impro-
bandam a prima natiuitate.
 [V, 4] 56
status may have produced others to prove the opposite,
namely villeins ofhis who descend fromone and the same
stock as the man whom he claims as a villein; in such a
case, if those produced by both parties are all admitted
to be blood relatives, the men of the neighbourhood shall
similarly be asked which of them are his nearest relatives,
and judgment given accordingly. The same method is to
be used if those produced by one party are admitted, and
those produced by the other party are denied, to be
blood relatives, or if there is doubt about it; all such
doubt is resolved by the verdict of the neighbourhood.
When free status has been properly proved in court,
then he whose free status is the subject of dispute shall
be quit and free for ever from the claim of the man who
alleged him to be a villein. But if he has failed in his
proof, or if the other party has proved him to be his
villein, then he and all his chattels shall be adjudged
irrevocably to his lord.
This same form and order of pleading is to be used
both when a man who has been enjoying freedom is
reduced to villeinage and when a man of apparent
villein status claims freedom on his own initiative. In
the latter case, the party whose freedom is in question
shall come to court, and seek to have the case heard in
the lord king’s court. When this has been granted, th?
case shall proceed in the above manner. It should be
noted, moreover, that there can be no battle in this
plea, which is directed to proving or disproving free­
dom as from the moment of birth.
 57

[5] Pluribus autem modis perduci potest ad libertatem

aliquis in uilenagio* positus. Veluti si dominus suus,
uolens eum ad libertatem perduci a uillenagio suo quo
ei tenetur obnoxius, et a se et heredibus suis quietum
clamauerit; uel si eum ad liberandum alicui donauerit
uel uendiderit. Illud tamen est notandum, quod non
potest aliquis in uilenagio* positus libertatem suam
suis denariis querere: posset enim tunc a domino suo
secundum ius regni et consuetudinem ad uillenagium
reuocari, quia omnia catalla cuiuslibet natiui ita intel-
liguntur esse in potestate domini sui quod propriis suis
denariis uersus dominum suum a uillenagio se redimere
non poterit. Si quis uero extraneus eum ad liberandum
emeret suis nummis, posset quidem perpetuo uersus
dominum suum qui eum uendiderit se in statu libertatis
tueri.
Cum quis enim natiuum suum a se et' heredibus
suis quietum clamauerit uel extraneo uendiderit, poterit
is qui libertatemita consecutus est uersus dominumsuum
et quoslibet eius heredes, dummodo hoc per cartam uel
alio modo legitimo in curia dirationauerit, perpetuo se
tueri. Ad duellum eciam hie* poterit perueniri si quis
eum a uillenagio liberatum esse contradixerit, dummodo
aliquis testis idoneus qui uiderit et audierit ubi ipse
liberatus sit libertatem suam dirationare uoluerit in
curia. Notandum eciam quod potest quis natiuum
suum quantum ad sui ipsius uel heredum suorum per-
F.18 sonam liberum facere, non / quantum ad alios. Quia
si quis prius natiuus, ad libertatem hoc modo perductus,
TUI/Tit, tally
rubric Ln, Z\ J-/C
De ulibertate etl uuilenagio L
u c n a ic C
k L, B; uillenagium Ln, Z c uillenagium Ln
* B: uel Ln, Z< (con. from et) L • corr. from hoc Ln
 [V, 5] 57

The ways in which a person can be made free 1

A person of villein status can be made free in several [5]
ways. For example, his lord, wishing him to achieve
freedomfromthe villeinage by which he is subject to him,
may quit-claim him fromhimselfand his heirs; or he may
give or sell him to another with intent to free him. It
should be noted, however, that no person ofvillein status
can seek his freedom with his own money, for in such a
case he could, according to the law and custom of the
realm, be recalled to villeinage by his lord, because all
the chattels of a villein are deemed to such an extent
the property of his lord that he cannot redeem himself
from villeinage with his own money as against his lord.
If, however, a third party provides the money and buys
the villein in order to free him, then he can maintain
himself for ever in a state of freedom as against his lord
who sold him.
When anyone quit-claims his villein from himself
and his heirs, or sells him to a third party, he who has
achieved freedom in this way can maintain it for ever
against his lord and any of his lord’s heirs, provided
that he proves it in court by a charter or other lawful
means; the proceedings may even result in battle if
anyone denies that he has been freed from villeinage,
provided that a suitable witness who saw and heard him
freed is willing to prove his freedom in court. It should,
however, be noted that anyone may make his villein free
as against himself or his heirs, but not as against
others. For if anyone formerly a villein, who has been

1 O n manumission contrast P & M , 1, 427*9 with P. Vinogradoff,

Villeinage in England (Oxford 1892), pp. 86-8.
 58 [V, 5-6 : V I, i]
contra extraneum ad aliquam disrationationem faci­
endam produceretur in curia, uel ada aliquam legem
terre faciendam, posset inde iuste amoueri si natiuitas
sua et uillenagium in curia obiecta fuerint* et probata,
eciam si miles in tali statu factus esset a uillenagio
liberatus.
Item si quis natiuus quiete per unum annum et diem
in aliqua uilla priuilegiata manserit, ita quod in eorum
communam' scilicet gildam tanquam ciuis receptus
fuerit, eo ipso a uillenagio liberatur.1

Quibus modis fiant natiuid

[6] Fiunt autem natiui ex prima natiuitate sua, que-
madmodum si quis fuerit procreatus ex natiuo et natiua
ille quidem natiuus nascitur. Idem est si ex patre libero
et matre natiua. Sed et* si ex matre libera et patre
natiuo/ idem est dicendum quantum ad status integ-
ritatem. Vnde si quis liber homo duxerit natiuam in
uxorem ad aliquod uillenagium, quamdiu ita fuerit
obligatus uillenagio eo ipso legem terre tanquam natiuus
amittit. Si qui uero procreantur ex natiuo unius et
natiua* alterius, inter dominos proportionaliter pueri
ipsi diuidentur.

[LIBER VI]
Placitum de dotibush

[i] Dos duobus modis dicitur.z Dicitur enim dos

uulgariter'' id quod aliquis liber homo dat sponse sue
a om. Ln k L; fuerit Ln, Z> B
‘ L ,B ; coramuncm Ln, Z * rubric Ln, Z> De natiuis L
•L n ,B \ o m .L ,Z / et patre natiuo interlin. Ln
iZ > B \ natiuo Ln, L h rubric Ln, Z\ De dote £
•Z, B\ uulgaliter Ln, L
 [V, 5-6 : V I, I] 58
freed in this way, is produced in court to make proof as
a champion or to wage law, he can lawfully be excluded
if his villein status is raised as an objection and proved,
even if he has been made a knight since he was freed.
If any villein stays peaceably for a year and a day in
a privileged town and is admitted as a citizen into
their commune, that is to say, their gild, he is thereby
freed from villeinage.1

The ways in which people become villeins

Some persons are villeins from the moment of birth, [6]
for example a person born of a villein father and a
villein mother, or one born of a free father and a villein
mother; even to one born of a free mother and a
villein father the same conclusion about civil condition
applies. Therefore, if a free man marries a villein and
lives on a villein tenement, so long as he is bound in this
way by the villein tenure he loses, as a villein, all legal
rights. If children are born of the villein of one lord
and the villein woman of another they will be equally
divided between the two lords.

[BOOK VI]
Pleas o f dower
The word ‘ dos ’ has two meanings.* In common [1]
English law usage it means that which a free man gives

1 An ambiguous and disputed passage, probably meaning that * villeins

were admitted into the commune by admission into the gild,’ or possibly
intended * to disclaim for communa any association with the foreign
“ comm une” ’ ; see J. Tait, The Medieval English Borough (Manchester 1936),
pp. 222-4.
•T h e first meaning (dower) follows; see p. 183. T he second meaning
(marriage-portion) is given at vii, 1 and discussed in vii, 18.
 59 [VI, I - 2]

ad hostium ecclesie tempore desponsationis sue. Tenetur

autem unusquisque tam iure ecclesiastico quam iure
seculari sponsam suam dotare tempore sue desponsati­
onis. Cum quis autem sponsam suam° dotat, aut
nominat dotem aut non. Si non nominauerit dotem,
tercia pars tocius liberi tenementi sui intelligetur dos
eius, et apellatur rationabilis dos cuiuslibet mulieris
tercia pars tocius liberi tenementi uiri sui quod habet
tempore desponsationis, ita* quod inde fuerit saisitus
in dominico. Si uero dotem nominat is qui mulierem
desponsat et plus tercia parte, dos ipsa in tanta quanti­
tate stare non poterit. Amensurabitur enim usque ad
terciam partem, quia minus tercia parte tenementi
potest quis dare in dotem, plus uero tercia parte non.

D e amplianda dote ratione questusc

[2] Contingit autem quandoquerf quod si modicum
tenementi habeat is qui mulierem aliquam desponsat,
possit dotem ipsam ampliare, scilicet de questu suo in
terciam partem uel minus. Si uero nichil de questu
fuerit expressum in dotis assignatione, licet parum
habeat tenementi tempore desponsationis et postea
F.18 v multum adquisierit, non poterit in dotem clama/ri*
plus tercia parte illius tenementi quod habuit is qui
mulierem dotauit tempore desponsationis. Idem/ dico
si quis in denariis uel in aliis catallis, terram non habens,
sponsam suam dotauerit, et postea magnum questum
fecerit in terris et tenementis, quia nihil de questu de
cetero in dotem de iure clamari poterit. Quia hoc
generaliter uerum est quod quantacumque uel qualis-
cumque fuerit dos assignata alicui mulieri, si inde
o dotare . . . suam marg. Ln b inde {del.)ita Ln
‘ rubric Ln, Z\ D e axnpliatione doti* L * interlin. Ln
 [VI, I - 2] 59
to his wife at the church door at the time of his marriage.
For every man is bound both by ecclesiastical and by
secular law to endow his wife at the time of his marriage.
When a man endows his wife either he nominates cer­
tain property as dower, or he does not. If he does not
nominate dower, then one third of the whole of his free
tenement is deemed to be her dower, and the reasonable
dower of any woman is one third of the whole of the
free tenement ofwhich her husband was seisedin demesne
at the time of the marriage. If, however, the husband
nominates dower and it amounts to more than one
third, it cannot stand at such a level, but will be meas­
ured up to one third; for a man can give less but not
more than one third of his tenement in dower.

Increase in dower as a result o f later

acquisitions
It sometimes happens that a husband who has a [2]
little land can increase the dower by adding one third
or less of his later acquisitions. However, if nothing was
said about acquisitions when the dower was originally
assigned, then, even if the husband had little land at the
time of the marriage and afterwards acquired much
land, no more can be claimed in dower than one third
of the land which he had at the time of the marriage.
I state the same rule when a man who has no land
endows his wife with money or other chattels and
afterwards acquires many lands and tenements, for
nothing can in future lawfully be claimed as dower
from these acquisitions. For it is a general rule that
however much dower and of whatever kind is assigned
' corr. from clamare Ln
f Item Ln
 6o [V I, 2 - 4]
satisfactum fuerit ipsi mulieri ad hostium ecclesie quan­
tum ad dotem, numquam de cetero poterit amplius ad
dotem petere.
[3] Sciendum autem quod mulier nichil potest disponere
circa dotem suam in uita sui mariti. Quia cum ipsa
mulier plene in potestate uiri sui de iure sit, non est
mirum si tam dos ipsius mulieris quama cetere res
eius omnes plene intelligantur esse in dispositione
ipsius uiri. Potest itaque quilibet uxorem habens dotem
uxoris sue donare uendere et alio quo uoluerit modo
alienare in uita sua, ita quod tenetur uxor sua in hoc
sicut et in aliis rebus omnibus que contra Deum non
sint ei consentire. Adeo autem uiro suo tenebitur
mulier obedire quod si uir eius dotem eius uendere
uoluerit et ipsa ei contradixerit, si postea ita uendita
fuerit et empta dos ipsa, mortuo uiro suo non poterit
mulier dotem ipsam uersus emptorem petere, si confessa
fuerit in curia uel super hoc conuicta4quod ea contra-
dicente uiro suo uendita fuerit dos ipsa a uiro suo.
[4] Mortuo siquidem uiro alicuius mulieris, aut uacat
dos eius si fuerit nominata aut non uacat. Si uacet,
ponere se poterit mulier ipsa in dotem suam et tenere
se in saisina cum consensu heredis. Si uero non uacet,
aut tota non uacat aut quedam pars uacat et quedam
non uacat. Si quedam pars uacat quedam non,
in parte que uacat ponere se poterit predicto modo et
de residuo habebit breue de recto ad warantum suum,1
scilicet quod teneat ei plenum rectum de ilia terra quam
clamat pertinere ad rationabilem dotem suam. Breue
autem tale erit:

• ipsius mulieris quam: quam ipsa mulier et B

4 coniuncta Ln
 [VI, 2 - 43 6o
to a woman, if she consents to this assignment of dower
at the church door she cannot in future lawfully claim
any more as dower.
It should be known that a woman cannot alienate [3]
any of her dower during the life of her husband. For
since legally a woman is completely in the power of her
husband, it is not surprising that her dower and all her
other property are clearly deemed to be at his disposal.
Therefore any married man may give or sell or alienate in
whatever way he pleases his wife’s dower during her life,
and hiswife is bound toconsent to this as to all other acts of
his which do not offend against God. Indeed, to such an
extent is a woman bound to obey her husband that if he
wishes to sell her dower and she opposes him, and after­
wards the dower is in fact sold and purchased, she
cannot when her husband is dead claim the dower from
the purchaser if she confesses, or it is proved against her,
in court that it was sold by her husband against her will.
When a woman’s husband dies and dower has [4]
been nominated, either it lies vacant or it does not. If
it is vacant, the woman may enter on the dower and
remain in seisin with the consent of the heir. If, how­
ever, it is not vacant, then either none is vacant, or else
some part is vacant and some is not; in the latter case
she may enter on the vacant part in the manner stated
above, and in respect of the rest she shall have a writ of
right to her warrantor,1 directing him to do full right
to her concerning certain land which she claims as be­
longing to her reasonable dower. The writ will be as
follows:

1 Her warrantor is her dead husband’« heir.

 6i [VI, 5 - 71
Breue de recto de pertinentia dotis*
[5] Rex W.4salutem. Precipio tibi quod sine dilatione
plenum rectum teneas M. que fuit uxor Rodberti de
F.19 una hida terre in ilia uilla, / quam clamat pertinere
ad rationabilem dotem suam quam tenet de te in eadem
uilla per liberum seruicium decem solidorum* per
annum pro omni seruicio, quam N. ei deforciat. Et
nisi feceris uicecomes faciat, ne oporteat earn amplius
inde conqueri pro defectu recti'. Teste* etc5.
[6] Tractabitur autem placitum illud/ per hoc breue
in curia waranti donee probetur curia ipsius ei de
recto defecisse, quod qualiter fieri debeat inferius1
dicetur. Quo probato, procedet loquela usque ad comi­
tatum2 et ita, mediante comitatu, pro uoluntate
domini regis uel capitalis iusticie* poterit loquela ipsa
ad capitalem curiam domini regis eciam iuste transferri,
et per hoc breue3:

Breue de transferendo placito a comitatu in curiamh

[7] Rex uicecomiti salutem. Pone coram me uel iusticiis
meis tunc loquelam que est in comitatu tuo inter M. et
N. ■de una hida terre in ilia uilla quam ipsa M. clamat
uersus predictum N. ad rationabilem dotem suam. Et
sumone per bonos sumonitores predictum N. qui terram
a rubric Ln, Z> Breue de dote L
bed.-, N . M S S
c decem solidorum interlin. Ln
ded.\ om. M SS: see Introduction, p. lxix, n. 1
' earn amplius . . . Teste om. Ln
f interlin. Ln
t capitalis iusticie: iusticiarum capitalium B
4 rubric Ln, (in curia domini regis) Z> Item de dote L
>R . Ln

■xii, 7
* The proce** (no writ ii involved) ii called toll.
 [VI, 5 - 7] 6i

The writ o f right fo r land belonging to dower

The king to W., greeting. I command you to do full [5]
right without delay to M. the widow of Robert, in
respect of one hide of land in such-and-such a vill, which
she claims as belonging to the reasonable dower which
she holds of you in that vill by the free service of ten
shillings a year for all service, and which N. is with­
holding from her. If you do not do it the sheriff will,
that she need no longer complain for default of right
in this matter. Witness, etc.
This plea will be dealt with under the above writ [6]
in the warrantor’s court until his court is proved to
have failed to do right to the widow: the method of
proving this is stated below. 1 When default of right has
been proved, the case shall go to the county court2 and
so, with that court as middle stage, the case can be
lawfully transferred even to the chief court of the lord
king if he or his chiefjustice will it. This is done by the
following writ®:

The writ fo r transferring a plea from the

county court to the Curia
The king to the sheriff, greeting. Put before me or [7]
my justices on a certain day the plea which is in your
county court between M. and N. concerning one hide of
land in such-and-such a vill, which the said M. claims
against the aforesaid N. as part of her reasonable dower.
And summon by good summoners the aforesaid N. who
holds that land to be there with his plea. And have

* Known as the writ of pone-, cf. Stenton, nos. 3477, 3500 and 3519, and
comment, ibid. p. 31. For a summary account o f removal of actions see
P & M , 11, 666. T o ll and pone are discussed by G. J. Turner, Brevia Placitata,
S.S. lx v i, pp. lxiii-lxix and lxxxvi-lxxxvii. For toll see below, p. 139.
 62 [VI, 7 - 8]
illam tenet quod tunc sit ibi cum loquela sua. Et habeas
ibi summonitores et hoc breue. Teste0etc’.

Quibus ex causis fiat translatio a comitatu in

curiami
[8] Potest autem transferri huiusmodi loquela sicut et
alie quelibet a comitatu ad capitalem curiam pluribus
ex causis: turn propter aliquam dubitationem que
emergit in comitatu super loquela ipsa quam comitatus
nesciat diiudicare; et quando sic transfertur loquela
aliqua ad curiam, tunc sumonenda est utraque pars,
scilicet tam petens quam tenens: turn ex perquisitione
alterutrius£parcium transfertur eciam loquela; et tunc
sufficit illam partem sumoneri que hoc non perquisiuit.
Si uero ex consensu et perquisitione utriusque parcium
simul existentium in curia loquela ipsa transferatur,
tunc neutram parcium oportet sumoneri quia eis intel-
ligitur dies datus in curia.
Die autem statuta in curia, aut uterque abest aut
alter tantum aut utei'que adest. De absentia utriusque
uel alterius tantum satis superius1 dictum est. Vtroque
uero presente in curia, mulier ipsa ius suum uersus
aduersarium suum in hec uerba proponet: ‘ Peto
terram istam sicut pertinentiam illius terre que mihi
nominata est in dotem/ unde maritus meus dotauit me
ad hostium ecclesie die quo me desponsauit, sicut de eo
unde ipse fuit uestitus et saisitus eo tempore quo me inde
f.i9ddotauit.’ Ad huiusmodi ergo clamium solet / multi-
pliciter ab aduersa parte responderi. Aut enim negabit
earn inde fuisse dotatam, aut concedet. Quicquid
a ibi summonitores . . . Teste om. Ln
b rubric Ln, Z> (ex om. . . . fit . . . ad curiam) L
‘ alterius B * in dotem: ut dos Ln
 [V I, 7 - 8] 62

there the summoners and this writ. Witness, etc.

The reasons fo r transferring a case from the

county court to the Curia
A plea of this kind may, like any other, be transferred [8]
from the county court to the chief Curia for several
reasons. It may be because a legal difficulty concerning
the plea has arisen in the county court, which is unable
to resolve it: when for this reason a plea is transferred
to the Curia, both demandant and tenant must be
summoned. It may be transferred at the request of
either party: in this case it is sufficient to summon the
party who did not request it. Where, however, the
plea is transferred with the consent and at the request of
both parties, who are present together in court, then
neither party ought to be summoned because both
know the day which was appointed in court.
On the day which the court appointed either both
parties are absent, or only one is absent, or both are
present. Absence of both or of one only has been suffi­
ciently discussed above.» When both are present in
court, the woman shall state her claim against the other
party in the following words: ‘ I claim this land as part
of the land which was nominated as my dower, with
which my husband endowed me at the church door on
the day he married me, being land of which he had
been put into possession and was seised at the time when
he endowed me with it.’ To a claim of this kind the
other party may reply in many different ways, either
denying that she was endowed with it or admitting it.

1 >» 7-33
 63 [VI, 8 - io]
autem dicat, non debet loquela ipsa procedere sine
herede mariti ipsius mulieris. Sumonendus ergo erit
ad curiam quod ueniat auditurus loquelam istam, et per
hoc breue:

Breue de summonendo herede ad warantizandum

dotem*
[9] Rex uicecomiti salutem. Sumone per bonos sum­
monitores N. filium et heredem R. quod sit coram me
uel iusticiis meis eo die ad warantizandum M., que fuit
uxor ipsius R. patris sui, unam hidam terre in ilia uilla
quam clamat ad rationabilem dotem suam de dono
ipsius R. uiri sui uersus H., et unde placitum est inter
eos in curia mea, si terram illam ei warantizare uoluerit,
uel ad ostendendum quare id facere non debeat. Et
habeas ibi summonitores et hoc breue.* Teste etc’.

Quid iuris est si heres neque uenerit neque se

essoniaueritc
[10] Heres igitur ipse summonitus* si neque uenerit
neque se essoniauerit ad primum« diem uel secundum
uel tercium, uel si post essonia sua die quarto neque
uenerit neque responsalem miserit, qualiter distringi
debeat uel possit de iure regni et consuetudine queri
potest. Potest autem heres ipse secundum quosdam/
distringi quod ad curiam ueniat per feodum suum, ita
quod de consilio curie capiatur in manum domini regis
tantum de feodo suo* unde distringatur ad curiam
uenire ad ostendendum ibi utrum debeat terram illam

“ rubric Ln, (warantizandam) L

* summonitores . . . breue: etc’ Ln
‘ rubric <* * interlin. Ln 4 unum Ln
 [VI, 8 - 1 0 ] 63
Whatever reply he makes, the plea must not proceed
without the heir of the woman’s husband, who must
therefore be summoned by the following writ to come
to court and hear the plea:

The writ fo r summoning the heir to warrant

dower
The king to the sheriff, greeting. Summon by good [9]
summoners N. the son and heir of R. to be before me or
my justices on a certain day to warrant, if he is willing
to do so, for M., who was the wife of the said R. his
father, one hide of land in such-and-such a vill which she
claims against H. as her reasonable dower by the gift of
the said R. her husband, and concerning which there is
a plea between them in my court; or else to show why
he is not bound to do so. And have there the summoners
and this writ. Witness, etc.

What the law is i f the heir neither comes

nor essoins himself
If the heir who has been summoned neither comes [10]
nor essoins himself on the first, second or third return
day, or if he casts his essoins and then neither comes nor
sends an attorney on the fourth return day, it is uncer­
tain how he ought to, or can, be constrained to come
by the law and custom of the realm. According to some
the heir can be distrained by his fee to come to court,
for the court may at its discretion take into the lord
king’s hand so much of his fee as will constrain him to
come to court and show there whether he ought to
/scilicet Hubertus Walter interim. (Hub’ W alter marg.) Ln; scilicet H.
Walteri add. see Introduction, p. xliii
‘ marg. Ln
 64 [VI, 1 0 - II]
warantizare uel non: uel per plegios attachiari potest
secundum quosdam* quod ad curiam ueniat ad id
faciendum.
[11] Apparente demum in curia herede uiri mulieris
conquerentis, aut idem testabitur et concedet quod terra
ipsa pertinencia sit dotis ipsius mulieris, et quod inde
fuerit dotata mulier ipsa, et quod antecessor eius inde
fuerit saisitus tempore quo earn inde dotauit sicut de
pertinencia illius terre quam eidem principaliter nomi-
nauit4in dotem; aut non.
Si id concedat in curia, de cetero tenebitur illam
terram uersus ipsum tenentem disrationare si inde
uoluerit placitare, et ita illam ipsi mulieri deliberare, et
reuertetur*1 placitum' inter ipsum heredem et tenen­
tem ipsum; aut si noluerit inde placitare,2 tenebitur
dare ipsi mulieri competens escambium, quia de cetero
perdere non poterit mulier ipsa.
Si uero heres ipse nec testatus fuerit nec concesserit
F.20 ipsi mulieri id quod ipsa uersus / tenentem proponit,
tunc placitum inde poterit esse inter ipsam mulierem
et heredem. Mulier enim nullum placitum efficaciter
mouere poterit uersus aliquem sine waranto suo de dote
sua, sicut nec inde tenetur respondere sine eodem
waranto suo.' Si itaque heres ipse totum ius ipsius
mulieris ei negauerit, ita quod dixerit in curia ipsam
numquam inde fuisse dotatam/ ab antecessore suo,
poterit ita inter eos ad* duellum perueniri si mulier
audientes et uidentes ibi habeat, et aliquem idoneum

* scilicet Osbertus filius Hreue et Hugo Bardulf’ interlin. (Osb’ filius

Ilereuei: Hugo Bard’ tnarg.) Ln; O . fil. Heruei et Hug. Bardol. add. Z -
see Introduction, p . xliii
b nominauerit Ln ‘ conuertetur B
d Z> contencio L , B ; om. Ln * sicut . . . suo om. B
t corr. from dotatum Ln s interlin. Ln
 [VI, 1 0 - II] 64

warrant the land or not. According to others he can

be attached by sureties to come to court for this purpose.
When eventually the heir of the demandant woman’s [11]
husband appears in court, either he will attest the
claim and admit that the land is part of the woman’s
dower, and that she was endowed with it, and that his
ancestor was seised of it at the time when he endowed
her with it as part of the land which he nominated as her
principal dower; or else he will not.
If he admits all this in court and wishes to contest
the tenant’s right, he must next recover the land from
the tenant and deliver it to the woman, and so the plea
becomes! one between the heir and the tenant; but if
he does not wish to litigate,2 he must give the woman
sufficient lands in exchange, because once he has made
his admission the woman cannot be the loser.
However, if the heir neither attests nor admits the
claim stated by the woman against the tenant, then the
plea can be between the woman and the heir. For a
woman cannot effectively prosecute any plea against
another concerning her dower without her warrantor,
nor is she bound to answer to such a plea without her
said warrantor. So if the heir denies to the woman all
the right she claims, by saying in court that she was
never endowed with it by his ancestor, the case may be
settled by battle if the woman has there persons who
heard and saw, and one of them is a suitable witness

1 A neutral translation; beta has improved on alpha, since the original

plea is between woman and tenant and there is no question of ‘ reverting ’
to it.
! This gives the heir an option (accepted by Jotion des Longrais,
La Conception Anglaise de la Saisirn (Paris 1925), pp. 361-2): vi, 13 suggests
that he ought to litigate (see S. J. Bailey, ‘ Ranulf de Glanvill in Yorkshire,’
C .L .J . (1958), .87).
 65 [VI, ii - 14]
testem qui audierit et uiderit ipsam inde fuisse ab ante-
cessore ipsius heredis dotatam ad hostium ecclesie tem­
pore desponsationis sue, et hoc paratus sit uersus ilium
dirationare. Si ergo mulier uersus heredem ipsum obti-
nuerit per duellum, tunc heres ipse tenebitur terram
petitam ipsi mulieri deliberare uel competens escambium
suum eidem assignare.
[12] Notandum eciam quod cum quis dotat sponsam
suam* in hec uerba: ‘ Do tibi terram istam uel uillam
nominatam cum omnibus pertinenciis,’ si aliquam per-
tinenciarum eo tempore non habuerit in dominico suo
nec inde fuerit saisitus tempore desponsationis, et in
uita sua eandem disrationauerit uel alio modo iuste
perquisierit, poterit uxor ipsius post mortem uiri sui
iure dotis eciam ipsam pertinentiam cum aliis recte
petere.
[13] Sciendum eciam quod si uir alicuius mulieris
dotem uxoris sue uendiderit alicui postquam earn inde
dotauerit, tenebitur heres eius dotem illam ipsi mulieri
deliberare si poterit, et ipsi eciam emptori tenebitur ad
rationabile exscambium suum ex uenditione uel ex
donatione sui antecessoris: sin autem, ad rationabile
escambium ipsi tenebitur.
[14] Cum autem tota non uacat dos alicuius mulieris
ita quod inde nihil habeat mulier ipsa, tunc placitum
ipsum ab inicio tractandum est4 in curia domini regis,
et sumonebitur is qui dotem ipsam tenet per hoc breue1:

• dotat add. Ln
b om. Ln
 [VI, II - 14] 65
who heard and saw her endowed by the heir’s ancestor
at the church door at the time of her marriage and is
ready to prove it against the heir. If the woman suc­
ceeds by battle against the heir, then he must deliver
the land claimed to the woman, or else assign her
equivalent lands in exchange.
It should be noted that a man may endow his [12]
wife in these words: ‘ I give you this land or vill by
name, with all appurtenances ’; if at that time some
appurtenance was not in his demesne, nor was he
seised of it at the time of the marriage, and during his
life he recovered it by legal proceedings or acquired it
lawfully in some other way, his wife can lawfully claim
that appurtenance with the others as dower after her
husband’s death.
It should be known, moreover, that if any woman’s [13]
husband sells his wife’s dower to another after he has
endowed her with it, his heir must, if he can, deliver
that dower to the woman, and must give to the purchaser
reasonable lands in exchange for what was sold or given
by his ancestor; if he cannot deliver to the woman, he
must give her reasonable lands in exchange.
When no part of a woman’s dower is vacant, so [14]
that she has none of it, then the plea is dealt with from
the beginning in the lord king’s court, and he who is
holding the dower shall be summoned by the following
writ1:

1 Known as dower unde nihil habet (see p. 183); cf. Stenton, nos. 3495,
3511 and 3543, and comment, ibid. p. 15.
 66 [VI, 1 5 - 1 7 ]

Breue de summonitione facienda propter dotem

unde nihil habetura
[15] Rex uicecomiti salutem. Precipe N. quod iuste et
sine dilatione faciat habere M. que fuit uxor R. ration-
abilem dotem suam in ilia uilla quam clamat habere de
F.20 v dono ipsius R. uiri sui, unde nihil habet ut dicit, / et
unde queritur quod ipse4 ei iniuste deforciat. Et nisi
fecerit, summone eum per bonos summonitoresc quod
sit eo die coram me uel iusticiis meis ostensurus quare
non fecerit. Et habeas ibi summonitores et hoc breue. d
Teste etc’.

Quod necessaria sit presentia heredis•

[16] Quicumque autem dotem ipsam teneat, siue heres
siue alius, oportet semper ipsum heredem presentem esse
qui mulieri petenti de dote sua respondeat. Si itaque
alius ab herede dotem ipsam deforciet ipsi mulieri, tunc
per hoc breue summonebitur/: heres uero per supra-
scriptum*1 breue inde sumonebitur.
[17] Potest autem placitum illud inter heredem ipsum
et mulierem multipliciter uariari. Aut enim clamabit
mulier ipsa dotem suam tanquam nominatam, aut
rationabilem dotem suam non nominatam. Heres
quoque aut concedet ei dotem sibi fuisse nominatam
aliam tamen quam ipsa petat, aut nullam ei fuisse
nominatam dicet. Si ergo de dote nominata siue de
diuersis nominationibus dotis inter eos sit contencio,
tunc poterit in placito ipso predicto2modo procedi.

a rubric Ln, L , (habet) % b om. Ln

‘ per bonos summonitores: etc’ Ln
d summonitores et hoc breue: etcetera Ln
‘ rubric « /sumoneatur Ln
s per suprascriptum: supra per scriptum Ln
 [VI, 15-17] 66

The ivrit fo r making a summons fo r dower

where none is yet had
The king to the sheriff, greeting. Command N. [15]
justly and without delay to cause M., who was the
wife of R., to have her reasonable dower in such-and-
such a vill, which she claims to have as the gift of the said
R. her husband and of which she has none, as she says,
and which she alleges he is unjustly withholding fromher.
If he will not do this, summon him by good summoners
to be before me or my justices on a certain day, to show
why he has not done it. And have there the summoners
and this writ. Witness, etc.

The presence o f the heir is necessary

Whoever is holding the dower, whether the heir or [16]
some other person, the heir must in all cases be present
to answer the demandant for her dower. If it is some
person other than the heir who is withholding the dower
from the woman, then he shall be summoned by the
writ just given; and the heir shall be summoned by
the writ given previously.1
The plea between the heir and the woman can [17]
take many forms. The woman will claim her dower
either as nominated dower or as reasonable dower
which has not been nominated. Again, the heir will
either admit that dower was nominated to her but was
not the land which she claims, or will say that none was
nominated. If, then, the dispute between them concerns
the existence of nominated dower or conflicting views
as to what dower was nominated, then procedure in this
plea is in the manner set out above.2

1 vi, 9 * vi, 11
 67 [VI, i7]
Si uero rationabilis dos sine aliqua nominatione certa
petatur, certi iuris est quod heres tenebitur mulieri
assignare in dotem terciam partem tocius liberi tene­
menti quod antecessor eius habuit in dominico die qua
earn desponsauit, integre in omnibus ut in terris et
tenementis, in aduocationibus ecclesiarum; ita quod si
non fuerit nisi una sola ecclesia in tota hereditate, si
contigerit earn uacare in uita mulieris post mortem
mariti sui, non poterit heres ipse sine assensu ipsius
mulieris personam ad ecclesiam ipsam presentare. Ex-
cipitur capitale masagium quod dari non potest in
dotem; nec diuidetur, sed integrum remanebit. Item
in diuisionem non ueniunt res quas tenuerint mulieres
alie in dotema unde prius dotate fuerint. Preterea si
fuerint duo maneria uel plura diuidenda, non diuidetur
capitale manerium sed integrum cum capitali masagio
heredi remanebit, ita quod de alio manerio uel aliis
maneriis ipsi mulieri plene satisfiat. Notandum eciam
quod pro etate heredis non remanebit assignatio dotis
ipsi mulieri.
Preterea notandum quod si fuerit terra aliqua data
alicui mulieri in dotem nominatim ita quod ecclesia
aliqua in feodo illo sit fundata, post mortem mariti
F.21 habebit mulier liberam inde / presentationem* ita quod
clerico cuilibet idoneo poterit ecclesiam ipsam concedere
si uacauerit; sed collegio non potest, quia hoc auferret
ius ipsius heredis perpetuo. Sin autem maritus ipsius
mulieris alicui clerico in uita sua ecclesiam ipsam con-
cesserit, ecclesiam ipsam tota uita sua idem clericus
poterit retinere eciam si hoc factum sit postquam uxor-
em suam de terra ilia dotauerit.* Verum si domui
“ dote Ln 4 presentionem Ln
c secundum H. Walteri add. Z '• see Introduction, p. xliii
 [VI, 17] 67

However, if reasonable dower with no specific nom­

ination is claimed, it is clear law that the heir must
assign to the woman as dower one third of the whole
free tenement which his ancestor had in demesne on the
day he married her, complete in all respects as to lands
and tenements and advowsons of churches; so that, if
there is only one church in the whole inheritance and it
happens to fall vacant in the woman’s lifetime after the
death of her husband, the heir may not present a parson
to that church without the woman’s consent. The chief
messuage is exempted because it cannot be given as
dower; nor shall it be divided, but shall remain intact.
Moreover, property held by women as dower from a
previous endowment is not included in making the
division. Furthermore, if two or more manors are to be
divided, the chief manor shall not be divided but shall
go intact together with the chief messuage to the heir,
and satisfaction shall be made to the woman from the
other manor or manors. It should be noted that assign­
ment of dower to the woman shall not be postponed
because the heir is under age.
It should also be noted that if land is given to any
woman as nominated dower and a church has been
founded in that fee, the woman shall have the free
presentation to it after the death of her husband and can
grant the church to any suitable clerk if it falls vacant;
but she cannot grant it to a [religious] community,
because this would take away for ever the right of the
heir. However, if the woman’s husband during his
life grants the church to a clerk, the clerk can keep the
church for the rest of his life even if it is done after the
husband endowed his wife with that land. Of course, if
the husband grants the church to a religious house, then
 68 [VI, I? - 18]
religiose ecclesiam ipsam interim concesserit ipse mari-
tus, debet ecclesia ipsa post mortem ipsius ipsi mulieri
deliberari ita quod in uita sua liberam inde habebit
presentationem. Post mortem uero ipsius mulieris et
illius clerici qui ad eius presentationem institutus fuerit
persona, iterum ad domum ipsam religiosam reuertetur
ecclesia ipsa, illi perpetuo remansura.
Sciendum item quod si in uita uiri alicuius mulieris
fuerit ab eo uxor eius separata ob aliquam sui corporis
turpitudinem,1 nullam uocem clamandi dotem habere
poterit mulier ipsa. Idem« dico si fuerit ab eo separata
per parentelam,2 scilicet quod nullam dotem petere
poterit: et tamen liberi eius possunt esse heredes et de
iure regni succedunt patri* iure hereditario.
Notandum item quod cum quis filius et heres ali­
cuius ex consensu patris sui ducit uxorem, et per assig-
nationem patris sui uxori sue quandam partem terre
patris sui dat in dotem, numquam ab ea plus peti
poterit in dotem. Mortuo autem uiro suo ante mortem
patris sui, queri potest utrum terram illam nomine
dotis retinere possit et utrum pater uiri sui teneatur illi
warantizare terram ipsam?c
Si uero mulier aliqua plus habeat in dotem quam^
pertineat ei habere, precipietur uicecomiti quod id
amensurari faciat, et per hoc breue:
Breue de dote amensuranda•
[18] Rex uicecomiti salutem. Questus est mihi B. quod
M. mater sua plus habet in dotem de hereditate sua
“ Item Ln h suo add. Ln ' gap o f one line follow s in Ln
d Ln, habere debeat et quam add. L ; habere debeat id est quam
add. B ‘ rubric “

1 It is not clear what is meant by ‘ turpitudo ‘ Glanvill Revised ’

(Introduction, p. lviii) glossed it ‘ scilicet propter fornicacionem et propter
 [VI, 17 - 18] 68

after his death the church ought to be delivered to the

woman and she shall have the free presentation to it
during her life; after the woman and the clerk who was
instituted parson by her presentation have both died,
the church shall revert again to that religious house,
to remain with it for ever.
It should be known also that if a man’s wife is
separated from him during his lifetime because of some
shameful act,1 she cannot have any claim to dower. I
state the same rule if she is divorced from him because of
consanguinity,2 namely that she can claim no dower;
and yet her children can be heirs and by the law of the
realm they succeed to their father by hereditary right.
It should also be noted that when a son and heir
marries a wife with his father’s consent, and gives his
wife as dower by assignment of his father a certain part
of his father’s land, she cannot ever in future claim
more of it as dower. However, if her husband pre­
deceases his father it is uncertain whether she can keep
that land as dower and whether her husband’s father is
bound to warrant the land for her.
If a woman has more as dower than properly be­
longs to her, the sheriff shall be commanded by the
following writ to have it measured:

The writ fo r measuring dower

The king to the sheriff, greeting. B. has complained [18]
to me that M. his mother has more of his inheritance
blasfemiam ut dicit aug’ mag’,’ which M aitland thought to be a reference
to Augustine which had passed into Gratian’s Decretum (Collected Papers,
n>274
*
)- . ,, , ,
Literally ‘ because in the same paten tela, but, whatever the precise
limits o f consanguinity as a bar to marriage, they are not coincident with
the parentelai e.g. my cousin, whom I may not marry, is not in my parenlela.
O n dower and divorce see P & M, », 376-7; for parenlela see below, p. 184.
 69 [VI, 18: VII, i]
quam habere debet et quam pertinet habendum secun­
dum dotem rationabilem. Et ideo tibi precipio quod
iuste et sine dilatione id amensurari facias, et iuste et
sine dilatione facias habere ipsi B. id quod habere debet
de iure et hereditate sua, et iuste et sine dilatione facias
habere ipsi M. quod habere debeta et quod pertinet
habendum secundum dotem suam rationabilem. Ne
F.ai v oporteat eum amplius / inde conqueri pro defectu
iusticie. Teste etc’.

[i] In alia acceptione accipitur dos secundum leges

romanas,1 secundum quod proprie appellatur dos id
quod cum muliere datur uiro, quod uulgariter dicitur
maritagium. < Potest* itaque quilibet liber homo ter­
ram* habens dare quandam partem terre sue cum filia
sua uel cum alia qualibet muliere in maritagium,* siue
habeat heredemsiue non, uelit heres si habuerit heredem
siue non uelit, imo eciam eo contradicente et reclamante.
Cuilibet eciam cuicumque uoluerit potest quis quandam
partem sui liberi tenementi donare in remunerationem
seruicii sui uel loco religioso in elemosinam: ita quod
si donationem ipsam saisina fuerit secuta, perpetuo
remanebit illi cui donata fuerit terra ilia et heredibus
suis, si iure hereditario fuerit eis concessa: si uero dona­
tionem talem nulla fuerit secuta saisina, ex tali donatione
nihil post mortem donatoris contra uoluntatem heredis
efficaciter peti potest, quia id intelligitur secundum
“ et hereditate . . . debet marg. Ln b rubric “
‘ corr. from mariagium Ln * inlerlin. Ln
• corr. from mariagium Ln
 [V I, 18 : V II, i] 69
as dower than she ought to have and belongs to her as
reasonable dower. Therefore I command you justly
and without delay to have it measured, and justly and
without delay to cause the said B. to have what he
ought to have as his right and inheritance, and justly
and without delay to cause the said M. to have what
she ought to have and belongs to her as her reasonable
dower; that he need no longer complain for default of
justice in this matter. Witness, etc.

[BOOK VII]
Marriage portions
In Roman law the word ‘ dos’ has a different [1]
meaning^: there * dos ’ is properly used for that which is
given with a woman to her husband, which is com­
monly called ‘ maritagium ’, a marriage-portion.
Every* free man who has land can give a certain part of
his land with his daughter, or with any other woman,
as a marriage-portion, whether he has an heir or not,
and whether the heir if he has one is willing or not, and
even if he is opposed to it and protests. For he can give
a certain part of his free tenement to whom he pleases in
recompense for his service, or to a religious place as
alms. If seisin follows the gift, the land will remain for
ever with the donee and his heirs, if it was given to them
heritably; however, if no seisin follows such a gift,
then after the donor’s death nothing can be claimed in
reliance on such a gift against the will of the heir, be­
cause, according to the interpretation customary in
1 For the first meaning (dower) see vi, 1. ‘ Profecticia dos est quae a
patre vel parente profecta est de bonis vel facto eius,’ Digest 83.3.5. Pr-
* See p. 184
 70 [VII, i]
consuetam regni interpretationem potius esse nuda pro-
missio quam aliqua uera donatio.4
Licet autem ita generaliter liceat cuilibet de terra
sua rationabilem partem pro sua uoluntate cuicumque
uoluerit libere in uita sua donare, in extremis tamen
agenti non est hoc cuiquam hactenus1 permissum, quia
posset tunc inmodica fieri hereditatis distributio si
fuisset hoc permissum illi qui feruore passionis instantis
et memoriam amittit et rationem, quod non numquam
euenire solet. Vnde presumeretur quod si quis in infir-
mitate positus ad mortem terram suam distribuere
cepisset, quod in sanitate sua minime facere uoluisset,4
quod pocius proueniret illud«ex feruore animi quam ex
mentis deliberatione. Posset tamen huiusmodi donatio
in ultima uoluntate alicui facta ita tenere si cumrf
consensu heredis fieret et ex suo consensu confirmaretur.
Cum quis autem de terra sua in maritagium uel alio
modo donat, aut habet hereditatem tantum aut questum
tantum aut hereditatem et questum. Si hereditatem
tantum, poterit quidem ex eadem hereditate quandam
partem donare ut dictum est cuilibet extraneo cuicum­
que' uoluerit. Si autem plures habuerit filios mulier-
atos, non poterit de facili preter consensum heredis sui
F.22 filio j suo postnato de hereditate sua quantamlibet
partem donare. Quia si hoc esset permissum, accideret
inde frequens priusnatorum filiorum exheredatio propter
maiorem patrum affectionem quam sepe erga postnatos
filios habere solent. Sed numquid filio suo bastardo
potest quis filium et heredem habens de hereditate sua

“ promissio (del.) donatio Ln 4 noluisset Ln ‘ et illud Ln

d si cum corr. from sicut Ln ' uel cuicumque Ln
 [V II, I] 70

the realm, it is deemed to be a naked promise rather

than a true gift.
Now, although the general rule is that any person
is allowed to give freely in his lifetime a reasonable part
of his land to whom he pleases, this liberty has not
hitherto1 been extended to those about to die, because
there might be an extravagant distribution of the in­
heritance if it were permitted to one who loses both
memory and reason in the turmoil of his present
suffering, a common enough happening. Therefore if
anyone mortally sick began to distribute his land, which
he had not in the least wished to do while he was well,
this would be presumed to result rather from turmoil
of the spirit than from deliberation of the mind. How­
ever, a gift of this kind made to another in a last will can
hold good if made and confirmed with the heir’s consent.
When anyone gives part of his land as a marriage-
portion or in some other way, either he has only in­
herited land, or only acquired land, or both inherited
and acquired land. If he has only inherited land, he
can, as has been said, give a certain part of that inherit­
ance to any stranger he chooses. However, if he has
several legitimate sons, he can hardly give any part of
the inheritance to a younger son without the heir’s
consent; for, if this were allowed, the disinheritance of
eldest sons would often occur, because of the greater
affection which fathers tend to have for younger sons.
Can a man who has a son and heir give part of his

1 So P & M , n, 328, n. 2. T he alternative translation ‘ but this does not

apply to death-bed gifts ’ offered by Plucknett, Concise History, p. 526, is
preferred by M . M . Sheehan, The W ill in Medieval England (Toronto 1963),
pp. 270-4, where he examines reasons for this attitude.
7i [VII, i]
donare? Quod si uerum est, tunc melioris conditionis
uidebitur in hoc bastardus filius quam mulieratus
postnatus: quod tamen uerum est.
Si uero questum tantum habuerit is qui partem
terre sue donare uoluerit, tunc quidem hoc ei licet; sed
non totum questum, quia non potest filium suum ex-
heredare. Verumtamen si nullum heredem filium uel
filiam ex corpore suo procreauerit, poterit quidem ex
questu suo cui uoluerit partem quandam donare siue
totum questum hereditabiliter; ita quod si inde fuerit
saisitus is cui donatio ilia facta fuerit in uita donatoris,
non poterit aliquis heres remocior donationem ipsam
irritare. Potest itaque quilibet sic totum questum suum
in uita donare sed nullum heredem inde facere potest,
neque collegium neque aliquem hominem, quia solus
Deus heredem facere potest, non homo.
Sin autem et hereditatem et questum habuerit, tunc
indistincte uerum est quod poterit de questu suo quan-
tamlibet partem siue totum cuicumque uoluerit dare ad
remanentiam. De hereditate quoque sua nihilominus
rationabiliter dare potest secundum quod predictum est.
Sciendum autem quod si quis liberum sochagium
et plures habuerit filios qui omnes ad hereditatem
equaliter pro equalibus portionibus sint admittendi,
tunc indistincte uerum est quod pater eorum nihil uel
de hereditate, uel de questu si nullam habuerit heredi­
tatem, alicui eorum quod excedat rationabilem partem
suam que eum contingat de tota hereditate paterna
donare poterit: sed tantum de hereditate sua donare
poterit pater cuilibet filiorum suorum de libero sochagio
in uita sua quantum iure successionis post mortem patris
idem esset consecuturus de eadem hereditate.
 [VII, I] 71
inheritance to his bastard son? If he can, then the bas­
tard son will be better off in this matter than the legit­
imate younger son; notwithstanding this, he can do so.
If he has only acquired land, and wishes to give part
of this land, then he can do so; but he cannot give all
his acquired land, because he must not disinherit his
son. However, if he has not begotten an heir of his
body, whether son or daughter, he can give to anyone
he pleases part or all of his acquired land to hold herit­
ably; and if the donee is seised in the donor’s life, no
remoter heir can upset that gift. In this way any person
can give away all his acquired land in his lifetime, but
he cannot make another his heir, whether a [religious]
community or a man; for only God, not man, can
make an heir.
If he has both inherited and acquired land, then it
is beyond question that he can give in perpetuity any
part or all of his acquired land to whom he pleases; he
can also, notwithstanding this, give a reasonable part
of his inherited land, as has been explained above.
It should, however, be known that if anyone holds
free socage land and has several sons who must all be
admitted equally to equal shares in the inheritance,
then it is beyond question that the father cannot give
to any one of them any land, whether inherited, or
acquired if he has no inherited land, beyond the reason­
able share that would fall to him from the paternal in­
heritance; but the father can in his lifetime give to any
one of his sons so much of his inherited land held in free
socage as that son would take from the inheritance by
way of succession after the death of his father.
 72 [V II, i]
Verumptamen occasione liberalitatis quam patres
in filios uel alios eciam exercere solent in huiusmodi
donationibus, iuris quidem questiones sepius emergunt.1
Esto enim quod aliquis miles uel aliquis liber homo
F.22 v quatuor uel plures habens filios / ex eadem matre
omnes legitime procreatos, et uni illorum, uerbi gratia
priusnato post heredem, quandam partem rationabilem
de hereditate sua, cum consensu eciam sui heredis ne
super hoc fiat contencio, hereditabiliter donet; ita quod
saisinam idem filius inde recipiat, et commoditates et
exitus in uita sua quamdiu uixerit percipiat, et in tali
saisina moriatur, tam patre suo quam fratribus suis
omnibus adhuc uiuentibus: magna quidem iuris dubi-
tatio et uirorum iuris regni peritorum disceptatio super
tali casu in curia domini regis aliquando euenit uel
euenire potest super hoc, scilicet quis isti succedere de
iure possit et debeat?
Pater enim defuncti saisinam filii sui sibi retinere
contendit, et ita terram que ex sua donatione processit
ad se iterum cupit reuerti. Super hoc habita conten-
cione in curia, patri ius in terra ipsa clamanti respon-
detur a filio primogenito quod non est super hoc pater
suus audiendus, quia generaliter uerum est secundum
ius regni quod nemo eiusdem tenementi simul potest
esse heres et dominus. Sed hac eadem ratione querit
medius2 filius primogenitum ab ilia successione repel-
lere: cum enim iam heres sit tocius hereditatis,8 non

1 Tw o difficult problems follow. They depend on two rules: (a) no

man can be both lord and heir, because homage taken from his tenant
bars a lord and his heirs from inheriting the land held by the tenant as long
as the tenant has heirs (see S. J. Bailey in C .L .J . ix (1945-7), 89-98; (b)
the eldest surviving son is still at this date thought o f as heir to die whole
inheritance, including any part already alienated in his father’s lifetime
(see S. E. Thorne, ‘ English Feudalism and Estates in Land,’ C .L .J . (1959),
 [VII, I] 72

Now, because of the generosity which fathers often

display to their sons or to others in making gifts of this
kind, certain legal problems frequently arise.1 Suppose
that a knight or any free man has four or more legitimate
sons all born of the same mother, and gives heritably to
one of them—for example, his second-born son—a certain
reasonable part of his inherited land with the consent
of the heir (to avoid argument on this point); this
second son gets seisin of the land, takes the fruits and
profits during his life, and, while seised in this way, dies
leaving his father and all his brothers still living: an
important legal problem and discussion among those
learned in the law of the realm sometimes arises, or
may arise, from this case in the lord king’s court, namely
who can and ought by law to succeed the second son?
The dead man’s father seeks to keep his son’s seisin
for himself, claiming that the land which was given by
his gift should revert to him. When a dispute arises
about this in court, the eldest son will answer his
father, who is claiming the right in that land, by saying
that his father ought not to be heard because there is a
general rule according to the law of the realm that no
man can be both heir and lord of the same tenement.
Yet, by the same reasoning, the middle* son seeks to
repel the eldest son from the succession, for, since the
eldest is now heir to the whole inheritance,8 he cannot

207). T h e author further complicates matters by using ‘ dominus ’ in two

different senses; these have been distinguished in the translation. I am
grateful to Professor Thorne for help, but responsibility for translation is
mine.
* i.e. second surviving son
• The inheritance includes the land given to the second-born son, and
so the eldest is heir to the homage which will prevent him from taking that
land.
 73 [VII, i]
potest simul dominus* esse partis illius hereditatis et
heres. Preterea, si iam mortuus esset pater ipsius filii
primogeniti, idem filius dominus fieret tocius heredi­
tatis; sed tunc de iure non remaneret ei terra ipsa
predicta* ratione: si ergo earn retinere non poterit ad
remanentiam, quo modo earn petere potest iure heredi-
tario? Sed pari ratione uidetur quod postnatus filius
omnes alios inde possit excludere.
Similis modi dubitatio contingit cum quis fratri suo
postnato porcionema terre sue hereditabiliter concedit
et donat, quo defuncto sine herede de corpore suo ex-
eunte, frater ipsius defuncti terram ipsam in manum
suam capit sicut illam que de suo feodo est et uacans;
uersus quem duo filii sui assisam3 petunt de morte
auunculi sui. Procedente uero placito, primogenitus
filius uersus patrem et postnatus filius uersus fratrem
primogenitum premonstrato modo placitare possunt.
Sed sciendum quod pater ipse nullo modo terram illam
de iure regni retinere potest, quia non potest simul esse
heres et dominus; sed nec eciam ad donatorem licite
reuertitur terra alicui sic donata, scilicet cum homa- /
F.33 gio secuto, si aliquem heredem habuerit is cui facta est
donatio ex corpore suo siue eciam remotiorem. Preterea
terra ista que sic donata est sicut alia quelibet hereditas
naturaliter quidem ad heredes hereditabiliter descendit,
numquam autem regulariter ascendit. Sic ergo remanet
placitum inter patrem et filium suum primogenitum, sed
procedit inter primogenitum filium et postnatum modo
predicto.
a con. from peticionem Ln

1i.e. able to claim it by hereditary right, holding to himself and his

heirs in perpetuity— a status inconsistent with that o f an heir who will,
on becoming lord, be forced to give up the land.
 [VII, I] 73
be both ‘ dominus ’»of that part of the inheritance and
heir; moreover, if the father were already dead, the
eldest son would be lord of the whole inheritance and
then that land could not lawfully remain with him for
the reason given above ;2 if, then, hecannot keep it
permanently, how can he claim it by hereditary right?
By the same reasoning it seems that the youngest son
can exclude all the others.
A similar kind of problem arises when anyone grants
and gives a part of his land heritably to his younger
brother who dies without any heir of his body; the
brother of the dead man takes the land into his own
hand as being vacant and belonging to his fee; and his
own two sons seek an assize*1 against him for the death
of their uncle. When the case is heard the elder son can
plead against the father, and the younger son against
his elder brother, in the manner set out above. It
should be known, however, that by the law of the realm
the father can in no way keep that land, because he
cannot be both heir and lord; nor does land given to
anyone lawfully revert to the donor if homage has
followed the gift and if the donee of the gift has an heir,
whether bom of his body or even more remote; more­
over, land given in the way stated naturally descends
heritably to the heirs as does any inheritance, and
never normally ascends. This, then, settles the plea as
between the father and his elder son; but as between
the elder and the younger son, it proceeds in the manner
set out above.

* i.e. he would be both lord and heir.

* i.e. mort d’ancestor; see xiii, 11.
 74 [V II, I - 2]
Aliquando tamen super hoc ultimo casu in curia
domini regis de consilio curie ita ex equitate considera-
tum est quod terra ilia sic donata filio primogenito
remaneat, maxime si alium feodum non habeat in manu
sua, donee ei hereditas deliberetur. Quia interim cum
dominus non sit hereditatis paterne non obuiat illud quod
dicitur, quod simul quis non possit esse heres et dominus.
Sed cum ex ilia successione fiat dominus illius partis
hereditatis, nonne et heres eiusdem partis esse intelligitur
cum et heres sit tocius hereditatis?1 Ad hoc tamen
respondemus quod incertum adhuc est et in pendenti
utrum filius primogenitus heres sit an non. Quia si
premoriatur pater, tunc constans est quod ipsius heres
erit; quod si sic euenerit, tunc quidem desinet esse
dominus illius terre quam ex successione auunculi sui
prius adquisiuit, et tunc demum ad postnatum filium
tanquam ad heredem rectum reuertatur terra ilia. Sin
autem premoriatur filius primogenitus, tunc satis constat
quod ille non fuit futurus heres patris sui, et ob id
numquam circa eius personam concurrerunt ista duo
iura, scilicet ius hereditarium et dominium.
Notandum autem quod nec episcopus nec abbas,
quia eorum baronie sunt de elemosina domini regis et
antecessorumeius, non possunt de dominicis suis aliquam
partem donare ad remanenciam sine assensu et confir-
matione domini regis.2

D e heredum warantizationea
[2] Tenentur autem heredes donatorum donationes et
res donatas sicut rationabiliter facte sunt illis quibus facte
sunt donationes ipse et eorum heredibus warantizare.
 [V II, I - 2] 74
In this last case, however, it is sometimes decided in
the court of the lord king by the equitable discretion of
the court that the land given in this way should remain
to the elder son, especially if he has no other fee, until
the inheritance is delivered to him, because until then,
since he is not lord of the paternal inheritance, he is not
caught by the rule which says that no man can be both
heir and lord. Yet since by succeeding to the land he
becomes * dominus ’ of that part of the inheritance, is
he not also deemed to be heir of that part since he is
heir of the whole inheritance?1 To this we reply that it
is still uncertain and in doubt whether the elder son is
heir or not. If his father predeceases him, then it is
clear that he will be his heir; and if this happens he will
cease to be ‘ dominus ' of that land which he previously
acquired by succession from his uncle, and then the
land will revert to the younger son as right heir. If,
however, the elder son predeceases his father, then it is
clear that he was not the future heir of his father, and
that therefore the two rights of inheritance and lordship
never co-existed in him.
It should be noted that neither a bishop nor an
abbot can alienate in perpetuity any part of his demesne
without the lord king’s consent and confirmation,
because their baronies are a charitable endowment
from the lord king and his ancestors.*

Warranty by heirs
The heirs of donors are bound to warrant to the [2]
donees and their heirs reasonable gifts and the things
given thereby.
1 This is a repetition o f the objection urged by the middle son against
the eldest in the previous problem.
' See p. 185
 75 [V II, 3]

Distinctio hereduma
[3] Heredum autem alii sunt proximi alii remotiores.
Proximi heredes alicuius sunt quos ex suo corpore pro-
creauerit, ut filius uel filia. Quibus deficientibus
uocantur heredes remotiores, scilicet nepotes uel /
F.23 v neptes ex filio uel filia recta linea descendentes in infi­
nitum. Item frater et soror et ex illis ex transuerso
descendentes.1 Item auunculus tam ex parte patris
quam ex parte matris, et matertera similiter, et ex illis
descendentes.
Cum quis ergo hereditatem habens moriatur, si
unicum filium habuerit heredem/ indistincte uerum est
quod filius ille patri succedit in totum. Si plures reli-
querit filios, tunc distinguitur utrum ille fuerit miles
siue per feodum militare tenens, an liber sochemannus.
Quia si miles fuerit/ tunc secundum ius regni Anglie
primogenitus filius patri succedit in totum, ita quod
nullus fratrum suorum partem inde de<* iure petere
potest. Si uero fuerit liber sochemannus,2 tunc quidem
diuidetur hereditas inter omnes filios quotquot fuerint
per partes equales si fuerit sochagium illud antiquitus
diuisum, saluo tamen capitali mesagio filio primogenito
pro dignitate ainsnecie sue, ita tamen quod in aliis rebus
satisfiet aliis ad ualentiam: si uero non fuerit antiquitus
diuisum, tunc primogenitus secundum quorundam con-
suetudinem obtinet hereditatem totam; secundum quor­
undam autem consuetudinem, postnatus filius heres est.

a rubric a 4 interim. Ln
c uel per militiam tenens add. B d interim. Ln
 [V II, 3] 75
Kinds o f heirs
Heirs are either nearest, or more remote. The [3]
nearest heirs of any person are those whom he has be­
gotten of his own body, such as a son or a daughter. In
default of such heirs, the more remote heirs are called,
such as grandsons and grand-daughters descending
lineally from son or daughter ad infinitum; then brother
and sister and their collateral descendants1; then uncle
on the father’s side and on the mother’s side, and aunt
likewise, and their descendants.
Therefore, when anyone who has an inheritance
dies leaving one son only as heir, it is unquestionably
true that that son succeeds to the father in everything.
If he leaves several sons, then a distinction is made—
whether he was a knight or tenant of a military fee, or
a free sokeman. For if he was a knight, then, according
to the law of the realm of England, the eldest son
succeeds to his father in everything, so that none of his
brothers can lawfully claim any part thereof. If, how­
ever, he was a free sokeman/ then, if the socage land
was anciently partible, the inheritance will be divided
equally among all the sons, however many there are,
but saving the chief messuage to the eldest son out of
respect for his primogeniture, on condition that he com­
pensates the others with property of equivalent value:
if it was not anciently partible, then, according to the
custom of some places the eldest will take the whole
inheritance, but according to the custom of other places
the youngest son is heir.

1 O n inheritance by collaterals see p. 184.

* O n inheritance o f socage lands see P & M , n, 268-70.
 76 [V II, 3]
Item si filiam tantum reliquerit quis heredem, tunc
id obtinet indistincte quod de filio dictum est. Sin
autem plures filias,1 tunc quidem indistincte inter ipsas
diuidetur hereditas siue fuerit miles siue sochemannus
pater earum/ saluo tamen primogenite filie capitali
masagio sub forma prescripta.
Notandum autem quod si quis fratrum uel sororum
inter quos diuiditur hereditas sine herede de corpore suo
moriatur, tunc eius portio ceteris fratribus uel sororibus
accrescet. Maritus autem primogenite filie homagium
faciet capitali domino de toto feodo.

D e seruitiis postnatarum filiarum per manus primogenite

prestandis1’
Tenentur autem postnate filie uel earum mariti
seruicium suum de suo tenemento capitali domino
facere per manum primogenite filie uel eius mariti.
Nullum tamen homagium uel eciam fidelitatem aliquam
tenentur mariti filiarum postnatarum marito filie primo­
genite inde facere in uita sua nec eorum heredes primi
uel secundi. Tercii autem heredes ex postnatis filiabus
exeuntes secundum ius regni homagium tenentur facere
de suo tenemento heredi filie primogenite et rationabile
releuium.
F.24 Preterea sciendum quod ma/riti aliquarum muli-
erum quarumcumque nihil de hereditate uxorum
suarum donare preter consensum heredum suorum uel
de iure ipsorum heredum aliquid remittere possunt nisi
in uita sua.2
a eorum Ln
4 rubric Ln, L , (primogenitarum) Z

1 For co-heiresses and the special position of the eldest see P & M, ii,
274-8.
 [V II, 3] 76

If anyone leaves only one daughter as his heir, then

the rule stated for an only son clearly applies. But if he
leaves several daughters,1 then the inheritance will
clearly be divided between them whether their father
was a knight or a sokeman, but saving the chief messuage
to the eldest daughter on the conditions set out above.
It should be noted, however, that if one of the
brothers or sisters between whom an inheritance is
divided dies without heir of his or her body, then his or
her portion accrues to the remaining brothers or
sisters. The husband of the eldest daughter will, however,
do homage to the chief lord for the whole fee.

Performance o f services o f younger daughters by

the hands o f the eldest
Younger daughters or their husbands are, however,
bound to do the service for their tenements to the chief
lord by the hand of the eldest daughter or her husband;
but the husbands of younger daughters are not bound
to do homage or even fealty for the land to the husband
of the eldest daughter during her life, nor are their
heirs in the first and second generation. But the third
generation of heirs proceeding from younger daughters
are bound by the law of the realm to do homage and
pay reasonable relief for their tenements to the heir of
the eldest daughter.
Moreover, it should be known that husbands of any
women whatsoever cannot alienate any part of the
inheritance of their wives without the consent of their
heirs, nor remit any part of the right of those heirs,
except for the term of their lives. *
* i.e. the husbands’ lives? P & M , n, 403-10, which discusses the
husband’s rights in his wife’s land, does not consider this point.
 77 [V II, 3l
Si uero filium habuerit quis heredem et preterea
filiam habuerit uel filias, filius ipse succedit in totum.
Vnde contingit quod si quis plures habuerit uxores et ex
qualibet filiam uel filias, ex postrema autem unicum
filium, ille filius solus obtinet hereditatem; quia gene-
raliter uerum est quod mulier numquam cum masculo
partem in aliqua hereditate capit,° nisi forte aliquid
speciale fiat in aliqua ciuitate et hoc per longam con-
suetudinem eiusdem ciuitatis. Si uero plures habuerit
quis uxores et ex qualibet filiam uel filias, omnes filie
pariter uenient ad hereditatem eodem* modo ac si
omnes essent ex una et eadem matre.
Gum quis autem moritur sine herede filio« uel filia,
si habuerit uel nepotes uel neptes ex filio uel filia/ tunc
quidem indubitanter succedent illi eo modo quo deter-
minatum est supra de filio et filiabus et sub eadem
distinctione: illi etenim qui ex recta linea descendunt
semper illis preferuntur qui ex transuerso ueniunt. Cum
quis uero moritur habens filium postnatum et ex primo-
genito filio premortuo nepotem, magna quidem iuris
dubitatio solet esse uter» illorum preferendus sit aliif
in ilia successione, scilicet utrum filius an nepos.1
Quidam* enim dicere uolebant filium postnatum recti-
orem esse heredem quam nepotem talem, ea uidelicet
ratione quia filius primogenitus, cum mortem patris sui
non expectaret/ nec expectauit quousque heres eius esset;

“ capiet Ln 4 eo Ln ‘ uel filio Ln

<1 exfilia Ln • utrum Ln f L , B \ illi Ln, Z
t R an’ de Glanuill’ marg. B : see Introduction, p. xliii * expectauit Ln

1 The same problem, whether representation is part of the law of

inheritance (see p. 184), was to be raised again on the death of Richard I
when Arthur was the grandson (of Henry II by his deceased third son
Geoffrey) and John was the younger son or uncle (Henry’s fourth son).
The succession o f John delayed a decision in favour o f representation until
 [V II, 3] 77
If anyone has a son and heir and also a daughter or
daughters, the son succeeds to everything: from this it
follows that if a man has several wives and by each he
has a daughter or daughters, but by the last he has an
only son, that son alone takes the inheritance, because
the general rule is that a woman never shares in an
inheritance with a man, unless there is a special rule
in a particular city by ancient custom of that city. If,
however, a man has several wives and by each of them
has a daughter or daughters, all the daughters will
come equally to the inheritance in the same way as if
they were all of one and the same mother.
When, however, anyone dies leaving no son or
daughter as heir, if he has grandsons or grand-daughters
born of a son or daughter, then they will undoubtedly
succeed in the same way as was laid down above for son
and daughters, and subject to the same distinctions;
for lineal descendants are always preferred to collaterals.
When, therefore, anyone dies leaving a younger son,
and a grandson bom of an eldest son already dead, a
great legal problem arises as to which is to be preferred
to the other in that succession, namely, whether the son
or the grandson, i Some have sought to say that the
younger son is more rightly heir than such a grandson,
on the ground that since the eldest son did not survive
until the death of his father he did not survive until

the middle o f the thirteenth century. T he gloss suggests that Rannulf

Glanvill was against representation: his nephew Hubert W alter insisted
that John’s right to the crown was elective not hereditary, but the French
at least regarded this not as a speech for representation but as meaning
that John’s forfeiture for treason had let in Eleanor o f Castile as next
entitled by hereditary right. Fuller details in Concise History, pp. 716-18,
P & M , n, 283-6, and S. Painter, The Reign o f King John (Baltimore 1949),
 78 [V II, 3]
et ita, cum postnatus filius superuiueret" tam patrem
quam fratrem, recte ut dicunt patri succedit. Aliis4
uero uisum est nepotem talem de iure auunculo suo
esse preferendum: cumenimnepos ille ex filio primogeni-
to exierit et de corpore suo ei heres extiterit, in totum ius
quod pater suus si adhuc uiueret haberet ipsi patri suo
succedere debet. Ita dico si pater ipsius non fuerit ab
auo suo forifamiliatus. Potest siquidem filius in uita
patris sui ab eo forisfamiliari si quandam partem terre
sue assignet pater filio et saisinam faciat ei in uita sua ad
peticionem et ad bonam uoluntatem ipsius filii, ita quod
de tanta parte ei sit satisfactum.1 Tunc enim non
poterunt heredes ipsius filii de corpore suo aliquid
F.24 v amplius petere contra auunculum / suum uel alium de
residua parte hereditatis aui sui quam partem patris
sui, licet pater eorum si superuixerit eundem auum
suum posset. Preterea si filius alicuius primogenitus
de paterna hereditate capitali domino homagium suum
fecerit in uita patris sui, tunc licet pater suus premori­
atur nullac dubitatio est quin filius eiusdem auunculo
suo sit preferendus. Verum super hoc poterit esse
placitum inter ipsum nepotem et capitalem dominum si
idem dominus ei homagium suum negauerit, uel inter
capitalem dominum et auunculum ipsum si capitalis
dominus nepoti homagium suum warantizauerit; et ex
hoc utrinque rationabiliter posset perueniri ad duellum.
Nisi uero homagium ita possit doceri, tunc quidem ita
hodie optinet inter auunculum et nepotem quod melior
est conditio possidentis.

“ B; superuiuat L n; superuixerit Z
b R an’ de Glanu., Ric. de luci marg. Ln; scilicet R ’ de GP et R ' de Luci
marg, Z; Ricardus de Luci marg. B: see Introduction, p. xliii
‘ tunc nulla Ln
 [V II, 3] 78

he was his heir; and therefore, so they say, since the

younger son survived both father and brother, he
rightly succeeds to his father. Others, however, have
taken the view that such a grandson ought in law to be
preferred to his uncle; for, since that grandson was
born to the eldest son and was heir of his body, he ought
to succeed to his father in all the rights which his father
would have if still alive. I agree with this if his father
was not ‘ forisfamiliated ’ by his grandfather. A son
can be ‘ forisfamiliated ’ by his father in his father’s
lifetime if the father assigns a certain part of his land to
the son and gives him seisin of it in his lifetime at the
request and with the full agreement of the son, so that
he is fully satisfied with such part.1 In such a case the
heirs of the body of that son cannot claim, against their
uncle or anyone else, any more than their father’s part
from the remaining part of the inheritance of their
grandfather, even though their father could have done
so had he survived their grandfather. Moreover, if an
eldest son does homage for the paternal inheritance to
the chief lord during the life of his father, then there is
no doubt that the son of that eldest son is to be preferred
to his uncle even if his father dies first. There may, even
so, be a plea between that grandson and the chief lord
if the lord refuses to accept his homage, or between the
chief lord and the uncle if the chief lord warrants this
homage to the grandson; and in both cases the proceed­
ings may reasonably result in battle. However, unless
homage can be proved in this way, the position at the
present day as between uncle and grandson is that the
party in possession will prevail.
1 i.e. he is ‘ put out o f the family ’ and can make no claim when his
father dies; see P & M , n, 438, n. 3.
 79 [V II, 4 - 51
D e heredibus ex transuerso uenientibus•1
[4] Deficientibus autem hiis qui recta linea descendunt,
tunc frater uel fratres succedunt, aut si non reperiantur
fratres uocande sunt sorores; quibus premortuis eo-
rum‘2liberi uocantur. Post hos uero uocantur auunculi
uel eorum liberi, postremo matertere uel earum liberi;
habita semper et obseruata distinctione superius3 posita
inter filios militis et filios sochemanni et nepotes similiter,
habita quoque distinctione inter masculos et feminas.

Quod heres debeat testamenta antecessorum

seruarec*
[5] Tenentur quoque heredes testamenta patrum suorum
et aliorum antecessorum suorum seruare, et eorum
debita acquietare.5 Potest itaque quilibet homo liber
maior* debitis non inuolutus« de rebus suis in infirmi­
tate sua rationabilem diuisam facere,* sub hac forma
secundum cuiusdam patrie consuetudinem: quod domi-
num suum primo de meliore et principaliore re quam
habuerit recognoscat, deinde ecclesiam suam, postea
uero alias personas pro uoluntate sua. Quicquid autem
diuersarum patriarum consuetudines super hoc teneant,
secundum iura regni non tenetur quis/ in testamento
suo alicui persone precipue nisi pro uoluntate sua aliquid
relinquere: libera etenim esse debet cuiusque ultima

“ rubric “ b Z> B\ earum Ln, L ‘ rubric *

Ln, maioribus L ,B • inuolutis Ln f aliquis Ln

1 See p. 184
• T h e order is brother, brother’s children, sister, sister’s children;
* earum ’ is misleading, suggesting that sisters’ children precede brothers’ .
• vii, 3 4 See p. 186
4 The Dialogus, p. 115, has the same rule. T he extent o f the liability,
as qualified by vii, 8, is discussed by S. J. Bailey, ‘ R anulf de Glanvill and
his Children,’ C .L.J. (1957), 169-7J.
 [VII, 4-5] 79
Collateral heirs1
In default of lineal descendants, then brother or [4]
brothers succeed, or, if there are no brothers, sisters
are to be called; if they are already dead their2children
are called. After these, uncles or their children are
called, and lastly aunts or their children; always
observing the distinction drawn above* between sons of
a knight and sons of a sokeman and between their
grandchildren, and also bearing -in mind the distinction
between males and females.

The heir ought to observe the testaments

o f ancestors*
Heirs are also bound to observe the testaments of their [5]
fathers and other ancestors, and to pay their debts.5
For every free man of full age who is not burdened with
debts may, when seriously ill, make a reasonable division
of his chattels.6 According to the custom of one district
it should be in the following form: first he should ack­
nowledge his lord with the best and chief chattel that
he has, then his church, and afterwards others at his
pleasure. But, whatever the customs of different dis­
tricts prescribe in this matter, no-one is bound by the
laws of the realm to leave anything in his testament to
any person in particular, unless he so wishes; for the last
• ‘ Diuisa ’ is translated ‘ division ’ to keep the early sense o f the word,
which * devise ’ has lost. 1 Res ’ is frequently used in the work to mean
property in the wide sense which includes both movables and immovables
(e.g. the discussion o f gage; see Introduction, p. xxv), and sometimes where
‘ real ’ rights other than those over land are intended (e.g. rights to services
or advowsons, as in ii, 13 and 15). Here, in cc. 5-8, ‘ res ’ or ‘ res mobilis ’
invariably means chattel, and is so translated; only chattels could be the
subject o f a testament, and the term came to include quasi-chattels or
‘ chattels real ’ such as marriages, wardships and terms o f years, all o f which
were devisable (P & M , n, 331). For an apparent contrast of* res mobilis ’
with ‘ catalla ’ see vii, 16 (p. 89, tt. 3).
 8o [V II, 5 - 6]
uoluntas secundum has sicut et secundum alias quaslibet
leges.
Mulier eciam sui iuris1 testamentum facere potest.®
Si uero fuerit in potestate3uiri constituta, nihil sine uiri
sui auctoritate eciam in ultima uoluntate de rebus uiri
sui disponere potest. Verumptamen pium esset et
F.as marito° ualde honestum / si rationabilem diuisam uxori
sue concessisset, scilicet usque ad terciam partem rerum
suarum quam uiua quidem optinuisset si maritum suum
superuixisset, ut plenius infra* liquebit: quod plerique
mariti facere solent, unde merito* commendabiles
efficiuntur.
Cum quis uero in infirmitate positus testamentum
facere uoluerit, si debitis non est inuolutus tunc omnes
res eius mobiles in tres partes diuidentur equales,
quarum una debetur heredi, secunda uxori; tercia
uero ipsi reseruatur, de qua tercia liberam habebit dis-
ponendi facultatem. Verum si sine uxore decesserit,
medietas ipsi reseruatur.' De hereditate uero nihil in
ultima uoluntate disponere potest sicut predictum est.*5
[6] Debet autem testamentum fieri coram duobus uel
pluribus uiris legitimis clericis uel laicis et talibus qui
testes inde fieri possint idonei. Testamenti autem exe-
cutores esse debent quos testator ad hoc elegerit et quibus
curam ipsam commiserit. Si uero testator nullos ad hoc
nominauerit, possunt propinqui et consanguinei ipsius
defuncti ad id faciendum se ingerere; ita quod si quem
uel heredem uel alium rerum defuncti reppererint'

“ Ln, Z \ merito L, B b Ln, B; marito L; om. Z

‘ de qua . . . reseruatur marg. Ln * reppcrierint Ln

1 i.e. unmarried, o f full age and under no disability.

8 See P & M , n, 428-9
 [VII, 5 - 6] 80

will of everyone ought to be free, according to these laws

as according to any others.
A woman offull capacity1may make a testament2; but
if she is in the power3 of her husband she may not,
without her husband’s authority, dispose of chattels
which are her husband’s, even in her last will. Yet it
would be truly kind and creditable in a husband were he
to allow his wife a reasonable division, namely up to that
third part of his chattels which, as will appear more
fully below,4 she would have obtained had she sur­
vived her husband; many husbands in fact do this,
which is much to their credit.
When anyone who is seriously ill wishes to make a
testament, then, if he is not burdened with debts, all
his chattels will be divided into three equal parts of
which one is due to the heir, and the second to his wife;
the third is reserved to himself, and he shall have free
power of disposition over this third; but if he dies
without leaving a wife, one half is reserved to him.
However, as was said above,5 he may not dispose of any
part of the inheritance in his last will.
A testament ought to be made in the presence [6]
of two or more lawful men, clerks or laymen, such as
may afterwards be proper witnesses of it. The executors
of the testament should be those whom the testator
chose for this purpose and charged with the business; but
if the testator named no-one for the purpose, then the
near blood relatives of the dead man may undertake it.
And if they find that anyone, whether the heir or
another, is detaining the chattels of the deceased, they

8i.e. married; an inaccurate reminiscence o f Roman law, in which

married woiren were, strictly, in manu and not in potestante.
* In the next paragraph 8 vii, I
 8i [VII, 6 -8 ]
detentorem, habebunt breue domini regis ad uicecomi-
tem directum in hec uerba:

Breue de faciendo stare rationabilem diuisatna

[7] Rex uicecomiti salutem. Precipio tibi quod iuste et
sine dilatione facias stare rationabilem diuisam N., sicut
rationabiliter monstrari poterit quod earn fecerit et quod
ipsa stare debeat. Teste etc’.1

D e placito de diuisis mortuorumh

[8] Si quis autem auctoritate huius breuis conuentus
aliquid dixerit contra testamentum, scilicet quod testa-
mentum ipsum»non fuerit recte* factum, uel quod res
petita non fuerit ita ut dicitur legata, tunc quidem
placitum inde in curia christianitatis audiri debet et
terminari; quia placitum de testamentis coram iudice
ecclesiastico tractari debet et per illorum qui testamento
interfuerunt testimonium secundum iuris ordinem ter­
minari.
Si uero fuerit debitis honeratus is qui testamentum
facere proponit, nihil de rebus suis extra debitorem
acquietationem preter sui heredis consensum disponere
potest. Verum si post debitorum acquietationem aliquid
residuum fuerit, tunc id quidem in tres partes diuidetur
modo predicto,* et de tercia parte suum ut dictum est
F.25 v faciat* testamentum. Si uero non sufficiant res/defuncti
ad debita ipsius persoluenda, tunc quidem heres ipse
defectum ipsum de suo tenetur adimplere. Ita dico si
habuerit etatem heres ipse.
• rubric “ * rubric * ‘ istud Ln
d Ln, Z\ rationabiliter L ,B • faciet Ln

1 Repeated in xii, 17; see P & M , 11, 332-4, for its early disappearance.
M . M . Sheehan, The Will in Medieval England, suggests at pp. 171-4 that
 [VII, 6 - 8] 8i
shall have a writ of the lord king directed to the sheriff
in the following words:

The writ fo r upholding a reasonable division

The king to the sheriff, greeting. I command you to [7]
uphold, justly and without delay, the reasonable divi­
sion made by N., if it can reasonably be shown that he
made it and that it ought to stand. Witness, etc.1

Pleas about divisions made by those deceased

If anyone who has been summoned by authority of [8]
this writ has anything to say against the testament, for
example, that it was not properly executed or that the
chattel claimed was not left as a legacy, as alleged, then
the plea about this ought to be heard and determined
in an ecclesiastical court, because pleas concerning
testaments ought to be dealt with before an ecclesiastical
judge and determined according to the course of law
by the evidence of those who were present at the making
of the testament.
If the would-be testator is burdened with debts, he
may not dispose of any of his chattels without his heir’s
consent, save in payment of his debts: but if any resi­
due is left after payment of debts, then this will be
divided into three parts in the manner described above,2
and he may make his testament from the third part, as
was said. If, however, the chattels of the deceased are
not sufficient to pay his debts, then the heir is bound to
make good the deficiency from his own property, at
least if he is of full age.

‘ they ’ in the last sentence of vii, 6 refers only to ‘ the near blood relatives ’
and that executors did not have this writ. ' vii, 5
 82 [V II, 9]
[g] Sunt enim quidam heredes de quibus constat
ipsos esse maiores, alii unde constat eos esse minores, alii
uero de quibus dubium est utrum sint maiores an
minores.

D e iure maiorum hereduma

Heredes uero maiores statim post mortem anteces­
sorumsuorum possunt se tenere in hereditate sua. Licet
enim domini possint feodum suum cum herede in manus
suas capere, ita tamen moderate id fieri debet ne aliquam
desaisinam heredibus faciant. Possunt enim heredes si
opus fuerit uiolentie dominorum resistere, dum tamen
parati sint releuium et alia recta seruicia eis inde facere.
Si uero constet eos esse minores, tunc tenentur
heredes ipsi esse sub custodia1 dominorum suorum
donee plenam habuerint etatem si fuerint heredes de
feodo militari, quod sit post uicesimum et unum annum
completum si fuerit heres et filius militis uel per feodum
militare tenentis: si uero filius uel heres» sokemanni,
etatem habere intelligitur tunc cum quintumdecimum
annum compleuerit: si uero fuerit filius burgensis,
etatem habere tunc intelligitur cum denarios discrete
nouerit numerare et pannos ulnare et alia negocia
paterna similiter« exercere. Plenam itaque custodiam
habent domini filiorum et heredum hominum suorum
et feodorum suorum ita quod plenam inde habent dis-
positionem, ut in ecclesiis in custodiis ipsis constitutis
concedendis, et in mulieribus si que in eorum custodiam
exciderint maritandis, et in aliis negociis disponendis
secundum quod propria negocia sua disponere solent.
Nihil tamen de hereditate de iure alienare possunt ad
remanenciam. Ita tamen quod heredes ipsos honorifice
pro quantitate hereditatis interim exhibeant, et debita
 [VII, 9] 82
Now some heirs are clearly of full age, and others [9]
are clearly minors; about others there is doubt whether
they are of full age or minors.

The law concerning heirs o f fu ll age

Heirs of full age may, immediately after the death
of their ancestors, remain in their inheritance; for
although lords may take into their hands both fee and
heir, it ought to be done so gently that they do no dis­
seisin to the heirs. Heirs may even resist the violence of
their lords if need be, provided that they are ready to
pay them relief and to do the other lawful services.
When, however, heirs are clearly minors, then, if they
are heirs of a military fee, they are kept in the wardship1
of their lords until they are of full age, that is, until
twenty-one in the case of the son and heir of a knight
or tenant of a military fee: the son or heir of a sokeman
is deemed of full age at fifteen, the son of a burgage
tenant when he can count money carefully, measure
cloth and generally do his father’s business. Lords,
then, have full custody of the sons and heirs of their
men, and of their fees, and may freely dispose of them—■
for example, by presenting to any churches or by marry­
ing any women falling into wardship, and by managing
any other business as they do their own—but they may
not lawfully alienate any of the inheritance perma­
nently. They must, moreover, maintain the heirs

a rubric <*
* filius uel heres Ln Z\ heres et filius L, R
‘ similia Ln

1 See p. 186
 % [VII, 9]
etiam defuncti pro quantitate hereditatis et temporis quo
illis custodia deputatur acquietent, unde et de debitis
antecessorum de iure respondere tenentur. Negocia
quoque ipsorum heredum agere possunt, et placita de
iure eis adquirendo mouere et prosequi si° omissa fuerit
de etate contra minorem exceptio. Respondere autem /
F.a6 non tenentur pro illis nec de recto nec de saisina nisi in
unico casu, cum quis minor habuerit custodiam minoris
post decessum patris sui: tunc enim si denegetur alii
hereditas sua cum maior factus fuerit, poterit inde habere
assisam et recognitionem de morte antecessoris sui, nec
pro etate domini minoris remanebit inde recognitio in
hoc casu.1 Si uero apelletur aliquis minor de felonia
aliqua, tunc attachiabitur per saluos et securos plegios;
sed dum fuerit infra etatem inde non tenebitur respon­
dere, sed demum factus maior.

D e restitutione hereditatum facienda>>

Restituere autem tenentur custodes hereditates ipsis
heredibus instauratas et debitis aquietas iuxta exigentiam
temporis custodie et quantitatis hereditatis.

Si uero dubium fuerit utrum fuerint heredes maiores

an minores, tunc procul dubio domini tam heredes quam
hereditates in custodia habebunt donee etas rationabili-
ter probetur per legales homines de uisneto et per
eorum sacramentum.

a se Ln
4 rubric Ln, (heredum) L, (hereditatis) Z

1 See also xiii, 15

 [VII, 9] 83
suitably according to the size of the inheritance, and
pay the debts of the deceased to an extent dependent on
the size of the inheritance and also on the time for which
they have the wardship—from which it follows that
they are liable also for the debts of ancestors. They may
also conduct the affairs of the heirs, and may initiate
and prosecute those pleas for the acquisition of rights
to which infancy is no defence. But they are not bound
to defend on their behalf, whether in matters involving
right or seisin, except in the single case where a minor,
after the death of his father, gets the wardship of a
minor; for then, if the inheritance is denied to that
minor when he comes of age, he may have an assize
and recognition of mort d’ancestor, nor in such a case
will the recognition stand over because of the age of
the lord who is a minor. 1 If a minor is appealed of a
felony, then he shall be attached by safe and reliable
sureties; he shall not, however, be bound to answer
while he is under age, but only when he comes of age.

The restoration o f inheritances

Guardians must restore inheritances to heirs in
good condition and free of debts, in proportion to the
duration of the wardship and the size of the inheritance.

If there is any doubt whether heirs are of full age or

minors, then it is clear that the lords shall have both
heir and inheritance in wardship until full age is
reasonably proved by the oath of lawful men of the
neighbourhood.
 84 [V II, i o - i i ]

D e custodia capitalium dominoruma

[10] Si uero plures habuerit dominos ipsi heredes sub
custodia constituti, capitales eorum domini, id est illi
quibus ligeanciam sicut de primis1 eorum feodis debent,
eorum habebunt custodiam; ita quod de ceteris feodis
et releuia et alia recta seruicia dominis ipsorum feodorum
facere tenentur, et sic custodia eis per totum sub forma
predicta remanebit. Notandum tamen quod si quis in
capite tenere debet de domino rege, tunc eius custodia
ad dominum regem plene pertinet siue alios dominos
habere debeat ipse heres siue non; quia dominus rex
nullum potest habere parem multo minus superiorem.
Verumptamen ratione burgagii tantum non prefertur
dominus rex aliis in custodiis.2 Si uero dominus rex
aliquam custodiam alicui commiserit, tunc distinguitur
utrum ei custodiam ipsam pleno iure commiserit ita
quod nullum compotum eum inde reddere oporteat ad
scaccarium, aut aliter. Si uero ita plene ei custodiam
commiserit, tunc poterit ecclesias uacantes donare et alia
negocia sicut sua recte* disponere.
D e iure heredum sochemannorumc
[11] Heredes uero sochemannorum mortuis antecessori-
bus suis in custodia consanguineorum suorum propin-
quiorum' erunt; ita tamen quod si hereditas ipsa ex
F.26v parte patris descenderit, ad con/sanguineos ex parte
matris descendentes custodia ipsa referatur. Sin autem
ex parte matris hereditas ipsa descenderit, tunc ad con-
sanguineos paternos custodia pertinet. Nunquam enim
a rubric a 4 iuste Ln <
■rubric *
J L, (corr. from propinquorum) Ln; propinquorum Z> B
1 i.e. oldest in time
5 Wardship by the king is discussed in the Dialogus, pp. 94-5, where
it is called ‘ escheat with heir.’ T he superior rights of the king in the matter
 [V II, 10 - II ] 84

The wardship o f chief lords

If heirs who are in wardship have several lords, then [10]
their chief lords, namely those to whom they owe
allegiance based on the first1 feoffment, shall have
wardship of their bodies; but in respect of their other
fees the heirs are bound to pay reliefs and do the
other lawful services to the lords of those fees, who will
thus have full wardship in the manner described above.
It should be noted, however, that if an heir holds in
chief of the lord king, then wardship belongs wholly to
the lord king whether or not he has other lords; for the
lord king can have no equal, much less a superior:
only in the case of burgage tenure is the lord king not
preferred to others in the matter of wardship.2 If the
lord king has committed a wardship to anyone, there is
a distinction according to whether he committed the
full right in that wardship to him, with no liability
to render an account of it at the Exchequer, or not; if
he did commit the wardship to him thus fully, then he
may present to churches falling vacant and duly con­
duct other affairs as he would his own.

The law concerning the heirs o f sokemen

The heirs of sokemen, on the death of their ancestors, [11]
will be in ward to their nearest blood relatives in the
following way: if the inheritance descends on the
father’s side, wardship is given to the blood relatives
descended on the mother’s side; but if the inheritance
descends on the mother’s side, then wardship belongs
to the paternal blood relatives. For, by law, wardship

of feudal incidents were set out in the probably apocryphal statute Pre-
rogativa Regis; see P & M , I, 3 n and 321, and (for later history) S. E. Thorne,
Prerogativa Regis (Yale 1949).
 85 [V II, II - 1 2 ]

custodia alicuius de iure alicui remanet de quo habeatur

suspicio quod possit uel uelit aliquod ius in hereditate
ipsa clamare.

De iure mulierum heredum*

[12] Mulier uero uel mulieres si heredes alicuius reman-
serint in custodia dominorum suorum remanent. Que
si infra etatem fuerint, in custodia erunt donee plenam
habuerint etatem, et cum habuerint etatem tenetur
dominus earum eas maritare singulas cum suis rationa-
bilibus portionibus. Si uero maiores fuerint, tunc quoque
in custodia dominorum suorum remanebunt donee per
consilium et dispositionem dominorum maritentur, quia
sine dominorum dispositione uel assensu nulla mulier
heres terre maritari potest de iure uel consuetudine
regni.
Vnde si quis filiam uel filias tantum habens heredem
in uita sua illam uel illas sine assensu domini sui mari-
tauerit, inde iuste iuxta ius et consuetudinem regni
perpetuo exheredatur, ita quod nihil inde de cetero
recuperare poterit nisi per solam misericordiam: et hoc
ea ratione, quia cum maritus ipsius mulieris heredis
alicuius homagium de tenemento illo facere teneatur
ipsi domino, requirenda est ipsius domini ad id facien­
dum uoluntas et assensus, ne de inimico suo uel alio
modo minus idonea persona homagium de feodo suo
cogatur recipere. Verum cum quis licentiam querat a
domino suo filiam et heredem suam alicui maritari,
tenetur dominus aut consentire aut iustam causam os-
tendere quare consentire non debeat. Aliter enim eciam
contra eius uoluntatem poterit mulier ipsa de consilio
patris sui et pro uoluntate libere maritari.
• rubric a
 [V II, II - 12] 85

of a person never goes to anyone who might be sus­

pected of being able, or of wishing, to claim any right
in the inheritance.

The law concerning women who are heirs

If a woman or women are left as heirs of anyone, [12]
they stay in ward to their lords. If they are under age
they will be in wardship until they come ofage, and when
they have come of age their lord is bound to marry
them off, each with her reasonable share. Even if they
are of full age, still they shall remain in ward to their
lords until they are married on the lords’ advice and
direction, because by the law and custom of the realm
no woman who is heir to land may be married without
the direction or consent of the lord.
Therefore, if anyone who has only a daughter or
daughters as heir marries off her or them in his lifetime
without the consent of his lord, he is rightly to be
disinherited for ever according to the law and custom of
the realm, and may not in future recover anything save
only as an act of mercy; the reason for this is that,
since the husband of the heiress is bound to do homage
to the lord for that tenement, the agreement and consent
of that lord is necessary for doing it, lest he be forced to
receive homage for his fee from an enemy or some
otherwise unsuitable person. However, when anyone
seeks licence from his lord to marry his daughter and
heir to another, the lord is bound either to consent
or to showjust cause why he should not consent; failing
this, the woman can be married freely on the advice of
her father and at her pleasure, even against the will of
the lord.
16
 86 [V II, 12]

Iuxta hoc quero si mulier aliqua dotem habens possit

alicui pro sua uoluntate preter assensum waranti sui
nubere, et si fecerit utrum totum ob id amittat? Non
enim uidetur quod ideo debeat dotem suam amittere,
cum maritus suus1 inde nullum homagium waranto suo
de iure et° consuetudine regni facere debeat sed cum
affidatione fidelitatem tantum, ne si ante mortem mariti
sui mulier ipsa moriatur homagium illud nullo tene­
mento retento periret. Tenetur tamen mulier cum
assensu waranti sui nubere aut dotem amittet, nisi
F.27 mulier ipsa aliam terram habeat de / maritagio uel
hereditate; tunc enim sufficit capitalis domini habere
assensum. Et hoc ideo sic obtinet non pro* homagio
sed pro alia fidelitate quam maritus domino inde
facere tenetur ut dictum est.
Si uero de feudo plurimorum dominorum fuerit
ipsa hereditas, tunc sufficiet requirere assensum capitalis
domini ad mulierem heredem maritandam.
In custodiis autem constitutis mulieres heredes si de
corporibus suis forisfecerint et hoc probatum fuerit,
tunc ille que deliquerint exheredabuntur, ita quod por-
tiones sue ceteris que non forefecerint accrescent. Si
uero omnes hoc modo deliquerint, tunc tota ilia here­
ditas ipsis dominis tanquam eskaeta2 remanebit. Ver-
umptamen si semel legitime nupte fuerint, tunc si uidue
facte fuerint postmodum non tenebuntur iterum sub
custodia dominorum esse, licet teneantur assensum
eorum requirere in se maritandis predicta ratione: nec
eciam tunc per earum incontinentiam hereditatem
amittent.

a uel Ln
* om. Ln
 [VII, 12] 86
On this point I have a question: may a woman who
has dower marry at her pleasure without the consent of
her warrantor, and, if she does so, will she lose every­
thing as a result? It does not seem that she ought
thereby to lose her dower, because, by the law and
custom of the realm, her husband1 need only do fealty
accompanied by an oath to her warrantor, and not
homage; for, if the woman should predecease her hus­
band, such homage would perish for lack of a tenement.
Notwithstanding this, the woman must marry with the
consent of her warrantor or she will lose her dower;
but if she has some other land as marriage-portion or
inheritance, then the consent of the chief lord is suffi­
cient, and this is so by reason not of homage but of that
fealty which, as was said, the husband must do to the
lord.
If the inheritance was in the fee of several lords,
then the consent of the chief lord is sufficient for marry­
ing the heiress.
If heiresses who are in wardship are guilty of in­
continence, and this is proved, then those who trans­
gressed shall be disinherited and their shares shall
accrue to those who did no wrong; but if they all trans­
gress in this way, then the whole inheritance shall
pass to the lords as an escheat.2 If they have once been
lawfully married, and subsequently become widows,
then they do not revert into the wardship of their lords,
though they must ask their consent to marry, for the
reason given above; nor will they then lose the in­
heritance by incontinence.

1 i.e. her second husband

‘ See p. go, n. i
 87 [V II, 12 - I 4 ]

Quod autem generaliter solet dici, quod putagium

hereditatem non adimit, illud intelligendum est de
putagio matris, quia filius heres legitimus est quem
[13] nupcie demonstrant. Heres autem legitimus nullus bas-
tardus nec aliquis qui ex legitimo matrimonio natus non
est esse potest. Verum si quis uersus alium hereditatem
aliquamtanquam heres petat, et alius eiobiciat quod inde
heres non possit eo quod ex legitimo matrimonio non sit
natus, tunc quidem placitum illud in curia domini regis
remanebit; et mandabitur archiepiscopo uel episcopo loci
quod de matrimonio ipso cognoscat, et quod inde
iudicauerit id domino regi uel eius iusticiis scire faciat, et
per hoc breue1:

Breue de bastardia•
[14] Rex archiepiscopo salutem. Veniens coram me in
puria mea W. peciit uersus R. fratrem suum quartam
partem feodi unius militis in ilia uilla sicut ius suum, et
in quo idem R. ius non habuit ut W. dicit eo quod ipse
bastardus fuit natus ante matrimonium matris ipsorum.
Et quoniam ad curiam meam non spectat cognoscere de
bastardia, eos ad uos mitto, mandans* ut in curia
christianitatis inde faciatis quod ad uos spectat. Et cum
loquela ilia debitum coram uobis finem sortita fuerit,
mihi literis uestris significetis quid inde coram uobis
actum fuerit. Teste Rannulfo de GlanuilP apud West-
monasterium.

« rubric “
t uobis mandans Ln
 [V II, 12 - 14] 87
The general rule that fornication does not take away
the inheritance refers to fornication by the mother; for
a son is a lawful heir if born of a marriage. However, [13]
no-one who is a bastard or not born of a lawful marriage
may be a lawful heir. If anyone claims, as heir, an
inheritance against another, and that other objects
against him that he cannot be heir because he was not
born of a lawful marriage, then the plea shall not
proceed in the court of the lord king; and the archbishop
or bishop of the place shall be ordered by the following
writ to enquire about the marriage, and to inform the
lord king or his justices of his judgment in the matter.1:

The writ o f bastardy

The king to the archbishop, greeting. W. has come [14]

before me in my court and claimed against R. his
brother the fourth part of one knight’s fee in such-and-
such a vill as his right, and in which W. alleges that the
said R. has no right because he is a bastard born before
their mother’s marriage. And, since enquiry about
bastardy does not pertain to my court, I send them to
you and order you to do your part in the ecclesiastical
court. And when that plea has been properly concluded
before you, you shall inform me by your letters what has
taken place before you in this matter. Witness Rannulf
Glanvill, at Westminster.

1 The context is an allegation o f bastardy bv the tenant, but the writ

which follows supposes that the demandant has made the allegation.
 88

F.27 "

[15] Circa hoc autem orta est questio: si quis antequam

matrem suam pater* desponsauerit fuerit genitus uel
natus,1 utrum talis filius heres sit legitimus cum postea
matrem suam desponsauerit? Et quidem licet secundum
canones8et leges romanas3talis filius sit heres legitimus,
tamen secundum ius regni et consuetudinem nullo modo
in hereditate tanquam heres sustinetur uel hereditatem
de iure petere potest. Sed orta super hoc contencione,
utrum scilicet genitus uel natus fuerit ante desponsati-
onem an post, discutietur illud ut dictum est4 coram
iudice ecclesiastico, et quod ab eo iudicatum fuerit idem
domino regi uel eius iusticiis scire faciet; ita quod
secundum quod iudicatum fuerit in curia christianitatis
de matrimonio, scilicet utrum fuerit ille qui hereditatem
petit natus uel genitus ante matrimonium contractum
uel post, in curia domini regis supplebitur de iudicanda
uel abiudicanda ipsi hereditate super qua contencio est,
ita quod per iudicium curie hereditatem ipsam obtinebit
uel clamium suum perdet.5
[16] Queri potest de bastardoe qui nullum heredem
habere potest nisi de corpore suo habuerit heredem, si
quis ei pro seruicio suo uel alio modo aliquam terram
donauerit et inde homagium suum receperit ita quod
in saisina eiusdem terre sine herede de corpore suo
“ rubric Ln, L, (Quin) Z b Z> & '> om- Ln, L 1 bastardio Ln

1 ‘ Natus ’ is invariable in common law records concerning bastardy

(see e.g. vii, 14); ‘ genitus ’ is an echo of Decretals, iv, 17, 6 (Alexander III)
which begins ‘ Tanta est uis matrimonii ut qui antea sunt geniti, post
contractum matrimonium, legitimi habeantur.’ In the present context
both words must mean ‘ born ’ ; common and canon law alike accepted the
legitimacy o f children conceived before, but born after, marriage o f the
parents. * See previous note
 [V II, 1 5 - 1 6 ] 88
When a man is deemed a rightful heir or
a bastard
A question has arisen on this subject: does a son [15]
who was born1 before his father married his mothei’
become lawful heir if his father afterwards marries his
mother? Now, although such a son is a lawful heir
according to canon2 and Romans law, yet, according
to the law and custom of the realm, he can in no way be
maintained in the inheritance as heir, nor may he law­
fully claim the inheritance. If there is a dispute as to
whether he was born before or after the marriage, this
is resolved, as was said,4 before an ecclesiastical judge,
who is to inform the lord king or his justices of his
judgment; so that the decision of the ecclesiastical
court concerning the marriage, namely whether he who
claims the inheritance was born before or after the
marriage was contracted, shall be used by the lord
king’s court in awarding or denying him the disputed
inheritance, and by the judgment of the court he will
either obtain the inheritance or lose his claim.®
A bastard can have no heir except an heir born of [16]
his body, and this gives rise to a question: if anyone
gives land to a bastard for his service, or in some other
way, and receives his homage for it, and the bastard
dies seised of the land without heir of his body, who

3 E n a ctm en ts from C o n stan tin e to Ju stin ian

4 vii, 13
6 T h e treatise says th at the ecclesiastical cou rts w ill co -o p erate w ith
th e ro y a l co u rt b y p ro n o u n cin g on th e sp ecial qu estion ‘ born before or
after th e m a rria g e ?’ In 1234-6 th ere c a m e a crisis w h en the c h u rc h d eclin ed
to a n sw er this sp ecial qu estion and the b aro n s refused in the m e m o ra b le
‘ N o lu m u s ’ to c h a n g e the law s o f E n g la n d : th ereafter g e n era l b a sta rd y
(‘ is h e a ba stard ?’) w e n t to th e ecclesiastical c o u rt a n d special ba stard y
(‘ born before o r a fter the m a rria g e ?’) w as tried b y a ju r y in th e ro y al
co u rt. See P & M , I, 127 a n d 11, 396-9; F. W . M a itla n d , Bracton’s Note Book,
1 (C a m b rid g e 1887), 104-16.
 89 [VII, 16]
obierit, quis ei de iure succedere debeat; quia dominus
non, predictis1 rationibus.a
Cum quis uero intestatus2 decesserit, omnia catalla
sua sui domini esse intelliguntur. Si uero plures habuerit
dominos, quilibet eorum catalla sua recuperabit que in
suo feodo reperiet. Vsurarii uero res omnes, siue testatus
siue intestatus decesserit, domini regis sunt. Viuus autem
non solet aliquis de crimine usurarum* apellari nec
conuinci; sed inter ceteras regias inquisitiones solet
inquiri et probari aliquem in tali crimine decessisse per
duodecim legales homines de uisneto et per eorum
sacramentum. Quo probato in curia, omnes res mobiles
et omnia catalla que fuerunt ipsius usurarii mortui ad
opus* domini regis capientur, penes quemcumque res
ille inueniantur.3 Heredes quoque ipsius hac eadem de
causa secundum ius regni exheredantur, et ad dominos
feodi uel ad dominum reuertetur hereditas.4 Sciendum
F.a8 tamen quod si quis aliquo tempore / in uita sua usura-
rius fuerit et super hoc in patria publice diffamatus, si
tamen a delicto ipso ante mortem ipsius destiterit et
penitenciam egerit, post mortem ipsius ille uel res eius
lege usurarii minime censebuntur. Oportet ergo con-
stare quod usurarius decesserit aliquis ad hoc, ut de eo
tanquam de usurario post mortem ipsius iudicetur et de
rebus ipsius tanquam de rebus usurarii disponatur.

“ non predictis rationibus L, Z\ predictis rationibus non succedet Ln

busurarii Ln
‘ Ln, Z\ ususL, B
1 He cannot be both lord and heir; vii, I.
* For intestacy see P & M , n, 356-63.
* The rule giving the chattels to the king probably dates from about
1170; see H. G. Richardson, ‘ Richard fitz Neal and the Dialogus de
Scaccario,’ E.H.R. x liii (1928), 333-6. The Dialogus, pp. 98-100, says
 [V II, 16] 89

ought by law to succeed him? The lord cannot, for the

reasons given above.1
When anyone dies intestate* all his chattels go to his
lord, and, if he had several lords, each shall take those
chattels which he finds in his fee. All the chattels of a
usurer, however, whether he dies testate or intestate,
go to the lord king. No living person can be appealed or
convicted of the crime of usury, but among the royal
inquests there is one directed to enquiring and proving
by the oath of twelve lawful men of the neighbourhood
whether someone died guilty of this crime. When this
has been proved in court, all the movables and chattels
which belonged to the dead usurer, no matter who has
possession of them, shall be seized to the use of the lord
king, s Moreover, according to the law of the realm, the
heirs of the usurer shall, for the same cause, be dis­
inherited and the inheritance shall revert to the lords
or lord of the fee.* It should be known, however, that
if anyone is at any time in his life a usurer, and notor­
iously so reputed in the district, but desists from the
offence and does penance before his death, he and his
goods will escape the censure of the usury laws after
his death. Therefore, for a man to be adjudged a usurer
after his death and for his goods to be dealt with as the
goods of a usurer, it is necessary to be certain that he
died a usurer.

‘ pecunia eius et omnia mobilia ’ will be confiscated; the treatise says * res
omnes ’ and then ‘ omnes res mobiles et omnia catalla all these expression
seem to mean ‘ all chattels ’ : cf. p. 79, n. 6.
* For a slightly different rule, see the Dialogus, p. 99.
 90 [VII, i7]
D e ultimis heredibus«
[i 7] Vltimi heredes aliquorum sunt eorum domini. Cum
quis ergo sine certo herede moritur, quemadmodum sine
filio uel filia uel sine tali herede de quo dubium non sit
ipsum esse heredem propinquiorem et rectum, possunt et
solent domini feodorum feoda ilia* in manus suas tan­
quam eschaetas1 suas capere et retinere, quicumque sint
domini, siue scilicet rex siue alius. Preterea uero si quis
ueniens dicat se inde heredem rectum, si per misericor-
diam domini sui uel per preceptum domini regis hoc
impetrare poterit, inde placitabit, et sic si quod ius inde
habuerit disrationare poterit; ita tamen quod interim
terra ilia«in manu domini feodi remaneat, quia quo-
tienscumque dubitauerit aliquis dominus de herede
tenentis sui utrum sit rectus heres an non, terram ipsam
tenere poterit donee hoc legitime illi constiterit. Idem
quoque dictum est supra2 de herede ubi dubium est
an sit maior an minor. In hoc tamen est differentia,
quod in uno casu intelligitur interim hereditas ilia quasi
eskaeta ipsius domini, in alio uero casu non intelligitur
esse sua nisi de custodia. Sin autem nullus appareat qui
hereditatem ipsam tanquam heres requirat, tunc ipsi
domino remanet hereditas ilia eskaeta ad permanenciam,
ita quod de ilia disponere potest sicut de sua propria
ad libitum suum.
Preterea si mulier aliqua heres alicuius in custodia
domini sui deuenerit, si de corpore suo forisfecerit, here­
ditas sua domino suo pro delicto ipsius remanet eskaeta.
Preterea si quis de felonia conuictus fuerit uelrfconfessus
in curia, eo per ius regni exheredato terra sua domino

a rubric a 4 feoda ilia : feodum illud Ln

‘ om. Ln JB: et “
 [V II, 17 ] 90
Ultimate heirs
The ultimate heir of any person is his lord. When, [17]
therefore, anyone dies without a certain heir—for
example, without son or daughter or anyone who is
without doubt the nearest and right heir—the lords of
the fees may, as the custom is, take and keep those fees
in their hands as their escheats,1 whether such lord is
the king or someone else. If anyone later comes and
says that he is the right heir, and is allowed by the
grace of his lord or by a writ of the lord king to pursue his
claim, he shall sue and may recover such right as he
may have; but the land shall meantime stay in the
hand of the lord of the fee, because whenever a lord is
uncertain whether the heir of his tenant is the right
heir or not, he may hold the land until this is lawfully
proved to him. The same rule was laid down above2
in the case where there is uncertainty as to the full age
or minority of an heir; but there is this difference, that
in the one case the inheritance is meanwhile considered
as if it were the escheat of the lord, whereas in the other
case it is his only in wardship. However, if no-one
appears and claims the inheritance as heir, then it
remains perpetually with the lord as an escheat, and so
he may dispose of it, as of his own property, at his
pleasure.
Moreover, if an heiress is in ward to her lord and is
guilty of incontinence, her inheritance escheats to her
lord because of the offence. Again, if anyone is convicted
of or confesses a felony in court, he is disinherited by tha
law of the realm and his land escheats to his lord. It
1 On escheat see P & M, I, 351-2 and 11, 22-3; cf. the Dialogus, pp. 94-
103, for the four classes of escheat to the crown in the Exchequer.
' vii, 9
 91 [VII, i 7]
suo remanet eskaeta. Notandum tamen quod si de
domino rege in capite tenuerit, tunc tam terra quam
omnes res mobiles sue et catalla penes quemcumque*
inuenta fuerint ad opus domini regis capientur sine
F.28 v omni recuperatione / alicuius heredis. Sin autem de
alio quam de rege tenuerit is qui utlagatus est uel de
felonia conuictus, tunc quidem omnes res sue* mobiles
domini regis erunt; terra quoque per unum annum in
manu domini regis remanebit: elapso autem anno,
eadem ad rectum dominum, scilicet ad ipsum de cuius*
feodo ipsa est, reuertetur, uerum cum domorum sub-
uersione et arborum exstirpatione. Et generaliter quo-
tienscumque aliquis aliquid fecerit uel dixerit in curia
propter quod per iudicium curie exheredatus fuerit,
hereditas eius ad dominum feodi de quo ille tenet tan­
quam eskaeta solet reuerti. Forisfactum autem filii et
heredis alicuius patrem non exheredat neque fratrem
neque alium quam seipsum. Preterea si de furto fuerit
aliquis condempnatus, res eius mobiles et omnia catalla
sua uicecomiti prouincie remanere solent; terram autem
si quam habuerit dominus feodi recuperabit statim, non
expectato anno.
Cum quis uero per legem terre fuerit utlagatus et
postmodum beneficio principis paci restitutus, non pot­
erit ea ratione hereditatem si quam habuerit ille uel
heredes sui uersus dominum suum nisi ex misericordia
ipsius domini et beneficio recuperare. Forisfactum enim
et utlagariam solet dominus rex dampnatis remittere,
nec tamen aliena iura ideo querit infringere.

* penes quemcumque: penescumque Ln

* om. Ln
‘ de cuius con. from decus Ln
 [VII, 17] 91
should be noted that, if he held in chief of the lord king,
then not only his land but also all his movable goods and
chattels, whoever is in possession of them, shall be
seized to the use of the lord king, with no right of re­
covery for his heir. But if the outlaw or convicted felon
held ofsomeone other than the king, then all his movable
goods shall go to the king; his land also will remain in
the hand of the lord king for a year, but when the year
is up it shall revert to the right lord, that is to him in
whose fee it is, subject to the king’s right to pull down
houses and root up trees. To put it generally, whenever
anyone does or says anything in court for which he is
disinherited by judgment of the court, his inheritance
escheats to the lord of the fee from whom he holds it.
However, forfeiture incurred by a son and heir does not
disinherit his father, or brother, or anyone other than
himself. Further, if anyone is convicted of theft, all his
movable goods and chattels go to the sheriff of the
county, but the lord of the fee will immediately recover
his land, if he has any, without waiting for a year.
If anyone has been duly outlawed and later restored
to the peace by royal favour, neither he nor his heirs
may on that account recover from their lord any in­
heritance which he had, except by grace and favour of
the lord; for the lord king does not wish, when par­
doning wrongdoing and outlawry, to infringe thereby
the rights of others.
 92 [V II, 18]
Distinctio maritagioruma
[i 8] Maritagium1 autem aliud nominatur liberum aliud4
seruicio obnoxium. Liberum dicitur maritagium quando
aliquis liber homo aliquam* partem terre sue dat cum
aliqua muliere alicui in maritagium, ita quod ab omni
seruicio terra ilia sit quieta et a se et heredibus suis
uersus capitales dominos acquietanda. Et in hac quidem
libertate ita stabit terra ilia usque ad tercium heredem,
nec interim heredes tenebuntur homagium aliquod inde
facere. Post secundum uero heredem ad debitum seru­
icium terra ipsa reuertetur et homagium inde capietur,
quia si fuerit pars feodi militaris pro quantitate terre
seruicium feodi inde prestabit.
Solet autem quandoque dari terra aliqua in mari­
tagiumd saluo et retento debito seruicio ipsi domino, et
tunc quidem tenebuntur maritus ipsius mulieris et here­
des sui seruicium illud facere sed sine homagio usque ad
tercium heredem. Tercius uero heres primo inde faciet
homagium et omnes heredes sui postmodum. Alia
F.29 tamen / fidelitas sub fidei uel sacramenti interpositione
a mulieribus uel earum heredibus interim fere sub eadem
forma et eisdem uerbis quibus homagium solet fieri
prestari debet.
Cum quis itaque terram aliquam cum uxore sua in
maritagium ceperit, si ex eadem uxore sua heredem
habuerit filium uel filiam clamantem et auditum infra
quatuor parietes, si idem uir uxorem suam superuixerit,
a rubric “ 4 Z> B; est add. Ln, L c quartam Z
maritagio Ln
1 For the maritagium see P & M, ii, 15-19 and Concise History, pp. 546-57.
The gift is usually for life to a husband, or to his wife, or to the two jointly,
and then to a prescribed class of their heirs, failing whom the land reverts
to the donor. The words used at the beginning of the first and third para­
graphs suggest a gift to the husband (so Concise History, p. 546); but the
discussion of the husband’s rights after his wife has died, and the reference
 [VII, 18] 92
The kinds o f marriage-portion
A marriage-portion* may be called free (frank- [18]
marriage), or liable to service. It is called frank-
marriage when a free man gives some part of his land
to another with a certain woman in marriage, on con­
dition that the land shall be free of all service, which
shall be discharged by the donor and his heirs to the
chief lords. The land shall remain free in this way until
the third heir, nor shall the heirs meanwhile be bound
to do homage for it. However, after the second heir the
land shall again be liable for the service due from it,
and homage shall be taken for it; and, if it is part of a
military fee, it will bear the service of the fee in pro­
portion to its size.
Sometimes, however, land is given in marriage
saving and reserving to the lord the service due, in
which case the woman’s husband and his heirs are
bound to do that service, but without homage until
the third heir; he will be the first to do homage for it,
and all his heirs subsequently shall do it. Yet a kind of
fealty, in which a solemn promise or oath is inserted,
ought until then to be sworn by the women or their
heirs, in nearly the same form and words as are used
in the doing of homage.
When anyone receives land as a marriage-portion
with his wife and has by that wife an heir, whether son
or daughter, who is heard to cry within the four walls,
then, if the husband survives his wife, he shall keep that

to the second husband are only intelligible in the context of a gift to the
wife (so P & M, 11, 420, n. 1). Limitations on the donee’s right to alienate
were vital to the heirs and the reversioner; the treatise does not discuss
this, but the problem was canvassed throughout the thirteenth century and
led to the famous statute De Donis (Westminster II, 1285, c. 1).
 93 [VII, 18]
siue uixerit heres ipse siue non, illi in uita sua remanebit
maritagium illud, post mortem uero eius ad donatorem
uel ad heredes suos reuersurum.1 Sin autem nullum
unquam ex uxore sua" habuerit heredem, tunc statim
post mortem uxoris ad donatorem uel ad* eius heredes
maritagium*reuertitur. Et hec est quedam causa quare
de maritagio tali non solet recipi homagium. Si enim sic
donata esset terra aliqua in maritagium uel alio modo
quod inde reciperetur homagium, tunc nunquam de
cetero ad donatorem uel ad eius heredes licite posset
reuerti, ut supra dictum est. Si uero secundum habuerit
uirum mulier ipsa, idem iudicium erit de secundo quod
dictum est de primo, si heredem reliquerit primus siue
non.
Cum quis autem terram aliquam de maritagio sue
uxoris petit uel mulier ipsa uel eius heres, tunc distingui-
tur utrum terra ilia petatur uersus donatorem uel eius
heredem, uel alium extraneum; quia si uersus donato­
rem uel eius heredem petatur, tunc in electione petentis
esse poterit utrum inde placitare uoluerit in curia
christianitatis uel in curia seculari. Spectat enim ad
iudicem ecclesiasticum placitum de maritagio tractare
si pars petentis hoc elegerit, propter mutuam affidati-
onem que fieri solet quando aliquis promittit se ductur-
um aliquam mulierem et ei maritagium promittitur ex
parte mulieris; nec per curiam domini regis defendetur
placitum illud in curia christianitatis licet de laico feodo
sit, si constiterit quod petatur ad maritagium.*

“ suo Ln om. Ln ‘ maritus Ln

* Assuming that the heir has not survived; if he has, the land descends
to him. The husband’s right is called tenancy by the curtesy. In the
thirteenth century and thereafter it gave to the husband (and even to a
 [VII, 18] 93
marriage-portion for the rest of his life, whether the
heir survives or not; after the husband’s death it shall
revert to the donor or his heirs, i But if he had at no
time any heir by his wife, then the marriage-portion re­
verts to the donor or his heirs immediately on the death
of the wife. This partly explains why homage is not
taken for such a marriage-portion, because if homage
were taken for land given as a marriage-portion or in
any other way, then it could never lawfully revert in the
future to the donor or his heirs in the way stated above.
If the woman has a second husband, the same rule applies
to him as was given above for the first husband, whether
the latter left an heir or not.
When anyone claims land as the marriage-portion
of his wife, or when the woman herself or her heir
claims it, a distinction is drawn according to whether
the land is claimed against the donor or his heir, or
against a stranger. If it is claimed against the donor
or his heir, then the demandant can choose whether he
will sue in an ecclesiastical or a secular court. The eccles­
iastical judge has jurisdiction to try a plea concerning
a marriage-portion, if the demandant so chooses, be­
cause of the mutual pledges of faith which are made
when a man promises to marry a woman and a marriage-
portion is promised to him in respect of the woman; nor
will such a plea in an ecclesiastical court be prohibited
by the lord king’s court, although it concerns lay fee,
if it is clear that the fee is claimed as marriage-portion.*

second husband) a life interest in all his deceased wife’s lands, which pre­
vailed against both lord and heir. T he treatise mentions it only in respect
of the wife’s maritagium, but probably it already extended to the wife’s
inherited land at this date; see P & M , n, 414-20, esp. 420, n. 1.
* O n the question of jurisdiction, see p. 191.
 94 [VII, 18 : VIII, 1-2]
Si uero uersus extraneum petatur, tunc in laica curia
terminabitur» placitum illud eodem modo et ordine quo
de aliis laicis* feodis placitari solet, illo tamen obseruato
quod sine waranto inde placitare non debet, sicut
suprai de dotibus dictum est; et ad similitudinem
placiti de dotibus quantum ad warantum pertinet inde
placitari potest, et que ibi dicta sunt quantum ad hunc
F.29 v articulum hie locum / habent. Sciendum tamen quod
tercius heres cum iam suum inde fecerit homagium, sine
waranti auctoritate placitare potest.£

[LIBER VIII]
D e concordia facta in curia domini regis*2
[1] Contingit autem multociens loquelas motas in curia
domini regis per amicabilem compositionem et finalem
concordiam terminari, sed ex consensu et licentia
domini regis uel eius iusticiarum, undecumque fuerit
placitum, siue de terra siue de aha re. Solet autem
concordia talis plerumque in scripturam communem et
per communem consensum parcium redigi, et per illam
scripturam coram iusticiis domini regis in bancho resi-
dentibus recitari, et coram eis utrique parti sua scriptura
per omnia alii concordans liberari. Erit autem scriptura
sub hac forma facta:

Cyrographum •
[2] Hec est finalis concordia facta in curia domini regis
apud Westmonasterium in uigilia beati Andree Apostoli
• tractabitur Ln 4 om. Ln
CB; non potest a d rubric a
* rubric *
1 vi, 8 ' See p. 187
 [VII, 18 : VIII, 1-2] 94
On the other hand, if the land is claimed against a
stranger, then the plea shall be determined in a lay
court in the same manner and order as is customary in
pleading about other lay fees, but with the reservation
that, as was stated abovei in the case of dower, the de­
mandant ought not to plead without the warrantor. So
far as it concerns the warrantor the plea should proceed
in the same way as a plea of dower, and what was said
there on the point applies here. It should be known,
however, that when the third heir has done his homage
for the land he may plead without the authority of the
warrantor.

[BOOK VIII]
Concords made in the lord king's court2
It often happens that cases begun in the lord king’s [i]
court are ended by amicable composition and final
concord subject to the consent and licence of the lord
king or his justices, whether the plea concerns land
or something else. Such a concord is generally, by
common consent of the parties, written down in a
chirograph, and the written terms read over to the lord
king’s justices sitting on the bench, in whose presence
there is delivered to each his own part of the chirograph,
which is identical with the other part. The chirograph
will be in the following form:

Chirograph
This is the final concord made in the court of the [2]
lord king at Westminster on the vigil of the blessed
 95 [VIII, 2 - 3]
anno regni regis Henrici Secundi tricesimo tertio,
coram Rannulfo de Glanuill’'1 iusticia domini regis et
H. et R. et Rodberto et CM et aliis fidelibus domini
regis qui ibi' tunc aderant, inter priorem et fratres
Hospitalis de Ierusalem et Willelmum filium Normanni,
per Alanum filium suum quem ipse attornauit in curia
domini regis ad lucrandum uel perdendum, de tota terra
ilia et de pertinentiis excepta una bouata terre et tribus
toftis* que ipse Willelmus tenuit, de qua terra tota
excepta bouata predicta et tribus toftis* placitum fuit
inter eos in curia domini regis: scilicet quod predictus
Willelmus et Alanus concedunt et testantur donationem
quam Normannus pater ipsius Willelmi ipsis inde fecit,
et illam terramtotamquietam clamant de se et heredibus
suis domui hospitalis et prefato priori et fratribus in
perpetuum, excepta una bouata terre prefata et tribus
toftis/ que remanent ipsi Willelmo et Alano et heredibus
suis tenenda de domo hospitalis et prefato priore et
fratribus in perpetuum per liberum seruitium quatuor
denariorum per annum* pro omni seruitio. Et pro hac
concessione et testificatione et quieta clamantia prefatus
prior et fratres hospitalis dederunt ipsi Willelmo et
Alano centum solidos esterlingorum.
Vel sic:

Aliusmodi cyrographumH
[3] Hec est finalis concordia facta in curia Galfridi filii
Petri et postmodum recordata in curia domini regis ibi
“ et add. Ln
4 et Rodberto et O. Ln, Z> etc’ L; et W. et O . B
‘ om. Ln d tostis Ln • tostis Ln
/tostis Ln f per annum interim. Ln
h rubric Ln, L; Alteriusmodi cirographum Z

1 29 November 1187; see p. 188

 [VIII, 2 - 3] 95
Andrew the Apostle in the thirty-third year of the reign
of King Henry the Second,1 in the presence of Rannulf
Glanvill, justiciar of the lord king, and H. and R. and
Robert and O. and other faithful subjects of the lord
king who were present there at that time, between the
prior and brethren of the Hospital of Jerusalem and
William son of Norman, acting by Alan his son, whom
he appointed in the court of the lord king as his attorney
to win or to lose, concerning all the land and its appur­
tenances which the said William held (except one
bovate of land and three tofts); concerning all which
land (except the said bovate and the three tofts) there
was a plea between them in the court of the lord king;
namely that the aforesaid William and Alan concede
and attest the gift which Norman father of the said
William made to them, and they quit-claim all that
land perpetually from themselves and their heirs to the
Hospital and the aforesaid prior and brethren (except
for the aforesaid bovate of land and three tofts which
remain to the said William and Alan and their heirs,
to be held perpetually of the Hospital and the aforesaid
prior and brethren by the free service of fourpence
a year for all service). And for this concession, attesta­
tion and quit-claim the aforesaid prior and brethren
of the Hospital have given to the said William and Alan
one hundred shillings sterling.
Or it may be as follows:

Another kind o f chirograph

This is the final concord made in the court of [3]
Geoffrey fitz Peter, and afterwards recorded in the
court of the lord king in a certain place on the Monday
96 [V III, 3]
anno regni regis Henrici Secundi tricesimo tertio die
Iune proxima post festum Apostolorum Symonis et
Iude,1 coram G. Eliensi et I. Norwicensi episcopis et
Rannulfo de Glanuilla / iusticia* domini regis et aliis
fidelibus et familiaribus domini regis ibi tunc presentibus,
inter predictum Galfridum filium Petri et R.J filium
Reineri, de aduocatione ecclesie Omnium Sanctorum
de Soldeham et de communi pastura de HeddonV unde
contencio fuerat inter eos: scilicet quod predictus
Rogerus recognouit predicto Galfrido sicut ius suum
aduocationem predicte ecclesie, et quietum clamauit de
se et heredibus suis predicto Galfrido et heredibus suis
in perpetuum, si quid iuris in aduocatione predicte
ecclesie habuerit. Preterea predictus Rogerus quietam
clamat predicto Galfrido communam de Heddon’*' et
omnes purpresturas quas Galfridus fecerat in Soldeham
in fruisseto et molendinis et toftis' et turbariis de Solde­
ham, unde ipse Rogerus nihil retinet nisi quod opus erit
ad comburendum sibi et hominibus suis/ sine aliqua
uenditione; et omnes faldas forinsecas excepta sua pro­
pria; et precarias carucarum forinsecarum; et consue-
tudines gallinarum et ouorum. Et pro hac concordia et
quieta clamancia dedit predictus G. sepedicto R. uiginti
marcas argenti.
Dicitur autem concordia talis finalis eo quod negocio
finem imponit, adeo quod neuter litigancium ab ea de
cetero poterit recedere. Alterutro enim non tenente uel
non faciente quod conuenit et altera parcium inde se

“ Iusticiia Ln 4 R ic. Ln
‘ Ln; Hedone L, Hedune U
d Ln\ Hedone L; Hedune Hedun’ B ‘ tostis Ln
/sibi . . . suis: in domo sua et heredibus suis B

1 a November 1187; see p. 188

 [VIII, 3] 96

after the feast of the Apostles Simon and Jude in the

thirty-third year of the reign of King Henry the Second,1
in the presence of G[eoffrey] bishop of Ely and J[ohn]
bishop of Norwich and Rannulf Glanvill, justiciar of
the lord king, and other faithful subjects and members
of the royal household who were present there at the
time, between the aforesaid Geoffrey fitz Peter and
R[oger] the son of Reiner, concerning the advowson
of the church of All Saints at Shouldham and common
of pasture in Heddon which had been the subject of a
dispute between them; namely that the aforesaid
Roger acknowledged to the aforesaid Geoffrey, as his
right, the advowson of the aforesaid church, and quit­
claimed in perpetuity from himself and his heirs to the
aforesaid Geoffrey and his heirs any right he might have
in the advowson of the aforesaid church. Furthermore,
the aforesaid Roger quit-claims to the aforesaid Geoffrey
the common of pasture in Heddon; and all the en­
croachments which Geoffrey had made on the uncul­
tivated land and mills and tofts and turbaries of Should­
ham, of which Roger keeps nothing except what will be
necessary for him and his men as fuel but not for
sale; and all the sheep-folds outside the manor, except
those reserved for his personal use; and the boon-works
of ploughing outside the manor; and the customary
dues of hens and eggs. And for this concord and quit­
claim the aforesaid G[eoffrey] gave the aforesaid
R [oger] twenty marks of silver.
A concord of this kind is called final because it puts
an end to the matter, so that neither litigant may in
future depart from it. If one party does not keep to, or
perform, what he agreed, and the other party complains
 97 [VIII, 3 ■ 5]
conquerente, precipietur uicecomiti quod ponat ilium
per saluos plegios quod® sit coram iusticiis domini regis
inde responsurus quod finem ilium non tenuerit. Ita
dico si alius uicecomitem securum fecerit de clamore suo
prosequendo.

Breue de fine facto in Juria domini regis non

obseruatobl
[4] Rex uicecomiti salutem. Precipe N. quod iuste et
sine dilatione teneat finem factum in curia mea inter
ipsum et R. de una hida terre in ilia uilla, unde placitum
fuit inter illos in curia mea. Et nisi fecerit et predictus
R.«fecerit te securum de clamore suo prosequendo, tunc
pone eum per uadium et saluos plegios quod sit coram
me uel iusticiis meis eo die ostensurus quare non fecerit.
Et habeas ibi hoc breue. Teste etc’.

Quid iuris sit de eo quem constat finem factum in

curia domini regis infregisse*
[5] Die autem statuta si neque uenerit neque se essoni-
auerit, uel si post tria essonia neque uenerit neque res­
ponsalem miserit, quid sit tunc faciendum patet per
ilium tractatum qui supra2 positus est de loquelis per
plegios attachiatis' et per primum tractatum./
P.30D Vtroque uero presen/te in curia, si scripturam con-
cordiam inter se factam continentem utraque pars
recognouerit, uel si per iusticias domini regis coram
quibus concordia ipsa facta fuit concordiam talem esse
a qui Ln b rubric «
CZ , B; N. Ln, L d rubric Ln, Z> (fregisse) L
• per ilium tractatum . . . attachiatis so “ (per plegios om. Z> interlin.
Ln) and B f librum B
1 cf. Stenton, nos. 3498 and 3526, and comment, ibid. p. 16.
*»»31
 [VIII, 3 - 5] 97
of this, the sheriff shall be ordered to put him under
safe sureties to be before the justices of the lord king to
answer for his failure to keep the fine (I assume here
that the other party has given the sheriff security for
prosecuting his claim).

The writ where a fine made in the court

o f the lord king has not been observed,1
The king to the sheriff, greeting. Command N. to
keep, justly and without delay, the fine made in my court
between him and R. in respect of one hide of land in
such-and-such a vill, concerning which there was a
plea between them in my court. If he does not do so,
and if the aforesaid R. has given you security for pro­
secuting his claim, then put him under gage and safe
sureties to be before me or my justices on a certain day
to show why he has not done so. And have there this
writ. Witness, etc.

What the law is when anyone is shown to

have broken a fine made in the court o f the
lord king
The procedure to be followed if he neither comes nor
essoins himself on the appointed day, or if he neither
comes nor sends an attorney after three essoins, appears
above2in the treatise concerning suits involving attach­
ments, and throughout the first treatise.
When, however, both are present in court, if both
acknowledge the document which contains the concord
made between them, or if the justices of the lord king
before whom the concord was made duly bear witness
98 [V H I, 5]
ut proponitur< >in curia per* eorum recordum recte
fuerit testatum, tunc is qui concordiam ipsam infregit
remanebit in misericordia domini regis; et saluo attach-
iabitur donee bonam securitatem inuenerit quod con­
cordiam ipsam de cetero seruabit, faciendo scilicet quod
conuenit si id possibile sit uel alias rationabile grantum
aduersarii faciendo. Necesse est enim quod id quod
aliquis in curia domini regis coram domino rege uel
eius iusticiis recognouerit, uel quod se facturum in
manum ceperit, teneat is qui id cognouit uel in manum
cepit. Si uero facta fuerit concordia talis super placito
terre, tunc is qui in curia conuictus fuerit uel confessus
finem ipsum legitime non obseruasse si tenens fuerit
terram ipsam eo ipso amittet; sin autem, loquelam
suam.
Sin autem et partes ipse una uel utraque cyrographo
communi' contradixerit, tunc sumonebuntur eedem
iusticie quod sint die que ad id eis prefigetur in curia, ad
recordandunu in curia quo modo loquela ilia que fuit
coram eis in curia domini regis inter ilium et ilium de
tanta terra in uilla ilia quam ille clamauit uersus ilium
remansit; et si illi inde coram eis per eorum licenciam
concordati fuerint, sub qua forma concordia ilia facta
fuerit. Verum distinguendum est utrum concordia ipsa
facta fuerit in capitali curia domini regis an coram
iusticiis errantibus.*'2 Quia si coram iusticiis itineranti-
bus facta fuerit, tunc ita sumonebuntur quod sint cum
“ ut proponitur ed.; ut proponit Z> proponitur Ln, L, B
b et hoc per B ‘ omnium Ln ll itinerantibus B

1 Two points about record should be kept in mind. Record is not

synonymous with writing; the record will often be oral, and even in courts
which keep written rolls the oral testimony of judges may prevail over the
writing. Moreover, the record o f a court which ‘ has record ’ is not necess­
arily incontrovertible; the treatise makes this clear. O n cc. 5-11 see P & M,
 [VIII, 53 98

by their record that the concord was in the form alleged

in court, then he who broke the concord shall be liable
to amercement by the lord king; and he shall be im­
prisoned until he finds good security for keeping the fine
in future, either by performing his undertaking if that
is possible or else by making reasonable satisfaction to
the other party. For it is necessary that he who ack­
nowledges something or undertakes to do something
in the court of the lord king before the lord king or
his justices should keep to his acknowledgment or
undertaking. If the concord was made in respect of a
plea of land, then the party who is convicted in court,
or who confesses that the fine was not duly observed,
shall, if tenant, thereby lose the land; if not tenant, he
shall lose his case.
But if one or both of the parties challenges the
chirograph, then the same justices shall be summoned
to be in court, on a day appointed them for the purpose,
to record1 in court the outcome of the plea which was
before them in the court of the lord king between one
party and the other concerning somuch land in such-and-
such a vill which the one claimed against the other, and,
if the parties by their licence and in their presence came to
an agreement in the matter, what form the concord took.
A distinction must be made between a concord made
in the chief court of the lord king and one made before
itinerant2justices. For if it was made before itinerant

ii,669-70 and S. E. Thom e, ‘ Courts of Record and Sir Edward Coke,’

Toronto Law Journal, n (1937-8), 24-35 and ‘ Notes on Courts of Record in
England,’ West Virginia Law Quarterly, x l (1934),347-59; Woodbine,pp.238-
45, has full notes.
* The ambiguous * errantibus ’ invited word play (Dialogus, p. 77, n. 3)
and soon went out of use.
 99 [V H I, 5 - 71
quibusdam discretis militibus de illo comitatu ubi facta
fuit concordia ilia in curia, qui concordie ipsi inter-
fuerunt et rei ueritatem sciant, ad faciendum tunc ibi
recordum illius loquele cum eisdem militibus ad curiam
ex parte tocius comitatus propter id faciendum trans-
mittendis, et per hoc breue:

Breue de summonendis iusticiis ad faciendum

recordum in curia•
[6] Rex uicecomiti salutem. Sumone per bonos sumoni­
tores illos N. et R. quod sint coram me uel iusticiis meis
eo die ad recordandum cum discretis militibus de illo
comitatu quo modo loquela de una hida terre quam
F.31 H.» clamauit uersus B.< in / ilia uilla, et unde placitum
fuit coram eis in itinere suo, remansit in curia mea.
Teste etcV
Preterea precipietur uicecomiti illius comitatus in
quo fuerit terminata loquela coram iusticiis, quod tunc
habeat recordum illius loquele coram rege uel eius
iusticiis per discretos milites sui comitatus, quod fiet per
breue infrascriptum de recordo tali presentando in
curia:

D e recordo presentando in curia per milites

comitatus •
[7] Rex uicecomiti salutem. Precipio tibi quod facias
recordari in comitatu tuo loquelam que est inter ilium
et ilium de tanta terra in ilia uilla etc’, ut infra./1
“ rubric Ln, L, (suum recordum) Z N. “
eB; R . “ d Teste etc’ , ed.; om. M SS
• rubric Ln; Breue de recordo L; om. Z
/infra capitulo proximo post capitulum proximum B

1 Given almost in full at viii, 10.

 [VIII, 5 - 7] 99
justices, then they shall be summoned to appear to­
gether with certain discreet knights of the county where
the concord was made in court, who were present at the
making of the concord and know the truth of the
matter; then the judges are to make there the record
of the case together with those knights, who are to be
sent to the court for that purpose as representatives of
the whole county. The writ is as follows:

The writ fo r summoning the justices to

make the record in court
The king to the sheriff, greeting. Summon N. and R. [6]
by good summoners, to be before me or my justices on a
certain day to record, together with discreet knights
of such-and-such a county, the outcome of the case in
my court, concerning one hide of land in such-and-such
a vill which H. claimed against B., which was pleaded
before them in their eyre. Witness, etc.
The sheriff of the county in which the case was
determined before the justices shall also be commanded
to have on that day before the king or his justices the
record of the case, by discreet knights of his county:
this shall be done by means of the writ for presenting
such a record in court, which is written below:

Presenting a record in court by knights o f

the county
The king to the sheriff, greeting. I command you [7]
to cause the plea between this party and that concerning
so much land in such-and-such a vill to be recorded in
your county, etc., as below.1
 100 [VIII, 8 - 9]
Quod necesse sit stare recordo iusticiarum domini
regis«
[8] Presentibus itaque iusticiis in curia et in recordo bene
concordantibus, necesse est eorum recordo stare sine
contradictione alterutrius parcium, ut predictum est.
Si uero de hoc dubitauerint ita quod non possint inde
acertari, tunc de nouo placitum illud incipietur et de-
ducetur in curia.
[g] Sciendum tamen quod nulla curia recordum habet
generaliter preter curiam domini regis. In aliis enim
curiis si quis aliquid dixerit unde eum penituerit,
poterit idem negare contra totam curiam tercia manu
cum* sacramento illud se non dixisse affirmando, uel
cum pluribus uel cum paucioribus pro consuetudine
diuersarum curiarum.
In quibusdam tamen casibus habent comitatus et
alie curie minores recordum per assisam1 de consilio
inde factam; quemadmodum si fuerit in curia aliqua
minore duellum uadiatum et postmodum transferatur
loquela ilia in curiam« domini regis, tunc de clamio
petentis et de defenso tenentis et de uerbis de quibus
duellum illud sit iudicatum et uadiatum curia ipsa suum
recordum habebit eciam in curia domini regis, sed de
aliis non nisi de escambio campionis. Si uero postquam
loquela ipsa translata fuerit in curiam domini regis
producatur alius campio quam ille qui duellum illud in
minore curia uadiauit, et super hoc mota contencione, de
hoc quoque stabitur recordo minoris curie per assisam.1
Preterea sciendum quod recordo minoris curie potest
quis adicere se amplius aliquid dixisse quam in recordo
4 rubric Z> (stari) Ln, (iusticiis) L * marg. Ln ‘ L, B; curia Ln, Z

1 Not known
 [VIII, 8 - 9] 100
The necessity o f abiding by the record o f
the lord king's justices
When the justices have come to court and are in full [8]
agreement as to the record, it is necessary, as was said
above, to abide by their record, and neither party may
object to it. But if the justices are in doubt about it and
cannot reach a conclusion, then the plea shall be re­
commenced and tried in court.
It should, however, be known that, generally [9]
speaking, no court except that of the lord king has
record; for in other courts if anyone says something
which he later wishes to withdraw, he may deny it
against the whole court and swear three-handed, or with
more or fewer according to the custom of different
courts, that he never said it.
However, in certain cases the county court and
other inferior courts have record, by virtue of an assize1
specially made for this purpose. For example, if battle
is waged in an inferior court and the case is subsequently
transferred to the court of the lord king, then the in­
ferior court will have record even in the court of the
lord king in respect of the demandant’s claim and the
tenant’s denial, and of the words in which the battle
was awarded and waged, but not in other respects,
except for a change of champion. For if, after the case
has been transferred to the court of the lord king, a
different champion is produced from the one who
waged battle in the inferior court, and there is a
dispute about it, here also, by virtue of an assize,1 the
record of the inferior court shall be conclusive.
It should, moreover, be noted that anyone may allege
in respect of the record of an inferior court that he said
more than is contained in that record, and may prove
 101 [V III, 9]
ipso contineatur, et se id in curia dixisse per sacramen-
tum duorum legalium uirorum uel plurium« per con-
v suetudinem curie / contra totam curiam probare; quia
non tenetur curia aliqua recordum suum per duellum
uel probare uel defendere. Excipere autem quandam
partem aliam concedere nulli licet et hoc per assisam,1
cum tamen totum recordum negare possit ab initio
prestito sacramento sub forma prescripta.
Licet autem non teneatur curia aliqua recordum
suum per duellum defendere, tenetur tamen iudicium
suum tueri. Vt si quis proponat uersus aliquam curiam
se ei falsum iudicium fecisse; et ideo falsum quia, cum
unus ita dixerit et alius ita respondent, curia ipsa de
hiis uerbis et per hec uerba iudicium falsum ei fecit, et
idem falsum iudicium ei reddi fecit per ilium N.; qui si
hoc uersus eum negare uoluerit paratus sit alius uersus
eundem probare, maxime per aliquem idoneum testem
qui hoc paratus sit disrationare: sic utrimque* bene
poterit inde ad duellum perueniri. Sed utrum curia ipsa
teneatur per aliquem de curia se defendere uel per alium
extraneum hoc fieri possit, quero? Et quidem tenetur
se defendere maxime per ilium qui iudicium illud reddi­
dit. Et quidem si curia inde conuicta fuerit, dominus
curie in misericordia domini regis remanet et perpetuo
curiam amittet. Preterea tota curia in misericordia
domini regis remanet. Si uero calumpniator in probati-
one defecerit, loquelam principalem eo ipso amittet.
Item recordum habere potest quelibet curia ex
beneficio principis, quemadmodum si dominus rex
aliqua rationabili causa motus fecerit aliquam curiam
sumoneri ad recordum faciendum in curia sua, ita quod
a plurimorum Ln
* utrumque Ln
 [VIII, 9] 101

this against the whole court by the oaths of two lawful

men or more, according to the custom of the court; for
no court is bound to prove or to defend its record by
battle. But, by virtue of an assize,1 no-one is allowed
to take exception to one part and admit another, since
he may from the beginning deny the whole record on
swearing an oath in the manner described above.
Now, although a court is not bound to defend its
record by battle, it is, however, bound to uphold its
own judgment. Suppose someone accuses a court of
giving him a false judgment—false because when one
party said thus and the other replied thus, the court
gave him in respect of these pleadings a false judgment
in a certain form of words, and rendered him this false
judgment by one N.—and is ready, if N. wishes to deny
this, to prove it against him, preferably by a suitable
witness who is ready to undertake the proof: in such
a case they may well settle the matter by battle. But I
put this question: is the court bound to defend itself
by one of its own members, or may it be done by a
stranger? The answer is that it ought preferably to
defend itself by him who gave the judgment. If the
court is convicted, the lord of the court shall be liable
to amercement by the lord king and shall lose his court
for ever; moreover, the whole court shall be liable to
amercement by the lord king. But if the complainant
fails in his proof, he shall thereby lose his original case.
A court may also have record by royal favour: for
example, if the lord king for some good reason causes a
certain court to be summoned to make in his court a

1 Not known
18
102 [VIII, 9 -U ]
uelit dominus rex quod non liceat eius recordo contra-
dici. Solet autem multociens sumoneri curia aliqua quod
habeat recordum alicuius loquele coram domino rege uel
eius iusticiis, licet inde non habeat tale recordum cui
contradici non possit, quia ex consensu parcium poterit»
in loquela ipsa per recordum ipsum procedi, si recordum
illud tale esse consenserint.4 Fieri autem debet inde
sumonitio per tale breue:

Breue de faciendo recordo in comitatu et habendo

in curia <
Rex uicecomiti salutem. Precipio tibi quod facias
recordari in comitatu tuo loquelam que est inter ilium et
ilium de tanta terra in ilia* uilla, et habeas recordumillius
loquele coram me uel iusticiis meis / ad ilium terminum
per quatuor legales milites qui interfuerunt ad recordum
illud faciendum. Et sumone per bonos sumonitores
ilium qui terram illam clamat quod tunc sit ibi cum
loquela sua, et alium qui terram illam tenet quod tunc
sit ibi* ad audiendum recordum illud etc’.1

D e recordis minorum curiarumi

Preterea recordum habent minores curie de hiis que
in eis facta sunt in curia domini regis, quod contingit
quando aliquis baro habet aliquam loquelam in curia
sua* unde aliqua rationabilis dubitatio oriatur ita quod
curia ipsa earn non sufficiat determinare. Tunc potest
dominus ipse curiam suam ponere in curiam domini
regis, ita quod de dubitatione ipsa consilium et assensum

• non (del.) poterit Ln h Ln, Z\ concesserint L, B

c rubric <* d in ilia bis Ln
1 cum . . . ibi marg. Ln f rubric “
t Z> oot. Ln, L
 [VIII, 9 - II] 102

record which the lord king wishes to be incontro­

vertible. Moreover, a court is often summoned to have
the record of a case before the lord king or his justices,
even where its record of the matter is not incontrovert­
ible, because by consent of the parties the case may
proceed on the basis of that record if they agree to deem
it incontrovertible. The summons should be made by
the following writ:

The writ fo r making a record in the county

and having it in court
The king to the sheriff, greeting. I command you to
cause the plea between this party and that, concerning
so much land in such-and-such a vill, to be recorded
in your county, and to have the record of that plea before
me or my justices at a certain term by four lawful
knights who were present at the making of that record.
And summon by good summoners the party who claims
the land to be there then with his plea, and the other
who holds the land to be there at that time to hear the
record, etc.1

The records o f inferior courts

Inferior courts also have record in matters trans­
acted by the court of the lord king on their behalf; this
happens when a baron has a plea in his court concerning
which there arises a reasonable difficulty which his own
court is incompetent to settle. In such a case the lord
may adjourn his court into the court of the lord king,
in order to have the advice and agreement of that court

1 This writ does not seem to recur elsewhere, and so has not been
expanded.
 i03 [VIII, ii : IX, i]
habeat curie domini regis quid inde de iure fieri debeat.
Et hoc debet" dominus rex de iure baronibus suis,
scilicet quod ob talem causam possint barones sui curias
suas sic in suam curiam ponere, ita quod faciat eis
habere in curia sua de peritis hominibus suis qui eis
super hoc consilium prestent. Cum autem super dubi-
tationibus suis in curia domini regis fuerint certificati,
poterit inde cum loquela sua redire et ipsam in curia sua
deducere et terminare.
Item recordum habet comitatus de plegiis datis et
receptis in ipso comitatu, et in similibus.

[LIBER IX]
D e homagiis faciendis et releuiis recipiendis*
[i] Predictis restat continuandum de homagiis faciendis
et releuiis recipiendis.1 Mortuo siquidem patre uel alio
quocumque alicuius antecessore, tenetur dominus feodi
ab inicio recipere homagium recti heredis, siue fuerit
infra etatem heres ipse siue plenam habuerit etatem,
dummodo masculus sit. Femine enimnullum homagium
de iure facere possunt, licet fidelitatem plerumque
dominis suis prestare soleant: uerumptamen si fuerint
maritate, mariti earum homagium dominis suis de feodo
illarum facere debent. Ita dico si feoda ilia homagium
debeant. Sin autem heres masculus fuerit et minor,
nullam de iure uel de ipso herede uel de tenemento suo
habere debet custodiam dominus feodi donee ipsius
heredis receperit homagium. Quia generaliter uerum
est quod nullum seruicium, siue releuium siue aliud,

a inde (del.) debet Ln

4rubric Ln, Z, (homagio faciendo) L
 [VIII, II : IX, I] 103

as to the proper legal course in the difficulty. The lord

king owes it as of right to his barons to allow them in
such circumstances to adjourn their courts in this way
into his court, so as to enable them to take advice in his
court from his learned men. When his difficulties have
been resolved in the court of the lord king, the lord may
return with his plea, and try and determine it in his own
court.
The county also has record concerning sureties
given and received in the county, and similar matters.

[BOOK IX]
The doing o f homage and receipt o f relief
The doing of homage and receipt of relief must now [1]
be discussed further.* When anyone’s father or ancestor
dies, the lord of the fee is immediately bound to receive
the homage of the right heir, whether the heir is a
minor or of full age, provided that he is male. For
women may not by law do homage, though they
generally swear fealty to their lords; but, if they are
married, their husbands ought to do homage for their
wives’ fees to their lords: I say this on the assumption
that the fees in question owe homage. If the heir is
male and a minor, the lord ought not by law to have
wardship either of the heir or of his tenement until he
has received the homage of the heir. For it is a general
principle that no-one may demand service, whether it be

1 For earlier, intermittent, discussion see vii, passim. O n homage

generally see P & M , I, 296-307; S. J. Bailey, ‘ Warranties o f Land in the
Thirteenth Century,’ C.L.J. v i i i (1942-4), 274-99 and IX (>945- 7), 82-106
and ‘ Warranties o f Land in the Reign o f Richard I,’ C.L.J. ix, 192-209;
and S. E. Thorne, ‘ English Feudalism and Estates in Land,’ C .L.J. (1959),
193-209.
 104 [IX, i]
potest quis ab herede, siue fuerit maior siue minor,
exigere donee ipsius receperit homagium de tenemento
unde seruicium habere clamat. Potest autem quis
plura homagia diuersis dominis facere de feodis diuer-
f.33 v sorum / dominorum, sed unum eorum oportet esse
precipuum et cum ligeancia factum, illi scilicet domino
faciendum a quo tenet suum capitale tenementum is qui
homagium facere debet.1
Fieri autem debet homagium sub hac forma: scilicet
ut is qui homagium suum facere debet ita fiat homo
domini sui quod fidem ei portet de illo tenemento unde
homagium suum* prestat, et quod eius in omnibus
terrenum honorem seruet, salua fide debita domino regi
et heredibus suis. Ex hoc liquet quod non potest
uassallus dominum suum infestare salua fide homagii
sui, nisi forte se defendendo, uel nisi ex precepto principis
cum eo iuerit contra dominum suum in exercitum. Et
generaliter nihil de iure facere potest aliquis salua fide
homagii quod uertat ad exheredationem domini sui uel
ad dedecus corporis sui. Si quis ergo plura homagia pro
diuersis feodis suis fecerit diuersis dominis qui sese
inuicem infestent, si capitalis dominus eius ei preceperit
quod secum in propria persona eat contra alium domi­
num suum, oportet eum in hoc eius precepto obtem-
perare, saluo tamen seruicio alterius domini de feodo
quod de eo tenet.2
Patet itaque ex predictis quod si quis aliquid ad
exheredationem domini sui fecerit et super hoc conuictus
fuerit, feodum quod de eo tenet iure amittet et heredes
eius.3 Idem quoque erit si manus uiolentas quis in
“ interlin. Ln

1 ‘ His liege lord, as he is commonly called,’ Dialogus, p. 83.

 [IX , I] 104

relief, or something else, from an heir, whether of full

age or a minor, until he has received his homage for
the tenement in respect of which he claims to have the
service. A man may do several homages to different
lords for the different fees held of those lords; but there
must be a chief homage, accompanied by an oath of
allegiance, and this homage is to be done to that lord
of whom he holds his chief tenement. 1
Homage should be done in the following form:
he who is to do homage shall become the man of his
lord, swearing to bear him faith of the tenement for
which he does his homage, and to preserve his earthly
honour in all things, saving the faith owed to the lord
king and his heirs. It is evident from this that a vassal
may not attack his lord without breaking the faith of
his homage, except perhaps in self-defence or when he
goes by royal command with the king’s army against
his lord. The general rule is that he may not, without
breach of the faith of homage, do anything which
works to the disinheritance or bodily dishonour of his
lord. If anyone has done several homages for different
fees to different lords who are attacking each other, and
his liege lord commands him to go personally with him
against another of his lords, he must obey his command
in this matter, but saving to that other lord the service
for the fee which he holds of him.*
It is clear from what has been said above that if
anyone does anything to the disinheritance of his lord
and is convicted of it, he and his heirs shall by law lose
the fee which he holds of him.® The same rule will
* This passage ‘ can hardly be read otherwise than as a statement that
private warfare may conceivably be lawful ’ (P & M , I, 301-02), and the
discussion about aids to maintain the lord’s wars suggests the same (ix, 8).
* i.e. it will escheat to the lord.
 105 [IX, i]
dominumsuuminiecerit eum ledendo uel atroci iniuria1
eum afficiendo, et hoc uersus eum legitime in curia
fuerit competente probatum. Sed utrum in curia domini
sui teneatur quis se defendere uersus dominum suum de
talibus obiectis quero, et utrum dominus suus possit eum
ad id faciendum distringere per considerationem curie
sue sine precepto domini regis uel eius iusticiarum, uel
sine breui domini regis uel capitalis iusticie?* Et quidem
de iure poterit quis hominem suum per iudicium curie
sue deducere et distringere ad curiam suam uenire. Et
nisi se uersus dominum suum tercia manu uel quota
curia sua considerauerit possit se purgare, in misericordia
domini sui de toto feodo quod de eo tenet remanebit.
Item quero utrum dominus distringere possit homi­
nem suum ueniendi in curiam suam ad respondendum
de seruicio unde dominus suus queritur quod ei deforciat,
uel quod aliquid ei de seruicio suo a retro sit? Et quidem
F.33 bene poterit de iure id facere, eciam sine pre/cepto
domini regis uel eius iusticiarum. Et ita poterit inter
dominum et hominem suum inde ad duellum uel ad
magnam assisam perueniri per aliquem parium suorum
qui de hoc testem se faciat, sicut ille qui uiderit ipsum
tenentem uel antecessores suos fecisse illud seruicium de
feodo illo ipsi domino uel antecessoribus suis, et hoc
paratus sit disrationare. Si uero super hoc conuictus
fuerit tenens ipse, de iure de toto feodo quod de illo
domino suo tenet exheredabitur.* Sin autem non possit
quis tenentes suos iusticiare, tunc demum ad curie
refugium erit necessarium decurrere.

1 It is just possible that ‘ atrox iniuria ’ bears its Roman law meaning—
an insult especially shameful by reason o f nature, person insulted or place
o f insult.
 [IX , I] 105

apply if anyone lays violent hands on his lord to hurt

him or do him a dreadful injury,1 and this is lawfully
proved against him in the proper court. But I put this
question: is anyone bound to defend himself on such
charges against his lord in his lord’s court; and may
his lord distrain him to do so by award of his court
without a command from the lord king or his justices,
or without a writ from the lord king or his chief jus­
tice?2 The answer is that anyone may lawfully bring
his man to trial and distrain him to come to his court
by judgment of his court; and, unless he can clear
himself against his lord by swearing three-handed or
with as many as the court shall direct, the whole of the
fee which he holds of that lord shall be at the lord’s mercy.
I also put this question: may a lord distrain his
man to come to his court to answer a complaint by the
lord that he is withholding service, or that some of the
service is in arrears? The answer is that he may lawfully
do so, even without a command from the lord king or
his justices; and the proceedings between lord and man
may result in battle or the Grand Assize if one of the
man’s peers offers himself as a witness who has seen the
tenant or his ancestors do such service for that fee to the
lord or his ancestors, and is ready to prove it. If the
tenant is convicted of the charge, he shall by law be dis­
inherited of the whole fee which he holds of that lord.8
Where, however, anyone is unable to constrain his
tenants, it is then necessary to resort to the Curia.

* O n distress see P & M , I, 353-4 and n, 575-7; F. A . Enever, History

of the Law of Distress (London 1931), is detailed. For Exchequer practice
see the Dialogus, pp. n o - 12.
* i.e. it will escheat to the lord.
 io6 [IX , i - 3]
Potest autem homagium facere homo liber masculus,
tam is qui etatem habet quam is qui infra etatem est,
tam clericus quam laicus. Episcopi uero consecrati
homagium facere non solent domino regi eciam de
baroniis suis, sed fidelitatem inde iuramentis interpositis
ipsi prestare solent. Electi uero in episcopos ante con-
secrationem suam homagia sua facere solent.1

D e quibus rebus fiant homagia•

[2] Fiunt autem homagia de terris et tenementis liberis
tantummodo, de seruiciis, de redditibus certis assignatis
in denariis uel in aliis rebus. Pro solo uero dominio non
debent homagia alicui excepto principe. Verum eciam
de omnibus terris4 non semper fieri debet homagium;
quia non de dotibus, nec de maritagiis liberis nec de
feodo iuniorunv sororum de primogenita tenencium
infra tercium heredem utrobique, nec de feodo in
liberam elemosinam dato, nec de aliquo tenemento dato
quocumque modo in maritagium quantum ad personam
uiri mulieris cuius illud sit maritagium.

Quibus personis fiant homagiad

[3] Fieri uero possunt homagia libero homini tam mas-
culo quam femine, tam maiori quam minori, tam clerico
quam laico. Sciendum tamen quod si quis homagium
fecerit mulieri de aliquo tenemento que postea nupserit
alicui uiro, tenebitur uir ille eidem marito facere homa­
gium de eodem tenemento.

• rubric *
4 seruiciis (del.) terris Ln
‘ iuniarum Ln
* rubric Ln, Z< (fiunt) L
 [IX , I - 3] 106

Any free male may do homage, whether he is of full

age or a minor, and whether a clerk or a layman. Con­
secrated bishops do not do homage to the lord king even
for their baronies, but swear fealty accompanied by an
oath; but bishops-elect do homage before their con­
secration. 1

The things fo r which homage is done

Homage is only done for lands, for free tenements, [2]
for services, and for rents precisely fixed in money or
in kind. But for mere lordship no homage is done
except to the king. Moreover, homage is not invariably
due for all lands: it is not due for dower; nor is it due,
until the third heir, either for frank-marriage or for
the fee of younger sisters holding of the eldest; nor is
it due for a fee given in frankalmoin, nor from the
husband of a woman to whom a tenement is given in
any way as a marriage-portion.

Persons to whom homage is done

Homage may be done to any free person whether [3]
male or female, whether of full age or a minor, whether
a clerk or a layman. It should be known, however,
that if anyone does homage for a certain tenement to
a woman who afterwards marries, he is bound to do
homage for the same tenement to the husband.

1 The point is that a bishop will do homage only once, on his first
election. O n translation (i.e. when already ‘ episcopus consecratus ’) he
will do fealty only. The ecclesiastical concession which allowed homage
by a bishop-elect is said to go back to Anselm; it is repeated in the Con­
stitutions o f Clarendon (1164), c. ia ; see R . W . Southern, Eadmeri Vita
Sancti Anselmi (Edinburgh 1963), p. 140, n. a.
 [IX , 3 - 4l
Queri autem potest si quis aliquod tenementum
uersus aliquem per concordiam factam in curia dis-
rationauerit qui tenementum illud prius releuauerit
uersus capitalem dominum, utrum ille qui illud disratio-/
F.33 v nauerit debeat iterum tenementum ipsum releuare?«

Quod mutua debet esse dominii et homagii fidelitatis

connexion
[4] Mutua quidem debetc esse dominii et homagii
fidelitatis connexio, ita quod quantum homo debet
domino ex homagio tantum dominus debet illi ex
dominio, preter solam reuerenciam. Vnde si quis alicui
donauerit aliquod tenementum pro seruicio et homagio
suo quod postea alius uersus eum disrationauerit, tene-
bitur quidem dominus ei tenementum illud warantizare
uel competens escambium ei reddere. Secus est tamen
de eo qui de alio tenet feodum suum sicut hereditatem
suam et unde fecerit ei homagium, quia licet is terram
illam amittat non tenebitur ei dominus ad escambium.
Mortuo uero patre uel antecessore alicuius ut pre­
dictum est1 et herede relicto qui sit infra etatem, nullum
ius habet dominus feodi in custodia heredis uel heredi-
tatis nisi* prius recepto homagio heredis. Recepto uero
homagio, in custodia ipsius domini remanebit heres ipse
cum hereditate sua sub forma suprascripta2 donee
plenam habuerit etatem.* Tandem uero eodem ad
etatem perueniente et facta ei hereditatis restitutione,
quietus erit a releuio ratione custodie.

• gap o f three linesfollows in Ln

4 rubric Ln, (debeat) Zi (domini) L
‘ corr. from debeat Ln
* ubi Ln
' corr. from hereditatem Ln
 [IX , 3 -14] 107

But it is uncertain whether one who, by a concord

made in court, recovers a certain tenement against
another who has previously paid relief for that tenement
to the chief lord ought to pay a further relief for that
tenement.

The bond o f trust arising from lordship and

homage should be mutual
The bond of trust arising from lordship and homage [4]
should be mutual, so that the lord owes as much to the
man on account of lordship as the man owes to the lord
on account of homage, save only reverence. Therefore
if anyone gives to another a tenement in return for
service and homage, and a third party afterwards
proves his right to it against the tenant, the lord will be
bound to warrant him that tenement or give him
equivalent lands in exchange. But the rule is different
in the case of a person who holds his fee as his in­
heritance from another to whom he has done homage
for it, for even if he loses the land the lord will not be
bound to give him equivalent lands in exchange.
As stated above,1 when anyone’s father or ancestor
dies leaving an heir under age, the lord of the fee has
no right to wardship of the heir or of the inheritance
until he has received the homage of the heir. When
homage has been received, the heir and his inheritance
shall remain in the wardship of the lord, in the manner
stated above,2until he is of full age. When he eventually
comes of age and has the inheritance restored to him he
shall, by reason of the wardship, be exempt from relief.

1 ix, 1 a vii, 9
 io8 [IX , 43
Mulier uero heres alicuius relicta, siue plenam habu-
erit etatem siue infra etatem fuerit, in custodia domini
sui remanebit donee consilio domini sui maritetur.
Verum si infra etatem fuerit quando dominus suus in
custodiam illam receperit, tunc ipsa maritata quieta erit
hereditas ipsa a releuio quantum ad se et quantum" ad
uirum suum. Sin autem etatem habuerit eo tempore,
licet aliquamdiu in custodia domini sui remaneat ante-
quam maritetur, releuium tamen dabit maritus suus qui
illam in uxorem duxerit. Semel autem prestitum releu­
ium a marito alicuius mulieris utrumque, scilicet tam
maritum quam uxorem, tota uita sua de relleuio ipsius
hereditatis acquietabit: quia nec mulier ipsa, nec alius
maritus suus si secundo nupserit premortuo primo uiro
suo, nec primus maritus premortua uxore, terram illam
iterum releuabit.
F.34 Cum autem heres mas/culus et notus heres etatem
habens relinquatur, in sua se tenebit hereditate ut
supra* dictum est etiam inuito domino, dum tamen
domino suo sicut tenetur suum offerat homagium coram
probis hominibus et suum rationabile relleuium. Dicitur
autem rationabile relleuium alicuius iuxta regni con­
suetudinem de feodo unius militis centum solidi: de
sochagio uero tantum quantum ualet census illius
sochagii per unum annum: de baroniis uero nichil
certum statutum est, quia iuxta misericordiam et uolun-
tatem domini regis solent capitales baronie de relleuiis
suis domino regi satisfacere: idem est de sergenteriis.2
Si uero dominus ipse nec homagium nec rationabile
relleuium ipsius heredis uelit recipere, tunc relleuium

* aquantum Ln

1 vii, 9
 [IX, 4] io8

But a female heir, whether of full age or a minor,

shall remain in the wardship of her lord until she is
married on his advice. If she was a minor when her lord
received her in wardship, then when she is married
the inheritance shall be exempt from payment of relief,
whether by her or her husband. But if she was of age
at that time, then, although she may remain in wardship
to her lord for some time before she is married, her
husband shall pay relief. Relief once paid by a woman’s
husband shall exempt both husband and wife for life
from payment of relief for that inheritance; for neither
the woman herself, nor any second husband she may
marry if the first predeceases her, nor the first husband
if his wife predeceases him, shall pay any further relief
for that land.
When, however, a male heir is left who is well known
to be heir and is of full age, he shall, as was said above,*
remain in his inheritance even against the will of the lord,
provided that he offers his homage and reasonable relief
to his lord in the presence of reputable men, as he is
bound to do. According to the custom of the realm a
reasonable relief for a knight’s fee is one hundred
shillings; for socage it is one year’s value of the socage
land; for baronies there is no certain figure laid down,
because the chief baronies in making satisfaction to the
lord king for their reliefs are at his mercy and pleasure,
and the same is true of sergeanties.2
If, however, the lord is unwilling to receive either
the homage or the reasonable relief of the heir, then the

i cf. the Dialogus, pp. 95-6. O n reliefs generally see P & M, 1, 308-18
and I. J. Sanders, Feudal Military Service in England (Oxford 1956), Appendix
I.
 iog [IX , 4 - 6]
ipsum saluo custodiat et per probos homines id sepius
domino suo offerat; qui si nullatenus id recipere
uoluerit," tunc heres ipse de domino suo domino regi
uel eius iusticiis conqueratur, et tale breue1 inde habebit:

Breue de faciendis homagiis et releuiis

recipiendish
[5] Rex uicecomiti salutem. Precipe N. quod iuste et
sine dilatione recipiat homagium et rationabile relleuium
R. de libero tenemento quod tenet in ilia uilla, et quod
de eo tenere clamat. Et nisi fecerit sumone eum per
bonos summonitores* quod sit coram me uel iusticiis
meis eo die ostensurus quare non fecerit. Et habeas ibi
summonitores et hoc breue.* Teste etcetera.

D e responsione domini contra tenentem suum’

[6] De absentia siquidem ipsius summoniti quo modo
sit iudicandum, uel qualiter ad curiam uenire idem
distringendus sit, satis ex predictis* colligi potest.
Tandem uero ad curiam ueniens, aut recognoscit/
alium ad rectum heredem, aut negabit ilium inde esse
heredem, aut dubitabit utrum sit rectus heres an non.
Item si recognoscit* eum heredem, aut negabit
eundem sibi obtulisse homagium et rationabile relleu­
ium, aut id confitebitur. Si itaque id totum sic confite-
atur, aut statim recipiet homagium et rationabile
relleuiumipsius in curia, aut ei diem competentem dabit
qua id faciet. Idem quoque dicendum etsi negauerit

« noluerit Ln * rubric Ln, Z> (faciendo homagio) L

‘ per bonos summonitores; etc’ Ln
*ib i . . . breue: etcetera Ln
• rubric Ln, Z> De summonito presente L
/recognoscet Ln 1 Z , B; recognoscat Ln, L
 [IX , 4 - 6] iog
heir should have the relief in safe keeping and offer it
frequently to his lord by reputable men; if the lord is
persistently unwilling to receive it, then the heir should
complain about his lord to the lord king or his justices,
and shall have the following writ*:

The writ fo r doing homage and receiving relief

The king to the sheriff, greeting. Command N. to [5]
receive, justly and without delay, the homage and
reasonable relief of R. for the free tenement which he
holds in such-and-such a vill, and which he claims to
hold of him. And if he does not do so, summon him by
good summoners to be before me or my justices on a
certain day to show why he has not done so. And
have there the summoners and this writ. Witness, etc.

The lord's reply to his tenant

The legal consequences if the party summoned is [6]
absent, and the means of constraining him to come to
court, can be sufficiently gathered from what has been
said above.2 When he finally comes to court, he will
either acknowledge the other party as right heir, or
deny that he is heir, or doubt whether he is right heir or
not.
If he acknowledges him as heir, he will either deny
that he offered him homage and reasonable relief, or
admit it. If he admits everything, then he will either
receive his homage and reasonable relief from him
immediately in court, or appoint him a suitable day on
which to do it. The same rule applies even if he denies

1 cf. Stenton, no. 3528 * i» 7-3°

19
 1 10 [IX , 6]

eum suum optulisse homagium uel relleuium, dummodo

recognoscat eum ad heredem.
Sin autem prescise negauerit eum esse heredem, tunc
F.3411 quidem si extra saisinam esset, posset / quidem assisam
uersus dominum suum querere de morte antecessoris
sui:1 uerum cum in saisina sit, ita se in saisina sua
teneat et patienter sustineat, donee placeat domino suo
homagium suum inde recipere. Quia non prius de
relleuio suo tenetur quis domino suo respondere donee
ipse homagium suum receperit de feodo unde ei debet
homagium.
Si uero dubitauerit dominus ipse utrum rectus heres
fuerit an non qui suum homagium ei offert, quemad-
modum si non fuerit heres notus ab ipso domino uel
eciam uisneto tanquam heres, tunc quidem poterit
dominus feodi terram illam in manum* capere et re­
tinere donee id clarius constet: quod dominus rex de
cunctis baroniis suis capitalibus facere solet; mortuo
enim aliquo capitali barone suo, statim baroniam suam
in manu sua retinet dominus rex donee heres grantum2
suum de relleuio fecerit, licet heres ipse plenam habuerit
etatem.4
Possunt autem domini ex rationabili causa recep-
tiones homagii et relleuii de feodis suis quandoque
differre: ueluti si alius quam is qui se facit heredem
clamet ius in hereditate ipsa, pendente enim lite non
debet inde recipi homagium uel dari relleuium. Aut si
dominus ipse ius se habere crediderit tenendi heredi­
tatem ipsam in dominico*: et tunc quidem si inde
placitauerit uersus ilium qui in saisina est per breue

«Z , B ; manu Ln, L 4 hereditatem Ln‘ dominioLn

1 See xiii, 3
 [IX , 6] I 10

that the tenant offered him homage or relief, so long as

he acknowledges him as heir.
But if he definitely denies that he is heir, then the
heir may, if he is not in seisin, seek an assize of mort
d’ancestori against his lord; but if he is in seisin he
should remain so, and wait patiently until it pleases his
lord to receive his homage for it, because no-one is
bound to pay relief to his lord before the lord has re­
ceived his homage for the fee in respect of which homage
is due to him.
If, however, the lord doubts whether the person
offering his homage is the right heir or not—for example,
if he is not known to the lord or even to the neighbour­
hood as heir—then the lord of the fee may take the land
into his hand and keep it until the matter is cleared up.
This is the general practice of the lord king with respect
to all his chief baronies, for on the death of any of his
chief barons the lord king immediately retains his
barony in his own hand until the heir has made satis­
faction2for the relief, even if the heir is of full age.
Lords may sometimes, for reasonable cause, post­
pone the receipt of homage and relief for their fees, for
example, if a person other than he who asserts himself
to be heir claims the right in the inheritance: for
homage should not be received nor relief given while
the case is in progress. Again, if the lord thinks that he
himself has a right to hold the inheritance in demesne,
and impleads the person in seisin by a writ of the lord

* This may mean merely security for payment (hinted at in P & M, I,

3 11; cf. Du Cange, Glossarium, s.v. ‘ grantum*— ‘ Cautio de re aliqua
facienda ’), or actual payment (Madox, Formulate Anglicanum, no.
C C X C V III , where ‘ ad suum grantum ’ means ‘ at his pleasure Britton
(ed. F. M. Nichols, Oxford 1865), 11, 102, uses ‘ fere soen gr£ ’ in the same
context as Madox).
 [IX , 6 - 8 ]
domini regis uel eius iusticiarum, poterit tenens ipse
ponere se in magnam assisam domini regis, que sub qua
forma procedere debeat in primo tractatu® explicitum
est,1 nisi quia de quibusdam articulis sit hie quedam
uariatio quod ex hoc breui2 quod ad id facit* liquet:

Breue de summonenda magna assisa inter dominum

et uassallum*

[7] Rex uicecomiti salutem. Sumone per bonos sumoni­

tores quatuor legales milites de uisneto illius uille quod
sint coram me uel iusticiis meis eo die ibi* ad eligendum
super sacramentum suum duodecim legales milites de
eodem uisneto• qui melius rei ueritatem sciant, ad
faciendam recognitionem utrum N. maius ius habeat
tenendi unam hidam terre in ilia uilla de R. uel ipse R.
tenendi earn in dominico/ suo, quam ipse R.* petit per
F.35 breue meum* uersus predictum / N., et unde N. qui
terram illam tenet ponit se in assisam meam et petit
recognitionem utrum ille maius ius habeat tenendi
terram« illam in dominico uel predictus N. tenendi de
eo. Et sumone per bonos sumonitores predictum N. qui
terram illam tenet, quod tunc sit ibi auditurus illam
electionem. Et habeas ibi summonitores et hoc breue./
Teste etcetera.

D e rationabilibus auxiliis exigendis*

[8] Postquamuero conuenerit inter dominum et heredem
tenentis sui de rationabili relleuio dando et recipiendo,

“ primo tractatu: secundo libro supra B

faciendum Ln
‘ rubric Ln, L, (summonendi) Z
* coram . . . ibi: etc’ Ln
• legales . . . uisneto: etcetera Ln
 [IX , 6 - 8]

king or his justices, the tenant may put himself upon the
Grand Assize of the lord king; the form of procedure in
such a case was explained in the first treatise,i subject
to variation on a number of points as appears from the
following appropriate writ8:

The writ fo r summoning the Grand Assize

between lord and vassal
The king to the sheriff, greeting. Summon by good [7]
summoners four lawful knights from the neighbourhood
of such-and-such a vill to be before me or my justices
on a certain day at a certain place, to elect on oath
twelve lawful knights fromthe same neighbourhood who
best know the truth of the matter and who are to make
recognition whether N. has the greater right to hold of
R., or R. to hold as his demesne, one hide of land in
that vill, which R. claims against N. by my writ, and
in respect of which N., the tenant of the land, puts
himself upon my assize, and seeks a recognition to
determine whether the other party has the greater right
to hold that land in demesne, or N. to hold it of him.
And summon by good summoners N., the tenant of the
land, to be there at that time to hear the election. And
have there the summoners and this writ. Witness, etc.

The exaction o f reasonable aids

After the lord and his tenant’s heir have agreed to [8]
give and receive a reasonable relief, the heir may exact
f Z> B; dominio Ln, L > om. Ln
l>B; domini regis a : see Introduction, p. xxxiv ' om. Ln
i ibi summonitores . . . breue: etc’ Ln * rubric a

1 ii, 6-2 x
* cf. Stenton, nos. 3489 and 3504, and comment, ibid. pp. 12-13
112 [IX , 8]
poterit idem heres rationabilia auxiliai de hominibus
suis inde exigere, ita tamen moderate secundum quanti-
tatem feodorum suorum et secundum facultates, ne nimis
inde grauari uideantur uel suum continementuma2
amittere. Nichil autem certum statutum est de huius­
modi auxiliis dandis uel exigendis nisi ut predicta forma
inuiolabiliter seruetur. Sunt preterea alii casus in quibus
licet dominis similia auxilia sed sub forma predicta ab
hominibus suis exigere, ueluti si filius et heres suus miles
fiat, uel si primogenitam filiam suam maritauerit.
Vtrum uero ad werram suam manutenendam possint
domini huiusmodi auxilia exigere, quero?3 Obtinet
autem quod non possunt ad id tenentes destringere de
iure nisi quatinus uelint facere. Possunt autem domini
tenentes suos ad huiusmodi rationabilia auxilia reddenda
eciam suo iure sine precepto domini regis uel capitalis
iusticie per iudicium curie sue distringere, per catalla que
in ipsis feodis suis inuenerint uel per ipsa feoda si opus
fuerit; ita tamen quod ipsi tenentes inde iuste deducan-
tur iuxta considerationem curie sue et consuetudinem
rationabilem. Si ergo ad huiusmodi auxilia reddenda
possit aliquis dominus tenentes suos ita distringere,
multo forcius districcionem eo modo licite poterit facere
pro ipso relleuio suo uel pro alio necessario seruitio de
feodo suo sibi debito. Verum si dominus potens non
fuerit tenentem suum pro seruiciis suis uel consuetudini-
bus iusticiare, tunc decurrendum erit ei ad regium
auxilium uel capitalis iusticie/ et tale breue inde
habebit:
a contenementum B
i capitalis iusticie: capitalem iusticiam Ln

1 O n aids see P & M , I, 349-51; contrast the aids discussed in the

Dialogus, pp. 108-09.
 [IX , 8]

reasonable aidsi for this purpose from his own men.

This must be done in moderation, according to the size
and wealth of their fees, lest they be oppressed or lose
property necessary to maintain their position.* But
there is no certain rule laid down about the giving or
exacting of aids of this kind, except that the condition
stated above must be strictly observed. There are also
other cases in which a lord may, subject to the above
condition, exact similar aids from his man: for example,
when his son and heir is made a knight, or when he
marries off his eldest daughter. But I put this question:
may lords exact aids of this kind to maintain their own
wars?3 The rule is that they may not lawfully constrain
their tenants for this purpose beyond the limits of their
willingness to comply. On the other hand, when it is a
question of rendering reasonable aids, lords may by
judgment of their own court, as of right and without
any precept from the lord king or the chief justice, dis­
train their tenants by the chattels found on their fees or,
if necessary, by the fees themselves, provided that the
tenants are dealt with justly in accordance with the
judgment and reasonable custom of the lord’s court.
If, therefore, a lord may distrain his tenants to render
aids of this kind, he may a fortiori distrain in the same
way for his relief or for some other necessary service
due to him from his fee. But if the lord is not powerful
enough to constrain his tenant in respect of his services
or customs, then he should have recourse to help from
the king or the chief justice, and he shall have the
following writ for this purpose:

1 See p. 1 14, n. 1
* See p. 104, n. a
 [IX, 9 - II]
Breue de tenente iusticiando•
[9] Rex uicecomiti salutem. Precipio tibi quod iustides*
N. quod iuste et sine dilatione faciat R. consuetudines
F.35 v et recta seruicia que ei / facere debet de tenemento<
suo quod de eo tenet in ilia uilla, sicut rationabiliter
monstrare poterit^ sibi deberi, ne oporteat eum*
amplius inde conqueri pro defectu iusticie. Teste etc’.

Ubi placitum de iusticiando tenente sit

prosequendumf
[10] Sequitur* autem placitum per hoc breue is qui
queritur in comitatu coram uicecomite et seruicia sua in
relleuiis siue in aliis rebus iuxta consuetudinem illius
comitatus exiget. Et si ius suum ibi disrationauerit,
aduersa pars et rationabile releuium suum ipsi domino
suo reddet et preterea in misericordia uicecomitis re-
manebit. Quia generaliter de quolibet placito quod in
comitatu deducitur et terminatur misericordia que inde
prouenit uicecomiti debetur; que quanta esse debeat
per nullam assisam generalem determinatum* est sed
pro consuetudine singulorum comitatuum debetur, in
quodam comitatu plus in quodam minus.

D e propresturisi
[11] Sequitur de propresturis. Dicitur autem proprestura
proprie quando aliquid super dominum regem iniuste
occupatur,1 ut in dominicis regiis, uel in uiis publicis
astopatis, uel aquis publicis trestornatis a recto cursu,
4rubric Ln, (imtificiando) Z \ Breue de seruitia facienda L
b L , B ; iustifices Ln, Z CL , B \ libero tenemento Ln; feodo Z
* potest Ln • om. Ln
f rubrit Ln, Z i De releuio uel alio seruitio faciendo L
1 sequetur Ln A determinata Ln • rubric “
 [IX, 9 - II] 113
The writ fo r constraining the tenant
The king to the sheriff, greeting. I command you to [9]
constrain N. to render, justly and without delay, to R.
the customs and right services which he ought to render
him for his tenement which he holds of him in such-and-
such a vill, if he can reasonably show that they are
owed to him; that he need no longer complain for
default ofjustice in this matter. Witness, etc.

Where the plea concerning constraint o f the

tenant is to be prosecuted
By means of this writ the complainant prosecutes [10]
his plea in the county court before the sheriff, and will
demand his services, whether reliefs or other things,
according to the custom of that county. And if he
proves his right there, the other party will pay his
reasonable relief to his lord; he will, moreover, be
liable to amercement by the sheriff, for the general
rule is that the amercement arising from any plea tried
and determined in the county court is due to the
sheriff. The amount of the amercement is not laid
down by any general assize, but depends on the custom
of different counties, being more in one and less in
another.

Purprestures
The subject of purprestures now follows. There is a [11]
purpresture in the strict sense when there is unjustifiable
encroachment on property of the lord king*: for
example, in the royal demesnes, or by obstructing
public ways or diverting public watercourses, or when
1 cf. the Dialogus, pp. 93-4
 [IX , II]

uel quando aliquis in ciuitate* domini regis super

regiam plateam aliquid edificando occupauit. Et gene-
raliter quotiens aliquid fit ad nocumentum regii tene­
ment uel regie uie uel ciuitatis, placitum inde ad
coronam domini regis pertinet. Inquiruntur autem
huiusmodi propresture uel in capitali curia, uel coram
iusticiis domini regis ad tales inquisitiones faciendas in
diuersas partes regni transmissis* per iuratam patrie
siue uisneti. Et qui per iuratam ipsam aliquam huius­
modi fecisse propresturam conuictus fuerit, in miseri­
cordia domini regis remanebit de toto feodo quod de
eo tenet, et quod occupauit reddet. Et si in ciuitate
super plateam regiam edificando occupasse conuictus
fuerit, edificia quoque ilia domino regi remanebunt,
ilia scilicet que in territorio regio probata fuerint con-
structa, et nihilominus in misericordia domini regis
remanebit. Est autem misericordia domini regis qua
quis eatenus per iuramentum legalium hominum de
uisneto immerciandus est ne aliquid de suo honorabili
tenemento*1 amittat.
Cum quis ergo contra alium quam contra regem
propresturam fecerit, aut contra dominum suum aut
contra alium. Si contra dominum suum et non infra
F.36 assisam,2 tunc distringetur ipse occupator / quod ueniat
in curiam domini sui id adreciaturus (ita dico si aliud de
eo habuerit tenementum), et per hoc breue:

a ciuitatem Ln
4 B ; transmissas “
c tenemento (uel contenemento add. inUrlin. Ln) a; contenemento B

1 M cKechnie argued (Magna Carta (and ed. 1914), p. 293, n. 6) that

although Tait (‘ Studiesin M agna Carta,’ E.H.R.xxvn (1912), 725-6) may
have been right in saying that ‘ con tenementum ’ comes from the French
‘ contenir ’ and is not a compound of ‘ tenementum he nevertheless
underestimated the connection between the two Latin words. T he use here
 [IX, II]
anyone has encroached on royal land in some city of
the lord king by building something. To put it generally,
whenever anything is done to the nuisance of a royal
tenement or way or city, the resulting plea belongs to
the crown of the lord king. Purprestures of this kind
are investigated either in the chief Curia or before the
justices of the lord king who have been sent into various
parts of the realm to make such investigations by means
of a jury of the countryside or neighbourhood. When
anyone is convicted by such a jury of having made such
a purpresture, the whole of the fee which he holds of the
lord king shall be at the king’s mercy, and he shall
restore his encroachment. Moreover, if he is convicted
of encroachment by building upon royal land in a city,
then those buildings which are proved to have been
built on royal territory shall belong to the lord king and,
notwithstanding this, he shall be liable to amercement
by the lord king. Amercement by the lord king here
means that he is to be amerced by the oath of lawful
men of the neighbourhood, but so as not to lose any
property necessary to maintain his position, i
Now, when anyone makes a purpresture against
someone other than the king, it is either against his
lord or against a stranger. If it is against his lord, and
is not within the assize,8then the encroacher shall, if he
holds another tenement of that lord, be constrained by
the following writ to come to his lord’s court to make
restitution:

by all three alpha texts o f ' tenementum ’ adds force to M cKechnie’s point;
but contrast ix, 8 where all three use ‘ continementum’. For the Exchequer
rules see the Dialogus, pp. 110-12.
a Probably meaning that the period of limitation laid down for novel
disseisin has passed, and that the assize is not available; contrast ix, 13.
 u5 [IX, 12 - I 3]
Breue de iusticiando tenente standi ad rectum
domino suo in curia suaa
[12] Rex uicecomiti salutem. Precipio tibi quod iusticies
N. quod sine dilatione ueniat in curiam R. domini sui
et ibi stet ei ad rectum de libero tenemento suo quod
super eum occupauit ut dicit, ne oporteat eum amplius
inde conqueri pro defectu iusticie. Teste* etc’.
[J3] Qui si super hoc in curia domini sui conuictus
fuerit, tenementum quod de illo domino suo tenuit sine
recuperatione amittet.1 Sin autem nullum aliud de
eodem domino habuerit tenementum, tunc dominus
ipse uersus eum inde placitabit in curia capitalis domini
per breue de recto.
Similiter si quis super non dominum suum aliquid in
hunc modum occupauerit et non infra assisam, per breue
de recto inde placitabit. Sin autem infra assisam2 hec
facta fuerint, tunc locum habet recognitio de noua dis-
saisina ad recuperandam saisinam, unde infra3 dicetur.
In huiusmodi uero propresturis faciendis quandoque
inuaduntur ipsi limites terrarum et per occupationem
exceduntur; et tunc, alterutro uicinorum super hoc in
curia conquerente, precipietur quidem uicecomiti quod
coram eo per legales homines de uisneto fiat uisus
illorum limitum, et per eorum sacramentum faciat eos
esse sicut esse debent et esse solebant tempore regis
Henrici aui domini regis,« et per hoc breue:

0 rubric Ln, (stando) L, (iustificiando) Z

4 eum amplius . . . Teste om. Ln

1 i.e. it escheats to the lord

* See p. 114, n. a
* xiii, 39-9
4 Henry I; the writ is repeated at xii, 16 (see p. 143, n. 2)
 [IX, 12 - I3J
The writ fo r constraining a tenant to defend
a claim by his lord in the lord’s court
The king to the sheriff, greeting. I command you to
constrain N. to come without delay to the court of R.
his lord, to defend there a claim made by his lord, who
alleges that he encroached on his free tenement; that
the lord need no longer complain of default ofjustice in
this matter. Witness, etc.
If he is convicted of the offence in his lord’s court,
he shall lose for ever the tenement which he held of
that lord.1 If, however, he holds no other tenement of
the same lord, then the lord shall implead him by a
writ of right in the court of the chief lord.
Similarly, if anyone makes an encroachment in this
way on another who is not his lord, and it is not within
the assize, the case shall be pleaded by writ of right.
But if the acts are done within the assize,2 then the
recognition of novel disseisin is available to recover
seisin; this will be discussed below.9
In the making of such purprestures the boundaries
of land are often broken across and encroached upon;
in such a case, if either of the neighbours complains of
this in court, the sheriff shall be commanded by the
following writ to have a view of those boundaries taken
by lawful men of the neighbourhood and, in accordance
with their oaths, to cause them to be restored as they
ought to be and customarily were in the time of King
Henry, grandfather of the lord king*:
 i i 6

[14] Rex uicecomiti salutem. Precipio tibi quod iuste et

sine dilatione facias esse rationabiles diuisas inter terram
R. in ilia uilla et terram Ade de Bir’ in Biri,* sicut esse
debent et esse solent et sicut fuerunt tempore regis
Henrici aui mei,‘ unde R. queritur quod Adam iniuste
et sine iudicio occupauit inde* plus quam pertinet ad
liberum tenementum suum de Biri;* ne amplius inde/
clamorem audiam pro defectu iusticie. Teste etc’.

[LIBER X]
Placitum de debitis laicorum/1
[1] Placitum quoque de debitis laicorum spectat ad
coronam et ad dignitatem domini regis. Cum quis
itaque de debito quod sibi debetur curie queritur, si
placitum ipsum ad curiam domini regis trahere possit,
tale breue2de prima sumonitione facienda* habebit:

Breue de summonitione facienda propter debita •'

2] F.36 v Rex uicecomiti salutem. Precipe N. / quod iuste et
sine dilatione reddat R. centum marcas quas ei debet ut
dicit, et unde queritur quod ipse ei iniuste deforciat. Et
nisi fecerit, sumone eum per bonos sumonitores quod sit
coram me uel iusticiis meis apud Westmonasterium a
clauso Pascha in quindecim dies, ostensurus quare non
a rubric Ln, L, (rationabilibus om.) Z
h de Bir’ in Biri Ln, (in Biri del.) B; in Bir’ L\ de Briun rubin(?) Z
CB; domini regis see Introduction, p. xxxiv
* om. Ln • Ln, L; Briun Z\ Byri B
f B ; om. * ‘ rubric Ln, Z> (Placitum scilicet . . . ) L
' rubric Ln, Z> (Breue om.) L
1 See p. 189 * cf. Stenton, no. 351a
 [IX , 14 : X , 1 -2 ]

The writ fo r making reasonable boundaries

between different tenements
The king to the sheriff, greeting. I command you to [14]
establish, justly and without delay, reasonable bound­
aries between the land of R. in such-and-such a vill and
the land of Adam de Biri in Biri, as they ought to be and
customarily are, and as they were in the time of King
Henry my grandfather, concerning which R. complains
that Adam has, unjustly and without a judgment,
occupied more than belongs to his free tenement in
Biri; that I may hear no further complaint of default
of justice in this matter. Witness, etc.

[BOOK X]
Pleas concerning the debts o f laymen1
Pleas concerning the debts of laymen also belong [1]
to the crown and dignity of the lord king. Therefore
when anyone complains in court concerning a debt
owed to him, and the plea can properly be brought to
the court of the lord king, he shall have the following
writ2of first summons:

The writ fo r making a first summons on

account o f debts
The king to the sheriff, greeting. Command N. to [2]
render to R., justly and without delay, one hundred
marks which he alleges that he owes him and which,
he complains, he is unjustly withholding from him.
And if he does not do so, summon him by good sum­
moners to be before me or my justices at Westminster
on the third Sunday after Easter, to show why he has
 U7 [X , 2 - 3]
fecerit. Et habeas ibi summonitores et hoc breue. Teste*
etc*.

D e pluribus causis debendi»

[3] De absentia quidem utriusque partis qualiter sit
iudicandum uel de defalta ante litis ingressum in superi-
oribus1 satis sufficienter dictum est, illo tamen notando
quod non solet curia domini regis aliquam districtionem
facere per catalla ad iusticiandum aliquem quod ad
curiam ueniat pro aliquo placito. Ergo in tali placito de
consilio curie potest quis distringi per feodum suum uel
per plegiorum attachiamentum, sicut in aliis placitis
fieri solet.
Vtroque uero existente in curia, is qui petit pluribus
ex causis2 debitum petere potest. Aut enim debetur
quid ex causa mutui, aut ex uenditionis causa, aut ex
commodato, aut ex locato, aut ex deposito, aut ex alia
iusta debendi causa.
Ex causa mutui»debetur aliquid cum quis credit alii
aliquid tale quod consistit in numero uel pondere uel
mensura. Cum quis itaque aliquid tale crediderit, si
plus eo receperit usuram facit, et si in tali crimine obierit
dampnabitur tanquam usurarius per legem terre, unde
superius4dictum est plenius. Cum quid autem creditur
alicui, solet id plerumque credi sub plegiorum datione,
quandoque sub uadii positione, quandoque sub fidei
interpositione, quandoque sub carte expositione, quan­
doque eciam sub plurium istorum simul securitate.

“ quare . . . Teste om. Ln

4 rubric Ln; om. L, Z

1 «> 7-33
* ‘ Causis ’ refers to causa petendi; ‘ causa ’ in the next sentence refers to
causa debendi; see Introduction, p. xxxviii.
 [X, 2 - 3] ” 7
not done so. And have there the summoners and this
writ. Witness, etc.

The various causes o f indebtedness

The legal consequences of absence by either party, or [3]
of default before the case begins, have been sufficiently
explained above.1 It should, however, be noted that
it is not the custom in the court of the lord king to
constrain anyone to come to court in any plea by
distraining his chattels; therefore in such a plea he
may, if the court so decides, be distrained by his fee or
by attachment through sureties, as is customary in
other pleas.
When both parties are present in court, there are
several causes2 on which the plaintiff may base his
claim to the debt. The cause of the debt may be loan
for consumption, or sale, or loan for use, or letting, or
deposit or any other just cause of indebtedness.
The cause of the debt is loan for consumption3
when anyone lends another something which can be
counted, weighed or measured. When anyone lends
something of this kind, he commits usury if he receives
more in return, and, if he dies guilty of this crime, will
be condemned as a usurer by the law of the land, as
was more fully explained above.4 When something is
lent for consumption to another the loan is often accom­
panied by the giving of sureties, and sometimes by the
deposit of a gage, sometimes by the pledging of faith,
sometimes by the security of a charter, sometimes by
the security of several of these at once.
8 See P & M, ii, 204-07; V an Caenegem, pp. 380-1; Introduction,
p. xxv.
4 vii, 16
20
 118 [X, 3 • 5]
Gum ergo aliquid debetur sub plegiorum datione
tantum, si principalis debitor ita inde defecerit quod non
habeat unde soluere possit, tunc demum recuperandum
erit ad plegios, et inde sumonebuntur per tale breue1:

Breue de summonendo plegio debitoris “

[4] Rex uicecomiti salutem. Precipe N. quod iuste et
sine dilatione acquietet R. de centum marcis uersus P.4
unde eum plegiauit ut dicit, et unde queritur quod eum
inde non acquietauit. Et nisi fecerit, sumone eum per
bonos summonitores quod sit coram me uel iusticiis meis
ibi eo die ostensurus quare non fecerit. Et habeas ibi
summonitores et hoc breue. Teste* etc’.

D e responsione plegiorum apparentium in curia11

[5] Apparentibus siquidem plegiis in curia, aut confiten-
tur suamplegiationem aut negant. Si confiteantur,«tunc
autem tenentur creditori inde satisfacere ad terminos
F.37 com/petentes ei in curia ad id assignatos, uel se ab ilia
plegiatione per solutionem uel alio legitimo modo ac-
quietasse tenentur probare legitime.
Tenentur autem plegii si plures fuerint singuli in
totum, nisi aliter conuenerit quando se plegios inde
fecerunt, et ad id satisfaciendum simul sunt distringendi.
Ita quod si plures dati fuerint plegii et aliquis uel aliqui
a rubric “
ted.; R. M SS
c eum per . . . Teste om. Ln
rubric Ln, L, (plegiorum uenientium (uel apparentium interlin.)) Z
• confitentur Ln

1 The writ is for creditor against surety: N. is surety, R. is debtor and

P. is creditor. As it stands in the MSS (with R . for P.) the writ closely
resembles the later writ de plegiis acquietandis for sureties against debtor
(Registrum Brevium, f. 158) and this confused John Reeves, History o f the
English Law (London 1787), 1, 160, n. 1; but there is a crucial difference
 [X } 3 - 51 ii8

Now, when the loan is accompanied by the giving of

sureties only, if the principal debtor defaults and is not
able to pay, recourse is to be had to the sureties, and
they shall be summoned by the following writ*:

The writ fo r summoning the debtor's surety

The king to the sheriff, greeting. Command N. to [4]
acquit R., justly and without delay, against P. of one
hundred marks for which R. alleges that N. went
surety for him, and concerning which he complains
that he has not yet acquitted him. And if he does not
do so, summon him by good summoners to be before
me or my justices at a certain place on a certain day to
show why he has not done so. And have there the
summoners and this writ. Witness, etc.

The reply o f the sureties when they appear

in court
When the sureties appear in court they will either [5]
admit or deny their suretyship. If they admit it, then
they must make satisfaction to the creditor at suitable
times assigned to him in court for this purpose, or else
they must prove in due form that they have discharged
themselves from that suretyship by payment or in some
other lawful manner.
If there are several sureties, each is liable for the
whole amount (unless it was otherwise agreed when
they pledged themselves), and all can be constrained
together to pay the whole. Therefore if several sureties
have been given, and one or more of them is unable to

between the ‘ eum plegiauit ’ o f this writ and the ‘ eum posuit in plegium ’
of the later writ.
n9 [X , 5l
eorum non habeant unde reddere possint, ipsum honus
acquietancie ad ceteros uel in totum uel in quantum
ipsi defecerint spectabit. Verum si de debitore aliquo
plegiando plegii pro certis partibus dati fuerint, quicquid
de quibusdam illorum plegiis contingat, reliqui non nisi
pro partibus suis inde respondere*1 cogentur. Poterit
ergo ex hoc esse contencio quandoque inter creditorem
et plegios, quandoque inter plegios ipsos, si plegius
aliquis dicat se de minori summa plegiasse principalem
debitorem et contra eum dicatur quod de maiore. Cum
enim singuli plegii de certis partibus constituuntur, tunc
necesse habet ipse creditor cum illo agere qui minus
confitetur se debere ex sua plegiacione quam debeat.
Sin autem quidam eorum* in totum quidam de certis
partibus constituantur plegii, tunc quidem necesse erit
illis qui in totum plegiauerint cum illis agere qui minus
quam inde debent confitentur se debere: quod qualiter
probari debeat ex sequentibus1 liquebit.
Soluto uero eo quod debetur ab ipsis plegiis, re-
cuperare inde poterunt ad principalem debitorem, si
postea habuerit unde eis satisfacere possit, per principale
placitum de debitis unde inferius2 dicetur. Sciendum
tamen quod si quis alium plegiauerit de stando ad
rectum in aliqua loquela, et pro defalta illius quem
plegiauit in misericordiam incident, ita quod ob illam
causam aliquid persoluerit, super hoc de cetero nil
recuperare poterit uersus ilium quem plegiauit. Qui-
cumque autem ahum plegiauerit de stando ad rectum
de aliquo placito quod pertinet ad coronam domini regis,

0 reddere Ln
* illorum Ln

l x>5
 [X , 5] n9
pay, the burden of acquittance, either in full or to the
extent of their default, will fall on the others. If, how­
ever, sureties have been given to go surety for a certain
debtor in fixed shares, then, whatever happens to some of
the sureties, the rest shall not be compelled to answer
except for their own shares. In such a case, if one
surety says that he went surety for the principal debtor
for a lesser sum, and it is alleged against him that it was
for a greater, a dispute may arise out of this, sometimes
between creditor and sureties, sometimes between the
sureties themselves. For when all have become sureties
for fixed shares, then the creditor must sue him who
admits to owing less on his suretyship than he ought.
But if some have become sureties for the whole amount
and some for fixed shares, then those who are sureties
for the whole must sue those who admit to owing less
than they owe; the method of proof will be explained
below,i
When the sureties have paid the debt they may
have recourse on the principal debtor, if subsequently
he has assets from which to satisfy them, by means of
the principal plea of debt which will be discussed
below. 2 It should be known, however, that if anyone
goes surety for another’s appearance to defend a claim
in any plea and, because of that other’s default, becomes
liable to amercement in respect of which he pays out
money, he can never recover any of it from that other
for whom he went surety. Moreover, when anyone goes
surety for another’s appearance to defend a claim in any
plea which belongs to the crown of the lord king, for

* The gloss in B correctly notes that this is not so— ‘ quere et non
inuenies ’ : there is no discussion of action by surety against debtor.
 120 [X, 5 ■6]
ut de pace domini regis infracta uel alio, si non habuit
eum ad rectum pro plegiatione ilia incidit in misericor-
diam domini regis, que qualis sit superius1 dictum est;
et per hoc liberabitur ab ilia plegiatione.
Sin autem plegii ipsi suam plegiationem in curia
negauerint, tunc si plures fuerint inde plegii dati, aut
omnes negant plegiationem illam aut quidam confitentur
et quidam negant. Si uero quidam confitentur et quidam
negant,* tunc placitum inde esse poterit turn inter
F.37 v creditorem et ple/gios turn inter plegios confitentes et
plegios negantes, secundum quod predictum est. Que4
uero disrationatio inde exigatur inter quoscumque
placitum illud uertatur, quero; utrum scilicet per
duellum debeat fieri an alio modo, uel utrum scilicet
plegii per iuramentum tot hominum quot curia exigit
plegiationem ipsam possint negare? Dicunt ad hoc
quidame quod creditor ipse suo et legitimorum testium
iuramento poterit hoc de iure probare uersus ipsos
plegios, nisi plegii ipsi eum uelint a sacramento leuare :a
nunc quando petens ipse paratus accedit ad faciendum
iuramentum, olim uero oportuit hoc fieri ante legem
uadiatam. Sic ergo in tali casu potest inde perueniri*
ad duellum.
[6] Creditur quoque mutuo res aliqua sub uadii posi­
tioned quod cum fit, quandoque res mobiles ut catalla
ponuntur inde* in uadium, quandoque uero res im-
mobiles ut terre et tenementa et redditus, siue in denariis

* L , B ; negent Ln, Z
4 Zt B\ Quod Ln, L
‘ R . de Witefeld interim. Ln] de Wilteair’ add. Z\ R ob’ dc W itef’ marg.
B: see Introduction, p. xliii
d peruenire Ln
• om. Jm
 [X, 5 • 6] 120

example, breach of the lord king’s peace or the like,

and does not have him there to defend, his suretyship will
involve him in liability to amercement by the lord king,
the nature of which has been explained above1; this
will free him from that suretyship.
However, if the sureties deny their suretyship in
court and several were given as sureties, then either
they all deny the suretyship, or some admit it and some
deny it. If some admit and some deny, then, as was
said above, there may be a plea between creditor and
sureties, or between the sureties who admit and those
who deny. I put this question: what manner of proof
is required of the parties to this plea—ought it to be by
battle or some other method, or may the sureties deny
their suretyship with the oath of so many men as the
court may require? Some say in answer to this that the
creditor may by law prove the suretyship against the
sureties with his own oath and the oath of lawful wit­
nesses, unless the sureties wish to levy him from his
oath^ (which nowadays should be done when the
plaintiff comes ready to make his oath, though formerly
it had to be done before law was waged), in which case
the proceedings may result in battle.
The loan for consumption may, however, be [6]
accompanied by the deposit of a gage3; when this
happens, sometimes movables such* as chattels are de­
posited as gage, sometimes immovables such as lands
and tenements and rents (which may consist of money

1 ix, 11
• T o levy, or oust, from his oath by appealing him o f felony; see
P & M , i i , 162, n. 2.
8 See p. 190
121 [X , 6]
siue in aliis rebus consistentes. Item cum inter credi-
torem et debitorem conuenit de uadio interponendo,
cuiuscumque modi res inuadianda sit, debitor ipse aut
statim ipsi creditori facit habere sui uadii saisinam post-
quam rem sibi mutuo datam accepit, aut non. Item
inuadiatur res quandoque ad terminum, quandoque
sineo termino. Item quandoque inuadiatur res aliqua
in mortuo uadio, quandoque non. Mortuum uadium
dicitur illud cuius fructus uel redditus interim percepti
in nullo se acquietant.
Cum itaque res mobilis ponitur in uadium ita quod
creditori inde fiat saisina et ad certum terminum, saluo
tenetur creditor uadium illud custodire ita quod nec
eo utatur uel quocumque modo tractet illud quare
deterius efficiatur. Sin autem in custodia deterius factum
fuerit infra terminum per culpam4 creditoris, compu-
tabitur ei in debitum ad ualentiamipsius deteriorationis.1
Preterea si res talis fuerit quod' expensas et custum
exigat necessarium, ueluti ut pascatur uel reficiatur,
secundum quod conuenerit inde inter creditorem et
debitorem inter eos seruabitur.
Preterea cum ad certum terminum res aliqua
ponitur in uadium, aut ita conuenit inter creditorem et
debitorem quod si ad ilium terminum uadium suum non
acquietauerit debitor ipse, tunc uadium ipsum remaneat
ipsi creditori ita quod negocium suum sicut de suo inde
faciat, aut nil tale inter eos conuenit. In priori casu
stabitur conuencioni. In secundo, existente termino,2

“ sub Ln b per culpam om. Ln c que Ln

1 But cf. the rule in x, 8

* * Existente termino ’ has worried commentators: Beames (A Trans­
lation of Glanville, p. 354) suggested ' elapso termino ’ and Woodbine (p. 35a)
was unhappy. But ‘ terminus ’ may mean not only ‘ term ’ (period o f time)
 [X , 6] 121
or of other things). When creditor and debtor agree to
the deposit of a gage, whatever the nature of the gage,
then the debtor, after he has received the loan, either
immediately gives the creditor seisin of his gage or
does not. Moreover, the gage may be for a fixed term,
or with no term fixed. Furthermore, sometimes the gage
is a dead gage (mortgage) and sometimes not; it is
called mortgage when the fruits and rents accruing
during its continuance do not count towards repayment
of the loan.
When movables are deposited as gage and the
creditor is given seisin and for a fixed term, he is bound
to keep the gage safely and may not use it or deal with
it in any way to its detriment. If any deterioration
occurs during the fixed term while it is in the creditor’s
keeping and as a result of his fault, the value of the
the deterioration will be set off against the debt.1
Moreover, if the thing is of such a nature that it in­
volves expenses and unavoidable cost, for example,
feeding or repair, then whatever is agreed as to this be­
tween creditor and debtor shall be observed.
Furthermore, when anything is deposited as a gage
for a fixed term, creditor and debtor either agree that
if the debtor does not redeem his gage at the end of the
term the gage shall become the property of the creditor
who may deal with it as with his own property, or else
there is no such agreement between them. In the
former case the agreement governs the matter; in the
second case, if the debtor has not paid at the end of the
term* the creditor may complain of this, and the

but also ‘ terminus ’ (end o f period of time, especially for terms of paym ent);
cf. x , 6— ‘ si ad terminum ilium uadium suum non acquietauerit.’
 122 [X, 6 - 8]
si fuerit debitor in mora soluendi debitum, poterit se
inde conqueri, et iusticiabitur ut ad curiam ueniat et
F.38 inde respondeat, et per hoc breue: /

Breue de summonendo debitore de uadio

adquietando°
[7] Rex uicecomiti salutem. Precipe N. quod iuste et
sine dilatione acquietet1 illam rem quam inuadiauit R.
pro centum marcis usque ad terminum qui preteriit ut
dicit, et unde queritur quod earn nondum acquietauit.
Et nisi fecerit, summone eum per bonos summonitores
quod sit coram me uel iusticiis meis ibi eo die ostensurus
quare non fecerit. Et habeas ibi summonitores et hoc
breue. Teste* etc’.

Qualiter quis distringendus sit ad curiam uenire pro

placito de debitisc
[8] Qualiter autem distringendus sit quod ad curiam
ueniat, utrum scilicet per ipsum uadium uel alio modo,
quero? Istud autem relinqui potest consilio curie, quia
utrolibet modo potest res satis competenter expediri.
Oportet enim quod aliquando presens sit in curia ante-
quam res sua creditori clametur quieta. Posset enim
aliquid dicere presens quare res ipsa'' creditori non
remaneret quieta.
Existens uero in curia debitor ipse, aut confitetur se
rem illam in uadium pro debito illo posuisse aut negat.
Si confitetur, quia eo ipso confitetur debitum, precipie-
tur ei quod uadium ipsum ad rationabile terminum*
» rubric a 4 summone . . . Teste om. Ln
c rubric “ d ipso Ln
1 ad rationabile terminum om. Ln
1 i.e. pay off the debt and take back the gage.
 [X, 6 - 8] 122

debtor will be constrained by the following writ to

come to court and answer:

The writ fo r summoning the debtor to

redeem the gage
The king to the sheriff, greeting. Command N. to [7]
redeem,i justly and without delay, the thing which he
gaged to R. for one hundred marks until the end of a
term which is now past, as R. alleges, and concerning
which he complains that he has not yet redeemed it.
If he does not do so, summon him by good summoners
to be before me or my justices at a certain place on a
certain day to show why he has not done so. And have
there the summoners and this writ. Witness, etc.

How a person shall be constrained to come

to court in a plea o f debt
I put this question: how shall he be constrained to [8]
come to court—by the gage itself, or by some other
means? It may be left to the judgment of the court, for
the problem can be satisfactorily dealt with in either
manner. But it is necessary that he should make an
appearance in court before his gage is quit-claimed to
the creditor; for he may, when he appears, be able to
give a reason why the gage should not remain for ever
with the creditor.
When the debtor appears in court, either he will
admit that he deposited the thing as a gage for that
debt, or he will not. If he admits it, then, because he
thereby admits the debt, he shall be ordered to redeem
the gage within a reasonable time; if he does not do
 123 [X , 8]

acquietet; et nisi fecerit, dabitur licencia ipsi creditori

de cetero negocium suum de uadio ipso sicut de re
propria facere quo modo uoluerit. Sin autem id neget,
tunc rem ipsam aut dicet suam esse sed aliqua de causa
ab eius decidisse* possessione et alium in possessione
constitutum, ut4ex commodato aut ex commendatione
custodie causa aut alia huiusmodi causa; aut in curia
eandem rem suam non esse confitebitur: quod si fecerit,
dabitur statim licencia ipsi creditori de re ipsa ut de
propria disponere. Si uero rem illam suam esse dicat
sed neget tam debitum quam uadium, tunc tenebitur
ipse creditor* probare uersus eum quod tantum ei
credidit quantum est in demanda sua, et quod rem
ipsam ei inde nominatim in uadium posuit. Qualis uero
disrationatio inde esse debeat ex predictis patere potest
que supradicta sunt1 de plegiis qui plegiationem suam
negant. Ante terminum uero debitum minime peti
potest.
Si uero non ad aliquem terminum sed sine termino
res aliqua inuadietur, quocumque tempore uoluerit
creditor debitum petere potest. Soluto autem eo quod
debetur ab ipso debitore, tenetur creditor* rem inuadi-
atam ei sine deterioratione restituere; nec si res ilia
aliquo casu amissa fuerit uel deteriorata in custodia per
id uersus debitorem minime liberabitur, quia prescise
tenetur aut rem inuadiatam restituere uel de ea satis-
facere, aut debitum amittere.2
Quando uero conuenit inter creditorem et debitorem
F.38 v j de re aliqua inuadianda, accepta a debitore re mutu-
ata, si non sequitur ipsius uadii tradicio quo modo
consuletur ipsi creditori in tali casu, maxime cum possit
“ decedisse Ln b aut Ln
c debitor (del.) creditor Ln d debitor Ln
 [X , 83 123

so, the creditor shall be allowed from that time to deal

with it in whatever way he pleases, as with his own pro­
perty. If, however, he denies it, then either he will say
that the thing is his and that it left his possession and
the other party came into possession for some cause
such as gratuitous loan, or deposit for safe-keeping, or
for some other such cause, or he will admit in court that
the thing is not his. In the latter case the creditor will
immediately be allowed to deal with the thing as with
his own property. If, however, he says that the thing is
his but denies both debt and gage, then the creditor
must prove against him that he lent him the sum stated
in his demand and that the debtor deposited the thing
with him specifically as gage for this. The nature of the
proof required can be seen from what was said above*
concerning sureties who deny their suretyship. The debt
may not, however, be claimed before the end of the term.
But if anything is gaged not for a fixed term but
with no term fixed, then the creditor may claim the
debt whenever he pleases. When the debtor has repaid
the debt, the creditor must restore to him in its original
condition the thing gaged; and it will afford him no de­
fence against the debtor that the thing was lost or
damaged by accident while in his keeping, because he
is strictly bound either to restore the thing gaged or
make satisfaction for it, or else to lose his debt.4
When creditor and debtor have agreed to gage a
certain thing, and the debtor has received the loan but
delivery of the gage does not follow, what remedy is
there for the creditor in such a case, for the same thing

* But cf. the rule in x, 6

124 [X , 8]
eadem res pluribus aliis creditoribus turn prius turn
posterius inuadiari? Super hoc notandum est quod curia
domini regis huiusmodi priuatas conuentiones de rebus
dandis uel recipiendis in uadium uel alias huiusmodi,
extra curiam siue eciam in aliis curiis quam in curia
domini regis factas, tueri non solet nec warantizare.1 Et
ideo si non fuerint seruate, curia domini regis se inde
non intromittit, ac per hoc de iure diuersorum credi-
torum priorum uel posteriorum aut de priuilegio eorum
non tenetur respondere.
Cum uero res immobilis ponitur in uadium ita quod
inde fuerit facta saisina ipsi creditori et ad terminum,
aut ita conuenit inter creditorem et debitorem quod
exitus et redditus interim se acquietent, aut sic quod in
nullo se acquietent. Prima conuencio iusta est et tenet.
Secunda iniusta est et inhonesta que dicitur mortuum
uadium, sed per curiam domini regis non prohibetur
fieri; et tamen reputat earn pro specie usure.2 Vnde si
quis in tali uadio decesserit et post mortem eius fuerit
hoc probatum, de eius rebus non alker* disponetur
quam de rebus usurarii.3 Cetera seruentur ut prius4 de
uadiis in rebus mobilibus consistentibus dictum est.
Notandum tamen quod ex quo aliquis soluerit id
quod debuit uel soluere se obtulit competenter, si credi­
tor ulterius uadium penes se maliciose detinuerit, debitor
ipse inde se curie conquerens tale breue habebit:

« con. from taliter Ln

1 cf. the similar statement in x, 18; and see p. 189

* The Dialogus, pp. 99-100, calls it non-public or concealed usury.
* See vii, 16
* x, 6-8
 [X, 8] 124

may be gaged to several other creditors both previously

and subsequently? It should be noted in this connection
that it is not the custom for the court of the lord king to
protect or warrant private agreements of this kind con­
cerning the giving or receiving of things as a gage, or
other such agreements, whether made out of court or
in courts other than that of the lord kingi; it follows
that, if such agreements are not kept, the court of the
lord king will not concern itself with them, and is there­
fore not bound to pronounce upon the rights or privi­
leges of the several prior or subsequent creditors.
When an immovable is gaged and seisin of it is
given to the creditor for a fixed term, creditor and
debtor will have agreed either that the profits and rents
accruing shall count towards repayment, or that they
shall not count. The former agreement is just and
binding. The second, which is called mortgage, is un­
just and dishonourable, but is not forbidden by the
court of the lord king, although it deems it a kind of
usury. 2 Therefore, if anyone dies seised of such a gage
and after his death this is proved, his property shall be
disposed of as the property of a usurer.* The remaining
rules are the same as those stated above4 for gages of
movables.
It should, however, be noted that if anyone has paid,
or in due form offered to pay, what he owes, and the
creditor still maliciously detains the gage, the debtor
shall have the following writ upon complaint to the
court:
 J2 5 [X, 9.10]
Breue de summonendo creditore de uadio
restituendoal
[9] Rex uicecomiti salutem. Precipe N. quod iuste et
sine dilatione reddat R. tantam terram uel terram illam
in ilia uilla, quam ei inuadiauit pro centum marcis ad
terminum qui preteriit ut dicit, et denarios suos inde
recipiat, uel quam inde acquietauit ut dicit. Et nisi
fecerit, sumone eum per bonos summonitores quod sit
coram me uel iusticiis meis ibi eo die ostensurus quare
non fecerit. Et habeas ibi summonitores et hoc breue.
Teste* etcetera.

D e diuersa responsione creditoris in curiac

[10] Apparens autem in curia super hoc sumonitus
creditor ipse, aut cognoscet terram illam ad uadium
suum uel dicet se tenere terram illam ut feodum suum.
In primo casu oportebit eum aut uadium reddere aut
rationabilem causam ostendere in curia quare id facere
non debeat. In secundo uero casu utrolibet eorum
F.39 petente, id est creditore uel / debitore, ponetur super
recognitionem patrie utrum creditor ipse teneat terram
illam ut feodum suum uel ut uadium suum; uel utrum
pater eius uel alius antecessor fuerit inde saisitus ut de
feodo uel ut de uadio die qua obiit: et sic potest obici2
ei qui saisinam patris sui inde petit, et sic poterit super
hoc recognitio multipliciter uariari pro modo petendi
et pro modo respondendi.3 Sin autem recognitio a
neutro petatur, procedet placitum in curia super recto.

a rubric Ln, Z , (summonenda) L

* per bonos . . . Teste om. Ln c rubric *

1 See p. 190
* i.e. that he was seised ‘ as o f gage ’
 [X, 9 -10] 125
The writ fo r summoning the creditor to
restore the gage1
The king to the sheriff, greeting. Command N. to [9]
restore, justly and without delay, so much land (or,
certain specified land) in such-and-such a vill to R.,
who gaged it to him for a hundred marks until the end
of a term which is now past, as R. alleges; and to
accept payment from him (or, which he alleges he has
redeemed by payment). If he does not do so, summon
him by good summoners to be before me or my jus­
tices at a certain place on a certain day to show why he
has not done so. And have there the summoners and
this writ. Witness, etc.

The different replies o f the creditor in court

When the creditor who has been thus summoned [10]
appears in court, either he will admit that the land is
his gage, or he will say that he holds the land as his fee.
In the first case he must either restore the gage or
show reasonable cause in court why he should not do so.
In the second case, at the request of either creditor or
debtor, a recognition made by the neighbourhood shall
decide whether the creditor holds the land as his fee or
as his gage, or whether his father or some other ancestor
of his was seised of it as of fee or as of gage on the day he
died. This objection* may also be used against one who
claims the seisin which his father had; and the recog­
nition may be varied in many ways according to the
nature of the claim and of the reply.3 But if neither
party seeks a recognition, then the plea shall proceed
in court on the question of right.

8 See xiii, 26-30

21
 126 [X, n - 12 ]

[11] Creditor siquidem si a saisina uadii sui ceciderit

per debitorem uel per alium, nullam inde saisinam per
curiam recuperabit, etiam per recognitionem de noua
desaisina." Si enim per alium quam per debitorem
iniuste et sine iudicio de uadio suo fuerit desaisitus,
debitor ipse habere poterit assisam de noua6 desaisina:
si uero per debitorem ipsum, nullum uersus eum per
curiam recuperare habere« poterit de uadio ipso re-
cuperando, uel de nouo ingressu nisi per ipsum debito­
rem. Oportet enim ipsum creditorem ad principale
placitum reuerti ut iusticietur debitor ut ei de debito suo
satisfaciat, et sumonebitur inde debitor per breue supra-
scriptumi de prima sumonitione facienda.
[12] Die autem statuta debitore apparente in curia,
creditor ipse si non habeat inde uadium neque plegios
neque aliquam disrationationem nisi solam fidem, nulla
hec est probatio in curia domini regis. Verumptamen
de fidei lesione uel transgressione inde agi poterit in
curia christianitatis. Sed iudex ipse ecclesiasticus, licet
super crimine tali possit cognoscere et conuicto peni-
tenciam uel satisfactionem iniungere, placita tamen de
debitis laicorum uel de tenementis in curia christianitatis
per assisam regni ratione fidei interposite tractare uel
terminare non potest.2
Oportet ergo creditorem aliis uti probationibus si
debitor debitum ipsum neget. Si enim illud confiteatur,
tunc tenetur inde satisfacere simili modo ut predictum
est3 de plegiis confitentibus. Per testem siquidem ido-
neum potest fieri inde disrationatio et per duellum; per
cartam quoque.

« saisina Ln b nonoua Ln ‘ breue Ln

1 x, a * See p. 191
 [X, I I - 12] 126

If the creditor loses seisin of his gage, whether by [n]

act of the debtor or of someone else, he shall not re­
cover seisin of it with the aid of the court, not even by
a recognition of novel disseisin. For if he has been
disseised of his gage unjustly and without a judgment
by someone other than the debtor, the debtor himself
may have an assize of novel disseisin. If, on the other
hand, he was disseised by the debtor himself, the
court will not aid him to recover the gage from the
debtor or to re-enter except through the debtor; for
the creditor should have recourse to the principal plea
to constrain the debtor to make satisfaction to him for
his debt, and the debtor will be summoned by the writ
given above1 for making the first summons.
When the debtor appears in court on the appointed [12]
day, if the creditor has neither gage nor sureties nor any
proof except a mere pledge of faith, this is not sufficient
proofin the court of the lord king. Of course any breach
of faith involved may be sued upon in an ecclesiastical
court; but the ecclesiastical judge, though he has
jurisdiction over such a crime and may enjoin penance
or satisfaction upon the convicted, is forbidden by an
assize of the realm to deal with or to determine in an
ecclesiastical court, on the basis of pledge of faith, pleas
concerning the debts or tenements of laymen.2
The creditor should therefore use other proofs if the
debtor denies the debt; but if he admits it, he is bound
to make satisfaction for it in the same way as was stated
above8concerning sureties who admit their suretyship.
Proof of the debt may be made by a suitable witness, or
by battle, or by a charter.
 127 [X, 12]
Cum quis itaque ad sui debiti probationem cartam
aduersarii sui uel alicuius antecessoris eius afferat in
curia, aut cartam ipsam aduocat aduersarius aut non.
Si debitor cartam illam non aduocet, duobus modis
eidem contraire uel contradicere potest; scilicet recog-
noscendo in curia ipsum sigillum suum esse sed tamen
per se uel per suum assensumsiue antecessoris sui cartam
F.39 v ipsam confectam esse negan/do, uel omnino et sigillum
et cartam negando.
In primo casu ubi sigillum recognoscit publice in
curia, cartam illam tenetur prescise warantizare, et
conuentionem in ipsa carta expressam sicut in ea con-
tinetur omnino seruare sine contradiccione, et sue male
custodie imputet si dampnum incurrat per sigillum suum
male custoditum.
In posteriore uero casu poterit carta ipsa per aliquem
idoneum testem presertim ipsi carte insertum probari
per* duellum. Alio eciam modo solet fides cartis imponi
in curia, scilicet aliquibus certis et manifests indiciis;
ueluti per alias cartas eodem sigillo signatas, et de quibus
constet quod eius carte sint qui cartam illam suam esse
negat, ita quod eas bene warantizat in curia. Tunc
enimsi ita per omnia sibi concordent quod nulla suspicio
diuersitatis sigillorum appareat, haberi solet pro con-
uicto; et siue hoc siue alio legitimo modo aliquis con-
uincatur super tali opere querelam semper amittet, siue
placitum fuerit de debito siue de terra siue de quacumque
alia re, et preterea in misericordia domini regis remanet.
Generaliter enim uerum est quod quicumque aliquid in
curia dixerit in placito quod iterum negauerit, uel unde

“ et per Ln
 [X, 12] 127

Now when anyone in court puts in as proof of his

debt a charter made by the other party or some ancestor
of his, the other party either acknowledges the charter
or does not. If the debtor does not acknowledge the
charter, he may deny or contradict it in two ways:
either by admitting in court that the seal is his but
denying that the charter was made by, or with the con­
sent of, himself or his ancestor, or by denying completely
both seal and charter.
In the first case, where he acknowledges the seal
publicly in court, he is strictly bound to warrant the
charter and to observe without question the agreement
set out in the charter as it is contained therein; and he
should blame his own poor custody if he suffers damage
because his seal was poorly kept.
In the latter case, however, the charter may be
proved by means of battle by some suitable witness,
preferably by one named in the charter itself. It is also
customary to demonstrate the validity of charters in
court by another method, namely by certain and
manifest objective proofs; for example, by other
charters bearing the same seal and known, because he
warrants them in court, to be charters made by him who
denies that the charter now in question is his. In such a
case, if the seals correspond so exactly with each other
that there is no question of any difference between
them, the point is taken to be proved; and when
anyone is convicted in such a matter, whether in this or
any other lawful way, he shall always lose his case,
whether the plea concerns debt or land or any other
thing, and shall, moreover, be liable to amercement by
the lord king. For it is a general rule that anyone who
says something in a plea in court and afterwards denies
 128 [X , 13 - I3]
sequelam uel warantum uel probationem sufficientem
non habuerit, uel ad cuius contrarium dicendum uel ad
quod negandum per sufficientem probationem districtus
fuerit, inde in misericordia domini regis remanet.
Si uero cartam illam aduocet ab initio is contra quem
producitur ad debitum aliquod probandum, tunc iuxta
carte ipsius tenorem tenebitur ipse debitor creditori
satisfacere.
Cum uero aliquid mutuo creditur sub plurium
predictorum securitate simul, tunc quidem ex quo
debitor ipse recte defecerit, distringendus est ipse simul
per omnes securitates illas: ideo enim plures securitates
ab eo inde recepte sunt, ut cicius deficiente debitore
creditori inde satisfaciat* quam si una sola securitas
interuenisset.
[13] Ex causa quoque comodati1 solet res aliqua quan­
doque deberi, ut si rem meam tibi gratis commodem
ad usum inde percipiendum in seruitio tuo. Expleto
quidem seruitio, rem meam mihi teneris reddere sine
deterioratione si extet. Sin autem res ipsa interierit uel
deperdita* fuerit quocumque modo in custodia tua,
omni modo teneris ad rationabile precium mihi resti-
tuendum; sed sub qua uel cuius probatione prestan-
F.40 dum?< / Preterea si quis rem suam usque ad certum
locum uel usque ad certum tempus alii commodauerit,rf
et is qui earn ita recepit ultra ilium locum uel illud
tempus eadem re usus fuerit, in quantum id' emendare
debeat uel sub qua probatione uel cuius idem sit iudi-
candum, quero? A furto enim omnimodo excusatur
per hoc quod inicium sue detencionis habuit per
o satisfiat Ln
b Ln, L; deteriorata Z> perdita B
‘ SaP ° f two tints follows in Ln
*Ln, B\ acomodauerit L; comendauerit Z
 [X, la - 13] 128
it, or has not suit or warranty or sufficient proof for it,
or is driven by sufficient proof to say the opposite or to
deny it, is thereby liable to amercement by the lord king.
However, if the party against whom the charter is
produced to prove a debt immediately acknowledges
that charter, then the debtor will be bound to satisfy
the creditor according to the terms of the charter.
When a loan for consumption of any thing is accom­
panied by several of the securities mentioned above,
then, when the debtor makes default, he can be con­
strained by all the securities at once; for several secur­
ities were taken from him in order that satisfaction might
be made to the creditor on default of the debtor more
speedily than if there had been only one security.
The cause of a debt is sometimes loan for use,1 as [13]
when I gratuitously lend you some thing of mine to
make use of in your service. When the service has been
accomplished, you are bound to restore my thing to
me in its original condition, if it still exists; but if the
thing has perished or been damaged in any way while
in your keeping you are strictly bound to pay me a
reasonable price; but how and by whom is this to be
proved? I also put this question: what should be the
measure of damages, or how and by whom should proof
be made, where anyone lends something of his to be used
in a certain place or until a certain time, and he who
receives it on these terms uses it outside the place or
beyond the time? Clearly he is not guilty of theft, be­
cause he initially had possession from the owner of the

' illud Ln

1 See P & M, n, 204-07; Van Caenegem, p. 381; Introduction, p. xxxvii.

129 [X, 13 - 14]
dominum illius rei.« Quero iterum utrum dominus
possit rem suam ita alii commodatam infra tempus uel
locum reuocare, presertim si eius usu ipsemet interim
indigeat?*

D e emptione et uenditionec
Ex causa quoque emptionis uel* uenditionis1 debetur
aliquid cum quis rem suam alii uendiderit. Debetur
enim precium ipsi uenditori et res empta ipsi emptori.
Perficitur autem emptio et uenditio cum effectu ex quo
de precio inter contrahentes conuenit, ita tamen quod
secuta fuerit rei empte et uendite traditio, uel quod
precium fuerit solutum totum siue pars, uel saltern quod
arre inde fuerint date et recepte.
Sed in duobus prioribus casibus nullo modo potest
alteruter contrahentium sola uoluntate a contractu
resilire, nisi ex aliqua iusta et rationabili causa: ueluti
si ita inter eos conuenit ut liceat alterutri eorum inde se
impune retrahere infra certum terminum, tunc enim
utrique licet sicut conuenit infra datum terminum a
contractu impune recedere: quippe generaliter enim
uerum est quod conuentio legem uincit. Preterea si
uenditor ipse rem ipsam uendiderit emptori tanquam
sanam et sine mahemio, si postea probare poterit emptor
rationabiliter rem ipsam tempore contractus minus
sanam fuisse et cum mahemio, tunc quidem uenditor
tenebitur rem suam retro habere. Verum sufficit rem
fuisse idoneam tempore contractus quicquid postea de
ilia contingat. Sed infra quod tempus liceat hoc probare

• gap o f three linesfollows in Ln

4 SaP ° f tinesfollows in Ln
‘ rubric *
* Ln, S ; et L: see Introduction, p. xxxviii, n. t
 [X, 13 - 14] i 2g
thing. Again I put this question: may the owner de­
mand that a thing of his, lent in this way, be returned
before there is any infringement of time or place, espec­
ially if he himself is in need of it meantime?

Purchase and sale

The cause of a debt may also be purchase or sale,* [
as when anyone sells some thing of his to another; for
then the price is owed to the seller and the thing pur­
chased is owed to the buyer. A purchase and sale is
effectively complete when the contracting parties have
agreed on the price, provided that this is followed by
delivery of the thing purchased and sold, or by payment
of the whole or part of the price, or at least by the giving
and receipt of earnest.
In the first two cases neither contracting party may
at will withdraw from the contract, unless for some
just and reasonable cause: for example, if they have
agreed that either may withdraw with impunity up to
a certain time, then in accordance with the agreement
either party may withdraw with impunity before the
appointed time, because it is a general rule that agree­
ment prevails over the law. Moreover, if the seller has
sold the thing to the buyer as sound and without fault
and the buyer can afterwards satisfactorily prove that
at the time of the contract the thing was not sound and
had a fault, then the seller will be bound to take back
his thing; of course it suffices that the thing was sound
at the time of the contract, whatever may happen to it
afterwards. But I put this question: within what period

1 See P & M, ii, 207-10; V an Caenegem, pp. 381-2; Introduction,

p. xxxvii.
 130 [X, 1 4 - 15]
uel inde conqueri quero, maxime ubi nullum pactum
interuenit?« /
F.40 v
Vbi uero sole arre date sunt, si emptor a contractu
recedere uoluerit, id ei cum arrarum amissione licebit.
Sin autem uenditor recedere uoluerit in tali casu, quero
utrum sine pena id facere possit? Quod non uidetur,
quia tunc uideretur in hoc melioris conditionis uenditor
quam emptor. Quod si impune id fieri nequit,4 quam
penam inde prestabit? *
Periculum autem rei empte et uendite ilium general-
iter respicit qui earn tenet, nisi aliter conuenerit.
[15] Warantizare autem tenentur uenditor et heredes
eius emptori et heredibus suis rem uenditam, si fuerit res
immobilis et inde ponatur in placitum emptor ipse uel
heredes eius, eo modo quo supra1 expositum est in
tractatu de warantis.*' Si uero fuerit res mobilis quam
quis petat uersus emptorem eo quod prius fuerit ei
uendita uel donata aut ex alia iusta causa adquisita, non
adiecta felonia, idem inde dicendum quod de re im-
mobili predictum est. Si uero ex causa furtiua res aliqua
petatur8uersus emptorem, tenetur prescise se ab omni
causa furtiua sibi imposita defendere, aut warantum
inde uocare. Si itaque emptor ipse warantum uoca-
uerit, aut certum aut incertum.
Si certum uocauerit quis warantum in curia quem
dicat se uelle habere ad warantum ad rationabilem
terminum, tunc ei dies inde ponendus est in curia. Et si

° SaP ° f one tinefollows in Ln

4 nequid Ln
‘ 8aP ° f two tints follows in Ln
i in tractatu de warantis so B

1 iii, passim
* For the ‘ actio furti ’ see P & M , 11, 157-66; see also below, p. 177, n, 1
 [X, 1 4 - 15] 130

of time may this be proved or complained of, especially

where there is no agreement about it?
Now, when only earnest is given, the buyer will be
allowed to withdraw from the contract if he so wishes,
on forfeiture of the earnest. But I put this question:
may the seller, if he wishes, withdraw without penalty
in such a case? It seems that he may not, because then
the position of the seller in such a situation would be
better than that of the buyer. Yet if he may not do so
with impunity, what penalty shall he pay?
The risk in respect of the thing purchased and sold
is generally on the party in possession, unless there is an
agreement to the contrary.
If the thing sold is an immovable and the buyer [
or his heirs are impleaded about it, the seller and his
heirs are bound to warrant it to the buyer and his heirs
in the same way as was explained above1 in the treatise
on warranties. Similarly, if a movable thing is claimed
from the buyer by one who alleges that it was previously
sold or given to him, or acquired by him through some
just cause, and words of felony are not added, the same
rule applies as was stated above for an immovable.
But if a thing is claimed from the buyer as stolen,a he
must either clear himself completely of the theft im­
puted to him, or vouch a warrantor. If the buyer
vouches a warrantor, it will be either a named or an
unspecified person.
If he vouches a named warrantor in court, saying
that he wishes to have him to warrant at a reasonable
time, then a day should be appointed him in court for
 *31 [X, 15-17]
ad diem ilium presens fuerit ille qui uocatus fuit ad
warantum, et uenditionem suam et rem uenditam ipsi
emptori warantizauerit in curia, tunc emptor ipse inde
omnino liberabitur ita quod nil de cetero perdere poterit.
Sin autem de warantizatione ei defecerit, tunc erit inde
placitum inter emptorem et suum warantum, ita quod
ad duellum inde poterit perueniri. Sed numquid
warantus warantum uocare poterit in curia? Quod si
est, ad quotum1 warantum erit standum? Preterea cum
quis ita nominat warantum de re que petitur furtiua,
solet warantus ipse attachiari tali breui uicecomiti< ■
super hoc directo:

Breue de attachiando waranto rei furtiueb

[16] Rex uicecomiti salutem. Precipio tibi quod sine
dilatione attachiari facias per saluos et securos plegios
N. quod sit coram me uel iusticiis meis eo die ad waran­
tizandum R.< illam rem quam H. clamat uersus R. ut
F.41 furatam/ et unde predictus R. eum traxit / ad waran­
tum in curia mea; uel ad ostendendum quare ei
warantizare non debeat. Et habeas ibi* hoc breue.
Teste etc’.

D e incerto waranto rei furtiuer

[17] Si uero incertum warantum uocauerit quis in tali
casu, si sufficientem habuerit probationem de legitimo
mercatu suo, id eum a felonia liberat: sed tamen a

« uicecomitis Ln
b rubric “
‘ om. Ln
d Ln, Z> furtiuam L, B
• summonitores et add. B
f rubric <*
 [X , 15-173
this purpose. If the vouchee to warranty appears in
court on that day and warrants for the buyer both the
sale and the thing sold, then the buyer shall be wholly
free from liability or future loss; but if he defaults in
warranty, then there shall be a plea between the buyer
and his warrantor, and the proceedings may result in
battle. But may the warrantor vouch a warrantor in
court? And if so, at which1 warrantor should it stop?
Now when anyone names a warrantor for a thing which
is claimed as stolen, it is customary for the warrantor to
be attached by means of the following writ sent to the
sheriff:

The writ fo r attaching a warrantor o f a

stolen thing
The king to the sheriff, greeting. I command you [16]
to cause N. to be attached without delay by safe and
reliable sureties to be before me or my justices on a
certain day, to warrant for R. a certain thing which H.
claims against R. as stolen, and concerning which the
said R. has brought him to warrant in my court; or to
show why he ought not to warrant him. And have there
this writ. Witness, etc.

Where the warrantor o f a stolen thing

is unspecified
However, if anyone vouches an unspecified person [17]
as warrantor in such a case and has sufficient proof
that his purchase was honestly and openly made, this
shall clear him from the charge of felony, but shall not
1 P & M h, 71, n. 2 and 164, n. 1, makes this a statement that vouching
stops at the fourth (‘ quartum ’) warrantor, but only R and V (late beta
texts) support this.
 132 [X, 17-18 : XI, i]
dampno non conseruat* quin scilicet rem amittat. Sin
autem super hoc sectam non habuerit sufficientem, in
periculo est.1
Probari autem solet res debita ex empto uel ex com-
modato generali probandi modo in curia, scilicet per
scriptum uel per duellum.
[18] Ex locato quoque et ex conducto2 solet res quan­
doque deberi, ut cum quis locat rem suam alii usque
ad certum terminum certa interueniente mercede.
Hie enim tenetur locator rem locatam ad usum dare,
conductor quoque soluere mercedem. Sciendum autem
quod elapso termino potest locator se licite in re sua
locata eciam sua auctoritate recipere. Sed quid si con­
ductor censum suum statuto termino non soluerit?*
Nunquid et in hoc casu licet locatori ipsum sua auctori­
tate expellere?<
Predictos'' uero contractus qui ex priuatorum con­
sensu fiunt* breuiter transigimus, quia ut predictum
est3 priuatas conuenciones non solet curia domini regis
tueri, et quidem de talibus contractibus qui quasi
priuate conuenciones censeri possunt se non intromittit
curia domini regis.

[LIBER XI]
De responsalibus loco dominorum in curia
constituendisf
[1] Placita in superioribus exposita super recto quidem
et proprietate rei prodita sunt, que prosequi quis potest
sicut et alia quelibet placita ciuilia tam per se ipsum
“ coieruat Ln 4 soluit Ln
gap offour lines follows in Ln * Predictus Ln
' B; fuerit « f rubric “
 [X, 17-18 : X I, I] 132
save him from loss, for he shall lose the thing in ques­
tion; if, however, he has not sufficient suit to prove
this, he is in peril.1
The customary method of proving what is owed on a
purchase or loan for use is the general method of proofin
court, namely writing or battle.
A thing is sometimes owed on a letting and on a [18]
hiring,2 as when anyone lets out some thing of his to
another for a certain time at a certain rent. Here the
letter is bound to give the use of the thing let, and the
hirer on his part is bound to pay the rent. It should
be noted, however, that when the term is ended the
letter may lawfully, and of his own authority, retake
the thing let. But what if the hirer does not pay his
rent at the appointed time? Is the letter allowed in this
case also to expel him on his own authority?
We deal briefly with the foregoing contracts which
are based on the consent of private persons because, as
was said above,3 it is not the custom of the court of the
lord king to protect private agreements, nor does it even
concern itself with such contracts as can be considered
to be like private agreements.

[BOOK XI]
Appointing o f attornies in court in place
o f principals
The pleas so far discussed concern the right and [1]
property in any thing, and one may prosecute them,
and all other civil pleas, either in person or by an
1 Peril of battle and, if he loses, gallows; see P & M , 11, 164.
8 See V an Caenegem, p. 381; Introduction, p, xxxviii.
3 x, 8; see p. 189
 133 [X I, i - 2]
quam per responsalem1 loco suo positum ad lucrandum
uel perdendum. Verum oportet eum esse presentem in
curia qui alium loco suo ita ponit. Solet eciam id fieri
coram iusticiis domini regis in bancho residentibus.
Aliter autem quam per dominum presentem in curia
nullus omnino recipi debet responsalis, nec oportet ad-
uersariumob id presentem esse, nec eciam ilium qui loco
alterius ita ponitur si sit notus curie. Potest itaque unus
solus ita loco alterius poni: duo eciam uel plures simul,
F.41 v uel sub j disiunctione, ita quod si unus interesse non
possit reliquus uel reliqui placitum illud exequantur.
Per procuratorem itaque talem potest placitum illud
deduci in curia et terminari, siue per iudicium siue per
finalem concordiam, adeo plene et firmiter ut per eum
qui alium loco suo inde posuit. Sciendum eciam quod
non sufficit aliquem constituere alium bailiuum suum
uel senescallum de terris et rebus suis disponendis, eciam
si hoc constet curie, ad hoc ut idem recipi debeat in
curia loco domini sui in aliquo placito. Oportet enim
quod ad hoc speciale interueniat mandatum, et quod
idemiuxta formamprescriptamponatur loco eius special-
iter in placito illo ad lucrandum uel perdendum pro eo.
Notandum preterea quod potest quis in curia
domini regis ponere loco suo alium ad lucrandum uel
perdendum pro eo, eciam de placito quod in alia curia
habet; et precipietur quod idem in curia ipsa recipiatur
loco alterius per tale breue2:
Breue de recipiendo responsali loco domini suia
[2] Rex uicecomiti, uel alii presidenti curie illi, salutem.
Scias quod N. posuit coram me uel iusticiis meis R. loco
» rubric Ln, (sui om.) L, Z
1 See p. 19a * cf. Stenton, no. 3545
 [XI, I - 2] *33
attorney1 put in his place to gain or to lose. He who
thus puts another in his place must, however, be present
in court then, and it is generally done before the justices
of the lord king sitting on the bench. No-one ought to
be received as an attorney unless it is done by his prin­
cipal, present in court; but the other litigant need not
be present for the purpose, nor even need he who is
put in the principal’s place, if he is known to the court.
It may be one person only who is thus put in the place
of another: or it may be two or more jointly, or
severally, so that, if one of them is not able to attend,
the other or others can prosecute that plea. The plea
can be tried and determined, by judgment or final
concord, as fully and finally by such an attorney as by
his principal. It should, however, be known that the
appointment of a man as bailiff or steward with power
to dispose of lands and goods, even where this is known
to the court, will not entitle him to be received in court
in place of his principal in any plea; for this there must
be a special authority, and he must be expressly put in
the place of his principal in the manner set out above,
to gain or to lose for him in that plea.
It should further be noted that anyone may, in the
court of the lord king, put another in his place to gain
or to lose for him even in a plea which he has in some
other court; and the following writ shall order that he be
received in that court in place of his principal*:

The writ fo r receiving an attorney in place

o f his principal
The king to the sheriff (or to another who presides [2]
over such-and-such a court), greeting. Know that N.
has, before me or my justices, put R. in his place to gain
 134 [XI, 2 - 3]

suo ad lucrandum uel perdendum pro eo in placito quod

est inter eum et M. de una karrucata terre in ilia uilla,
uel de aliqua re nominata. Et ideo tibi precipio quod
predictum R. loco ipsius N. in placito illo recipias ad
lucrandum uel perdendum pro eo. Teste etc’.

Vtrum essonium domini uel responsalis ipsum

responsalem excuseta
[3] Cum quis itaque iuxta formam prescriptam loco
alterius ponitur in aliquo placito, numquid essonia ex
sua persona tantum, uel ex persona domini sui tantum,
uel ex utriusque persona locum habebunt? Et quidem4
essonia ipsius procuratoris solummodo* habent in tali
casu, donee scilicet reuocetur ipsa procuratio.
Preterea cum quis ita loco alterius ponitur et* in
curia de placito illo respondet uel id quod ad eum
spectat facit, numquid potest dominus eum pro bene-
placito suo inde remouere ita quod alium inde faciat
procuratorem, maxime si postea capitales inimicicie in-
teruenerint? Quin autem ipse dominus possit placitum
suum sequi alio amoto dubium non est, quia ita intelli­
gitur quilibet alium loco suo ponere, scilicet si ipsemet
F.42 interesse non possit. Obtinet autem quod / possit
dominus talem procuratorem qualibet parte litis amo-
uere, et alium eciam loco eiusdem in curia sub forma
prescripta pro se ponere.
Potest autem pater ita loco suo ponere filium et uice
uersa, extraneus extraneum, uxor quoque maritum.

a rubric Z> (domini om.) Ln, (excusaret) L

4 secundum Hubertum Walter interlin. Ln; secundum H. Walteri marg.
B: see Introduction, p. xliii
c tantummodo Ln
d ponitur et Ln; et om. L, Z> positus B
 [XI, 2 - 3] 134
or to lose in the plea which is between him and M. con­
cerning one carucate of land in such-and-such a vill
(or concerning some other named thing). And therefore
I command you to receive the aforesaid R. in place of
N., to gain or to lose for him in that plea. Witness, etc.

Whether an essoin cast by the principal or

by the attorney will excuse the attorney
When anyone is put in the place of another in any [3]
plea in the manner set out above, are essoins allowable
in respect only of the attorney’s person, or only of his
principal’s, or of both? The answer is that only the
essoins of the representative are allowable in such a
case, until his appointment is revoked.
Furthermore, when anyone is thus put in the place
of another and answers or does what is appropriate in
court concerning that plea, may his principal remove
him at his pleasure and appoint another as represen­
tative, particularly if deadly enmity has supervened?
Now there is no doubt that a principal may remove his
attorney and prosecute his own plea, for he puts
another in his place only because he cannot be present
in person; but, furthermore, the principal may remove
such a representative at any stage of the case and may,
in court, in the manner set out above, put another to
act for him in the place of that one.
A father may in this way put his son in his place
and vice versa, one stranger may put another, and a
wife may put her husband. When a husband put in place
 135 [X I, 3 - 5]
Cum quis itaque maritus positus loco uxoris sue in
placito de maritagio uel de dote ipsius uxoris aliquid
amiserit uel remiserit de iure ipsius uxoris per iudicium
siueoper concordiam, numquid poterit mulier ipsa iterum
placitum inde mouere? An tenebitur omnino factum
uiri sui post mortem ipsius tueri? Non uidetur autem
quod per factum uiri sui debeat mulier in tali casu
aliquid iuris amittere, quia dum fuit in potestate uiri
sui in nullo potuit ei contradicere uel eius uoluntati
contraire, et ita sibi non potuit contra uoluntatem uiri
sui in iure suo prospicere. E contra uero ea que in curia
domini regis gesta sunt rata et firma esse conuenit.*
[4] Distringendus est autem dominus ad tenendum
id quod per responsalem suum in curia factum est, siue
per iudicium siue per concordiam. Sed quid erit si ipse
dominus soluendo non sit nec habeat unde distringi
possit, responsalis autem habeat? Et quidem non est
distringendus responsalis ipse.
[5] Quod autem hie dicitur, quod non potest aliquis
loco suo alium cum effectu ponere nisi presens sit in
curia, contrarium uidetur his£que* in primo tractatu*
scilicet de essoniis posita sunt. Ibi* enim dicitur quod
si quis post tercium essonium suum aliquem quicumque
ille sit responsalem miserit, saltern cum literis suis
recipietur in curia. Sed hoc contingit ex ui iudicii:
illud obtinet ubi consideratione uel districtione curie
alium querit loco suo in placito/ ponere ad lucrandum
uel perdendum pro eo.

“ Ln,B; suum uel L; s u u m ^

* SaP ° f two tin*1 in Ln> no rubric Ln, Z> Domino distringendo pro res-
ponsali L ‘ is Ln
B ; qui Ln, L • libro B
/ suo add. Ln
 [XI, 3 - 5] r35
of his wife in a plea concerning the wife’s marriage-
portion or dower loses or releases any of the wife’s right,
whether by judgment or by concord, may the woman
reopen the plea, or is she wholly bound by the act of
her husband after his death? It does not seem that the
woman ought in such a case to lose any right by her
husband’s act, for while she was in the power of her
husband she could not contradict him in any matter
nor act against his will, and thus could not, if her hus­
band were unwilling, take care for her own right. Yet,
on the other hand, it is proper that things done in the
court of the lord king should be settled and inviolable.
The principal must be distrained to abide by [4]
whatever was done in court by his attorney, whether
it was a judgment or a concord. But what if the prin­
cipal is insolvent and has nothing that can be dis­
trained, and the attorney has? Even then the attorney
must not be distrained.
The statement made here—that no-one unless he [5]
is present in court can effectively put another in his
place—seems contrary to what was said about essoins
in the first treatise. For it is said there1 that if anyone
who has cast three essoins sends another as attorney,
then, whoever he is, he will be received in court pro­
vided that he has letters of authority from him. But this
latter rule is part of the judicial process; the other rule
applies when anyone seeks with the approval of, or
under constraint from, the court to put another in his
place to gain or to lose for him in a plea.

1i, ia
 136 [X I, 5 : X II , I]
Preterea notandum quod abbates et priores canoni-
corum regularium per se recipiuntur in curia sine literis
eciam sui conuentus. Alii, priores siue monachorum
siue canonicorum si fuerint cellarii, eciama transmarini,
nullo modo sine literis abbatis uel magni prioris admit-
tuntur in curia.1 Item magister milicie templi et capitalis
prior hospitalis Ierusalem per se recipiuntur. Nulli
autem inferiores eis de suo ordine recipi solent.
Preterea cum unus uel duo ponuntur in curia loco
F.42 v alicuius in placito aliquo predicto modo, numquid / ille
unus poterit ponere alium, uel unus illorum duorum
reliquum uel eciam aliquem tercium, loco suo uel loco
domini sui in placito ipso ad lucrandum uel perdendum
pro eo?*

[LIBER XII]
[1] Predicta* quidem placita de recto directe et ab
inicio ueniunt in curiam domini regis, et ibi ut dictum
est deducuntur et terminantur. Quandoque eciam licet
ab inicio non ueniant in curiam domini regis quedam
placita de recto, ueniunt tamen per translationem ubirf
curie diuersorum dominorum probantur de recto de-
fecisse:2 tunc enim mediante comitatu possunt a comi­
tatu ex diuersis causis que superius3 exposite sunt ad
capitalem curiam domini regis transferri.
“ B ; et “ * gap offour lines follows in Ln
c Preterea Ln d ut Ln

1 The passage is confused, but adoption o f ‘ eciam ’ gives a possible

solution. Heads o f independent houses (the author assumes that canons
regular have a prior as head and forgets, or does not know, that some have
an abbot) need no letters. A ll other monastic officials need letters from their
abbot or, where the house has no abbot, from the great prior: this applies
even to the heads o f alien priories, whom one might expect to be able to
act without written authority from abroad.
 [X I, 5 : X I I , I] 136

It should be noted, moreover, that abbots and the

priors of canons regular are received in court on their
own authority without letters from their convent.
Others, if they are priors of dependent houses, whether
of monks or canons, even if of alien priories, are never
received in court without letters from the abbot or the
great prior.1 The Master of the Knights Templar and
the Grand Prior of the Hospital of Jerusalem are re­
ceived on their own authority, but those inferior to them
in their order are not received.
Now, when one person or two persons have been
put in the place of another in court in any plea in the
manner stated above, can the one put another, or can
one of the two put the other or even a third person, in
his place or in place of his principal to gain or to lose
for him in that plea?

[BOOK XII]
The foregoing pleas which concern the right come [1]
directly and in the first instance into the court of
the lord king, and are tried and determined there as
stated above. Sometimes, however, certain pleas which
concern the right, and do not come into the court of the
lord king in the first instance, are removed there when
the courts of different lords are proved to have made
default of right2: in such a case they pass to the county
court, from which they can be transferred to the chief
court of the lord king for various reasons which have
been explained above.8

2 Discussed in xii, 6-7

»vi, 8
 137 [X II, 2 - 3]

[2] Cum quis itaque clamet aliquod liberum tene­

mentum uel seruicium tenendum de alio per liberum
seruicium, non poterit inde trahere in placitum tenentem
sine breui domini«regis uel eius iusticiarum.1 Habebit
ergo ad dominum suum de quo idem clamat tenere
breue de recto,2quod si placitum fuerit de terra tale erit:

Breue de rectob
[3] Rex comiti Willelmo« salutem. Precipio tibi quod
sine dilatione plenum rectum teneas N. de decem car-
rucatis terre in Middelton’* quas clamat tenere de te
per liberum seruicium centum solidorum per annum
pro omni seruicio, uel per liberum seruicium feodi unius
militis pro omni seruitio, uel per liberum seruitium unde
duodecim carruce faciunt feodum unius militis pro omni
seruicio; uel quas clamat pertinere ad liberum tene­
mentum suum' quod de te tenet in eadem uilla uel in
Mortun’/ per liberum seruitium etc’, uel per seruicium
etc’ ; uel quas clamat tenere de te de libero maritagio
M. matris sue, uel in liberum burgagium, uel in liberam
elemosinam; uel per liberum seruitium eundi tecum in
exercitum domini regis cum duobus equis ad custum
tuum/ pro omni seruicio; uel per* liberum seruicium
inueniendi tibi unum arbalastarium in exercitu domini
regis per quadraginta dies pro omni seruicio: quas
Rodbertus filius Willelmi1' ei deforciat. Et nisi feceris
uicecomes Deuon’ i faciat, ne amplius inde clamorem
audiam pro defectu recti.* Teste etc’.
* L, B ; om. Ln, Z 4 rubric «
* Ln, B; W . L, Z J L n, L ; Mildetun’ Z; M ideltun’ B
* om. Ln f Ln; Morton’ L; Mortune Z> B
* Ln, Z; suum L , B * om. Ln
* Rodbertus filius Willelmi Ln, Z> R- filius W . L, B
j Zi Deuoniensis Ln; de Not’ L, B
* iusticie B: set Introduction, p. lxix, n. 1
 [X II, 2 - 3] 137
When anyone claims to hold of another by free [2]
service any free tenement or service, he may not im­
plead the tenant about it without a writ from the lord
king or his justices.1 Therefore he shall have a writ of
right,8directed to the lord of whom he claims to hold;
if the plea concerns land, it will be as follows:

The writ o f right

The king to Earl William, greeting. I command you [3]
to do full right without delay to N. in respect of ten
carucates of land in Middleton which he claims to hold
of you by the free service of one hundred shillings a year
for all service (or by the free service of one knight’s fee
for all service, or by the free service appropriate when
twelve carucates make up one knight’s fee for all ser­
vice; or which he claims as pertaining to his free tene­
ment which he holds of you in the same vill or in Morton
by the free service, etc., or by the service, etc.; or which
he claims to hold of you as part of the free marriage-
portion of M. his mother, or in free burgage, or in
frankalmoin; or by the free service of accompanying
you with two horses in the army of the lord king at
your expense for all service; or by the free service of
providing you with one crossbowman for forty days in
the army of the lord king for all service): which Robert
son of William is withholding from him. If you do not
do it the sheriff of Devonshire will, that I may hear no
further complaint for default of right in this matter.
Witness, etc.

l cf. xii, 25 (p. 148, n. 1)

* For the relationship o f this writ to the Precipe see p. 179. See generally
V an Caenegem; cf. examples in Stenton, nos. 3551-4, and comment, ibid.
pp. 20-1.
 138 [X II, 3 ■ 5l
F.43 Multipliciter autem / uariari solent breuia huiusmodi
de recto diuersis de causis, que liquebunt ex diuersis
formis breuium subscriptorum. Si uero fuerit placitum
de seruitio, breue erit tale:

Breue de recto«

[4] Rex N. salutem. Precipio tibi quod sine dilatione

plenum rectum teneas R.» de centum solidatis redditus
in ilia uilla quem clamat tenere de te per liberum
seruitium etc’, uel per liberum seruitium etc’.* Et nisi
feceris uicecomes faciat, ne amplius inde clamorem
audiam pro defectu recti.*' Teste' etc’.

Item breue de recto f

[5] Rex R. salutem. Precipio tibi quod iuste et sine
dilatione facias habere N. et A. uxori sue rationabilem
partem suam que eos contigit de uno masagio in ilia
uilla, quam clamant* pertinere ad liberum tenementum
suum quod tenent de domino rege in eadem uilla per
liberum seruitium duorum solidorum per annum; uel
de una marcata redditus in ilia uilla quam clamant de
libero maritagio ipsius A.: unde queruntur quod B.
soror ipsius A. eis deforciat, uel quam G. ipsis deforciat.
Et nisi feceris uicecomes faciat/ ne oporteat *' eos
amplius inde conqueri pro defectu recti./ Teste* etc’.

* rubric a
bed.; N. M SS
c u e l . . . etc’ . Z\ liberum om. L, B ; om. Ln
J om. a; iusticie B: set Introduction, p. Ixix, n. 1
• fa c ia t. . . Teste om. Ln
f rubric Ln; Aliud breue L; Breue de eodem Z
1 Z> B; clamat Ln, L (which uses singular verbs throughout writ)
 [X II, 3 - 5] 138

There are many varieties of these writs of right for

different cases, as will appear from the different forms
of writ set out below. If the plea concerns service the writ
will be as follows:

The writ o f right

The king to N., greeting. I command you to do [4]
full right without delay to R. in respect of one hundred
shillings of rent in such-and-such a vill which he claims
to hold of you by the free service, etc. (or by the free
service, etc.). If you do not do it the sheriff will, that I
may hear no further complaint for default of right in this
matter. Witness, etc.

Another writ o f right

The king to R., greeting. I command you to cause [5]
N. and A. his wife to have, justly and without delay,
their reasonable share which belongs to them in one
messuage in such-and-such a vill, which they claim as
pertaining to their free tenement which they hold of
the lord king in the same vill by the free service of two
shillings a year (or in one mark of rent in the same vill
which they claim as part of the free marriage-portion
of A.); which they complain that B. sister of the said
A. is withholding from them (or which G. is with­
holding from them). If you do not do it the sheriff
will, that they need no longer complain for default of
right in this matter. Witness, etc.

h etc’ Ln
’ oportet Ln
>om. iusticie B\ see Introduction, p. lxix, n. I
* eos . . . Teste om. Ln
 139 [X II, 6 - 7]

Qualiter curie dominorum probantur de recto

defecissea
[6] Solent autem placita ista in curiis dominorum uel
eorum qui loco dominorum habentur deduci secundum
rationabiles consuetudines ipsarum curiarum, que quia
tot et tam uarie sunt in scriptum de facili reduci non
[7] possunt. Probantur autem curie ipse de recto defecisse1
in hunc modum: conquerente autem se eo qui petit
uicecomiti et in comitatu et breue domini regis2afferente,
mittet uicecomes ad curiam ipsam die que litigatoribus
a domino ipsius curie statuta fuerit aliquem seruientem
suum, ut ille coram quatuor uel pluribus legalibus
militibus eiusdem comitatus, qui ex precepto uicecomitis
illic aderunt, audiat et uideat* probationem ipsius
petentis, scilicet curiam ipsam ei de recto in placito
ipso defecisse: quod et ipse petens sic esse suo iuramento
cum duobus aliis id audientibus et intelligentibus cum
eo iurantibus probabit. Sub tali quoque sollempnitate
solent loquele a quibusdam curiis ad comitatus transferri,
et ibi de nouo tractari et terminari sine contradictione
uel recuperatione ipsarum curiarum quam inde habere
possint ipsarum curiarum domini siue eorum heredes
quantum ad illud placitum.
F.43D Sin autem priusquam curia / aliqua predicto modo
probetur de recto defecisse loquela aliqua ab ea ad
superiorem curiam trahatur, poterit dominus illius*
curie die placiti curiam suam ea ratione repetere quod
nondum probata fuerit de recto defecisse; et ita earn
“ rubric L, Z> (probentur) Ln
* audiat et uideat B; ut (om. L) audiant et uideant “
c illi Ln
1 For the wide meaning given to default o f right (or justice) see
N. D. Humard in Studies . . . presented to F. M . Powicke (Oxford 1948),
pp. 161-2; 168, n. 1; 178-9. T he process is toll.
 [X II, 6 - 7] 139
How the courts o f lords are proved to have
made default o f right

These pleas are tried in the courts of lords, or of [6]

those who stand in their place, in accordance with the
reasonable customs of those courts, which cannot
easily be written down because of their number and
variety. Proof of default of right1 in these courts is [7]
made in the following way: when the demandant
complains to the sheriff in the county court and produces
the writ from the lord king,2 the sheriff will, on a day
appointed to the litigants by the lord of the court, send
to that court one of his servants, so that he may hear and
see, in the presence of four or more lawful knights of
that county who will be there by command of the
sheriff, the demandant’s proof that the court has made
default of right to him in that plea; the demandant
will prove this to be the case by his own oath and by the
oath of two others who heard and understood it and
who swear with him. With this formality, then, cases
are transferred from certain courts to the county
court, and are once again dealt with and determined
there; and neither the lords of those courts nor their
heirs may contest this or recover jurisdiction for their
courts in respect of the particular plea.
But if a case is removed from any such court to a
superior court before that court is proved, in the manner
set out above, to have made default of right, the lord of
that court may on the day appointed for the plea re­
claim his court, on the ground that it has not yet been
proved to have made default of right; in this way he

a i.e. the original writ of right; see Stenton, pp. 20-1.

 140 [X II, 7 - 9 ]
per iudicium retro habebit, nisi ibi probetur earn de
recto ut dictum est defecisse.1 Sciendum tamen quod si
ad capitalem curiam domini regis ita tracta fuerit loquela
aliqua, frustra uendicabit quis ibi die placiti curiam
suam, nisi tercio die ante coram legalibus hominibus
earn uendicauerit. Nullo autem die posito ipsi petenti
unde ipse queri possit et iuste de dilatione ei facta,
sufficit ei falsare curiam ipsam sub forma prescripta
quocumque loco uoluerit in feodo ipso si dominus
nullam* habuerit reseantisam super feodo ipso,» sicut
ipsi domino licet curiam suam inde tenere et ipsi petenti
diem ponere quocumque loco uoluerit super feodo ipso:
extra autem feodum ipsum non licet de iure.
[8] Debet autem impetrari breue solummodo ad ilium
de quo clamat tenere is qui petit non ad alium, nec
eciam ad capitalem dominum. Sed quid erit si petens
ipse de uno clamet tenere et tenens ipse de alio teneat?
Et quidem in tali casu quia is cui breue dirigitur
placitum illud tenere non potest, cum alium non possit
de curia unde ipse saisitus esse intelligitur iniuste et sine
iudicio dissaisire,*ex necessitate itur inde ad comitatum;
et ibi procedet placitum uel in capitali curia, ita quod
uterque dominorum per summonitionem ibi adesse debet
ut utroque presente res agatur, sicut superius2 dictum
est in tractatu de warantis.rf
[9] Ad uicecomitem itaque prouinciarum pertinent
predicta placita de recto ubi curie dominorum de recto
“ si dominus nullam: sicut ipse dominus licet Ln
4 ipsi Ln
c dissaisine Ln
d in tractatu de warantis jo “, B

1 For the significance of this rule in relation to Magna Carta, c. 34,

see p. 179.
a iii, 6-8
 [XII, 7 - 9] 140

shall have judgment to have his court again, unless it

is proved then and there that it had made default of
right as alleged.1 It should be noted, however, that if a
suit has been removed in this way to the chief court
of the lord king, it is of no effect for anyone to claim his
court on the day appointed for the plea, unless he has
claimed it on the third day previous to that, in the
presence of lawful men. But if no day has been appoin­
ted to the demandant, so that he has just cause to com­
plain of the delay caused to him, it suffices for him to
falsify the court in the manner set out above; he may
do this wherever he pleases in that fee if the lord has no
settled residence therein, just as the lord may hold his
court and appoint a day to the demandant in whatever
place he pleases in the fee; but he may not legally do it
outside the fee.
The writ must be directed to him of whom the [8]
demandant claims to hold, not to anyone else, not
even to the chief lord. But what if the demandant
claims to hold of one lord and the tenant holds of
another? In such a case he to whom the writ is directed
may not hold that plea, because he may not unjustly and
without a judgment disseise another of the seisin of his
court which he is deemed to have; therefore recourse
must necessarily be had to the county court, and the
plea will proceed there or in the chief Curia ; both
lords must be summoned to be present there, so that
the matter can be litigated in the presence of both, in
the manner stated above2in the treatise on warranties.
The sheriffs of counties have jurisdiction over [9]
the foregoing pleas of right in which lords’ courts are
 141 [X II, 9 - II]
probantur defecisse et alia quedam; ueluti si quis con-
queratur se curie* de domino suo, quod consuetudines
et indebita seruicia uel plus seruicii ab eo exigit de libero
tenemento suo quod de eo tenet quam ei inde facere
debeat1; item placitum de natiuis ut dictum est.2 Et
generaliter omnia ilia unde breue habet domini regis uel
capitalis iusticie ipse uicecomes de aliquo iusticiando,
uel quod ipse rectum faciat nisi alius fecerit ut predictum
est,3 ad ipsum uicecomitem pertinent audienda et
terminanda; quorum quedam per breuia supposita
liquebunt:

Breue ne quis dominus iniuste uexet tenentem

suumH
[10] Rex S. <salutem. Prohibeo tibi ne iniuste uexes uel
F.44 uexari permittas H. de libero tenemento / suo quod
tenet de te in ilia uilla; nec inde ab eo exigas uel exigi
permittas consuetudines uel seruicia que tibi inde facere
non debet, uel que antecessores sui inde non fecerunt
nec facere debuerunt tempore regis Henrici aui mei. Et
nisi feceris uicecomes faciat, ne oporteat eum amplius
inde conqueri pro defectu iusticie. d Teste etc’.

Breue de natiuis <

5
[u] Rex uicecomiti salutem. Precipio tibi quod iuste et
sine dilatione facias habere R. M. natiuum et fugitiuum
suum, cum omnibus catallis suis et cum tota sequela sua,

a iure Ln 4 rubric a
c Ln\ N. L, B; uicecomiti Z J eum . . . iusticie om. Ln
• rubric ®

‘ The writ is at xii, 10 * v, 1; the writ is at xii, 1 1

e.g. xu, 3
cf. V an Caenegem, nos. 159-78, for precursors and examples
 [XII, 9 - II] 141
proved to have made default of right, and also over
certain other pleas; for example, when anyone com­
plains in court that his lord is demanding customs and
services which are not due, or more service than he
ought to do him, in respect of the free tenement which
he holds of him1; similarly, pleas concerning villeins,
as stated above.2 To put it generally, the pleas which
are to be heard and determined by the sheriff are all
those in which the sheriff has a writ from the lord king
or his chief justice commanding him to constrain any­
one, or, as stated above,3to do full right unless another
does it; examples will appear in the following writs:

The writ forbidding a lord unjustly to

vex his tenant4
The king to S., greeting. I prohibit you from [10]
unjustly vexing H., or permitting him to be vexed, in
respect of his free tenement which he holds of you in
such-and-such a vill, or from demanding, or allowing
to be demanded, customs and services which he is not
bound to do for you, or which his ancestors neither
did nor were bound to do in the time of King Henry my
grandfather. If you do not do this the sheriff will, that
he need no longer complain for default of justice in this
matter. Witness, etc.

The writ o f naifty*

The king to the sheriff, greeting. I command you [11]
justly and without delay to cause R. to have M. his
villein and fugitive, with all his chattels and his whole

6 See v, 1 (p. 53, n. 3); precursors and examples in V an Caenegem,

nos. 103-24.
23
 142 [XII, U - I 4 ]
ubicumque inuentus fuerit in baillia tua, nisi sit in
dominico meo, qui fugit de terra sua post primam coro-
nationem meam. Et prohibeo ne quis eum iniuste
detineat super forisfacturam meam. Teste etc."

Breue de aueriis replegiandisil

[12] Rex uicecomiti salutem. Precipio tibi quod iuste et
sine dilatione facias habere G. aueria sua per uadium et
plegios,« unde queritur quod R. ea cepit et detinet
iniuste pro consuetudinibus quas ab eo exigit, quas ipse
non cognoscit se debere; et ipsum preterea inde iuste
deduci facias, ne oporteat eum amplius inde conqueri
pro defectu iusticie.rf Teste etc’.

Breue de pasturis ammensurandis •

[13] Rex uicecomiti salutem. Precipio tibi quod iuste et
sine dilatione facias amensurari pasturam de ilia uilla,
unde L. que fuit uxor P. et R. soror sua queruntur quod
S. earn iniuste superonerat; nec permittas quod prefatus
S. in ea pastura plura aueria habeat quam habere
debet,/ et quam habere pertinet* secundum quanti-
tatem feodi sui quod ipse habet in eadem uilla: ne
oporteat eas amplius inde conqueri pro defectu iusticie.*
Teste etc’.

Breue de aisiamentis habendis in liberis

tenementis •
[14] Rex uicecomiti salutem. Precipio tibi quod sine

a Teste etc. om. Ln 4 rubric “

‘ Ln; plegium L, B ;pleg’ Z d eum • • • iusticie: etc’ Ln
• rubric * / Ln; debeat L, Zt B
s Ln, Zi pertineat L h eas . . . iusticie: etc’ Ln
' rubric L, Z> (de om.) Ln
 [X II, II - 14] 142

household, wherever he shall be found in your juris­

diction unless it be in my demesne; who fled from his
land since my first coronation. And I prohibit anyone
on pain of forfeiture from detaining him unjustly.
Witness, etc.

The writ fo r replevying cattle1

The king to the sheriff, greeting. I command you [12]
justly and without delay to cause G. to have, in return
for gage and sureties, his cattle, which he complains
that R. took and kept unjustly on account of customary
dues which he is demanding from G., who does not
admit that he owes them; and afterwards cause him
to be justly dealt with, that he need no longer complain
for default ofjustice in this matter. Witness, etc.

The writ fo r measuring pasture

The king to the sheriff, greeting. I command you [13]
justly and without delay to cause the pasture of such-and-
such a vill to be measured, which L., who was the wife
of P., and her sister R, complain that S. is unjustly
overloading; nor are you to permit the aforesaid S.
to have more cattle in that pasture than he ought to
have, as pertaining to him in proportion to the size of
the fee which he has in that vill; that they need no
longer complain for default of justice in this matter.
Witness, etc.

The writ fo r having easements in free

tenements
The king to the sheriff, greeting. I command you [14]
1 xii, 15 also is a writ of replevin
 143 [X II, i4 - i 6]

dilatione precipias R. quod iuste et sine dilatione per-

mittat habere H. aeisiamenta sua in bosco et in» pastura
de ilia uilla que habere debet ut dicit, sicut ea habere
debet et habere solet; et non permittas quod prefatus
R. uel alius inde ei molestiam uel iniuriam faciat. Ne
amplius inde clamorem audiam pro defectu iusticie.4
Teste etc’.

Breue ne capitalis dominus iniuste uexet

tenentem sui tenentiscl
[15] Rex uicecomiti salutem. Prohibeo tibi ne permittas
quod R. iniuste exigat ab S., de libero tenemento suo
quod tenet de N. de feodo ipsius R. in ilia uilla, plus
seruicii quam quod pertinet ad illud liberum tenemen­
tum quod tenet: et aueria sua que capta sunt pro ilia
demanda, quam ipse non cognoscit ad liberum tenemen-
F.44 v turn suum quod tenet pertinere, / ei replegiari facias,
donee loquela ilia coram nobis audiatur et sciatur utrum
illud seruicium debeat uel non. Teste etc’.

Breue de rationabilibus diuisis perambulandis

inter diuersa tenemental
[16] Rex uicecomiti salutem. Precipio tibi quod iuste et
sine dilatione facias esse rationabiles diuisas inter terram
R. in ilia uilla et in pertinenciis et terram A. in ilia uilla,

“ om. Ln
4 inde . . . iusticie: oporteat etc* (erroneous invention) Ln
‘ rubric Ln, L, (iniuste om.) Z
d rubric L , Z> (rationabilis) Ln

1 cf. xii, 12
* The same writ, in the context o f a dispute, is at ix, 14 with a more
appropriate rubric. ‘ Perambulating ’ in the present rubric invites con­
fusion between this writ (which assumes a dispute) and the much later de
 [XII, 14- 16]
without delay to command R. to permit H. to have,
justly and without delay, his easements in wood and
pasture in such-and-such a vill which he alleges that he
ought to have, to the extent that he ought, and is
accustomed, to have them; and do not permit the
aforesaid R. or any other person to molest or injure
him therein; that I may hear no further complaint for
default ofjustice in this matter. Witness, etc.

The writ fo r prohibiting a chief lord from

vexing his tenant’ s tenant1
The king to the sheriff, greeting. I prohibit you from [15]
permitting R. unjustly to demand from S. more service
than is due in respect of the free tenement which he
holds of N., of the fee of the said R., in such-and-such
a vill. And you shall cause the cattle which were taken on
account of that demand, which he does not acknow­
ledge as due in respect of his free tenement, to be re­
plevied to him, until the suit is heard before us and it
is known whether he owes that service or not. Witness,
etc.

The writ fo r perambulating reasonable

boundaries between different tenements2
The king to the sheriff, greeting. I command you to [16]
establish, justly and without delay, reasonable boun­
daries between the land of R. in such-and-such a vill
and its appurtenances and the land of A. in such-and-

perambulatione facienda (based on an agreement by the parties to submit

to the sheriff’s arbitration).
 144 [X II, 16 - 18]

sicut esse debent et esse solent et sicut fuerunt tempore

regis Henrici aui mei, unde R. queritur quod A. iniuste
et sine iudicio occupauit inde plus quam pertinet ad
liberum tenementum suum de ilia uilla: ne amplius*
inde clamorem audiam pro defectu iusticie. Teste4etc’.

Breue de diuisis mortuorum tenendiscl

[17] Rex uicecomiti salutem. Precipio tibi quod iuste et
sine dilatione facias teneri* rationabilem diuisam R.
quam fecit fratribus hospitalis de Ierusalem de catallis
suis, sicut rationabiliter monstrari' poterit quod earn
fecit et teneri debeat. Teste etc’.

Breue de catallis restituendis f2

[18] Rex uicecomiti salutem. Precipio tibi quod iusticies
R. quod iuste et sine dilatione reddat N. catalla sua,
unde queritur quod ea cepit iniuste et sine iudicio in
libero tenemento suo in ilia uilla infra dissaisinam quam
ei inde fecerat infra assisam meam, unde ipse recuper-
auit saisinam suam coram iusticiis meis per recogniti­
onem de noua dissaisina, sicut rationabiliter monstrare
poterit quod ea habere debet: ne amplius inde clamorem
audiam pro defectu iusticie.* Teste etc’.

a oporteat B
4 inde . . . Teste om. Ln
c rubric “
d Ln; tenere L, B; om. Z
• corr. from monstrare Ln
f rubric ed. (shortenedform of A and Ca); Breue de aueriis replegiandis «
t inde . . . iusticie: etc’ Ln

1 The same writ, with discussion, is at vii, 7.

* Repeated, with explanation, at xiii, 38-9. The alpha rubric probably
results from the double meaning of ‘ catalla ’— cattle/chattels.
 [X II, 16 - 18] 144

such a vill, as they ought to be and customarily are,

and as they were in the time of King Henry my grand­
father; concerning which R. complains that A. has
unjustly and without a judgment occupied more than
belongs to his free tenement in that vill; that I may hear
no further complaint for default ofjustice in this matter.
Witness, etc.

The writ fo r upholding divisions made by

those deceased1
The king to the sheriff, greeting. I command you [17]
justly and without delay to cause the reasonable division
of his chattels which R. made to the brothers of the
Hospital ofJerusalem to be upheld, if it can reasonably
be shown that he made it and that it ought to be up­
held. Witness, etc.

The writ fo r restoring chattels*

The king to the sheriff, greeting. I command you [18]
to constrain R. to restore, justly and without delay, to
N. his chattels, if he can reasonably show that he ought
to have them; concerning which he complains that he
took them unjustly and without a judgment in his free
tenement in such-and-such a vill, after the disseisin
which he had done to him there within my assize and
for which he recovered his seisin before myjustices by a
recognition of novel disseisin; that I may hear no
further complaint for default of justice in this matter.
Witness, etc.
 *45 [X II, i 9 - 20]
Quod hi qui a domino rege uel eius iustitiis
attomantur ad aliquod negotium tractandum non
possint alios ad idem negotium tractandum sua
auctoritate attornare*1
[19] Rex uicecomiti salutem. Precipio tibi quod poni
facias in respectum, usque ad alium terminum compe-
tentem quando interesse poteris, recognitionem que
summonita est inter R. et M. de diuisis de illis uillis,
que per iusticias meas de partibus illis iniuncta est tibi
et H. coram uobis capere earn; ad quam capiendam, ut
dicitur, attornastis alios loco uestro ad earn capiendam.
Quia non est consuetudo quod ex quo aliquod negocium
pertinens ad iusticiam meam* aliquibus iniungitur trac­
tandum, quod ipsi illud in alios transferant de re aliqua
que ad iusticiam meam pertineat. Teste etc’.

Breue pro muliere de rationabili dote habendac2

[20] Rex uicecomiti salutem. Precipio tibi quod iuste et
F.45 sine dilatione facias habere A. que fuit uxor R. /
rationabilem dotem suam de toto feodo quod fuit pre-
dicti R., integre et in omnibus, saluo heredi suo capitali
masagio; et eidem uxori facias habere aliud masagium,
nisi aliqua terra in qua masagium non sit ei nominata
sit in dotem. Et non remaneat eo quod feodum prefati
R. sit de baronia mea, quia nolo nec ius exigit quod
uxores militum propter hoc amittant dotes suas. De
“ rubric (idem negotium ad alios) Ln, (Breue de his q u i. . . possunt. . .)
L, (non . . . tractandum om.) Z b iusticiam meam: iusticias meas B
c rubric Z> (habebenda) L; om. Ln
1This and the following writ are clumsily drafted. They were not then,
and did not later become, common form; see Stenton, pp. a 1-2.
* This remarkable writ on the death o f a tenant-in-chief combines
several operations: the sheriff is to secure reasonable dower for the widow
(the king is lord, and so the writ in vi, 5 is inappropriate) and see to the
performance o f the testament (cf. vii, 7 and xii, 17). The interest in payment
 [X II, 1 9 -2 0 ] 145
Those appointed by the lord king or his
justices to transact certain business may not
on their own authority appoint others to
transact that business1
The king to the sheriff, greeting. I command you [19]
to postpone, until some suitable day when you will
be able to be present, the recognition which has been
summoned between R. and M. concerning the bound­
aries of certain vills, which my justices in those parts
ordered you and H. to take before you, and for the
taking of which it is alleged that you have appointed
others in your place. For it is not the custom when the
transaction of any of my judicial business is entrusted
to certain people that they should transfer it to others
when the matter in question concerns my justice.
Witness, etc.
The writ fo r a woman to have her reasonable
dower*
The king to the sheriff, greeting. I command you [20]
justly and without delay to cause A., who was the wife
of R., to have her reasonable dower from the whole of
the fee which was held by the aforesaid R., complete
in all respects, but saving to the heir the chief messuage;
and cause the said wife to have another messuage, unless
she has been given as nominated dower land in which
there is no messuage. The plea shall not be discontinued
on the grounds that the fee of the aforesaid R. is in one of
my baronies, for I do not wish, nor does the law require,
that the wives of knights should for this reason lose

o f debts, normally the heir’s duty (vii, 9), suggests that the heir is under
age and in ward to the king.
 146 [X II, 20 - 22]

catallis autem que fuerunt prefati R. tibi precipio quod

ea omnia simul et in pace esse facias, ita quod inde nil
amoueatur, nec ad diuisam suam faciendam nec ad
aliam rem faciendam, donee debita sua ex integro
reddantur; et de residuo post fiat rationabilis diuisa sua
secundum consuetudinem terre mee. Et si quid de
catallis suis remotum sit post mortem prefati R., red-
datur ad alia catalla sua ad soluendum inde debita sua.
Teste etc*.

Breue de prohibendo placito in curia

christianitatis de laico feodo *1
[21] Rex illis iudicibus ecclesiasticis salutem. Prohibeo
uobis ne teneatis placitum in curia christianitatis quod
est inter R. et N. de laico feodo predicti R., unde ipse
queritur quod predictus N. trahit eum in placitum in
curia christianitatis coram uobis; quia placitum illud
spectat ad coronam et ad dignitatem meam.2 Teste etc.4

Breue ne quis tale placitum in tali curia sequatur*

[22] Rex uicecomiti salutem. Prohibe N.*' ne sequatur
placitum in curia christianitatis quod est inter R.* et
ipsum de laico feodo ipsius R. in ilia uilla, unde ipse
queritur quod prefatus N. inde trahit eum in placitum
in curia christianitatis coram illis iudicibus. Et si pre­
fatus R. fecerit te securum de clamore suo prosequendo,
tunc pone per uadium et saluos plegios predictum N.
“ rubric Ln has this writ and the next in a different, cramped, hand
4 Teste etc. om, Ln
‘ rubric Ln, Z> (in curia christianitatis) L
JR.B ‘ L n , Z ! N. L , B

1 See p. 191
1 Constitutions o f Clarendon (1164), c. 9
 [X II, 20 - 22] 146

their dower. I further command you to cause all the

chattels of the aforesaid R. to remain in peace so that
nothing is removed, either in performance of his division
or for any other purpose, until his debts are fully paid;
afterwards his reasonable division shall be given effect
out of the residue, according to the custom of my land.
And if any of his chattels have been removed since the
death of the aforesaid R., they shall be restored to his
other chattels for the purpose of paying his debts.
Witness, etc.

The writ fo r prohibiting a plea concerning lay

fe e in an ecclesiastical court1
The king to such-and-such ecclesiastical judges, [21]
greeting. I prohibit you fromholding in an ecclesiastical
court the plea which is between R. and N. about the
lay fee of the aforesaid R., concerning which he com­
plains that the aforesaid N. is impleading him before
you in an ecclesiastical court; because that plea con­
cerns my crown and dignity.2 Witness, etc.

The writ prohibiting anyone from prosecuting

a plea o f this kind in such a court
The king to the sheriff, greeting. Prohibit N. from [22]
prosecuting in an ecclesiastical court the plea which is
between R. and himself about the lay fee of R. in such-
and-such a vill, concerning which he complains that the
aforesaid N. is impleading him in an ecclesiastical
court before certain judges. And if the aforesaid R.
gives you security for prosecuting his claim, then put
the aforesaid N. under gage and safe sureties to be before
 147 [ x ii, 22 -:24j
quod sit coram me uel iusticiis meis eo die, ostensurus
quare traxit eum in placitum in curia christianitatis de
laico feodo suo in ilia uilla, desicut placitum illud
spectat ad coronam et dignitatem meam.* Teste etc."

Quare non tractetur hie de placitis ad

uicecomitem pertinentibus*
[23] Predicta uero placita siue alia qualiter uel quo iure
deduci siue terminari habeant in diuersis comitatibus
ommitto, turnpropter ipsorumcomitatuumconsuetudines
diuersas quas quidem singuli comitatus singulas ob-
seruant, turn quia propositi mei illud breuitas non
exigit, cum non attendam nisi ea que in capitali curia
domini regis fieri soleant et debeant.
[24] 2Sciendum preterea quod in breui de recto quan­
doque minus continetur quam in peticione3 ponatur
in curia, turn circa pertinenciam turn circa alia, quan­
doque uero plus. Errant eciam,«quandoque circa nomen
aliquod in breui ipso positum, quandoque circa quanti-
tatem seruicii. Quando siquidem minus continetur in
breui quam in peticione, non plus peti potest per breue
F.45 v illud quam in breui / illo continetur. Quando uero plus
continetur in breui quam in peticione, remitti potest id
quod de superhabundanti in eo continetur, et residuum
auctoritate eiusdem breuis peti potest. Si uero in
nomine erretur, destricto iure aliud breue petatur.
Quando uero circa quantitatem seruicii erratur, destricto
iure quoque euanescit breue.
“ om. Ln 4 rubric “
1 Constitutions o f Clarendon (1164), c. 9
* cc. 24-5 are oddly placed, and are probably put here because there is
no general and systematic exposition o f writs o f right in the treatise.
8 The count (‘ narratio ’ in later Latin, ‘ conte ’ or ‘ encoupement ’ in
French) is the formal oral statement of the case made in court by the
 [X II, 22 - 24] 147
me or my justices on a certain day, to show why he im­
pleaded him in an ecclesiastical court about his lay fee
in that vill, whereas that plea concerns my crown and
dignity.1 Witness, etc.

Why there is no discussion here o f pleas

belonging to the sheriff
I omit discussion of the manner and legal process of [23]
trying or determining in different county courts the
foregoing pleas or others, partly because of the different
customs observed from county to county, and partly
because the brevity of my plan does not require it, for I
am considering only the custom and law of the chief
court of the lord king.
2It should be known, moreover, that sometimes less [24]
is contained in the writ of right than is put into the
count3 in court, whether concerning appurtenances
or other things, and sometimes more. There may also
be discrepancies,4 sometimes concerning a name put
into the writ, sometimes concerning the amount of
service. When less is contained in the writ than in the
count, no more may be claimed under that writ than
is contained in the writ; but when more is contained
in the writ than in the count, the excess in the writ may
be set aside and the remainder claimed on the authority
of the writ. Where there is a discrepancy as to name,
strict law requires another writ to be sought. Similarly,
when the discrepancy concerns the amount of service,
strict law requires that the writ fails.

plaintiff or his pleader; examples are in ii, 3, iv, 6 and vi, 8. See P & M,
11, 604-07; the mid-thirteenth-century Brevia Placitata (S.S. l x v i ) is based
on French ‘ encoupements’ .
* i.e. between writ and count
 148 [X II, 24-25 : X II I, I]
Contingit autem quandoque tenementum aliquod
peti per minus seruicii quam inde debeatur uel quam
inde fieri soleat ipsi domino. Numquid ergo tenetur ipse
dominus per breue illud rectum inde tenere in seruicii
sui detrimentum? Et quidem tenetur, sed post euicti-
onem, si petentem euincere contigerit, regressum inde
habere poterit uersus euictorem.
[25] Preterea sciendum quod secundum consuetudinem
regni nemo tenetur respondere in curia domini sui
de aliquo libero tenemento suo sine precepto domini
regis uel eius iusticie capitalist Ita dico si laicum fuerit
feodum petitum. Verum- si fuerit placitum inter duo
clericos de aliquo tenemento quod sit de libera elemo-
sina feodi ecclesiastici, uel si tenens ipse clericus teneat
in libera elemosina feodum illud ecclesiasticum quicum-
que sit petens, placitum inde debet esse in foro ecclesias-
tico de recto, nisi petatur inde recognitio utrum fuerit
liberum feodum ecclesiasticum uel laicum feodum, unde
inferius2dicetur: tunc enim ista recognitio sicut quelibet
alia in curia domini regis debet tractari.a

[LIBER XIII]
D e diuersis recognitionibusb
[1] Generalia que circa premissa placita de recto fre-
quentius in curia contingunt hactenus in parte sunt
expedita. Nunc uero ea que super saisinis solummodo
usitata sunt restant prosequenda.^ Que quia ex beneficio
a Vnde Ln b rubric “

1 The rule (also stated in xii, 2) does not of course mean that litigation
about free tenements should be in the royal court. But the royal writ
(the writ o f right in xii, 3) has in it the threat o f removal to the county
court for default of right, and thence to the royal court (vi, 6-8). So the
 [X II, 24-25 : X II I, I] 148

It sometimes happens that a tenement is claimed

by less service than is due from it, or is customarily done,
to the lord. Is the lord then bound by that writ to do
right, to the detriment of his service? Certainly he is
bound, but if the demandant recovers the property the
lord can subsequently have a remedy against him on
this point.
It should be known, moreover, that according to [25]
the custom of the realm, no-one is bound to answer
concerning any free tenement of his in the court of his
lord, unless there is a writ from the lord king or his
chiefjustice.1 I assume here that the fee claimed is lay
fee; for if there is a plea between two clerks concerning
a tenement which is frankalmoin belonging to an
ecclesiastical fee, or if, whoever the demandant is, the
tenant is a clerk holding such an ecclesiastical fee in
frankalmoin, then the plea about the right must be in
an ecclesiastical court, unless a recognition is sought to
determine whether the fee is ecclesiastical or lay, which
is discussed below2; for then this recognition must,
like all others, be dealt with in the court of the lord king. 3

[BOOK XIII]
The various kinds o f recognition
So far the questions which most often arise in pleas [1]
about right have been dealt with. There remain for
discussion those which are concerned with seisin only.*

rule, in effect if not in intent, assists the flow of cases from feudal to royal
courts; for its origin and development see V an Caenegem, pp. 212-31.
8xiii, 23-5
8 Constitutions o f Clarendon (1164), c. 9
4 See p. 192
 149 [X III, i - 2]
constitutionis regni que assisa nominatur in maiore parte
transigi solent per recognitionem, de diuersis recogniti-
onibus restat tractandum.*
[2] Est itaque quedam recognitio que uocatur de
morte antecessoris. Quedam autem est de ultimis pre-
sentationibus personarum in ecclesiis; quedam utrum
aliquod tenementum sit feodum ecclesiasticum uel lai-
cum feodum; quedam utrum aliquis fuerit saisitus de
aliquo libero tenemento die qua obiit ut de feodo uel ut
de uadio; quedam utrum aliquis sit infra etatem uel
plenam habeat etatem; quedam utrum aliquis obierit
saisitus de aliquo libero tenemento ut de feodo uel ut de
F.46 warda; quedam utrum aliquis presentauerit / personam
ad aliquam ecclesiam ultimam occasione feodi sui quod
in dominico suo habuerit* uel occasione alicuius warde:
et si que sunt similes que in curia frequenter emergunt
presentibus partibus, turn ex consensu ipsarum parcium
turn eciam de consilio curie considerate, ad aliquam
controuersiam terminandam. Item recognitio que dici-
tur de noua dissaisina.
Cum quis itaque moritur saisitus de aliquo libero
tenemento ita quod inde fuerit saisitus in dominico suo
sicut de feodo suo, heres eandem saisinam antecessoris
sui recte petere potest, et si maior fuerit* habebit tale
breue*:

a habuit Ln
* fuit Ln

1 There follows a list o f seven recognitions, and then novel disseisin

is mentioned at the end. T h e first four (mort d ’ancestor, cc. 2-17; darrein
presentment, cc. 18-22; utrum, cc. 23-5; gage or fee, cc. 26-30) include the
next three within them, and at c. 31 the long note which has got into the
beta text (printed in Woodbine, p. 171) makes this point by referring these
three to their respective chapters (under age or not, c. 16; died seised as o f
fee or wardship, c. 14; presented by virtue o f fee or wardship, c. 21). For
the postponement o f novel disseisin to cc. 32-9 see p. 167, n. 1.
 [X III, I - 2] H9
By virtue of a constitution of the realm called an assize
these questions are for the most part settled by recog­
nition, and therefore the various kinds of recognition
must now be considered.1
One kind of recognition is called mort d’ancestor. [2]
Another concerns the last presentation of parsons
to churches; another, whether a tenement is eccles­
iastical or lay fee; another, whether a man was seised
of a free tenement on the day he died as of fee or as of
gage; another, whether a man is under age or of full
age; another, whether a man died seised of a free
tenement as of fee or as of wardship; another, whether
a man presented the last parson to a church by virtue
of his fee which he had in his demesne, or by virtue of
the wardship of someone. And if similar questions arise
as they frequently do when both parties are present in
court, then recognitions are used to settle the dispute,
whether with consent of the parties or by award of the
court. There is also the recognition called novel dis­
seisin.
When anyone dies seised of a free tenement, if he
was seised in his demesne as of fee, then his heir can
lawfully claim the seisin which his ancestor had, and if
he is of full age he shall have the following writ2:

* Somebody (probably the lord) has got into the inheritance before the
heir. The dead tenant’s seisin does not descend to the heir, who has there­
fore not been disseised and cannot use novel disseisin. He can use the writ
o f right; the Assize o f Northampton (1176), c.4, provides this speedier
remedy. But there are three questions in the writ, and all may give rise to
technical points; some o f these are already evident in the treatise, and
special pleading soon became a feature o f this assize. See generally P & M,
i i , 56-62 and V an Caenegem, pp. 316-25; cf. Stenton, nos. 3530 and 3540,
and comment, ibid. p. 22.
24
150 [X III, 3 - 43
Breue de morte antecessoris«
Rex uicecomiti salutem. Si G. filius O. fecerit te
securum de clamore suo prosequendo, tunc sumone per
bonos sumonitores duodecim liberos et legales homines
de uisneto de ilia uilla quod sint coram me uel iusticiis
meis eo die, parati sacramento recognoscere si O. pater
predicti G. fuit saisitus in dominico suo sicut de feodo
suo de una uirgata terre in ilia uilla die qua obiit, si
obiit post primam coronationem meam, et si ille G.
propinquior heres eius sit. Et interim terram illam
uideant, et nomina eorum imbreuiari facias. Et sum-
mone per bonos sumonitores R. qui terram illam tenet
quod tunc sit ibi auditurus illam recognitionem. Et
habeas ibi summonitores et hoc breue. Teste* etc’.
Si uero antecessor ipse predicto modo saisitus iter
arripuerit eundi in aliquam peregrinationem, tunc erit
breue tale:

Breue de eodemc
Rex uicecomiti salutem. Si G. filius O. fecerit te
securum de clamore suo prosequendo/ tunc sumone
per bonos sumonitores duodecim liberos et legales
homines de uisneto de ilia uilla quod sint coram me uel
iusticiis meis eo die, parati sacramento recognoscere si
O. pater predicti G. fuit saisitus in dominico suo sicut
de feodo suo de una uirgata terre in ilia uilla die qua iter
arripuit uersus Ierusalem, uel uersus sanctum Iacobum,i
in quo itinere obiit, et si iter ipsum arripuit post primam
coronationem meam, et si prefatus G. propinquior eius
“ rubric Ln, Z> Breue recognitione d e . . . L
4 ibi summonitores . . . Teste om. Ln
‘ rubric Ln, Z> Breue de morte antecessoris L
d de . , . prosequendo: etc’ Ln
 [X III, 3 - 4] !5°

The writ o f mort d ’ancestor

The king to the sheriff, greeting. If G. son of O. [3]
gives you security for prosecuting his claim, then
summon by good summoners twelve free and lawful
men from the neighbourhood of such-and-such a vill to
be before me or my justices on a certain day, ready to
declare on oath whether O. the father of the aforesaid
G. was seised in his demesne as of his fee of one virgate
of land in that vill on the day he died, whether he died
after my first coronation, and whether the said G. is his
next heir. And meanwhile let them view the land;
and you are to see that their names are endorsed on
this writ. And summon by good summoners R., who
holds that land, to be there then to hear the recognition.
And have there the summoners and this writ. Witness,
etc.
If, however, the ancestor who was seised in the
manner stated above has set out on a pilgrimage, then
the writ shall be as follows:

Another writ o f the same kind

The king to the sheriff, greeting. If G. son of O. [4]
gives you security for prosecuting his claim, then
summon by good summoners twelve free and lawful
men from the neighbourhood of such-and-such a vill
to be before me or my justices on a certain day, ready
to declare on oath whether O. the father of G. was
seised in his demesne as of his fee of one virgate of land
in that vill on the day he set out for Jerusalem (or for
St. James1), on which journey he died, and whether he
set out after my first coronation, and whether G. is his
' St James of Compostella
 [X III, 4 - 7]
heres sit. Et interim terram illam uideant etc’, ut
prius.*1
Si uero infra etatem fuerit heres ipse, tunc erit
breue tale:

Breue de eodem11
[5] Rex uicecomiti salutem. Sumone per bonos sumoni-
tores etc’, omnia ut< prius, excepto quod in hoc breui
remittitur ilia clausula in principio: Si G. filius O.
fecerit te securum de clamore suo prosequendo. d In
F.46t< medio quoque / omittitur ilia clausula: Si O. pater
predicti G. obiit<post primam coronationem meam.
Si uero habitum religionis assumpserit, tunc breue
secundum hoc uariabitur hoc modo:

Breue de eodem f
[6] Rex uicecomiti salutem. Si G. filius O. fecerit te
securum etc’, omnia ut prius, excepto quod in hoc breui
ponitur in medio: Parati sacramento recognoscere si
O. pater predicti G. fuit saisitus in dominico suo ut de
feodo suo de tanta terra in ilia uilla die qua habitum
religionis assumpsit,2 si habitum ilium assumpsit post
primam coronationem meam, et si predictus G. propin­
quior eius heres sit. Et interim terram illam* uideant
etc’.

Quo ordine perueniatur ad hanc assisamh

[7] Recepto itaque breui de morte antecessoris ab ipso
uicecomite et in comitatu data securitate de clamore
prosequendo, tunc hoc ordine peruenitur ad assisam.
o ut prius om. Ln b rubric a c sicut Ln
J filius . . . prosequendo: etc’ Ln • obierit Ln
f rubric 0 t om. Ln h rubric °
 [XIII, 4 - 7]
next heir. And meanwhile let them view the land, etc.,
as above,i
If, however, the heir is under age, then the writ
shall be as follows:
Another writ o f the same kind
The king to the sheriff, greeting. Summon by good [5]
summoners, etc., exactly as above, except that the first
clause—If G. son of O. gives you security for prose­
cuting his claim—is omitted in this writ; so also is the
clause in the middle—Whether O. the father of G.
died after my first coronation.
If, however, the ancestor has put on the habit of
religion, then the writ shall be varied accordingly as
follows:

Another writ o f the same kind

The king to the sheriff, greeting. If G. son of O. [6]
gives you security, etc., exactly as above, except that in
this writ the middle part runs—Ready to declare on
oath whether O. the father of G. was seised in his
demesne as of his fee of so much land in that vill on the
day he put on the habit of religion,2whether he put on
that habit after my first coronation, and whether G. is his
next heir. And meanwhile let them view the land, etc.

The procedure leading to this assize

When the sheriff has received the writ of mort [7]
d’ancestor and security for prosecuting the claim has
been given in the county court, then the procedure
1 The reference back in this and the next two writs is to xiii, 3.
s Monastic profession equals civil death (more or less; see P & M , I,
433-8).
152 [X III, 7]
Ab inicio eligendi sunt duodecim liberi et legales hom­
ines de uisneto secundum formam in breui expressam,
presentibus partibus scilicet tam petente quam tenente,
uel absente eciam ipso tenente dummodo summonitus
fuerit saltern semel quod interesset illi electioni. Quia
semel inde sumonendus est ut presens sit et audiat qui
eligendi sint ad ipsam recognitionem faciendam, et
quosdam eciam ex rationabili causa si uoluerit recuset
ut ab ilia recognitione excludantur. Si uero ad primam
sumonitionem in curia recte testatam non uenerit, ul-
terius non expectabitur; imo eciam eo absente ipsi
eligentur duodecim iuratores, et deinde ex transmissione
uicecomitis facient uisum terre uel alterius tenementi
cuius saisina petitur. Vnicam tamen et super hoc habe-
bit summonitionem ille qui tenet. Nomina eciam
illorum duodecim electorum faciet ipse uicecomes
imbreuiari.
Deinde autem sumonere faciet uicecomes ipse ipsum
tenentem, quod die per breue domini regis uel eius
iusticiarum statuta sit coram rege uel eius iusticiis
auditurus illam recognitionem. Die autem prima et«
secunda essoniare se poterit is qui tenet si maior fuerit is
qui petit: tercia uero die non poterit, imo ad tercium
terminum capietur recognitio siue ueniat siue non is
qui tenet, quia in nulla recognitione super saisina tan­
tum prodita currunt nisi duo essonia. In recognitione
uero de noua dissaisina nullum essonium locum habet.
Tercio itaque die siue uenerit tenens siue non capietur
ut dictum est assisa. Et si iuratores ipsi dixerint pro
petente, adiudicabitur ei inde saisina et precipietur uice­
comiti quodei saisinamillamhabere faciat per hoc breue:/

a uel Ln
 [X III, 7] 152
leading to the assize is as follows. First, in accordance
with the terms of the writ, twelve free and lawful men
from the neighbourhood are to be elected in the pre­
sence of both demandant and tenant, or even in the
absence of the tenant provided he has been summoned
at least once to attend the election. He must be sum­
moned once to come and hear who are elected to make
the recognition, and he can if he wishes reject some of
them for reasonable cause so that they are excluded
from the recognition. If, however, he has not come when
the first summons is properly attested in court, then he
shall be waited for no longer, and in his absence the
twelve jurors shall be elected and sent by the sheriff to
view the land or other tenement of which seisin is
claimed. Here again the tenant shall have one summons
only. The sheriff shall see that the names of the elected
twelve are endorsed on the writ.
Then the sheriff shall arrange for the tenant to be
summoned to be before the king or his justices on the
day stated in the writ of the king or his justices, to hear
the recognition. If the demandant is of full age, the
tenant can essoin himself on the first and second return
days but not on the third day, for then the recognition
shall be taken whether the tenant comes or not, be­
cause no more than two essoins are allowed in any
recognition which concerns only seisin. Indeed, in the
recognition of novel disseisin no essoin is allowed. On
the third return day, then, as stated above, the assize
shall be taken whether the tenant has come or not. And
if the jurors declare in favour of the demandant, seisin
shall be adjudged to him and the sheriff ordered by the
following writ to have him put in seisin:
 153
F.47
[8] Rex uicecomiti salutem. Scias quod N. dirationauit
in curia mea saisinam tante terre in ilia uilla per recog­
nitionem de morte illius antecessoris sui uersus R. Et
ideo tibi precipio quod saisinam illam ei sine dilatione
habere facias. Teste etc’.

Quid recuperet cum saysinab

[9] Cum saisina autem ilia recuperabit eciam is qui
petit saisinam omnium catallorum et omnium rerum
que in feodo illo tempore faciende saisine inuente
fuerint. Post saisinam uero plene recuperatam poterit
is qui saisinam amisit super recto placitare per breue de
recto. Sed post quantum temporis post restitutionem
plene factam?«
[10] Sin autem pro tenente absente iuratam fuerit,
ei deinde saisina sine recuperatione quam aduersarius
eius possit habere inde remanebit. Placitum tamen de
recto saisina ilia non adimit, sicut nec placitum de recto
super aliquo tenemento recognitionem de petenda saisina
alicuius antecessoris de eodem tenemento extinguit ante-
quam duellum sit inde uadiatum. Sed qualiter tunc
punietur in eo contemptus curie?
[11] Vtroque uero presente in curia queri solet ab
ipso tenente utrum uelit aliquid dicere quare assisa inde
remanere debeat. Vnde sciendum quod maior quan­
doque contra minorem petit huiusmodi recognitionem,

“ rubric L, (faciendi) Ln, (ad faciendam saisinam) Z

b rubric I m ; D e saisina recuperata L\ om. Z
‘ ° f th™ follows in Ln
 [X III, 8- II] *53
The writ fo r delivering seisin after the
recognition
The king to the sheriff, greeting. Know that N. has [8]
proved in my court, by a recognition concerning the
death of a certain ancestor of his, his right against R.
to the seisin of so much land in such-and-such a vill.
And therefore I command you to have him put in
seisin without delay. Witness, etc.

What he shall recover in addition to seisin

In addition to the above seisin the demandant shall [9]
also recover seisin of all the goods and chattels which
are found in the fee at the time when seisin is delivered.
After seisin has been fully recovered, the tenant who has
lost seisin may contest the question of right by means of
a writ of right; but for how long after the recovery is
complete can he do this?
If the jurors find in favour of the absent tenant, [10]
he shall stay in seisin and the other party shall have
no recourse against him, though this does not take
away his cause of action for the right. Similarly, an
action concerning the right in a tenement does not,
until battle has been waged, extinguish a recognition
in which the seisin of an ancestor in that same tenement
is claimed. Yet how then is the absent tenant’s contempt
of court to be punished?
When both parties are present in court, the tenant [11]
is asked whether he wishes to show cause why the
assize should not proceed. In this connection it should
be known that sometimes a man of full age seeks this
kind of recognition against a minor, sometimes a minor
 154 [X III, ii]

quandoque minor contra maiorem, quandoque minor

contra minorem, quandoque maior contra maiorem. i
Tunc" generaliter remanet2 assisa si is qui tenet4
confiteatur in curia ilium antecessorem cuius saisina
petitur fuisse inde saisitum die qua obiit in dominico suo
sicut de feodo suo, cum ceteris articulis in breui ipso
expressis. Si uero saisina ipsa solummodo concedatur,
aliis articulis non admissis, tunc super articulo uel arti­
culis non admissis procedet assisa. Remanere autem
solet assisa huiusmodi pluribus ex causis.3 Verbi gratia,
si a tenente ipso dicatur ipsum petentem inde fuisse
saisitum post mortem patris uel alicuius antecessoris sui,
siue ille antecessor suus fuerit inde saisitus siue non die
qua obiit, et dum in tali saisina fuit tantum inde uersus
eum fecisse quare de cetero assisa inde esse non debet,
F.47 v ueluti j si tenementum ipsum ei uendiderit uel dona-
uerit uel quietum clamauerit uel alio legitimo modo
alienauerit; et tunc inde poterit inter eos perueniri ad
duellum uel ad aliam usitatam probationem que in
curia super recto alicuius rei recipi solet. Item si dicatur
ab aduersario ipsum petentem alia uice ei inde mouisse
litem et tunc finem inter eos fuisse factum in curia
domini regis, uel per hoc tenementum ipsum remansisse
ipsi tenenti per finem duelli in quacumque eciam curia,
uel per iudicium, uel per quietam clamantiam. Item
uillenagium in curia obiectum et probatum uersus ipsum
petentem assisam adimit. Idem quoque efficit exceptio
bastardie: carta quoque regia qua specialiter uel

“ Et tunc Ln b B\ petit “

1 This fourfold division is adhered to (the gloss in B wrongly says that

the last two divisions are missing); but it is obscured by the rubrication
and by the chapter divisions. T he order is (i) c. 1 1; (ii) most of c. 12;
(iii) end o f c. 12; (iv) cc. 13-17.
 [X III, II] 154
against one of full age, sometimes a minor against a
minor, and sometimes a man of full age against another
of full age.1
In the last case the assize does not proceed2 if the
tenant admits in court that the ancestor whose seisin is
claimed was seised of the land in his demesne as of his
fee on the day he died, and admits also the other articles
set out in the writ. If the seisin only is admitted and the
other articles are not, then the assize shall proceed on
the contested article or articles. This kind of assize
may not proceed for several reasons.3 For example,
suppose the tenant says that the demandant was seised
after the death of his father or other ancestor, whether
or not that ancestor was seised on the day he died, and
that while so seised the demandant did such an act in
relation to him that the assize ought not to proceed;
for example, that he sold, or gave as a gift, or quit­
claimed, or in some other lawful way alienated, the
tenement to him: in such a case the matter should be
settled by battle or by some other customary proof
which the court allows in questions of right. Or the
tenant may say that the demandant previously sued
him and that then a fine was made between them in the
court of the lord king, or that the tenement was
adjudged to him on the result of a battle in any
court whatsoever, or by a judgment of a court or
by a quit-claim. Again, villeinage imputed and proved
against the demandant in court stops the assize. The
exception of bastardy has the same effect; so also has

1 i.e. it is discontinued in the demandant’s favour, as in iv, 1 1

s An assertion that the assize should not proceed is called an ‘ excep­
tion examples now follow. For exceptions, very common in mort
d’ancestor and darrein presentment, see P & M , 11, 6i i-ao.
155 [X III, i i ]

expressim* confirmatur ipsi tenenti tenementum cuius

saisina petitur per assisam: plurium iterum heredum
coniunctio, mulierum scilicet in feodo militari, uel mas-
culorum siue feminarum in libero sochagio. Item si
concedatur antecessorem ilium cuius saisina petitur*
habuisse inde qualem qualem saisinam sed per ipsum
tenentem uel per aliquem antecessorum eius, ueluti in
uadio uel ex commendatione uel alia huiusmodi causa,
eo ipso remanet recognitio ilia et alio modo placitum
inde procedet. Item consanguinitas assisam ipsam adi-
mit, scilicet si is qui petit et is qui tenet fuerint de illo
sdpite unde hereditas descenderit cuius petitur saisina:
ita dico si hoc fuerit in curia obiectum et probatum.
Item in casu illo supra2 in tractatu de maritagio,rf ubi
primogenitus frater postnato fratri donauit quandam
partem terre sue qui obiit sine herede de corpore suo,
ubi quidem sicut et in similibus casibus remanet assisa
huiusmodi hac ratione, quia non potest aliquis simul
esse dominus et heres alicuius tenementi. Item si con­
uictus fuerit uel confessus is qui petit quod aliquando
fuerit in guerra contra dominum regem, eo ipso remanet
assisa quam uersus alium ita petit in curia. Item ratione
burgagii cessare solet assisa per aliam assisam3ex causa
maioris utilitatis in regno constitutam. Non obiecta
autem aliqua exceptione in curia quare assisa ipsa re-
manere debeat, procedet quidem recognitio presente
utraque parte per iuramentum duodecim iurantium, et
“ uel expressim: expressum fuerit uel B
4 per assisam add. and del. Ln
‘ Z\ corfidatione Ln, L; comodationc B
d in tractatu de maritagio so B

1 The meaning is uncertain. It may be a life tenancy; see A. W. B

Simpson, An Introduction to the History of the Land Law (Oxford 1961), p. 67,
n. a.
 [X III, II] 155
a royal charter in which the tenement of which seisin is
claimed by the assize is specially or expressly confirmed
to the tenant; so also the existence of several co-heirs—
women in the case of a military fee, men or women in the
case of free socage. Moreover, if it is admitted that the
ancestor whose seisin is in question had some sort of seisin,
but had it fromthe tenant or one of his ancestors by way
of a gage or loan* or some such transaction, thereupon
the assize does not proceed and the plea is continued
in some other way. Again, I say that if it is objected
and proved in court that demandant and tenant are
both of the stock from which the contested inheritance
has descended, then blood relationship stops the assize.
Furthermore, in the case mentioned above2 in the
treatise on marriage where an eldest son gave a certain
part of his land to his younger brother who died without
heir of his body, and in similar cases, the assize does
not proceed because of the rule that no man can be
both lord and heir of any tenement. Again, if the de­
mandant admits, or it is proved, that he was formerly
at war against the lord king, any assize which he has
brought against another in court shall not proceed.
Moreover, if the land is burgage tenure the assize does
not proceed; for reasons of convenience this has been
ordained for the realm by another assize.3 However,
if no exception has been pleaded in court which should
cause the assize not to proceed, the recognition shall
proceed in the presence of both parties and by the oath

* The second problem in vii, i (p. 73)

* Not known; for later borough charters giving exemption from mort
d ’ancestor see A. Ballard, British Borough Charters 1042-1216 (Cambridge
1913), p. 137 (Shrewsbury, 1205; Stafford, 1206).
 156 [X III, i i - 13]
iuxta eorum uerumdictum iudicabitur uni uel alteri
saisina sub forma prescripta1 in hoc eodem tractatu.a
[12] Cum uero minor contra maiorem petit huius­
modi assisam, tunc quidem locum non habet essonium
F.48 maioris uersus minorem, quia prima die / procedet
inde recognitio siue ueniat is qui tenet siue non; et hac
generali ratione, quia quocienscumque tenens ipse nihil
dicere posset si presens esset in curia quare assisa talis
remanere de iure deberet, procedet quidem recognitio
non expectata presentia partis aduerse. Sed et si presens
fuerit is uersus quem petit, nihil dicere posset ut dictum
est ipsum minorem inde fecisse quare assisa remanere
deberet2; et ideo prescise procedet inde recognitio, siue
presente tenente maiore siue absente, iuxta formam pre-
scriptam. Et sic restitutione inde facta ipsi minori per
recognitionem, etas ipsius minoris expectabitur super
placito de recto.
Cum uero minor contra minorem petit, eodem modo
sine aliqua uariacione procedet recognitio ut inter
minorem et maiorem procedere solet.
[13] Cum maior contra minorem petit, poterit qui­
dem minor se contra maiorem solito modo essoniare.
Qui cum uenerit, occasione etatis dilationem inde petere
potest ut inde non capiatur recognitio donee plenam
habuerit etatem, et ita ratione etatis remanere solet
recognitio de morte antecessorum.3 Sciendum tamen
quod oportet ad hoc ut remaneat assisa talis ratione
etatis quod dicat minor ipse se esse in saisina tenementi

“ hoc eodem tractatu: hoc libro B

1 xiii, 8-9
* The gloss in B says that this is not so, because some o f the objections
listed in c, 11 would, if used against a minor, prevent the assize from
 [X III, II- 13 ] i 56

of the twelve jurors, according to whose verdict seisin

shall be adjudged to one or other of the parties in the
form prescribed1 in this present treatise.
When a minor seeks an assize of this kind against [12]
a tenant offull age, the tenant is allowed no essoin against
the minor, and the recognition proceeds on the first day
whether the tenant comes or not. For it is a general
principle that whenever a tenant could not, even if
present in court, offer any plea which would cause the
assize not to proceed, then the recognition shall proceed
without waiting for him to come. In the present case,
even if the tenant were present he could plead no act
of the minor which should prevent the assize from pro­
ceeding, 2 and therefore the recognition shall proceed in
the prescribed form whether the tenant of full age is
present or absent. When the minor has been restored
to seisin by the recognition, there can be no plea about
right until he has come of age.
When a minor sues a minor the recognition shall
proceed in exactly the same way as between a minor
and one of full age.
When a man of full age sues a minor, the minor [13]
can essoin himself against the demandant in the
accustomed way by claiming when he comes to court a
delay on account of age—namely a postponement of
the recognition until he comes of age—and in this way
the assize of mort d’ancestor may not proceed because
of age.* It should be known, however, that for this to
happen the minor must allege not only that he is
seised in person of the tenement in question and that

proceeding. But Bracton (f. 275b) repeats the rule and its reason in almost
identical words.
* But see vii, 9 for an exception, noted also in xiii, 15.
 *57 [X III, 13- 14]
unde petitur saisina, et ideo non debere recognitionem
illam procedere antequam etatem habeat, et eciam quod
pater eius uel alius antecessor ipsius inde fuerit saisitus
die qua obiit. Occasione enim saisine alicuius tenementi
quam aliquis infra etatem constitutus perquirit et iure
suo tantum retinet, nec remanet uersus eum recognitio
uel eciam placitumsuper proprietate. Si uero replicetur1
contra ipsum minorem antecessorem suum obiisse saisi-
tum de tenemento unde petitur saisina per recogniti­
onem, non tamen ut de feodo" sed ut de warda, tunc
quidem licet principalis recognitio ratione etatis minoris
remanere deberet, tamen super hoc procedet ista recog­
nitio, scilicet utrum antecessor eius qui infra etatem est
fuerit inde saisitus ut de feodo uel ut de warda die qua
obiit. Et sumonebitur inde assisa per hoc breue:

Breue de summonenda recognitione utrum

tenuerit aliquis tenementum aliquod ut feodum uel ut
wardamb
14] Rex uicecomiti salutem. Sumone per bonos sumoni­
tores duodecim liberos et legales homines de uisneto de
ilia uilla quod sint coram me uel iusticiis meis ad ilium
terminum, parati sacramento recognoscere si R., pater
N. qui infra etatem est, fuitcsaisitus in dominico suo de
,481; ilia car/ucatarf terre in ilia uilla, unde M. filius et heres
T. petit recognitionem de morte ipsius T. patris sui uer­
sus ipsum N., ut de feodo suo die qua obiit uel ut de
warda. Et interim terram illam* uideant et nomina

a suo add. Ln
* rubric (feodum aliquod) Ln, (ut de feodo uel ut de warda) / „ , ( . . . quis
uel wardam) Z ‘ fuerit Ln
4carcata Ln • om. Ln
 [X III, I 3 - I 4 ] *57
therefore the assize should not proceed until he is of age,
but also that his father or some other ancestor was
seised thereof on the day he died. For a recognition,
and even a plea concerning property, shall proceed
against a minor who has acquired seisin of any tenement
by his own act, and holds it solely by virtue of a right
beginning in himself. However, if the demandant
replies1 to the minor that, though his ancestor died
seised of the tenement in question, yet it was as of
wardship and not as of fee, then, although the principal
recognition shall not proceed because of age, yet another
recognition shall proceed on this point; namely whether
the ancestor of the minor was seised of the land as of fee
or as of wardship on the day he died. The assize for
this shall be summoned by the following writ:

The writ fo r summoning a recognition to

determine whether a man held a certain tenement
as fee or as wardship
The king to the sheriff, greeting. Summon by good [14]
summoners twelve free and lawful men from the neigh­
bourhood of such-and-such a vill to be before me or my
justices at a certain time, ready to declare on oath
whether R., the father of N. who is a minor, was seised
of a certain carucate ofland in the said vill in his demesne
as of his fee or as of ward, on the day he died; con­
cerning which M. the son and heir of T. seeks against
the said N. a recognition about the death of the said T.
his father. And meanwhile let them view the land; and
you are to see that their names are endorsed on this

1 A ‘ replication ’ is an answer to an ‘ exception see P & M , n, 615,

158 [X III, 14- 15]
eorum inbreuiari facias. Et sumone per bonos sumoni-
tores predictum N. qui terram illam tenet quod tunc sit
ibi auditurus illam recognitionem. Et habeas ibi sum­
monitores et hoc breue.° Teste etc’.
Notandum tamen quod si dies ad hoc datus fuerit
utrique existenti in curia, tunc non oportebit tenentem
inde sumoneri. Procedet itaque super hoc recognitio
per sacramentum duodecim iuratorum, et iuxta eorum
uerumdictum declarabitur qualem saisinam habuit
antecessor eius qui infra etatem est die qua obiit de
illo tenemento unde contra eum petitur recognitio.
Et si probetur ita antecessorem ipsius minoris nullam
inde habuisse saisinam die qua obiit nisi ut wardam,
tunc is qui uersus minorem petit saisinam uersus ipsum
minorem recuperabit, Sed numquid hoc solum sufficit
ei ad saisinam ipsam recuperandam?4 Quod non uide­
tur, quia non per hoc constat antecessorem eius qu
petit fuisse inde saisitum in dominico ut de feodo suo die
qua obiit, nec eciam ipsum petentem esse propinqui-
orem eius heredem. E contra uero uidetur quia hoc
ipso probato nullum ius inde habeat minor ipse saisinam
ipsam de cetero retinendi. Sed si hoc est, cui restituen-
dam? Numquid ergo ad principalem recognitionem
super hoc erit recurrendum? < Sin autem per sacramen­
tum duodecim iuratorum probatum fuerit antecessorem
ipsius qui infra etatem est inde fuisse saisitum die qua
obiit ut de feodo, tunc saisina ipsi minori remanebit in
pace donee plenam habuerit etatem. Sed numquid
aliquo tempore de cetero in tali casu audiendus est
aduersarius eius uel heredes sui, saltern super proprietate
ipsius tenementi, uersus ipsum minorem postquam
habueritd etatem uel eius heredes?'
 [X III, 14 - 15] 158

writ. And summon by good summoners the aforesaid

N., who is tenant of that land, to be there then to hear
the recognition. And have there the summoners and
this writ. Witness, etc.
It should be noted that if both parties are present [15]
in court when a day is appointed them, then the
tenant need not be summoned. The recognition will be
taken by the oaths of the twelve jurors, and in accord­
ance with their verdict there will be a declaration as
to the nature of the seisin which the ancestor of the
minor had, on the day he died, in the tenement con­
cerning which the recognition is sought against the
minor. If it is proved by this means that the ancestor
of the minor had seisin only as of wardship on the day
he died, then the demandant shall recover seisin from the
minor. Yet does this of itself enable him to recover
seisin? It seems not, because it does not prove that the
demandant’s ancestor was seised of the land in demesne
as of his fee on the day he died, nor that the demandant
is his next heir. The better view is that it follows from
this proof that the minor has no right to stay in seisin of
the land. Yet if this is so, then who is to be put in
seisin? Is this to be settled by having recourse again to
the principal recognition? On the other hand, if it is
proved by oath of the twelve jurors that the minor’s
ancestor was seised as of fee on the day he died, then the
minor shall stay undisturbed in seisin until he is of age.
After he is of age it is not certain whether the demandant
or his heirs may at any time sue him or his heirs, even
on the question of right.

a quod tunc . . . breue: etc’ Ln b recuperandum Ln

c SaP ° f three lines follows in Ln d habuit Ln
‘ SaP ° f two tinesfollows in Ln
*59 [X III, 1 5 - 1 6 ]
Preterea contra minorem procedit recognitio in illo
unico casu qui supra1 notatus est in illo tractatu qui
est j de heredibus qui infra etatem sunt.« Procedente
uero assisa contra minorem, si ei per assisam ipsam
saisina remanserit, super proprietate non respondebit
donee plenam habuerit etatem. Generaliter eciam uer-
um est quod de nullo placito tenetur respondere is qui
infra etatem est per quod possit exheredari uel per quod
debeat* amittere uitam uel membrum, donee plenam
habuerit etatem. De aliis tamen quibusdam tenetur, ut
de debitis paternis uel propriis, et de nouis desaisinis. Sin
autem petenti contra minorem saisina adiudicetur,
facienda erit ei inde restitutio sub forma prescripta,2nec
ipsi minori super recto respondebit donee plenam habu­
erit etatem, sicut nec ille sibi; et hac generali ratione,
quia ea que cum illis fiunt* in huiusmodi placitis qui
etatem non habent stabilia et firma esse non oportet.
Si uero minori etatis priuilegium alleganti in curia
obiciatur eum plenam habere etatem, solet hoc per
recognitionem octo liberorum et legalium hominum
declarari, qui ad hoc per tale breue3 sumonebuntur:

Breue de summonenda recognitione utrum

aliquis sit infra etatem uel nond
Rex uicecomiti salutem. Sumone per bonos sumoni­
tores octo liberos et legales homines de uisneto de ilia
uilla ubi petitum tenementum est quod sint coram me
uel iusticiis meis eo die, *parati sacramento/recognoscere
• in illo tractatu . . . sunt in tractatu . . . sunt B
J Ln, Z\ possit B\ om. L
‘ fuerit Ln
d rubric Ln, Z> (fuerit . . . an non) L
‘ coram . . . die: etc’ Ln
/respondere add. and del. Ln
 [X III, 15 - 1 6] 159
There is one case only in which the assize proceeds
against a minor, and that was noted above1 in the
treatise which deals with heirs who are under age. In
such a case, if seisin remains with the minor as the
result of the assize, he shall not answer as to the question
of right until he is of full age. For it is a general prin­
ciple that a minor need not answer to any plea by which
he may lose his inheritance, or life or limb, until he is of
full age. To other pleas, such as those concerning his own
or his father’s debts, or novel disseisin, he must answer.
If, on the other hand, seisin is adjudged to the demand­
ant and against the minor, it should be restored to him
in the prescribed2 form; nor need he answer to the
minor on the question of right until he is of full age,
just as the minor need not answer him; for on general
principle it is undesirable that the results of pleas con­
cerning minors should be settled and irrevocable.
If a minor claims the benefit of his age and it is
objected in court that he is of full age, this question is
settled by a recognition of eight free and lawful men
who shall be summoned by the following writ3:

The writ fo r summoning a recognition to

determine whether a man is under age or not
The king to the sheriff, greeting. Summon by good [16]
summoners eight free and lawful man from the neigh­
bourhood of such-and-such a vill, where the tenement
in question lies, to be before me or my justices on a

1 vii, 9
* xiii, 8-9
* The context is mort d’ancestor by a person o f full age against one who
pleads.his own minority; the following writ, however, supposes that the
‘ minor ’ is demandant. T he gloss in B makes this point.
 i6o [X III, 1 6 - 1 8 ]
utrum N. qui clamat unam hydam terre in ilia uilla per
breue meum uersus R. talis sit etatis quod inde placitare
possit et debeat. Et interim terram illam uideant, et
nomina eorum imbreuiari" facias. Et sumone per bonos
sumonitores ilium qui terram illam tenet quod tunc sit
ibi auditurus illam recognitionem. Et habeas ibi sum­
monitores et hoc breue. Teste6etc’.
[17] Si itaque probetur per talem recognitionem etas
illius de cuius etate queritur, cum eo de cetero agetur
sicut cum etatem habente quantum ad principalem
recognitionem. Sed numquid generaliter eciam quan­
tum ad aliorum inpetitionem maioris censebitur ille
etatis occasione huius recognitionis, ita quod de cetero
non possit uersus alios se etatis priuilegio tueri? * Si uero
per recognitionemipsamiudicetur minoris etatis, minoris
gaudebit priuilegio quantum ad principalem illam
recognitionem: sed numquid ad alias et aliorum im-
peticiones?*/

F.49 v De recognitione de ultimis presentationibus

ecclesiarum•
[18] Sequitur de recognitione de ultimis presentationibus
personarum.1 Contingente itaque aliquam ecclesiam
uacare, si fuerit controuersia super presentatione, poterit
controuersia ilia per recognitionem de ultima presen­
tatione decidi, alterutro litigantium id in curia postu-
lante, super quo tale breue impetrabit:

a imbreuiare Ln
b ibi auditurus . . . Teste om. Ln
c SaP ° f three lines follows in Ln
dgap o f two lines follows in Ln
• rubric “
 [X III, 1 6 - 1 8 ] 160
certain day, ready to declare on oath whether N., who
claims one hide of land in that vill by my writ against
R., is of such an age that he can and ought to plead
about it. And meanwhile let them view the land; and
you are to see that their names are endorsed on this
writ. And summon by good summoners the tenant of
that land to be there then to hear the recognition. And
have there the summoners and this writ. Witness, etc.
If he whose age is in question is proved by this [17]
recognition to be of full age, then the principal recog­
nition shall proceed against him as against someone
of full age. Yet will he as a result of this recognition be
deemed to be of full age in respect of suits brought
against him by others, so that he cannot in future
invoke the privilege of age against those others? On
the other hand, if he is judged by the recognition to be
a minor, he can enjoy the privilege of age in respect of
the principal recognition; but what about actions
brought by others?

The recognition o f darrein presentment to

churches
Now there follows the recognition of darrein pre- [18]
sentment of parsons.1 When a church is vacant and
there is a dispute about the presentation, it can be
decided by a recognition of darrein presentment, if
either party asks for this in court; and he shall request
the following writ:

1 The assize of darrein presentment can probably be dated 1 179/80;

for its relationship to the Precipe for advowson see p. 182. The early
development is discussed in P & M , I, 148-9 and n, 137-8; V an Caenegem,
pp. 330-5; cf. Stenton, nos. 3497, 3533 and 3534, and comment, ibid. p. 23.
 i6i [X III, 1 9 . 2 0 ]
Breue de summonenda recognitione de ultimis
presentationibus ecclesiarum8
[19] Rex uicecomiti salutem. Sumone per bonos sumoni-
tores duodecim liberos et legales homines de uisneto de
ilia uilla quod sint coram me uel iusticiis meis eo die,*
parati sacramento recognoscere quis aduocatus presenta-
uit ultimam personam que obiit ad ecclesiam de ilia
uilla, que uacans est ut dicitur et unde N. clamat aduo­
cationem. Et nomina eorum imbreuiaric facias. Et
sumone per bonos sumonitores R. qui presentationem
illam deforciat, quod tunc sit ibi auditurus illam recog­
nitionem. Et habeas ibi summonitores et hoc breue. *
Teste etc’.
[20] De essoniis autem in hac recognitione patet ex
predictis.i Procedente siquidem recognitione, siue utro-
que presente siue altero absente, is cui sui uel alicuius
antecessorum suorum gratia adiudicabitur ultima pre-
sentatio eo ipso saisinam ipsius aduocationis intelligitur
dirationasse; ita quod ad presentationem ipsius prima
persona in ecclesia ipsa uacante per episcopum loci
instituetur, dummodo persona fuerit idonea: que
ecclesiam per eius presentationem adeptam tota uita sua
optinebit, quicquid de iure aduocationis contingat.
Poterit enim is contra quem iudicatum est de ultima
presentatione per recognitionem uersus alium uel suos
heredes super iure aduocationis placitare; quod qualiter
fieri debeat in superioribus2expeditum est.
Queri autem potest ab initio utrum aliquid dici possit
quare assisa ilia remanere debeat. Et potest quidem ad
a rubric Ln, Z> (personis ecclesiarum) L
4 eo die om. Ln c imbreuiare Ln
* ibi summonitores . . . breue: etc’ Ln

‘ xiii, 7 *iv, 1-6

 [XIII, 19 - 20] 161
The writ fo r summoning a recognition o f
darrein presentment to churches
The king to the sheriff, greeting. Summon by good [19]
summoners twelve free and lawful men from the neigh­
bourhood of such-and-such a vill to be before me or
my justices on a certain day, ready to declare on oath
which patron presented the last parson who is now
dead to the church in that vill, which is alleged to be
vacant and of which N. claims the advowson. And you
are to see that their names are endorsed on this writ.
And summon by good summoners R., who withholds
the presentation, to be there then to hear the recog­
nition. And have there the summoners and this writ.
Witness, etc.
The essoins allowed in this recognition are as [20]
described above.» When the assize proceeds in the
presence of both or one of the parties, he who is ad­
judged to have last presented, whether personally or
through one of his ancestors, is thereby deemed to have
recovered seisin of the advowson; consequently, at his
presentation, the next parson shall be instituted to the
vacant church by the bishop of that place, provided
that the parson is suitably qualified. The parson shall
hold for the rest of his life the church which he has
acquired by this presentation, whatever may happen
to the right to the advowson; but he who has had
judgment given against him in the recognition of
darrein presentment can bring an action about the
right of advowson against the other party or his heirs
in the manner set out above.2
At the very beginning the question may arise whether
any cause can be shown why the assize should not
proceed. For example, the tenant, while admitting
 [XIII, 20-21]
hoc dici, scilicet tenentem ipsum concedere antecessorem
petentis ultimam inde fecisse presentationem sicut uerum
dominum et primogenitum heredem, sed postea feodum
illudaex quo pendet aduocatio ei uel antecessoribus suis
contulisse aliquo uero titulo; et ita eo ipso remanet*
assisa, et placitum super exceptione ipsa inter ipsos liti-
gantes deinde«esse poterit. Super hac eciam exceptione
recognitionem desiderare potest alteruter litigantium, et
earn habere poterit. Preterea concedi potest ab alterutro
litigantium reliquum uel aliquem eius antecessorem
F.50 ultimam fecisse presentationem, / sed non ut de feodo
sed ut de warda: et super hoc petere potest recogniti­
onem et in hoc obtinebit: et sumonebitur recognitio
per hoc breue:

Breue de summonenda recognitione utrum

presentatio alicuius ecclesie facta fuerit
de feodo uel wardad
[21] Rex uicecomiti salutem. Sumone per bonos sumoni­
tores duodecim liberos et legales homines de uisneto de
ilia uilla quod sint coram me uel iusticiis meis* ad ilium
terminum, parati Sacramento recognoscere si R., qui
presentauit ultimam personam que mortua est ad
ecclesiam illam occasione tenementi quod tenuit in ilia
uilla, fecerit illam presentationem ut de feodo uel ut de
warda. Et interim tenementum illud uideant, et nomina
eorum inbreuiari/ facias. Et sumone per bonos sumoni­
tores ilium qui presentationemillam deforciat, quod tunc
sit ibi auditurus illam recognitionem. Et habeas ibi
summonitores et hoc breue. Teste* etc’.

• ilium Ln * inde remanet Ln ‘ Zi B> demum Ln, L

<1rubric Ln, (ut de feodo uel ut de warda) L, (uel de warda) Z
 [X III, 2 0 - 2 1 ]
that an ancestor of the demandant made the last pre­
sentation as true lord and first-born heir, may say that
afterwards he conveyed to the tenant or his ancestors
by some good title the fee to which the advowson is
appurtenant. In such a case the assize does not proceed,
and the parties may then join issue on this exception,
either of them being able to claim and get a recognition
to settle it. Again, either party may admit that the
other or an ancestor of that other made the last pre­
sentation, but as of wardship and not of fee; and he
may claim and get a recognition to settle this. The
recognition shall be summoned by this writ:

The writ fo r summoning a recognition to

determine whether the presentation to a
certain church was made as o f fe e or
as o f wardship
The king to the sheriff, greeting. Summon by good [21]
summoners twelve free and lawful men from the neigh­
bourhood of such-and-such a vill to be before me or my
justices at a certain time, ready to declare on oath
whether R., who, by reason of a tenement which he
held in that vill, presented to that church the last
parson who is now dead, made that presentation as of
fee or as of wardship. And meanwhile let them view the
land; and you are to see that their names are endorsed
on this writ. And summon by good summoners the man
who withholds that presentation to be there then to
hear the recognition. And have there the summoners
and this writ. Witness, etc.
' etc’ add. Ln
f inbreuiare Ln
t auditurus . . . Teste om. Ln
 [XIII, 22-24]
Et sic per recognitionem hoc declarato, si ut de
warda facta fuerit ultima presentatio, ipsius ultimi pre-
sentatoris* expirat aduocatio et ad alterum spectabit
ipsa presentatio: sin autem ut de feodo, ei remanebit
ipsa presentatio.

D e recognitione utrum aliquod tenementum

sit laicum uel ecclesiasticumi
Sequitur de ilia recognitione qua declaratur de aliquo
tenemento utrume illud sit laicum uel ecclesiasticum.1
Desiderante itaque alterutra parcium inde haberi recog­
nitionem, per tale breue inde sumonebitur recognitio:

Breue de summonenda tali recognitione*

Rex uicecomiti salutem. Sumone per bonos sumoni-
tores duodecim liberos et legales homines de uisneto de
ilia uilla quod sint coram me uel iusticiis meis eo die,
parati sacramento recognoscere utrum una hyda terre,
quam N. persona ecclesie de ilia uilla clamat ad liberam
elemosinam ipsius ecclesie sue uersus R. in ilia uilla, sit
laicum feodum ipsius R. uel feodum ecclesiasticum. Et
interim terram illam uideant, et nomina eorum inbreu-
iari facias. Et sumone per bonos sumonitores predictum
R. qui terram illam tenet, quod tunc sit ibi auditurus
illam recognitionem. Et habeas ibi summonitores et hoc
breue.* Teste etc’.

* presentations B
4 rubric *
*11t Ln
* rubric Ln; Breue de summonenda recognitione utrum aliquod feodum
sit laicum uel ecclesiasticum Z> (Breue . . . feodum etc’) L
* ibi summonitores . . . breue: etc* Ln
 [XIII, 22 - 24] 163
If the recognition declares that the last presentation [22]
was made as of wardship, then the advowson of him
who last presented is at an end, and the presentation
belongs to the other party; but if as of fee, then the
presentation shall be his.

The recognition fo r determining whether a

tenement is lay or ecclesiastical
Now there follows the recognition for determining [23]
whether any tenement is lay or ecclesiastical.! If either
party wishes to have a recognition to settle this, the
recognition shall be summoned by the following writ:

The writ fo r summoning such a recognition

The king to the sheriff, greeting. Summon by good [24]
summoners twelve free and lawful men from the neigh­
bourhood of such-and-such a vill to be before me or my
justices on a certain day, ready to declare on oath
whether one hide of land, which N. parson of the
church in that vill claims as free alms of his church
against R. in that vill, is the lay fee of R. or ecclesias­
tical fee. And meanwhile let them view the land; and
you are to see that their names are endorsed on this
writ. And summon by good summoners R., who holds
the land, to be there then to hear the recognition. And
have there the summoners and this writ. Witness, etc.

1 This is the assize utrum, established in its final form by the Con­
stitutions o f Clarendon (1164), c. 9, and designed to settle jurisdictional
disputes by distinguishing lay from spiritual tenure. It later developed,
surprisingly, into the * parson’s writ o f right’, because the ordinary writ
of right was not available to a parson who could not, as could bishops and
abbots, ‘ count upon the seisin o f his predecessors.’ See P & M , 1, 144-5
and 246-50; S. E. Thom e, ‘ T he Assize Utrum and Canon Law in England,’
Columbia Law Review, xxxin (1933), 428-36; V an Caenegem, pp. 325-30.
 [X III, 25 - 26]
[25] In hac autem recognitione, sicut nec in alia qualibet
preter« recognitionem de magna assisa, locum habent
nisi duo essonia, quia numquam admittitur tercium
nisi ubi potest iudicari de infirmitate utrum sit languor
an non: quod6cum in recognitionibus fieri non soleat,
merito tercio essonio carent ipse recognitiones. Procedit
autem ista recognitio sub forma suprascripta de aliis
F.50 v recognitionibus. / Sciendum tamen quod si per recog­
nitionem ipsam probetur tenementum ipsum esse de
feodo ecclesiastico, de cetero non potest trabi ad laicum
feodum, licet peti possit ab aduersa parte teneri de
ecclesia per debitum seruicium.

D e recognitione utrum aliquis obierit saisitus de

aliquo tenemento ut de feodo uel ut de uadio ‘
[26] Sequens1 est post predicta de ilia recognitione trac-
tare que fieri solet utrum scilicet aliquis obierit saisitus
de aliquo tenemento libero ut de feodo uel ut*' de uadio.
Cum quis itaque petit aliquod tenementum sibi restitui
tanquam uadium suum quod uel ipse uel aliquis ante-
cessorum eius inuadiauerit, si is qui tenet non recognos-
cat tenementum ipsum ad uadium sed dicat in curia se
esse inde saisitum ut de feodo, sic inde ad *recognitionem
solet perueniri, et per hoc breue sumonebitur inde
recognitio:

• propter Ln
b Ln, B ; quia L, Z
c rubric L, (in text) Z> (uel ut de warda) Ln
d om, Ln
• interlin. Ln
 [X III, 25 - 26] 164
In this recognition, as in all others except the [25]
Grand Assize, only two essoins are allowed. A third
essoin is never admitted unless it be for bed-sickness,
and since that essoin is not allowed in recognitions it
follows that there can be no third essoin. This recog­
nition proceeds in the manner already stated for other
recognitions. It should be known, however, that if the
tenement is proved by the recognition to be ecclesias­
tical fee, it cannot in future be regarded as lay fee, even
if the other party claims it as held of the church by a
certain service.

The recognition fo r determining whether

a man died seised o f a tenement as o f fee
or as o f gage
Next1 to be discussed is the recognition which is [26]
used to determine whether a man died seised of a free
tenement as of fee or as of gage. When a man claims
that a tenement should be restored to him as being a
gage which he or one of his ancestors pledged, then,
if the tenant does not concede that the tenement is a
gage but says in court that he is seised of it as of fee,
this recognition is used to settle the matter. The re­
cognition shall be summoned by the following writ:

1 Tw o cases, already suggested in x, 10, are discussed in cc. 26-30. In

the first (cc. 26-7) the creditor is in possession and is sued by the debtor
or his heir. In the second (cc. 28-9) the debtor’s heir is in possession and is
sued by the creditor’s heir. The conclusions drawn in c. 30 apply to the
first case and not to the second, and so should follow c. 27. The gloss in B
makes this point. The place of cc. 26-30 in the treatment of gage is dis­
cussed below, p. 190.
165 [X III, 27 - 28]
Breue de eadem recognitione summonenda•
Rex uicecomiti salutem. Sumone per bonos sumoni­
tores duodecim liberos et legales homines de uisneto de
ilia uilla quod sint coram me uel iusticiis meis eo die,*
parati sacramento recognoscere utrum N. teneat unam
carrucatam terre in ilia uilla, quam R. clamat per breue
meum uersus eum, in feodo uel in uadio inuadiatam ei
ab ipso R.* uel ab H. antecessore eius. Vel sic: utrum
ilia carrucata terre, quam R. clamat per breue meum
uersus N. in ilia uilla, sit hereditas siue feodum ipsius
N.rf uel uadium inuadiatum ei ab ipso R. * uel ab H.
antecessore eius. Et interim terram illam uideant, et
nomina eorum imbreuiari facias./ Et sumone per bonos
sumonitores predictum N.< qui terram illam tenet quod
tunc sit ibi auditurus illam recognitionem. Et habeas ibi
sumonitores et hoc breue.* Teste etc*.

D e eo qui petit recognitionem occasione uadii

antecessoris •'
Verum quandoque contingit aliquem tenere aliquod
tenementum in uadio/ ita quod inde moritur saisitus ut
de uadio; heresque eius occasione talis saisine querit
breue de morte antecessoris uersus uerum heredem. *1
Et tunc quidem si recognoscatur ab ipso tenente ante-
cessorem ipsius petentis inde obiisse saisitum, sed ut de
uadio et non ut de feodo, tunc quidem et hac de causa
peruenitur ad predictam* recognitionem, et per hoc
breue sumonebitur recognitio:

“ rubric “ * coram . . . die: etc’ Ln

‘ jB; N. « B ; R. « ‘ B; N. «
/imbreuiari facias: etc’ Ln * R. Ln
Aet hoc breue: etc’ Ln
' rubric Ln, Z> (occultatione uadii) L
 [X III, 27 - 28] 165
The writ fo r summoning this recognition
The king to the sheriff, greeting. Summon by good [27]
summoners twelve free and lawful men from the neigh­
bourhood of such-and-such a vill to be before me or my
justices on a certain day, ready to declare on oath
whether N. holds one carucate of land in that vill,
which R. claims from him by my writ, in fee or as a
gage pledged to him by R. (or by R.’s ancestor H.).
(Or thus: whether the carucate of land in that vill
which R. claims from N. by my writ is the inheritance
or fee of N., or a gage pledged to him by R. or by R.’s
ancestor H.). And meanwhile let them view the land;
and you are to see that their names are endorsed on
this writ. And summon by good summoners N., the
tenant of that land, to be there then to hear the
recognition. And have there the summoners and this
writ. Witness, etc.

Where a man claims a recognition in reliance

on the gage o f his ancestor
It sometimes happens that a man who holds a [28]
tenement in gage dies seised of it in gage and that his
heir, relying on this seisin, seeks a writ of mort d’ancestor
against the true heir.1 In such a case, if the tenant con­
cedes that the demandant’s ancestor died seised, but
as of gage and not as of fee, then to settle this the re­
cognition mentioned above2is used; and it is summoned
by the following writ:
i uadium Ln
* qui adeptus est huius tenementi saisinam add. B

1 i.e. the debtor’s heir, who has taken possession of the land and is
tenant in the action.
* xiii, a6
36
 [X III, 2 9 - 31]
Breue de tali recognitione summonendaa
Rex uicecomiti salutem. Sumone per bonos sumoni-
tores duodecim liberos et legales homines de uisneto de
ilia uilla6/ quod sint coram me uel iusticiis meis eo die,'
parati sacramento recognoscere utrum N. pater B. fuerit
saisitus in dominico suo ut de feodo uel ut de uadio de
una carrucata terre in ilia uilla die qua obiit. Et interim
terram illam uideant, et nomina eorum inbreuiari facias.
Et summone per bonos summonitores ilium qui terram
illam tenet quod tunc sit ibi auditurus illam recogniti­
onem. Et habeas ibi summonitores et hoc breue.
Tested etc’.
Probato autem per recognitionem ipsam quod
sit uadium, tunc is qui tenet'1 tenementum ipsum amit­
tet, ita quod eciam ad debitum ipsum non recuperabit
occasione illius uadii./ Sin autem recognoscatur ad feo­
dum* ipsius qui tenet, tunc is qui petit de cetero nullum
inde habebit recuperare nisi per breue de recto.
Queri autem potest utrum in hac recognitione siue
in alia qualibet expectandus sit warantus alicuius, qualis-
cumque sit warantus uel qualicumque de causa waran­
tus inde esse debeat, presertimsi post duo essonia uocetur
super hoc in curia warantus?h
Alie autem recognitiones que restant partim in
predictis exposite sunt, partim uero per iudicium in
curia ex uerbis utriusque partis redditum possunt ex-
plicari. •'

“ rubric * 4 de . . . uilla: etc’ Ln

‘ me . . . die: etc’ Ln
J terram illam u id ean t. . . Teste om. Ln
‘ qui feodum esse dixit add. B /illius uadii: ipsius uadium Ln
i uadium (del.) feodum Ln h gap of three lines follows in Ln
* examples and cross-references by book and chapter add. in text B (printed
Woodbine,/). 171); see above, p. 149, «. 1
 [X III, 2 9 - 3 1 ]
The writ fo r summoning such a recognition
The king to the sheriff, greeting. Summon by good [29]
summoners twelve free and lawful men from the neigh­
bourhood of such-and-such a vill to be before me or my
justices on a certain day, ready to declare on oath
whether N. the father of B. was seised in his demesne as
of fee or as of gage of one carucate of land in that vill
on the day he died. And meanwhile let them view the
land; and you are to see that their names are endorsed
on this writ. And summon by good summoners the
tenant of the land to be there then to hear the recog­
nition. And have there the summoners and this writ.
Witness, etc.
If the tenement is proved by the recognition to [30]
be a gage, then the tenant1 shall lose it, and shall not
even be allowed to use it in the recovery of the debt.
On the other hand, if it is proved to be a fee of the
tenant, then the demandant shall in future have no
remedy except by writ of right.
In this as in all other recognitions it is uncertain
whether the arrival of a warrantor shall be waited for,
of whatever kind he is or for whatever reason he was
vouched to warranty, especially if he is vouched in
court after two essoins.
The recognitions not already dealt with have been [31]
in part explained by what has already been said about
recognitions, and can for the rest be understood from
the terms in which they are granted by the court,
which formulates them from the allegations of both
parties.

1 i.e. the creditor, who claimed that it was his fee; the treatise reverts
o the situation in cc. 26-7. T h e gloss in B makes this point.
 167 [XIII, 32 - 33]
D e recognitione none desaisine•
[32] Postremo1 de ilia recognitione que appellatur de
noua dissaisina restat dicendum. Cum quis itaque infra
assisam domini regis, id est infra tempus a domino rege
de consilio procerum ad hoc constitutum quod quando­
que maius quandoque minus censetur, alium iniuste et
sine iudicio desaisierit de libero tenemento suo, desaisito
huius constitutionis beneficio subuenitur, et tale breue2
habebit:

Breue de noua desaisina*

[33] Rex uicecomiti salutem. Questus est mihi N. quod
R. iniuste et sine iudicio desaisiuit eum de libero tene­
mento suo in ilia uilla post ultimam transfretationem
meam in Normanniam; et ideo tibi precipio quod si
predictus N. fecerit te securum de clamore suoc prose-
quendo, tunc facias tenementum illud resaisiri de catallis
que in ipso capta fuerunt, et ipsum tenementum cum
catallis esse in pace usque ad clausum Pascha. Et interim
facias duodecim liberos et legales homines de uisneto
uidere tenementum illud, et nomina eorum inbreuiari. *
Et sumone eos« per bonos sumonitores quod tunc sint
F.51 v coram me uel / iusticiis meis parati/ inde facere recog­
nitionem. Et pone per uadium et saluos plegios pre­
dictum R., uel bailiuum suum si ipse inuentus non
fuerit, quod tunc sit ibi auditurus illam recognitionem.

° rubric Ln; De noua dissaisina Z i om- L

* rubric “ ‘ clamore suo: clamio Ln
d L, Z i etc’ add. Ln; facias add. B (cf. S.S. l x v i i , no. 3531)
•B; om. “ /sacramento recognoscere add. Ln

1 The postponement o f novel disseisin to the end o f the list in xiii,

2, and its treatment in cc. 32-9 after all other recognitions are surprising
if we think o f 1166 as the date o f its origin (P & M , n, 47), but less so if we
accept the view (Van Caenegem, pp. 271-94) that regular civil litigation
 [X III, 32 - 33] 167

The recognition o f novel disseisin

Lastly* there remains for discussion the recognition [32]
called novel disseisin. When anyone has unjustly and
without a judgment disseised another of his free tene­
ment within the assize of the lord king—that is, within
the limit of time which is appointed for this purpose by
the lord king on the advice of his great men, which
varies in length—then the disseisee can claim the benefit
of this constitution, and shall have the following writ2:

The writ o f novel disseisin

The king to the sheriff, greeting. N. has com- [33]
plained 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 prosecu­
ting 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 neighbourhood, 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 the 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

by means of this writ was a very recent development when the treatise was
written; further comment by G. D. G. Hall in a review of V an Caenegem,
E.H.R. l x x v i (1961), 317, and F. JoUon des Longrais in his Cambridge
lecture, Henry I I and his Justiciars, had they a political plan in their reforms about
seisin? (Limoges 1962).
’ cf. Stenton, no. 3531
 [XIII, 33 - 36]
Et habeas ibi summonitores et hoc breue et nomina
plegiorum." Teste etc’.
[34] Breuia autem de noua desaisina diuersis modis
uariantur secundum diuersitatem tenementorum in
quibus hunt desaisine. Si enim leuetur fossatum aliquod
uel prosternatur, uel si exaltetur stagnum alicuius
molendini, infra assisam ad nocumentum liberi tene-
menti alicuius, secundum hoc breuia1 uariantur in
hunc modum:

Aliud breue de eodem11

[35] Rex uicecomiti salutem. Questus est mihi N. quod
R. iniuste et sine iudicio leuauit quoddam fossatum, uel
prostrauit, in ilia uilla ad nocumentum liberi tenementi
sui in eadem uilla post ultimam transfretationem meam
in Normanniam. Et ideo tibi precipio quod si prefatus
N.< fecerit te securum de clamore suo-' prosequendo,
tunc facias duodecimliberos et legales homines de uisneto
uidere fossatum illud et tenementum, et nomina eorum
inbreuiari facias. * Et summone eos per bonos summoni­
tores/ etc’, ut prius.2

Breue de eodemt
[36] Rex uicecomiti salutem. Questus est mihi N. quod
R. iniuste et sine iudicio exaltauit stagnum molendini
sui in ilia uilla ad nocumentum liberi tenementi sui in
eadem* uilla, uel in alia uilla,' post ultimam transfre­
tationem meam in Normanniam. Et ideo tibi precipio

“ summonitores . . . plegiorum: etc’ Ln; suppl. S.S. lx v ii, no. 3531

6 rubric a ‘ prefatus N .: predictus R . Ln
J clamore suo: clamio L * etc’ add. Ln
/eos . . . summonitores: eum Ln * rubric “
Ailia Ln * uel . . . uilla om. Ln
 [XIII, 33 - 36]
recognition. And have there the summoners, and this
writ and the names of the sureties. Witness, etc.
Writs of novel disseisin may vary in a number of [34]
ways corresponding to the different kinds of tenement
in which disseisins take place. For example, if a bank is
raised up or knocked down, or if the level of a mill
pond is raised, within the assize and to the nuisance of
another’s free tenement, then the writs1 are varied to
fit the case, as follows:
Another writ o f the same kind
The king to the sheriff, greeting. N. has complained [35]
to me that R. unjustly and without a judgment has
raised up (or knocked down) a bank in such-and-such
a vill, since my last voyage to Normandy, to the nuisance
of N.’s free tenement in the same vill. Therefore I
command you that, if N. gives you security for prose­
cuting his claim, you are to see that the bank and tene­
ment are viewed by twelve free and lawful men from
the neighbourhood, and their names endorsed on this
writ. And summon by good summoners, etc., as above.*

A writ o f the same kind

The king to the sheriff, greeting. N. has complained [36]
to me that R. unjustly and without a judgment has
raised the level of his mill pond in such-and-such a vill,
since my last voyage to Normandy, to the nuisance of
N.’s free tenement in the same vill (or in another vill).
1 In neither o f the following writs is there any mention of ‘ disseisin ’
but they were called assizes o f novel disseisin. In the thirteenth century
these writs were called assizes o f nuisance by Bracton and assizes of novel
disseisin in Registers of Writs. There is no satisfactory account of this
development; for some materials and a different view see G. H. S. Fifoot,
History and Sources of the Common Law (London 1949), pp. 3-23.
* The references back in this and the next two writs are to xiii, 33.
169 [XIII, 36 - 38]
quod si prefatus® N. fecerit te securum de clamore* suo
prosequendo, tunc facias duodecim liberos et legales
homines de uisneto uidere stagnum illud et tenementum,
et nomina eorum inbreuiari facias etc’, ut prius.
Preterea si facta fuerit desaisina in communi pastura,i
breue erit tale:

Breue de eodem •
Rex uicecomiti salutem. Questus est mihi N. quod
R. iniuste et sine iudicio desaisiuit eum de communi
pastura sua in ilia uilla que pertinet ad liberum tene­
mentum suum in eadem uilla, uel in ilia alia uilla, post
ultimam transfretationem meam in Normanniam.*' Et
ideo tibi precipio quod si predictus N. fecerit te securum
de clamore suo< prosequendo, tunc facias duodecim
liberos et legales homines de uisneto uidere pasturam
illam et tenementum, et nomina eorum inbreuiari facias/
etc’, ut prius.

Quod nullum essonium in hoc recognitione

admittiturt
In hac autem recognitione nullum admittitur esso­
nium. Prima enim die siue uenerit siue non is qui
desaisinam fecit, procedet recognitio; quia hie nemini
parcitur, nec minori nec maiori, nec eciam warantus
expectatur. Si enim quis desaisinam talem in curia
recognouerit sed warantum inde uocans, eo ipso remanet
recognitio, et ille qui hoc recognouerit* in misericordiam
domini regis incidet; et postea sumonebitur warantus

a predictus Ln * claraio Ln ‘ rubric *

J in Normanniam L, B; om. Ln, Z
• clamore suo: clamio Ln /inbreuiari facias om. Ln
t rubric “ * sed . , . recognouerit om. Ln
 [X III, 36 - 38] i6g
Therefore I command you that, if N. gives you security
for prosecuting his claim, you are to see that the pond
and tenement are viewed by twelve free and lawful men
from the neighbourhood, and their names endorsed on
this writ, etc., as above.
Furthermore, if the disseisin was of common pasture,1
the writ shall be as follows:

A writ o f the same kind

The king to the sheriff, greeting. N. has complained [37]
to me that R. unjustly and without a judgment has
disseised him of his common pasture in such-and-such a
vill which is appurtenant to his free tenement in the
same vill (or in some other named 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 pasture and tenement are viewed by
twelve free and lawful men from the neighbourhood,
and their names endorsed on this writ, etc., as above.

No essoin is allowed in this recognition

No essoin is allowed in this recognition. Whether [38]
or not the disseisor comes on the first day, the assize
shall proceed; for the full rigour of this assize applies
to all, to minors as well as to those of full age, and there
is no waiting even for a warrantor. However, if anyone
confesses a disseisin in court but also vouches a warran­
tor, the recognition shall not proceed, and he who con­
fessed shall be liable to amercement by the lord king;
afterwards the warrantor shall be summoned, and

1 For common (of) pasture see P & M , I, 630-3

170 [XIII, 38 - 39]
et erit placitum inter eum et alium qui super hoc eum
uocauit warantum.
Illud autem sciendum quod semper uictus, siue
fuerit appellans siue appellatus,1 in misericordia domini
regis re/manet propter uiolentam desaisinam. Preterea
si apellans diem suum non fuerit prosecutus, tunc plegii
quoque in misericordiam incident. Simile quoque ac-
cidit circa personam alterius si se absentauerit ad diem
statutam. Pena autem huius° constitutionis est miseri­
cordia domini regis tantum.
In hac autem recognitione potest cum effectu desi-
derare is qui nouam desaisinam probauit ut precipiatur
uicecomiti quod catalla et fructus per preceptum
domini regis uel eius iusticiarum interim arestatos faciat
habere illi qui dissaisinam probauit. In nulla autem
alia recognitione mentio solet fieri per iudicium de
catallis uel de fructibus. Et nisi uicecomes de fructibus
et catallis ei satisfacere prouiderit, tunc tale breue inde
impetrabit is qui queritur:
Breue de catallis reddendis*
Rex uicecomiti salutem. Precipio tibi quod iusticies
N. quod iuste et sine dilatione reddat R. catalla sua etc’.
Hoc breue suprascriptum2reperiri potest.

a huiusmodi Ln 4 rubric L; om. Ln, Z

1 H. G. Richardson and G. O . Sayles in Select Cases of Procedure without
writ under Henry III, S.S. l x , pp. cxxxii— cxxxiv suggest that this inapprop­
riate use of ‘ appellans ’ and ‘ appellatus ’ is evidence for ‘ the crystallising-
out o f a series of criminal and civil actions from a single undifferentiated
action for all serious private secular wrongs.’
* x ii, 18 (in full)
 [XIII, 38 - 39 ] 170

there shall be a plea between him and the party who

vouched him.
It should be known that the losing party, whether
appellor or appellee,1 shall always be liable to amerce­
ment by the lord king on account of the violent dis­
seisin. Moreover, if the appellor does not prosecute his
claim on the appointed day, his sureties also shall be
liable to amercement; and the same rule applies to the
other party if he absents himself on the appointed day.
The liability to amercement by the lord king is the
sole penalty provided by this constitution.
In this recognition the party who has proved dis­
seisin can require that the sheriff be ordered to see that
the chattels and fruits, which have in the meantime
been seized by command of the lord king or his jus­
tices, are restored to him. In no other recognition does
the judgment make mention of chattels or of fruits.
And if the sheriff has not seen to it that he gets the fruits
and chattels, the complainant shall have the following
writ:
The writ fo r restoring chattels
The king to the sheriff, greeting. I command you
to constrain N. to restore, justly and without delay, to
R. his chattels, etc.
This writ can be found written above.*
 171 [XIV, i]
[ LIBER XIV]
D e placitis criminalibusa
[i] Placita que ciuiliter in curia proponuntur hactenus
ex parte sunt expedita: de cetero de criminalibus restat
tractandum.1 Cum quis itaque de morte regis uel de
seditione regni uel exercitus2 infamatur, aut certus
apparet accusator aut non.
Si nullus appareat accusator certus sed fama3solum-
modo eum publice accusat, tunc ab inicio saluo accu-
satus attachietur uel per plegios idoneos uel per carceris
inclusionem. Deinde autem per multas et uarias inqui-
sitiones et interrogationes coram iusticiis faciendas in-
quiretur rei ueritas, et id ex uerisimilibus rerum indiciis4
et coniecturis nunc pro eo nunc contra eumqui accusatur
facientibus: per legem apparentem purgandus est uel
omnino ab imposito crimine absoluendus. Si uero per
huiusmodi legem super tali* crimine fuerit quis conuic-
tus, ex regie dispensationis beneficio tam uite quam
membrorum suorum eius pendet iudicium sicuti in
ceteris placitis de felonia.
Apparente autem certo accusatore,4 ab inicio idem
attachiabitur per plegios si quos habuerit*' quod placitum
suum prosequetur. • Sin autem plegios non habuerit,/
fidei sue religioni solet committi sicut in placitis omnibus
de felonia. Solet autem in talibus fides sufficere, ne
“ rubric * 4 Ln, B ; iudiciis L, Z
c capitali B * habuit Ln
‘ prosequatur Ln /non habuerit L, B; habuit Ln, Z

1 The following discussion o f crime takes account of, but does not
stress and is not always in conformity with, the Assizes o f Clarendon (i 166)
and Northampton ( 1176). This may be a defect in the author (so Woodbine,
p. 294) or it may suggest that the importance o f these Assizes has been
exaggerated (so N. D. H um ard, ‘ T he Jury o f Presentment and the Assize
o f Clarendon,’ E.H.R. l v i (1941), 374-410). A useful commentary on this
Book in relation to actual practice is that o f Lady Stenton in Lincolnshir1
 [X IV , I]

[BOOK XIV]
Criminal pleas
So far the discussion has concerned certain aspects [i]
of those pleas which are sued in court as civil pleas.
Now criminal pleas must be discussed.1 When anyone
is charged with the king’s death, or with betrayal of
the realm or the army,2either a specific accuser appears
or not.
If no specific accuser appears but the accusation is
based only on public notoriety,3 then immediately the
accused shall be safely attached, either by suitable
sureties or by imprisonment. Then the truth of the
matter shall be investigated by many and varied in­
quests and interrogations before the justices, and
arrived at by considering the probable facts and
possible conjectures both for and against the accused,
who must as a result be either absolved entirely or
made to purge himself by the ordeal. If the ordeal
convicts him of this kind of crime, then judgment both
as to his life and as to his limbs depends on royal clem­
ency, as in other pleas of felony.
If a specific accuser appears,4 he shall be immed­
iately attached to give security for prosecuting his suit,
by sureties if he has any. If he has no sureties, then he is
put on a solemn oath, as in all pleas of felony. An oath

Assize Rolls A.D. 1202-1209 (Lincoln Record Society, x x i i , 1926), pp. xlix-
lxi. The authenticity of the hitherto accepted text of the Assize of Claren­
don printed in Stubbs’ Charters is impugned by H. G. Richardson and
G. O. Sayles, The Governance o f Mediaeval England, pp. 198-9 and 438-44;
on this view arson (below, p. 175, n. 3) and falsifying (below, p. 176, n. 1)
were included in the original instructions of 1166 and not added in 1176.
* For treason see P & M, 11, 500-08
’ i.e. is by presentment; nothing is said about presentment of treason
in the two Assizes.
* i.e. appellor; what follows applies generally to all appeals of felony.
 172 [X IV , I]

nimie districtionis securitas alios a consimili terreat

accusatione. Accepta autem ab accusatore securitate
de placito prosequendo, tunc is qui accusatur ut pre-
diximus per plegios securos et saluos solet attachiari, aut
si plegios non habuerit in carcerem detrudi. In omnibus
autem placitis de felonia solet accusatus per plegios
dimitti preterquam in placito de homicidio ubi» ad
terrorem aliter statutum est. Deinde autem dies solet
partibus prefigi, qua existente essonia rite currunt
legitima.
0 Ad ultimum autem / accusatore proponente se uidis-
se uel alio modo in curia4probato certissime se sciuisse
ipsum accusatum machinatum fuisse uel aliquid fecisse
in mortem regis uel seditionem regni eius uel exercitus,
uel consensisse uel consilium dedisse uel auctoritatem
prestitisse, et hoc ipsum iuxta iudicium curie disrationare
parato, accusato econtra eadem' per omnia in curia
legitime negante, tunc per duellum solet placitum ter-
minari. Et sciendum quod ex quo fuerit duellum in
huiusmodi placitis uadiatum, non potest alterutra
parcium uerbis in ipsius uadii datione propositis aliquid
adicere uel diminuere, uel aliquatenus a proposito
declinare uel resilire, quin pro uicta habeatur et lege
uicti censeatur. Nec aliquo modo nisi de licencia domini
regis uel iusticiarum de cetero possunt sibi ad inuicem
reconciliari.
Si uero apellator uictus fuerit, in misericordia domini
regis remanet, que qualis sit in precedentibus1 satis
dictum est: que eciam incommoda et quam infamiam
uictus incurrat satis supradictum est.2 Sin autem

0 nisi Ln
* in curia om. Ln
‘ Z\ eodem modo Ln; eodem L; contra eundem B
 [X IV , I] 172

is deemed sufficient in such cases lest others should be

deterred by excessive demands for security from making
similar accusations. When the accuser has given
security for prosecuting his claim the accused shall, as
we said above, be attached by sound and reliable sure­
ties; if he has none, he shall be put in prison. The
accused is allowed his freedom on giving sureties in all
pleas of felony except homicide where, in order to inti­
midate, it is ordained otherwise. Next, a day is given
to the parties, and on that day the customary essoins
are available.
When at last both parties are present, the accuser
alleges that he saw or that, in some manner approved
by the court, he knew with certainty that the accused
had plotted or done something against the king’s life or
towards sedition in the realm or army, or had consented
or given advice or lent his authority to this; and that
he is ready to prove this as the court shall award. If the
accused denies everything in court in the proper manner,
then the plea shall be settled by battle. It should be
known that, once battle is waged in this kind of plea,
neither party may add to or take away from the words
used in the actual wager, nor in any way go back on
his allegations; if he does so he is deemed to be van­
quished, and penalised as such. Nor can they in any
way be reconciled to each other without licence from
the lord king or his justices.
If the appellor is vanquished, he will be liable to
amercement by the lord king. The meaning of this has
been sufficiently explained above,1 and so have the
penalties and infamy which befall the vanquished.*
But if the accused is vanquished, he must expect the
1 ix, ii
 *73 [X IV , X -2 ]

accusatus uictus fuerit, quale expectet iudicium paulo

ante dictum est, rebus insuper et catallis suis omnibus
confiscandis et heredibus suis in perpetuumexheredandis.
Admittitur autem ad huiusmodi accusationem quili-
bet homo liber maior. Infra etatem autem constitutus
si quem appellauerit, attachiabitur is qui appellat ut
supra expositum est. Rusticus quoque admittitur.
Mulier autemin nullo placito de felonia ad accusationem
admittitur nisi in quibusdam exceptis casibus de quibus
infra* dicetur. Declinare autem potest accusatus in
huiusmodi placitis iudicium per etatem, per mahemium."
Etas autem talis esse debet quod sit sexaginta annorum
uel supra. Mahemium autem esse dicitur ossis cuiuslibet
fractio, uel teste capitis per inscisionem uel abrasionem
attenuatio. In tali autem casu tenetur se purgare is qui
accusatur per dei iudicium, scilicet per calidum ferrum
uel per aquam pro diuersitate conditionis hominum;
scilicet per ferrum calidum si fuerit homo liber, per
aquam si fuerit rusticus.6

D e occultatione inuenti thesauri fraudulosa'

[2] Placitum de occultatione inuenti thesauri fraudulosa
ubi* certus apparet accusator* modo et ordine predicto2
solet ordinari. Ob infamiam3 autem non solet aliquis
F. 53 iuxta legem regni/per legem apparentem purgari, / licet
aliter per assisam fieri posset, nisi prius conuictus fuerit
uel confessus in curia aliquod genus metalli in loco
proposito inuenisse et recepisse. Si enim super hoc

• iudicium . . . mahemium Ln, (iudicium om.) Z< per etatem (et add.
B) per mahemii iudicium L, B
* SaP °ffive linesfollows in Ln
e rubric (inuenti bis) L, (fraudulosa om.) Z> om- L>n
4ut Ln • accusato Ln f terre B
 [X IV , I - 2] m
judgment mentioned a little way back; in addition, all
his goods and chattels shall be confiscated and his heirs
disinherited for ever.
Every free man of full age may make this sort of
accusation. If a minor appeals someone, however, the
minor shall be attached as described above. A villein
may also accuse. A woman may not accuse anyone in
a plea offelony, save in certain exceptional cases discussed
below,i The accused may refuse trial by battle in
these pleas on account of age or of serious injury: the
age must be sixty years or over; serious injury means a
broken bone, or injury to the skull by cut or bruise. In
such a case the accused must purge himself by ordeal,
that is, by hot iron or water according to his status: by
hot iron if he is free, by water if he is a villein.

Fraudulent concealment o f treasure trove

When a specific accuser appears, the plea of fraudu- [2]
lent concealment of treasure trove is dealt with in the
manner and order described above.* But when the
charge is based on public notoriety,8 the law of the
realm (though it may be otherwise by an assize) is that
no-one shall be purged by ordeal unless it has previously
been proved against, or admitted by, him in court that
metal of some other kind was found and recovered from
the place in question. If this much has been proved

1 Homicide (xiv, 3) and rape (xiv, 6)

* xiv, 1; except where otherwise stated, all subsequent references back
are to xiv, 1.
* Presentment of treasure trove is not mentioned in the Assizes, and
is here attributed to ‘ lex regni
27
 174 [X IV , 2 - 3]
conuictus fuerit, presumptione contra eum faciente tene­
bitur per legem apparentem» se purgare se nil amplius
ibi inuenisse uel recepisse. Cetera ut prius.4

Placitum de homicidioc
[3] De homicidio cum quis fuerit accusatus sub distinc-
tione premissa1 iudicium est ordinandum et proceden-
dum. Sciendum tamen quod in hoc placito non solet
accusatus per plegios dimitti nisi ex regie dispensationis
beneficio.
Duo autem sunt genera homicidii.2 Vnum<? quod
dicitur murdrum, quod nullo uidente« nullo sciente clam
perpetratur preter soluminterfectoremet suos complices,
ita quod mox non assequatur clamor popularis iuxta
assisam super hoc proditam. In huiusmodi autem ac-
cusatione non admittitur aliquis nisi fuerit de consan-
guinitate ipsius defuncti, et tunc ita quod qui propior
est stipiti remotiorem a disrationatione excludat.
Est et aliud homicidium quod stat in generali uoca-
bulo et dicitur simplex homicidium. In hoc eciam
placito non admittitur aliquis accusans ad probationem
nisi fuerit mortuo consanguinitate coniunctus uel homa-
gio uel dominio, ita ut de morte loquatur sub uisus sui
testimonio. Preterea sciendum quod in hoc placito
mulier auditur accusans aliquem de morte uiri sui si de
uisu loquatur, quia una caro sunt uir et uxor. Et
generaliter admissum est quod mulier auditur accusans
aliquem de iniuria corpori suo inflicta, sicut inferius8
“ terre B 4 gap offour lines follows in Ln
c rubric a d Vnde Ln
1iubente Ln
1 i.e. the distinction between appeal and presentment made in xiv, 1.
* For homicide generally, and the distinction between ‘ murdrum ’ and
‘ simplex homicidium \ see P & M , 11, 478-88.
 [X IV , 2 - 3] 174

against the accused, then, the presumption being against

him, he is bound to purge himself by the ordeal to show
that he found and recovered nothing more there. For
the rest, this plea is as above.

The plea o f homicide

When anyone is accused of homicide, the trial is [3]
ordered and proceeds according to the distinction set
out above.1 It should be known, however, that in this
plea the accused is not allowed his freedom on giving
sureties except as a special royal favour.
There are two kinds of homicide.8 The first is
called murder: this is done secretly, out of sight and
knowledge of all but the killer and his accomplices, and
so cannot be immediately followed by the hue and cry
which is required by the relevant assize. No-one is
allowed to make an accusation of this kind unless he is
a blood relative of the deceased, and within this limit
proof of the accusation is awarded to him who is nearer
the stock of descent, to the exclusion of the remoter.
There is another kind of homicide which in ordinary
speech is called simple homicide. In this plea no-one is
allowed to prove an accusation unless he is a blood
relative of the deceased or bound to him by homage or
lordship, and can speak about the death from what he
has seen himself. It should be known, moreover, that
in this plea a woman is allowed to accuse another of the
death of her husband if she speaks of what she saw her­
self, because husband and wife are one flesh. Indeed, as
a general rule a woman is allowed to accuse another of
injury done to her body, as is explained below.3 It is

8 xiv, 6
175 [XIV, 3 - 6]
dicetur. In electione tamen accusati erit uel probati-
onem ipsius mulieris sustinere contra se, uel se per dei
iudicium ab imposito crimine purgare.1 Compellitur
eciam quandoque rettatus de homicidio legitimam subire
purgationem si turba sequente fuerit in fuga compre-
hensus, et hoc per iuratam patrie fuerit in curia legitime
testatum. «*

D e crimine incendiih
Crimen incendii3 sub premissa forma et generali
ordine procedit, tractatur et terminatur.

D e crimine roberie‘
Crimen quoque roberie* sine specialibus intercur-
rentibus preteritur./

Placitum de crimine raptus*

Raptus* crimen est quod aliqua mulier imponit uiro
quo proponit se a uiro ui oppressamin pace domini regis.
Tenetur autem mulier que tale quid patitur mox dum
recens fuerit maleficium uicinam uillam adire, et ibi
iniuriam sibi illatam probis hominibus ostendere et
sanguinem si quis fuerit effusus et uestium scissiones.
Dehinc autem apud prepositum hundredi idem faciat.
Postea quoque in primo comitatu id publice proponat.
Deinde autem facta super hoc querimonia, iudicium ut
• gap of two lines follows in Ln
b rubric “
‘ rubric ®
J rubric a

1 The woman cannot do battle; same rule for rape in xiv, 6.

* The Assizes, which require presentment of homicide, say nothing
about any such limitation on the use of the ordeal; see N . D. Humard,
E.H.R. l v i (1941), 391.
 [XIV, 3-6] 175
for the accused to choose whether he will rely on dis­
proving the accusation of the woman, or will purge
himself by ordeal from the crime imputed to him.1 A
person accused of homicide is, however, compelled to
undergo the ordeal if he has been taken in flight by
the hue and cry, and this has been duly sworn to in
court by a jury of the countryside.8

The crime o f arson

The crime of arson3 proceeds, and is heard and [4]
determined, in the form and general order set out
above.

The crime o f robbery

Similarly, the crime of robbery4 need not be dis- [5]
cussed, for it raises no special problems.

The plea o f the crime o f rape

In the crime of rape' a woman charges a man with [6]
violating her by force in the peace of the lord king. A
woman who suffers in this way must go, soon after the
deed is done, to the nearest vill and there show to trust­
worthy men the injury done to her, and any effusion of
blood there may be and any tearing of her clothes. She
should then do the same to the reeve of the hundred.
Afterwards she should proclaim it publicly in the next
county court; and when she has made her complaint,

* See generally P & M , n, 492; for presentment of arson (Northampton)

see N. D. Hurnard, E.H.R. l v i (1941), 401-02; butsee above, p. 171, n. 1.
‘ See generally P & M , i i , 493-4; presentment of robbery is required
by the Assizes.
8 See generally P & M , ii, 490-1; neither the Assizes nor the treatise
mention presentment.
176 [XIV, 6 - 7]
predictum est ordinabitur. Auditur itaque mulier in tali
casu aliquem accusans sicut et de qualibet alia iniuria
corpori suo illata solet audiri. Sciendum tamen quod in
electione accusati erit in tali casu uel honus purgationis
subire uel mulieris probationem contra se sustinere.
Preterea sciendum quod si quis in huiusmodi placito
conuictus fuerit, simili modo ac in predictis iudiciis de
eo est iudicandum. Non enim sufficit post iudicium
malefactorem ipsum corruptam illam uelle ducere in
uxorem. Sic enim frequenter contingeret seruilis con-
ditionis homines generosissimas mulieres unius polluti-
onis occasione perpetuo fedare, uel generosos homines
per mulieres ignobiles fedari, et ita claram parentum
eorum*- famam indecenter denigrari. Ante iudicium
tamen ita receptum est quod de licencia principis uel
eius iusticiarum cum parentum assensu possunt mulier
accusans et accusatus beneficio coniugii sibi inuicem
reconciliari.*

Placitum de crimine fa ls ic
Generale crimen falsi1 plura sub se continet crimina
specialia, quemadmodum de falsis cartis, de falsis men-
suris, de falsa moneta, et alia similia que talem falsitatem
continent super quam* aliquis accusari debet et conuictus
condempnari. Et horum omnium accusationis modus
et ordo ex precedentibus satis elici potest, illo tamen
notando quod si quis conuictus fuerit de falsa carta,
distinguendum est utrum fuerit carta regia an priuata.

aZ , B; earu m Ln, L 4 gap of three lines follows in Ln

‘ rubric ° d L n ,L ; qua Z> &

1 See generally P & M , ii, 540-1; for presentment o f ‘ falsoneria ’

(Northampton) see N. D. Hurnard, E.H.R, l v j (1941), 401, n. 9; but s e e
above, p. 171, n. 1.
 [XIV, 6 - 7]
the form of proceeding to judgment shall be as stated
above. In such a case a woman is allowed to make an
accusation just as in every case of injury done to her
body. It should be known that in such a case it is for
the accused to choose whether he will submit to the
burden of the ordeal, or will rely on disproving the
accusation of the woman.
Moreover, it should be known that if anyone is
convicted in this kind of plea the judgment against him
shall be the same as in the crimes discussed earlier.
Nor can the wrongdoer escape this by expressing his
willingness, after judgment, to marry the woman he
has defiled. For if he could it would frequently happen
as a result of a single defilement that men of servile
status disgraced for ever women of good birth, or that
men of good birth were disgraced by women of low
estate, and thus the fair repute of their families would
be unworthily blackened. But before judgment is given
the woman and the accused can be reconciled to each
other by marriage, if they have licence from the king
or his justices and the consent of their families.

The plea o f the crime o f falsifying

The general crime of falsifying* includes several [7]
specific crimes such as making false charters, false
measures or false money, and other similar offences of
which one element is falsifying for which a person
ought to be accused and, when convicted, condemned.
The manner of accusation and the procedure in all
these offences can be sufficiently discovered from what
has already been said. It should be noted, however,
that if anyone is convicted of making a false charter it
is necessary to distinguish whether it is a royal or a
 177 [XIV, 7 - 8]
Quia si fuerit carta regia, tunc is qui super hoc conuin-
citur condempnandus est tanquam de crimine maiestatis.
Si uero fuerit carta priuata, tunc cum conuicto micius
agendum sicut in ceteris minoribus criminibus falsi, in
quorum iudiciis consistit reorum condempnatio in /
F.54 membrorum solummodo amissione, pro regia tamen uol­
untate et principalis dispensationis beneficio sicut ab
inicio dictum est.«

D e furtis et aliis huiusmodi placitis<>

[8] De furtis1 autem et de aliis placitis que ad uicecomi-
tem pertinent, que secundum diuersas diuersorum
comitatuum consuetudines tractari habent et terminari,
ad presens iuxta propositi exigentiam quod principalem
solummodo attendit curiam tractare non decuit.

* gap of three linesfollows in Ln

* rubric L; om. Ln, Z

1 O n larceny see P & M, u, 494-5. Theft might be a matter for the

royal court; presentment o f ‘ latrocinium ’ was required by the Assizes:
moreover, the treatise itself deals with voucher to warranty in the actio
furti ‘ before me or m y justices ’ (x, 16). There is a suggestion in the
Dialogus, p. 102, that theft might be a royal plea.
 [XIV, 7 - 8] 177
private charter. If it is a royal charter, then the con­
victed person shall be condemned as for the crime of
16se-majest£. But if it is a private charter, then the
convicted person is to be more leniently dealt with as in
other minor crimes of falsifying, where punishment of
the guilty involves only loss of limbs to an extent de­
pendent on the royal will and clemency, as was said
at the beginning.

Thefts and other pleas o f this kind

Since the avowed aim of this present work is to con- [8]
sider only the king’s court, it is not appropriate to deal
here with thefts1 and other pleas belonging to the sheriff,
which are heard and determined according to the vary­
ing customs of different county courts.
 ADDITIONAL NOTES

The writ Precipe (p. 5, n. 3)

This w rit is called, from its opening w ord o f com m and, a
Precipe. There are nine such writs in the treatise (i, 6; iv, 2;
vi, 15; viii, 4; ix, 5; x, 2, 4, 7 and 9) and in form they are all
a com m and to a person to do a certain thing, coupled with the
sanction o f summons to the royal court ‘ nisi fecerit \ This
form no doubt reflects the executive origins o f the writ, but
in the examples given in the treatise there is no expectation
that the thing com m anded w ill be do n e; the w rit has become
‘ judicialised ’ and is in substance a w rit o f summons initiating
litigation between the parties in the royal court, as the rubric
to this first Precipe shows. T h e same form continued to be used
in writs which appeared at about this time or later, such as
covenant, account and entry. It is to be contrasted with the
later Quare form in w hich there is m erely a summons to show
w h y (‘ quare ’) a w rong has been com m itted; trespass writs are
the most im portant examples o f this form. T h e Precipe for land
given here makes no mention o f tenure in ch ief o f the king
and has therefore been regarded by historians as striking at
feudal jurisdiction, which should be vested in the lord o f whom
the parties claim to hold their land, the proper w rit being that
given in xii, 3: moreover, M agn a C arta, c. 34, seems to
suggest that contemporaries saw the m atter in the same light.
But xii, 7 gives a procedure b y w hich the lord could recover a
case b y ' claim ing his court’ ; Miss H urnard has argued that
this procedure also applied where the original w rit was a
Precipe, and has given other reasons for abandoning the view
that the Precipe was an ‘ anti-feudal ’ w rit: see Studies in
Medieval History presented to F . M . Powicke (Oxford 1948), pp.
157-79. For subsequent discussion o f the Precipe see V a n
Caenegem , pp. 234-51; Concise History, pp. 355-6; M . T .
C lanchy, ‘ M agn a Carta, Clause T h irty-F o ur’, E .H .R . l x x i x
179
i8 o A D D IT IO N A L NO TES

( 1964), 542-8. For examples see Stenton, nos. 3481, 3486,3499,

35°9> 3522, 3537 and 3541, and comment, ibid. p. 10.

Periods o f limitation (p. 23, n. 1)

A characteristic feature o f comm on law writs is the period
o f lim itation w hich is generally w ritten into the w rit itself but
occasionally, as here, is stated in the count (on w hich see p.
147, n, 3). T h e treatise states limitations in the writs for
boundary division (ix, 14 and xii, 16), ne uexes (xii, 10), de
natiuis (xii, 11 ), m ort d ’ancestor (xiii, 3-6) and novel disseisin
(xiii, 33 and 35-7). T h e lim itation in the present count is
repeated in the count o f the Precipe for advowsons (iv, 6).
Professor Southern has pointed out to me that there is never
a mention o f Stephen, and that this is in accord w ith H enry
I I ’s general attitude to the reign o f his predecessor. W ith the
exception o f novel disseisin (H enry’s last voyage to Norm andy)
the required period in the writs mentioned above is alw ays
either the reign o f H enry I or since the first coronation o f
H enry II. M ore rem arkable are the two Precipe counts w hich
give a choice between these tw o periods and reject Stephen’s
reign as a starting point for ancestral seisin. A t an earlier
stage in H enry I I ’s reign the de natiuis accepted events in
Stephen’s reign, but it did so b y speaking o f them as * post
mortem regis H enrici aui m e i’ ; see V a n Caenegem , nos. 114,
117, 119 and 123. N one o f the writs in V a n Caenegem w hich
com e from H enry I I ’s reign mentions Stephen.

Trial by battle and the Grand Assize (p. 23, n. 2)

T h e norm al method o f trying title to land in feudal and in
royal courts was battle. T h e intention was that the com batants
should be witnesses o f the facts, but the mention o f hired
cham pions shows that theory and practice m ight differ: pro­
fessional champions becam e com m on and the institution o f
battle disreputable. Y e t it survived until abolished b y statute
in 1819. Its ch ief use in the later M iddle A ges was by con­
fessed felons w ho had turned approver and w ho fought
battles against those w hom they had accused o f felony. O n
 A D D IT IO N A L NO TES 18 1
battle generally see P & M , ii, 632-4, and Concise History, pp.
116-18. ‘ T h e assize o f the lord k in g ’ is the G rand Assize
w hich can probably be attributed to a great council at W indsor
in 1179. This gave to the tenant an o p tion : he could avoid
battle b y putting him self upon the G rand Assize in the manner
described in ii, 7-21. In addition to the obvious advantages
over battle which are extolled in ii, 7, the tenant’s decision
to use the G rand Assize had the im portant effect o f removing
cases in feudal or county courts into the royal court.
But the procedure set out in the treatise— w rit o f peace,
summons o f four knights, summons o f twelve knights— was
cumbersome and slow. It is not therefore surprising that the
new procedures b y petty assize (xiii, passim) and the writs o f
entry (in w hich a ju ry replaced the G rand Assize) proved
popular. V a n Caenegem , pp. 87-91, gives full references.

Warranties (p. 37, n. 1)

W arranties can be classified into two broad groups. Im plied
warranties resulted from a lord’s receipt o f homage from a
tenant to whom he had subinfeudated la n d : express warranties
were sometimes given in cases o f the above kind, and generally
where land was alienated by substitution (to the alienee to
hold o f the ch ief lord and not o f the alienor) or where chattels
were sold (see x, 15). T h e w arranty, express or implied, bound
the warrantor and his heirs to defend the title o f the grantee
and his heirs who were able, if their title was challenged in
litigation, to vouch to w arranty— that is, to call on the w arran­
tor to come to court and defend the case. I f the defence was
unsuccessful and the case concerned land, the dem andant got
the land and it was the duty o f the w arrantor to compensate
the grantee with lands o f equal value (iii, 1): i f the case
concerned chattels, the rules were mutatis mutandis the same
save that, i f the successful p laintiff alleged theft, he got the
chattel, the unsuccessful warrantor was hanged, and the
grantee lost his chattel (x, 15; P & M , 11, 164).
O n warranties generally see P & M , 1, 306-07 and 11, 662-4
for land; P & M , 11, 162-4 f° r chattels. There are detailed
 A D D IT IO N A L NO TES

studies o f early warranties o f land by S. J. Bailey, ‘ W arranties

o f L an d in the Thirteenth C entu ry,’ C .L .J . v i i i (1942-4), 274-
99 and ix (1945-7), 82-106 and ‘ W arranties o f land in the
R eign o f R ich ard I ,’ C .L .J . ix , 192-209. T h e relationship
between hom age and w arranty in the twelfth century is
discussed b y S. E. Thorne, ‘ English Feudalism and Estates in
L an d ,’ C .L .J . (1959), 193-209.

Advowsons (p. 43, n. i)

A n advowson is the right o f a patron to present a clerk to
the bishop for institution as parson o f a vacant church. It is
a property right, an incorporeal hereditam ent, protected by
actions in the royal courts o f which the treatise mentions
two. T h e Precipe for advowson, discussed in this Book,
is analogous to the Precipe for lan d; it asserts title to the
advowson, and can be brought at any time. T h e assize o f
darrein presentment (xiii, 18-22) lies only when the church is
vacant, and is available to a man w ho presented the last
parson and w ill, i f successful in the assize, present the next.
It is quicker than the Precipe, and serves to get a parson
into the vacant church before the bishop becomes entitled,
after the lapse o f three months, to present (Lateran Council,
1179, c. 17). Advowsons were im portant to both church
and state, and conflicts o f jurisdiction arose o f w hich some
indication is given in iv, 12-14. O n advowsons generally see
P & M , 11, 136-40. Th ere is a study o f ' T h e Ius Praesentandi
in E ngland from the Constitutions o f Clarendon to Bracton ’
by J . W . G ra y in E. H. R. l x v i i (1952), 481-509.

Villeinage (p. 53, n. 2)

T h e two aspects o f villeinage w hich chiefly interested the
m edieval law yer were the tenure by w hich the villein held his
land and the status o f the villein. From one point o f view it
could be said that the royal court took no cognisance o f the
villein: his land was not a free tenement and no actions lay
in the royal court to protect it; his person was unfree and he
should not appear as plaintiff in an action. But villein tenure
 ADDITIONAL NOTES

might be the subject o f litigation where free men held in

villeinage, where the villein character o f the tenure was in
dispute, where the land was ancient demesne, or where
holding in villeinage was a good defence to action. Sim ilarly,
villein status was m uch discussed in claims to personal freedom
brought in royal courts. W ith villein tenure the treatise is not
concerned: all tenurial information in the book is incidental
to discussion about other things. Status, however, gets a
Book, because there is a w rit (v, 2) by which a ‘ villein ’ can
claim in the royal court that he is free. For the legal aspects o f
villeinage see generally P & M , 1, 356-83 (tenure) and 412-32
(status) and A . L . Poole, Obligations o f Society in the X II and X III
Centuries (Oxford 1946), c. II.

Dower (p. 58, n. 2)

Dow er gives to a w idow a life tenancy in certain o f her
husband’s lands after his death. T h e treatise makes this
depend paradoxically on a gift w hich the husband is bound to
m ake, and fixes the am ount at not more than one third o f the
lands he held at the time o f the m arriage. In later law dower
becam e an absolute entitlement to not less than a third o f the
lands which the husband held at any time during the m arriage.
T h e one-third rule in the treatise applied to m ilitary tenures;
widows o f socage tenants com m only took one half. T h e w idow ’s
rights are enforceable by two writs. W here she already has
some o f the dower, she brings the w rit o f right o f dower
(vi, 5), parallel in form to the w rit o f right for land (xii, 3) and,
like it, directed to the feudal lord. W here she has no dower
there lies the w rit unde nihil habet (vi, 15), a Precipe which, like
those for land (i, 6) and advowson (iv, 2) brings the case
im m ediately into the royal court. Bracton (f. 296b) explained
this by saying that in such a case the party holding the land
m ight deny that there had ever been a m arriage, and only
the royal court was competent to ask the ecclesiastical author­
ity to rule on this question.
Like the w idow er’s right to curtesy (see vii, 18: p. 93, w. 1)
dower took precedence over the lord’s wardship if the heir was
184 ADDITIONAL NOTES

under age, and over the heir’s rights i f he was o f full age.
Litigious widows occupied m uch o f the time o f the royal
court; a review by G . D . G . H all o f the Curia Regis Rolls:
9-10 Henry I I I in E .H .R . l x x i v (1959), 108, gives some idea
o f their activity. D ow er is discussed in P & M , 11, 420-6.
Th ere is a full study by F. Joiion des Longrais, La Conception
Anglaise de la Saisine (Paris 1925), pp. 315-441.

Inheritance and alienation (p. 69, n. 2)

T h e treatise now abandons m arriage-portions until vii, 18
and turns to a general discussion o f inheritance and alienation.
T h e developed comm on law scheme o f inheritance, not yet
finally settled at this time, can be roughly summarised as
follows. T h e person w ho last died seised is called the stock o f
descent. From him the inheritance descends lineally to his
issue but never ascends (vii, 1; p. 73). M ale descendants are
preferred to female. A m ong males o f equal degree (e.g.
brothers) the eldest only inherits— this is prim ogeniture,
accepted first for m ilitary tenure (vii, 3; p. 75); females o f
equal degree inherit jo in tly and are called co-parceners (vii,
3; p. 76). I f a lineal descendant is already dead, his lineal
descendants stand in his shoes and take his precedence— this
is ‘ representation’ (but see vii, 3; p. 77, n. 1). In default o f
lineal descendants o f the stock o f descent, collateral relatives
inherit (vii, 4). T h e collaterals inherit on a parentelic scheme.
A person’s parentela is ‘ the sum o f those persons w ho trace
their blood from him ,’ that is, all his issue. ‘ T h e various
parentelae are successively called to the inheritance in the
order o f their proxim ity to the dead m an,’ so that all the
collaterals, however distant, in the parentela o f the dead m an’s
father are entitled before any o f those in the parentela o f his
grandfather, e.g. great-great-nephew before uncle. G reater
detail and discussion are in P & M , u, 295-302, from w hich the
quotations are taken : see also A . W . B. Simpson, An Introduction
to the History o f the Land Law (O xford 1961), pp. 53-60, w here
there are helpful illustrations.
T h e comm on law position on alienation, settled not long
 ADDITIONAL NOTES

after the treatise, is that the feudal tenant m ay alienate all

his lands held in fee simple without regard to the wishes o f his
lord or his heir: coupled with prim ogeniture this produces
the paradoxical result that the eldest son is entitled to all the
land there is, w hich m ay be none. But the treatise reflects an
earlier view in w hich limitations still exist. T h e problems
raised by vii, 1-4, as they affect the emergence o f the fee
simple, have been recently discussed by S. E. Thorne, ‘ English
Feudalism and Estates in L an d ,’ in C .L .J. (1959), 193-209;
comm ent by A . W . B. Simpson, op. cit. pp. 44-9. O n the
establishment o f the hereditary principle see R . H . G. Davis,
‘W hat happened in Stephen’s Reign ’, H istoty ,xux (1964), 1-12.

Alienation o f church lands (p. 74, n. 2)

I have not noticed any comm ent elsewhere on this state­
ment, to w hich several approaches are possible, (i) T h e
treatise has nothing to say about controls by lords over alien­
ation by their tenants, or by the king over his tenants-in-chief.
These are first mentioned in legal texts o f the thirteenth cen­
tury, but there is charter evidence for earlier controls and the
present passage m ay illustrate this; see P & M , 1, 332-43,
esp. 342, n. 3. (ii) T h e ius patronatus, w ith king as patron, m ay
be behind the passage. T h e earliest English legislation on this
is W estminster I I (1285), c. 41, against alienations by abbots
or priors o f houses o f royal foundation; earlier, ambiguous,
signs o f royal control are discussed b y Susan W ood, English
Monasteries and their Patrons in the Thirteenth Century (Oxford
1955), pp. 154-7, without any mention o f this passage, (iii)
T h e use o f ‘ elemosina ’ m ay even take us back to the idea o f
precarious tenure in Dom esday Book, suggested by M aitland
in P & M , 1, 241, n. 2.
Canon law included prohibitions against alienation o f
church lands (e.g. Decretals iii, 10, 1-3): the patron was under
a duty ‘ providere ’, i.e. to guard against all impoverishment
o f the church; see Paul Thom as, Le droit de propriety des
laiques sur les eglises . . . au fnoyen dge (Paris 1906), pp. 120-4. T h e
28
 ADDITIONAL NOTES

Scottish Regiam Majestatem (ii, 23) took over the passage; Lord
C ooper’s notes (Stair Society, xi, 138) mention a cancelled sale
at D ryburgh in 1206.

Testaments, heirs and executors (p. 79, n. 4)

O n testaments, heirs and executors the treatise is confused.
T h e scheme is probably this: the heir, or his lord i f he is under
age (vii, 9), takes the land (with w hich the testament must not
deal) and the chattels. O u t o f the chattels he pays the debts:
if there is a deficit, he makes it good from the la n d ; i f there is
a surplus, it goes to the executors who give effect to the testa­
ment and have a w rit (vii, 7) to help them. O ne third o f the
surplus goes to the widow, one third to the heir (half if there is
no widow ), and the rem ainder is distributed according to the
testament w hich will usually, but need not, provide something
for the lord and the church. Before 1215 the heir’s part had
become the children’s part in w hich all shared equally: but
the reservation o f thirds to the w idow and children survived into
the eighteenth century in London and in the Province o f Y ork.
L iability to creditors and actions against debtors were com ­
plicated by the ecclesiastical courts’ claim to jurisdiction over
testamentary causes; they passed slowly from heir to executors,
for and against w hom the royal courts provided actions o f debt
by the end o f the thirteenth century.
O n the last will or testament see generally P & M , 11,
314-56, and M . M . Sheehan, The W ill in Medieval England
(Toronto 1963).

Wardship (p. 82, n. 1)

W ardship is classified by lawyers with reliefs (ix, 4), aids
(ix, 8) and escheats (on death without heirs or for felony—
vii, 12 and 17) as an incident o f tenure, to be contrasted with
services. T h e services due from tenant to lord (fighting,
cooking, paying, praying, forking and flailing) give the tenure
a name (military, serjeanty, socage, frankalm oin, villein). T o
certain tenures (notably m ilitary, serjeanty and villein) inci­
dents attach b y operation o f law, to the benefit o f lord and
 ADDITIONAL NOTES 18 7

detriment o f tenant. Services cam e increasingly to be not

acts but payments, which, since they were generally o f a fixed
sum, declined in value w ith time: but incidents were mostly
secure from inflation by being related to current land values,
and tenants’ devices to avoid incidents profoundly influenced
m edieval land law. For example, wardship is o f the body and
o f the tenement and includes for m ilitary tenures the right to
take the profits. W here the tenant dies seised o f land the
profits are those o f the la n d ; but where he has subinfeudated
and is a mesne tenant seised only o f a seignory, the profits will
be negligible i f he has subinfeudated for a large cash sum and
small annual service. Such arrangements, which dam aged the
other incidents as well, were m ade impossible in 1290 b y the
Statute Quia Emptores. This statute replaced subinfeudation by
substitution, i.e. the alienee o f a fee simple was to hold not o f
the alienor but o f the alienor’s lord, and b y the same services
as the alienor: so the lord’s new tenant held the land and not
a seignory, and the value o f incidents was thus preserved.
O n tenures and incidents generally see Concise History,
pp. 531-45; wardship is fully discussed in P & M , 1, 318-29.

Final Concords (p. 94, n. 2)

T h e final concord or fine has its origin in the licensed
compromise o f a genuine dispute. T h e result is written in
solemn form and has the sanction o f an action for non­
performance (viii, 4); moreover, the legality o f the dispositions
is less likely to be challenged than those in a m erely private
charter. Hence parties intending a conveyance frequently
began collusive litigation with the express objects o f com pro­
mise and fine. From 1195 the bipartite indenture described
in the treatise was replaced by a tripartite indenture o f which
one part, the ‘ foot ’ o f the fine, rem ained in the treasury— a
safeguard against forgery, a record to be consulted in litigation,
and the jo y o f record societies to come. See generally P & M ,
n, 94-105; Kent Feet o f Fines (K ent A rchaeological Society,
Records Branch, 1956) has a form ulary (Appendix III) and a
valuable Introduction by F. W . Jessup.
 ADDITIONAL NOTES

Identification o f the fine (p. 95, n. 1)

For the judges nam ed in this fine see the next note. Neither
the land nor the grantors have been identified. J . D elaville le
R oulx, Cartulaire General de I’ Ordre des Hospitaliers de S. Jean de
Jerusalem (Paris 1894-1906) printed as a supplement (iv, 321-7)
sixteen documents concerning the English Hospitallers from
1184-90, but the nearest approach to the present grantors is a
reference in docum ent X V I (? Septem ber 1189) to land ‘ de
feodo W illelm i filii A lani, de qua finem fecimus [i.e. the
Hospitallers] uersus ipsum W illelm um filium A lani et uersus
heredes suos in curia domini regis ’ : but we need W illiam fitz
N orm an or A lan fitz W illiam , not W illiam fitz A lan.

Identification o f the judges in both fines (p. 96, n. 1)

In the spring, summer and autum n o f 1187 four circuits o f
justices were out tallaging and holding pleas. O n 3 N ovem ber a
fine was made at Westminster in the presence o f G eoffrey
(Ridel) bishop o f E ly, John (of O xford) bishop o f Norwich,
R a n n u lf G lanvill the justiciar, H ubert (W alter) dean o f York,
R ichard (fitz Neal) the Treasurer, G odfrey de L u cy, H ugh
B ardolf the Dapifer and others not nam ed (British M useum,
M S Egerton 2823, f. 31"). T h e first three names are the same
as those in the fine o f 2 N ovem ber in viii, 3; L u cy was at
the head o f the Northern circuit, w hich was at Lincoln as late
as 17 O ctober (fine: Lincoln R ecord Society, x v ii, p. 310);
B ardolf had led a circuit in the West. It looks as i f the justices
on circuit cam e back to W estminster in the late autum n. O n
27 Janu ary 1188 a fine was m ade at O xford before G lanvill,
H ubert W alter, R ich ard fitz N eal, G odfrey de L ucy, R oger
fitz Reinfrid, Joscelin the archdeacon (of Chichester) (D iac’
M S ), R obert o f Inglesham archdeacon o f Gloucester, R obert
o f W heatfield, M ichael Belet, W illiam V avasor and others
not named (fine: St Frideswide’s Cartulary, u (O xford Historical
Society, x x x i), 156-7, checked against Christ Church,
O xford, M S C C C L X , p. 160). Here, in addition to L u cy, are
the names o f five men who had come back from the 1187
circuits: R oger fitz Reinfrid, Joscelin the archdeacon (of
 ADDITIONAL NOTES

Chichester) and the last three mentioned. T h e general order

o f precedence found in these two fines o f 3 Novem ber and 27
Jan u ary gives the following conjectural identifications o f
justices for the fine o f 29 N ovem ber in viii, 2 (the two bishops
have dep arted): H — H ubert W alter; R — R ichard fitz N eal;
Robert— R obert o f Inglesham or R obert o f W heatfield; O —
(perhaps) O sbert fitz H ervey.
T h e church o f A ll Saints at Shouldham , Norfolk, was given
b y Geoffrey fitz Peter with the m anor o f Shouldham to the
the G ilbertine priory w hich he founded in R ichard I ’s reign.
H eddon is probably H eydon in Essex.
T h e significance o f Geoffrey fitz Peter’s appearance in this
fine is considered in the Introduction, p. xxxii.

Debt and Common Pleas (p. 116, n. 1)

T h e C hancery gives a w rit in general form (x, 2) which
covers m any sets o f facts. T h e y m ay present w hat the modern
law yer recognises as a contractual situation, resulting from an
agreem ent between the parties: but even where there is no
agreem ent the w rit o f debt m ay lie, both where the m odem
law yer sees quasi-contract and also as the action to recover
chattels w hich was later called detinue and w hich m odem
law discusses under the head o f tort.
T h e ‘ comm on pleas ’ w hich were dealt with exclusively by
the Bench at Westminster in the thirteenth century can,
as an inaccurate convenience, be divided into those concerning
land and those arising out o f ‘ c o n tra ct’ . Into the second
category fell actions begun by a Precipe for debt, covenant and
account. There was from the beginning a reluctance to entertain
such actions in the royal court: the earliest Registers o f Writs
and the m id-thirteenth-century pleading tract Brevia Placitata
give, as the norm al forms o f such actions, vicecom ital writs to
be heard b y the sheriff. T h e treatise twice (x, 8 and 18)
mentions this reluctance to m eddle w ith private agreements;
the fact that only debt is discussed does not therefore entitle us
to assume that Precipe forms for covenant and account (both
known from c. 1200) did not already exist.
 ADDITIONAL NOTES

For debt see generally P & M , n, 203-16. For an analysis o f

Book x see Introduction, p. x x v ; for the R om an law content see
V a n Caenegem , pp. 380-2, and the comments in the Intro­
duction, p. xxxvii.

Gage (p. 120, n. 3)

T h e account o f gage (cc. 6-11) is analysed in the Intro­
duction, p. xxv. It must be read w ith xiii, 26-30 (see p. 164,
n. 1), w hich H . G . Richardson describes as ‘ the earliest
discussion o f the gage o f land ’ ; The English Jewry under Angevin
Kings (London i960), p. 84.
T h e creditor w ho accepts a gage is in a poor position. His
remedies are the w rit given in x, 7 and, in the last resort, the
w rit o f debt in x, 2. I f he has not taken delivery o f the gage,
he has no protection at all (x, 8). Even i f he has taken delivery,
he can be ousted b y a stranger or by the debtor and cannot
use the assize o f novel disseisin to recover his security, but
must bring debt for his m oney (x, 11). M oreover, w hen the
term is up and the debtor has paid, or is w illing to p ay, he has
the w rit o f gage to recover the land from the creditor (ix, 9:
see next note). I f the creditor then denies the gage, the debtor
or his heir will have a recognition ‘ fee or gage ’ about this
(xiii, 26-7) and will recover the land i f the answer is gage (xiii,
30) and this is so, seemingly, even i f the debt is still owed
(xiii, 30). Finally, i f the creditor dies seised, the debtor’s heir
is likely to enter the lan d; the creditor’s heir w ho then brings
m ort d ’ancestor can be forced into a recognition ‘ fee or gage ’
(xiii, 28-9), and the im plication is that he w ill not recover the
land i f the answer is * gage.’
T h e early history o f gage is discussed in P & M , n, 117-24,
and Concise History, pp. 603-09.

Gage and Writs o f Entry (p. 125, n. 1)

This w rit o f gage is the ‘ ancestor ’ (Concise History, p. 362)
or ‘ earliest type o f ’ the writs o f entry (W oodbine, p. 254, and in
Yale Law Journal, x x x ix (1929-30), 509-13). It was known
later as entry ad terminum, qui preteriit, available to lessors
 ADDITIONAL NOTES

against lessees holding over after the term. T h e writs o f entry

all point to a specific flaw in the tenant’s title, and fall into two
classes. Entry sur disseisin lies against those whose title origin­
ates in a disseisin and w ho cannot be attacked by the assize o f
novel disseisin because disseisor or disseisee is dead. T h e other
writs o f entry allege some other wrong (e.g. alienation by a
guardian, a husband or an abbot, or holding over by a lessee as
above) and lie where it w ould be impossible or tedious to allege
descent in the w ay required by the w rit o f right. T h e y m ultiplied
quickly in the early thirteenth century. A dditional attractions
were trial b y ju ry and the non-availability o f the essoin de malo
lecti (see i, 18-19). For such writs generally see P & M , 11,62-75 >
for their importance in assessing H enry I I ’s policy upon seisin
see N . D. H urnard, ‘ D id Edw ard I reverse H enry I I ’s Policy
upon Seisin?’, E.H .R . l x i x (1954), 537-9. Com pare the
exam ple in Stenton, no. 3538, and comment, ibid. pp. 18-19.

Lay debts and lay fee in ecclesiastical courts (p. 126, n. 2)

As to debt, this passage exactly echoes the * assisa ’, which
is the Constitutions o f Clarendon (1164), c. 15. T h e attitude
is * head I win, tails you lose ’ : mere pledge o f faith is not
enough to found debt in the royal court, and is forbidden as
a basis o f jurisdiction in the ecclesiastical court. This silliness
was enforced by prohibitions, exceptions being made for debts
concerning testaments and marriages. Enforcement was in­
effective, and spiritual courts did a large trade in small debts;
see, for examples, B. L. W oodcock, Medieval Ecclesiastical Courts
in the Diocese o f Canterbury (Oxford 1952), pp. 89-92 and 108.
O n the pledge o f faith and its breach,' see generally P & M , 11,
197-203.
As to tenements, the ‘ assisa ’ m ay be the Constitutions o f
Clarendon, c. 9, but nothing is said there about lesio fid e i; the
treatise m ay be referring to the practice (noted in P & M , 1,
251, n. 3) o f adding an oath to a conveyance in the hope o f
ousting royal jurisdiction. Enforcem ent was fairly effective,
and was b y writs such as those in xii, 21-2. T h e exception
noted in vii, 18 for lands given in maritagium was denied b y
 ADDITIONAL NOTES

Bracton (f. 407b), w ho relied on a case o f 1230 {Note Book, no.

442). See generally P & M , 1, 246-51; on prohibitions con­
cerning lay fee see G . B. Flahiff, ‘ T h e W rit o f Prohibition to
C ourt Christian in the Thirteenth C entury,’ Mediaeval Studies
(Toronto), v i (1944), 272-4 and v i i (1945), 259-61.

‘ Responsalis ’ (p. 133, «. 1)

T h e word ‘ responsalis ’ is used with two different meanings
in the treatise: in i, 19 it means m erely ‘ representative ’ ; in all
other cases it means ‘ attorney’ . T h e different translations are
based on the view that the usual m eaning is that o f the present
chapter, and that this chapter deals w ith the m an w ho has
power to bind his principal and w hom Bracton was later to
call the ‘ attornatus ’ : i, 19 deals with a man o f m ore lim ited
powers, still called b y Bracton ‘ responsalis’ and sharply
differentiated by him from the ‘ attornatus’ (f. 212b). This
view is expounded in W oodbine, pp. 262-5; it involves the
rejection o f W . C . Bolland’s suggestion (Tear Books 6 and 7
Edward I I A .D . 1313, S. S. x x x v i, pp. xi-xvi) that in this
chapter ‘ responsalis ’ equals ‘ ballivus’. For the early history
o f attornies, w ho were at this time seldom or never professionals,
see P & M , 1, 212-17. Representatives, attorneys and bailiffs
are all in the line w hich leads to the modern solicitor: they
are to be distinguished from the ‘ narrators ’ or ‘ counters ’
w ho em erged as pleaders slightly later and are the ancestors o f
the barrister (see p. 147, n. 3).

Right and seisin (p. 148, ». 4)

H ere, as elsewhere (e.g. i, 3) the author contrasts right and
seisin, and is using seisin to m ean possession. E arlier law
felt no need to distinguish the enjoym ent o f property from
right to property in the w ay in w hich R om an law distinguishes
possession from ownership. This * indistinct enjoym ent and
right ’ is often referred to by modern writers as seisin, but
saisina (as distinct from saisire, saisitus est etc.) is almost un­
known in E ngland before 1164. W hen under H enry II
saisina becomes a com m on term to denote the abstract notion
 ADDITIONAL NOTES 193
o f seisin it is used in the sense o f possession. It is o f course true
that right or title is still proved b y reference to seisin (as in ii, 3):
but the distinction between right and seisin has become vital
with the introduction o f the possessory or petty assizes discussed
in Book xiii. T h e use by historians o f the term seisin to describe
not only the old undifferentiated enjoym ent and right but
also the new possession protected b y H enry’s reforms is res­
ponsible for a good deal o f the difficulty and controversy sur­
rounding the mystery o f seisin. O n seisin, right and possession
the starting points are M aitlan d’s articles on the ‘ M ystery ’
and ‘ Beatitude o f Seisin ’ in his Collected Papers, I, 358-84 and
407-57. R ecent w ork is based on or reacts against F. Jotion
des Longrais, whose views in La Conception Anglaise de la Saisine
are accepted and summarised b y T . F. T . Plucknett in Harvard
Law Review, x l (1926-7) 921-5, and criticised b y W oodbine,
pp. 281-3. See also V a n Caenegem , pp. 306-16, and the
references at the end o f this note.
B rief notes, dating and literature on the four principal
assizes— mort d ’ancestor, darrein presentment, utrum and
novel disseisin— are given in the appropriate places. There is
disagreement as to their working and significance. T h e intro­
duction in all four cases o f dual process— prelim inary assize
with possibility o f subsequent proprietary action b y w rit o f right
— makes it likely that there was a royal policy. T h a t the policy
was deliberately aim ed against feudal and ecclesiastical juris­
diction is less certain: in one case (darrein presentment) juris­
diction was already royal and not feudal (iv, 2), and in
another (utrum) the scope o f the assize was too lim ited for
this purpose. T h e provision o f order and speedy justice is an
alternative and reputable policy. O f course the effect was to
draw cases into the royal courts. As to the means em ployed,
romano-canonical influences m ay be im portant: the teaching
o f V acarius in E ngland and the continental parallels are
suggestive. T h e opposing view stresses the judicialisation o f
native executive forms and the insular inventiveness o f the
English. T h e anti-feudal policy w ith rom ano-canonical tech­
niques was advocated b y F. Jotion des Longrais, * L a portae
194 ADDITIONAL NOTES

politique des rlform es d ’H enry I I en mati£re de saisine ( i ) , ’

Revue historique de droit, 4 ' serie, x v (1936), 540-71, and recently
in a lecture at C am bridge, Henry I I and his Justiciars, had they a
political plan in their reforms about Seisin? (Limoges 196a), w hich
is an answer to V a n Caenegem . See also S. E. Thorne, ‘ L ivery
o f Seisin,’ in L .Q .R . l i i (1936), 345-64, and N . D . H urnard,
‘ D id Edw ard I reverse H enry I I ’s Policy upon Seisin? ’,
E.H .R . l x t x (1954), 529-42.
 A P P E N D IX

‘ G l a n v i l l R e v is e d ’

T h e version studied b y M aitland (P) was written in the

time o f Edw ard I .1 It has since been shown by M r Denholm-
Y ou n g that P was copied from S, w hich was written by Robert
Carpenter I I about 1261 and was subsequently revised by
him .2 In both S and P the revised ‘ G lanvill ’ stops abruptly
in the middle o f Book xi, c. 3 at the words ‘ uxor quoque
m aritum ,’ and a Register o f W rits follows. M aitland dated
the revision c. 1265, M r D enholm -Young c. 1261.3 O n either
view it would, as M aitland said, be surprising that the attem pt
at revision was made so late (after Bracton), and that it had so
little to say about the great changes o f H enry I l l ’s reign. But
the dating 1261 assumes that the revised text and the Register
have to be treated as a unit, and that Carpenter was the re­
viser. Both assumptions m ay be false, and w ill be considered in
turn.
In P , from w hich M aitland worked, the Register follows
directly on the treatise, its writs are num bered consecutively
iii to lxxx to follow sections i and ii o f the tenth Tractatus4 o f
the treatise, and the words ‘ Explicit summa que uocatur
glaunuyle ’ follow w rit lxxx: so the Register is made to look
like part o f ‘ G lanvill’ . In S, however, there is no such num­
bering and no Explicit at a ll: the Register begins im m ediately
after the words ‘ uxor quoque m aritum ’ near the foot o f p. 152
with a w rit o f novel disseisin for rent w hich occupies the rest
o f the page. This w rit is unrubricated, and it is in a different
ink from the preceding words and from the rubricated writ

1 Collected Papers, n, 266-89; see Introduction, p. lviii

* N. Denholm-Young, ‘ Robert Carpenter and the Provisions of
Westminster,’ E .H .R . l (1935), 22-35; see also C . A. F. Meekings, ‘ More
about Robert Carpenter of Hareslade,’ E .H .R . lx x ii (1957), 260-9.
* E.H.R. l (1935), 28-9
* For the Tractatus divisions in S and P see Introduction, p. xlix
195
196 APPENDIX

w hich follows it; this following writ, at the top o f p. 153, is

novel disseisin for land. N ovel disseisin for rent w ould not
norm ally precede novel disseisin for land in a Register. T h e
w rit on p. 152 was, therefore, probably a later addition and it is
w ritten over some now irrecoverable words w hich m ay have
been an Explicit for the treatise. T h e Register is fairly clearly
from the late 1250s.1 I t has an unusual order. T h e w rit o f
right (directed ‘ custodibus terre et heredis Baldew yni comitis
D euonie ’ and dated 20 A p ril 1256), w hich w ould norm ally
begin a Register, is at p. 161— the start o f a new quire. I t is
possible that Carpenter first wrote this and the following
quire (pp. 161-92), and then returned to fill in pp. 153-60
w hich had been left blank by the term ination o f the treatise
at p. 152, w hich is in the middle o f a quire; later he inserted
the w rit at the foot o f p. 152.
I f the revised treatise is no longer to be regarded as one
unit with the Register, need it be given a similar or later date?
I t was heavily corrected and added to b y C arpenter after he
wrote it; had it already been revised before he wrote it?
Th ere is some reason to think so. In dating the revision m any
o f M aitland’s dating points can be ignored, for they refer to
matters found outside the treatise, either in the Register or in
other parts o f the manuscript.* T h e rem aining points on
w hich he relied are allusions to M agn a C arta, the 1236
Statute o f M erton, the 1237 ordinance on lim itation o f writs,
and the m inority (probably 1245-57)8 ° f the heir o f Baldw in
de L ’Isle. These allusions need closer exam ination. T h e
presence o f substantive revision based on the Charter, or
M erton, would be better evidence than the presence o f periods

1 T h e Register is at pp. 152-200. Six o f the writs are dated: the dates
range from 3 April 1256 to a8 October 1258/27 October 1259 (‘ anno
xliii* ’).
* The revised text is at pp. 17-152. The excluded dating points are the
references to Isabella de Fortibus as countess o f Devon (pp. 174 and 176),
a writ based on the Provisions o f Westminster o f 1259 (p. 16), the articles
o f the Eyre for 1255-6 (p. 222) and a passage about Lewes and Evesham
(in P but not in S).
* See G.E.G. Complete Peerage, rv (1916), 318-22; cf. the writ o f right
to the guardians o f the heir o f Baldwin, dated 1256, quoted above.
 APPENDIX 197
o f lim itation or o f references to the m inority o f the heir o f Bald­
win, w hich could easily have been changed or added by C ar­
penter as he w rote: there is indeed only one case where the
the w rit lim itation given in the text corresponds to the changes
o f 1237, and this is accom panied by a m arginal note by C ar­
penter stressing the point1; the reference to the heir o f Baldwin
is in the text o f one w rit,2 but is interlined b y Carpenter in
another.3 This leaves the Charter and the Statute o f Merton.
T h e allusion to M agn a C arta is there; but the references to
M erton have not been traced,1 and their absence is remarkable
because there are several places in the text where they would
be appropriate.8 M oreover, in two places the text o f the
revision uses the date 13 H enry I I I — in the final concord in
Book viii, c. 2,8 and in a variant o f the w rit o f debt.7 This last
case seems important. T h e variant w rit is not in the original
treatise, but is in the text o f the revision. I f Carpenter did the
revision, w hy did he, in 1261, date one o f his extra writs 1229?
In the Register, w hich was certainly C arpenter’s work, all the
dated writs are between 1256 and 1259. Is it not probable that
1229 was the date o f the original revision, and that Carpenter
failed to change it?8
Elsewhere in S (pp. 255-366) there is a collection o f little
tracts on letter writing, conveyancing and accountancy with
model forms and examples, and this collection is based on
similar tracts w hich ‘ circulated in E ngland at least from the

1 p. 69 (de natiuo kabendo)

’ P- 43
* p. 78; it also occurs several times in the Register.
* Except in the Register at p. 174, a writ based on Merton, c. 10.
6 e.g. cc. 1 and 2 give rights to widows, cc. 6 and 7 establish rules
about the marriage of heirs, c. 9 is the baronial ‘ Nolumus ’ on legitimation
by subsequent marriage, c. 10 concerns attomies.
* p. i n
7 P* *34
* The Tractatus divisions present a difficulty. They are fitted to the
truncated treatise in such a way that the last two are foolish (see Introduc­
tion, p. xlix). If made by the original reviser for an already imperfect
text, they are a black mark against him. Alternatively, Carpenter may
have been responsible for these divisions, as he clearly was for the marginal
and interlinear additions and for some of the names and places in the
actual text of the revision as it appears in S.
198 APPENDIX

earlier part o f H enry I l l ’s reign, and . . . had their origin in

O xford .’1 M oreover, at pp. 402-29 in S there is a tract on
procedure in ecclesiastical and secular courts w hich comes
probably from ‘ the twenties or thirties o f the thirteenth cen­
tury.’ 8 It is possible that the collection, the procedural tract
and the revised ‘ G lanvill ’ were all m ade at about the same
time, and perhaps in O xford.

1 H. G . Richardson, ‘ An Oxford Teacher of the Fifteenth Century

Bulletin of the John Rylands Library, xxin (1939), 451 and (a reprint with
corrections) An Oxford Teacher o f the Fifteenth Century (Manchester 1939),p. 18
* H. G . Richardson and G . O . Sayles, Select Cases o f Procedure without
writ under Henry III, S.S. l x , p. cxcii
 INDEX OF WRITS
The writs are listed in the order in which they appear in the treatise and arc
grouped according to topic.
The addressees are S (sheriff), RJJ (royal justice*), JJJ (ecclesiastical judges),
L (lord) or Abp (archbishop).

The types of writ are O (original, initiating litigation), M (mesne process in the
course of litigation) or E (execution after judgment): O* is used where any doubt
(however faint) exists whether the writ contemplates litigation (see p. 5, n.2).

The courts are R (royal, including itinerant justices) or [R] (the same, where
litigation is at an end), L (lord’s), E (ecclesiastical) and C (county). Two courts,
e.g. L/R, are given where two are involved; this covers a variety of dissimilar
involvements (contrast iv, 14 and v, a).
Book
and Addressee Type of Court
Chapter writ
Precipe quod reddat for land i, 6 S O R
saving return day by royal warrant i, 8 RJJ M R
taking land into king’s hand for default >. *3 s M R
seizing false essoiner i, 14 s M R
summoning essoiner’s surety >, 15 s M R
delivering seisin after default ». 17 s E [R]
ascertaining whether bed-sickness i, 19 s M R
holding view of land ii. 2 s M R
delivering seisin after batde ii, 4 s E [R]
writ of peace (lord’s court) ii, 8 s M L/R
variant of above for services ii. 9 s M L/R
summoning four knights to elect twelve ii, 11 s M R
summoning twelve knights for Grand
Assize ii, 15 s M R
delivering seisin after Grand Assize ii, 20 s E [R]
Summoning warrantor >ii, 3 s M R

Precipe quod reddat for advowson iv, a s O R

seizing presentation for default iv, 4 s M R
quo advocato iv, 8 s M R
Prohibition of advowson (indicavit) •v, 13 Ejj M E/R
Prohibition of advowson (to sheriff) iv, 14 s M E/R

Status: de libertate probanda (pone) v, a s M C/R

Writ of right of dower vi, 5 L O L

pone from county court vi, 7 s M C/R
summoning heir to warrant dower vi, 9 s M R
Precipe for dower unde nihil habet vi, 15 s O R
Admeasurement of dower vi, 18 s O C
>99
200 INDEX OF WRITS
Book
and Addressee Type of Cour
Chapter writ
Upholding a reasonable division
(=xii, 17) vii, 7 S O* C
Writ of bastardy vii, 14 Abp M R/E

Precipe for fine not observed viii, 4 S O R

Summoning justices to make record viii, 6 S M R

Recordarifacias to county court (= viii, 1o) viii, 7 S M C/R
Recordarifacias to county court (■=viii, 7) viii, 10 S M C/R

Precipe for receiving homage and relief «, 5 S O R

Grand Assize (lord and vassal) «. 7 S M R
Constraining tenant for customs and
services «. 9 S O* C

Purpresture against lord ix, is S O L

Reasonable boundaries (“=xii, 16) ix, 14 S O* C

Precipe quod reddat for debt x, a S O R

Precipe against debtor’s surety for debt x. 4 s O R
Precipe for debt secured by gage x, 7 s O R
Precipe quod reddat for land gaged (writ of
gage) x>9 s O R
Attachment of warrantor of thing stolen x, 16 s M R

Receiving an attorney xi, a s M R

Writ of right for land » i »3 L O L

variant of above for services xii, 4 L O L
variant of above for parcener xii, 5 L O L

N e vexes xii, 10 L O* C
Naifty xii, 11 S O C
Replevin x i i , 13 s O* C
Admeasurement of pasture xii, 13 s O* c
Easements in free tenements xii, 14 s O* c
Replevin against chief lord xii, 15 s M R
Reasonable boundaries (= ix, 14) xii, 16 s O* C
Upholding a reasonable division (=vii, 7) xii, 17 s O* C
Restoring chattels in novel disseisin
(=xiii, 39) xii, 18 s M C
Postponement of recognition xii, 19 s M E
Reasonable dower xii, ao s O* C
Prohibition of lay fee xii, ai EJJ M R
Prohibition of lay fee {ne sequatur) xii, aa s M E/R
 INDEX OF WRITS 201
Book
and Addressee Type of Court
Chapter writ
Assize of mort d’ancestor xiii, 3 S O R
variant for pilgrimage xiii, 4 S O R
variant for minor heir xiii, 5 S O R
variant for religion xiii, 6 S O R
delivering seisin after assize xiii, 8 S E [R]
recognition: fee or wardship? xiii, 14 S M R
recognition: minor or not? xiii, 16 S M R
Assize of darrein presentment xiii, 19 S O R
recognition: fee or wardship? xiii, 21 S M R
Assize utrum xiii, 24 S O R
Recognition: fee or gage (in writ of gage)? xiii, 27 S M R
Recognition: fee or gage (in mort
d’ancestor)? xiii, 29 S M R
Assize of novel disseisin xiii, 33 S O R
variant for raising a bank xiii, 35 S O R
variant for raising a mill pond xiii, 36 S O R
variant for common pasture xiii, 37 S O R
restoring chattels after assize (=xii, 18) xiii. 39 S M C

29
 GENERAL INDEX
Important references are indicated by italic numbers.

abbot, 74, 136, 163/1, 185, 191 3611, 114/i, 115, 126, 144, 149, 152,
Adam de Biri, 116 159, 167-70, 180, 190, 191, 195-6;
Adams, G. B., xxxivn nuisance, i68n; utrum, 149, 163-4,
accused, 20, 171-7 193; see also Grand Assize, legislation,
accuser, 4, 171-7 limitation; and see recognitions, writs,
actio spotii, xxxix Index of Writs
advowsons, 182; xxii, xxxv, 4, 32, 43-53, attachment, see mesne process
67-8, 79". 96. 160-3 attaint, 36/1
agreement, 124, 129-30, 132, 189; and attorney (responsalis), 19s; xix, 8, 20, 40,
see contract 45, 48, 49. 63, 95, 97, 132-6, 197n;
aids, xxiv, m - is , 186 and see representative
Alan, son of William, 95, 188 Augustine of Hippo, St, 68n
Alexander III, pope, xxxix, 50n, 88n aunts, see family
Alfred, king of the West Saxons, xiii Azo, lx
alienation, 184-71 xxiv, xxvii, 60, 69-74,
76, 82, 154, 162, 181; death-bed, 70; Bailey, S. J., 64/1, 72n, 79n, 103*1, 181-2
inherited and acquired land, 70-1; bailiff, 133, 167, 192
socage, 71; special problems, 72-4; Baldwin de L’Isle, earl of Devon, 196-7
church lands, 74, 185-6; to bastards, Ballard, A., 155/1
70-1; and see inheritance Bardolf, see Hugh
allegiance, 84, 104 baronies, xxvi, 4, 74, 106, 108, n o , 145
alms (elemosina), 69, 74, 185; and see barons, xxi, 102-03
trankalmoin Bassett, see William
amercement, of sheriff, 18; and see bastards, see family
judgment battle, trial by, 180-1; xxii, xxxvii, 23-6,
ancient demesne, 183 27, 28, 31, 36, 37, 38, 40, 47, 56, 57,
Anselm, St, archbishop of Canterbury, 64-5, 78,100,101,105,120,126,127,
io6» 131. 132, 153, 154. »72, 173; and see
appeal, xiii, xxxv, xxxvii, 21, 83, 89, proof
I20n, 17o, 171-3, 174n batde, flight from, xxi
approver, 180 Beale, J. H., Ixvn
archbishop, 87; and see Canterbury Beames, John, lxiv-lxv, 12m
army, 3, 104, 137, 171-2 beatings, 4
ana, see earnest Becket, see Thomas
arrest, see mesne process Belet, see Michael
arson, 3, 17 m, 175 Bendings, see William de
Arthur, grandson of Henry II, 77/1 Beugnot, A. A., xvn
assizes, xii, xiii, 7, 155, 167; possessory Biri, 116; and see Adam de
(petty), xiii, xxvii, xxxiv, 181, 193-4; bishop, 48, 50, 74, 87, 96, 106, 1630,
darrein presentment, liii, 43-4, 470, 182, 188-9
50-1, 149, 154/1, 160-3, 182, 193; Bolland, W. C., 192
mort d’ancestor, xxx, xxxv, liii, liv, Bologna, xvi, xvii, xviii
34", 73, 83, n o , 149-60, 165, 180; borough, 1550
novel disseisin, xxvi, xxxiv, xxxix, 19, boundaries, 116, 143, 145
203
204 GENERAL INDEX
Bracton, xxx, xxxii, xxxiv, xxxviin, collegium, see religious community
lix-lx, lxi-lxii, 29n, 156H, i68n, 183, commendatio, see loan
191-2, 195; Note Book, xxxii, sign, 192 commendatio custodie causa, see deposit
brawling, 4 commodatum, see loan for use
Brevia Placitata, 147n, 189 common law, see law
Britton, lxvii, 1 ion commune, 58
Briwer, see William Compostella, 150?!
brothers, see family compurgation, see wager of law
Buchanan, John, lxn conductio, see letting and hiring
Bulgarus, xvi consecration, 106
burgage, see tenures Constantine, emperor, 88n
constitution, see legislation
Calasso, F., xivn, xvn contempt, of court, 20, 21, 42; of king’s
canon law, see law writ or command, xxi
canons regular, 136 conterumentum, 112, 114
Canterbury, archbishops of, see Anselm, contract, xxxvi, xxxvii-xxxviii, 130,
Hubert Walter, Theobald, Thomas 132, 189; and see agreement, debt
Becket Cooper, T. M., Lord, bum, 186
Canute, king of England, xiii; Consiliatio Corpus Juris Civilis (Codex, Digest, Insti­
Cnuti, Ivii; forest laws, xxx tutes and Novels), xvi, xvii, xviii,
Carpenter, Robert, II, 195-7 xxxvi-xxxvii, xln, 69/1; and see law
Casus Placitorum, xxx (Roman)
casus regis, see inheritance Cotton, Robert, Ixiii
cattle, 142, 143 count, 147, 180; in Precipe for land,
causa debendi, petendi, see debt 22-3; in Precipe for advowson, 46; in
champion, 34-6, 58, 64-5, 100, 180 writ of right for dower, 62
Chancery, Ivii, 189 counters (narrators), 192
charter, xxv, 38, 57, 117, 126, 127-8, courts, royal (of lord king), passim;
155. ’ 76- 7, 187 chief court of lord king, 61, 98, 105,
chattels, as dower, 59; as gage, xxv, 120; 114, 136, 140; county, xi, xiii, xix,
in testaments, 79—81, 146, 186; in xxiii, 4, 18, 19, 37, 4in, 54, 61-2, 100,
mort d’ancestor, 153; in novel dis­ 102-03, «13, ' 36. 139, 147.
seisin, 144, 167, 170; of intestate, 89; I48n, 151, 175, 177, 181; ecclesiasti­
of usurer, 89; of felon, 91; of villein, cal, xvii, xxii, xxxiv, xxxix, xii, 32,
56, 57, 141; distress on, 112, 117; 48-53, 8i, 87, 93, 126, 146-7, 148,
warranty on sale of, 181; and see 186, 191-2, 198; feudal (of lord,
movables baron), xi, xiii, xix, xxiii, 60-1, 95,
chattels real, 7gn 102-03, 105, 112, 115, 136-40, 180,
Cheney, M., 50n 181; inferior, xxxv, 100-03; superior,
Chichester, archdeacon of, see Joscelin 139; and see law, pleas
children, see family crime, see pleas and specific crimes
chirograph, xxxii, 94, 95, 98 crown, see king, pleas
church, xxii, xxxv, 43-53, 67-8, 79, 82, curtesy, Ixii, 92-3, 183
84, 96, 160-2, 164, 186 customs, xii, 75, 77, 79, 113, 147; and see
church door, 59, 60, 62, 65 law and custom, services
city, 77, 114 Cutbill, A., lviiin
claim, see count
Clanchy, M. T ., 179-80 Danelaw, xi
Clarendon, 5; and see legislation darrein presentment, see assizes
clerk, xxxv, xxxix, 47-50, 52, 80, 106, daughters, see family
148, 182 Davis, R. H. C., 185
Coke, Sir Edward, Ixiii death-bed gift, 70n
 GENERAL INDEX 205
debt, 189-90; xxv-xxvi, xxvii, xxxiv, earnest (ana), xxxvii-xxxviii, 129-30
xxxvii-xxxviii, 4, 79-80, 83, 116-32, easements, 142-3
145-6, 159, 164-6, 186, 191; causa ecclesiastical law, see law
debendi, xxv, xxxviii, xln, 117; causa Edward the Confessor, king of England,
petendi, xxxviii, xln, 117; cause debendi, xiv; Leges Edwardi Confessoris, xxix-
see deposit, letting and hiring, loan xxx, xxxivn, lvii
for consumption, loan for use, pur­ Edward I, king of England, lxi, lxv, 195
chase and sale Eleanor, queen of Castile, daughter of
Decretals, see legislation Henry II, 77/1
Decrettun, see Gratian elemosina, see alms, frankalmoin
default of appearance, xxii, xxxixn, Ely, bishop of, see Geoffrey Ridel
xlvii, Iii, 5-si, 33-4, 39-40, 46, 48-9, emendations, xxi
62-4, 117, 152, 156; and see judgment emptio, see purchase and sale
default of justice, xxi, Ixixn, 141-4 Enever, F. A., 105/1
default of right, xix, Ixixn, 4 ,6 1 ,136-41, equity, see law and equity
148n escheat, xxiv, 8411, 86,90-1, 105(1, 115/1,
Delaville le Roulx, J., 188 186; and see judgment
delivery (traditio), 129 essoins, xxii, xxvi, Iii,5-20, 23-4, 28, 31,
Denholm-Young, N., 195 33- 4. 38, 39, 40. 41-2. 45. 48. 49, 55,
deposit (commendatio custodie causa, deposi- 63, 97, 134- 5, *52, 156, 161, 164,
tum), xxv, 37, 117, 123; and see 166, 169, 172; sickness on the way to
debt court, 7-8, 12; house-sickness, 7,
descent, from parentelic stock, 26-7, 11-12; bed-sickness, 11—ia, 191;
55-6, 155, 174, 184; and see parenlela overseas, 14; accidents, 14; service of
Devon, sheriff of, 137; countess of, see king, 15—16; sickness in same vill, 16;
Isabella de Fortibus; earl of, see pilgrimage, 16-17
Baldwin de L ’Isle Evesham, battle of, ig6n
de Zulueta, F., xviim exceptions, 26-8, 154-5, 161-2, 164-6
Dialogus de Scaccario, vii and passim, esp. exchange (excambium), 27, 37, 39-40,
xxxvi; and see Exchequer 64-5, 75, io 7> 181
discretion, see law and discretion Exchequer, xi, xii, xxxiii, xxxvi, lxvii, in,
disinheritance, 70, 85, 104; and see 7 n, 84,90/1,105«, 114n; andseeDialogus
judgment executors, 80-1, 186
disseisin, 82, 126, 140, 144,167-70, 191; eyre, xii, 99, ig6n; and see justices
and see assizes .(itinerant)
distress, 105, 135; of chattels, 1:2, 117;
of fee, 63, 112, 117; and see mesne faith, pledge of, xxv, xxxiv, 8, 93, 117,
process 126, 191
division of chattels, 79-81, 144, 146; false judgment, xxi, 101
and see testament, will falsifying, crime of, xxi, 3, 17 m, 176-7
divorce, 68; and see separation family, 183-3; aunts, 79; bastards, xxiv,
Domesday Book, 185; of Hereford, lxvii 70-1, 87-9, 154; brothers, 73, 76, 79;
dos, xxiii, xxiv, 58, 69; and see dower children, 58, 186; daughters, 69, 71,
Douglas, D. C., lxvn 75-7, 85, 11 a; husbands, xxiii, 59-68,
dower, 183-4> xxiii-xxiv, xxvii, lxi, 4, 76, 80, 85, 86, 92-3, 103, 106, 108,
58-69, 86, 94, 106, 135, 145-6; nomi­ >34-5, I9I; sisters, 76, 79, 106, 138;
nated, 59, 60, 62, 64-7; ex assensu sons, passim, esp. 70-5; uncles, 79;
patris, 68; reasonable, 59, 60, 66-7; widows, wives and women, xxiii,
unde nihil habet, 65-6; admeasurement, 58-69, 76, 77, 80, 82, 85-7,92-4, 103-
59, 68-9; and see dos 108,134-5, 145, 173, 174,175-6, 197n;
Dryburgh, 186 and see alienation, dower, inheritance,
Duncan, A. A. M., lxn, lxin marriage, wardship
2 06 GENERAL INDEX

fealty, 76, 86, 92, 103, 106 gloss in beta, xxvi—xxvii, xiii, li, liii-liv,
felony, 83, 90-1, i2on, 130-t, 171-7, 180 lv, lxiiin, I5n, 34/1, 77/1, 119n, 154/!,
Fet Assaver, xxx *561, I59n> 16471, 166n
Fifoot, C. H. S., lxiiin, i68n ‘Glanvill Continued’, lvii—lviii
final concords (fines), 187-9-, xxiv. xxxi, ‘Glanvill Revised’, xlix- 1, lviii, 68n,
xxxii, 4,19 ,94-100, 133, 135, 154, 197
fine, see judgment
'95~?
‘Glanvill’ in French, lviii
fitz, see baptismal name glossators, xvi, xvii, xln
Flahiff, G. B., 52/1, 192 Gloucester, archdeacon of, see Robert of
Fleta, Ixi-lxii Inglesham
Flower, C. T ., 47/1 God, 60, 71
forfeiture, 36, 142; and see judgment Godfrey de Lucy, bishop of Winchester,
forisfamiliation, 78 xxxiiin, 188
fornication, 87 Grand Assize, 180-1; xiii, xxii, xxxv,
Foss, E., xiv, lxiiin xxxvii, 23, S&-37, 40-1, 47, 105, 111,
frankalmoin (free alms), see tenures; 164
and see alms Grand Cape, 8n
frank-marriage, 92, 106, 137, 138; and Grandclaude, M., xvn
see marriage-portion Gratian, Decretum, xvii, xviii, xxix, 68n
French, xiv, xxx, xxxii, lviii, lxii Gray, J. W., son, 182
Greenaway, G. W., lxvn
gage (vadium), 8n; for appearance, 97, guardian, 191; and see wardship
142, 146, 167; for debt, xxv-xxvi, 37,
79", 117. i20~€> '55. 164-6, 190-1; Hall, G. D. G., xxxn, 5n, i67n, 184
and see mortgage, security, surety hanging, see judgment
Galbraith, V. H., lxviin Harding, A., xiiin
Geoffrey, son of Henry II, yyn Hazel tine, H. D., xvn
Geoffrey fitz Peter, xxxii-xxxiii, 95-6, Heddon, set Heydon
189 heirs, see inheritance
Geoffrey Ridel, bishop of Ely, 96, 188, Henry I, king of England, xii, xxx,
189 xxxiv, 23, 46, 115-16, 141, 144, 180;
gift, xxiv, 27, 37, 57, 60, 69-74, 154, and see Leges Henrici Primi
183; and see alienation Henry II, king of England, xii-xiii,
gild, 58 xxviii, xxix-xxx, xxx-xxxi, xxxiv,
Gilson, J. P., Ixvin xxxvi, xxxixn, xlvii-xlviii, 1, 23, 46,
Glanvill, see Rannulf 77n> 95. 96, 115. ' 42. !5°. 15'. >67,
‘Glanvill’, see Introduction, passim; title, 168, 169, 180, 192-4
xxxi, Ivin, lvii, 195; Incipit, xin, xxx, Henry III, king of England, Ivin, 195,
xxxi, xiii, xlvii, 1, li, lii, lvii, Ixi, lxv- 197-6
Ixix, 1; Prologue, xviii, xxx, xxxvi, Hereford, lxvii
xii, lv, Ixi-lxii; language and style, Hervey, see Osbert fitz
xi, xli-xlii, li—lii, 3; dilemmatic Heydon (Essex), 96, 189
technique, xi, xxii, xxviii; procedure homage, xxiv, xxxivn, lix, 4, 72n, 73,
and substance, xxiii-xxiv, xxv-xxvi; 76, 78, 85, 86, 88, 92, 93, 94, 103-10,
analytical list of pleas, xx; division by 174, 181-2
rubrics/chapters, xixn, xxii, xxv, homicide, xxxv, 3, 172, 173n, 174-5
xxvii, xl-xlii, xlviii-lv, lviiin, lix-lx, Horn, Andrew, chamberlain, lvii
lxiin, lxiv, lxv-lxix; division into Houard, D., Ixiii
tractatus,. xl-xli, xlix; into Tractatus, Howden, see Roger of
xx, xlix- 1, 195; into Cause and Hubert Walter, justiciar, xxxi-xxxii,
Questiones, xx, 1, lxvi; names quoted, xxxiii, xliv-xlv, xlvi, 2 in, 63n, 67n,
xxxii, xxxiiin, xliii-xlvii, lxv-lxix; 77n> I 34n> 188-9
 GENERAL INDEX 207
hue and cry, xxxv, 174-5 Jerusalem, Assizes of Latin kingdom,
Hugh Bardolf, dapifer, xliv-xlv, 64/1, xv; hospital of St John of, xxxii, 95,
188 136, 144, 188; pilgrimage to, lii, 17,
Hugo, xvi 150
hundred, 175 Jessup, F. W., 187
Hunter, J., lxviiin John, king of England, xxx, xiv, lv,
Hurnard, N. D., 1390, 17m, 175nn, ivii, lviiin, 77n
176n, 179, 191, 194 Jolm of Oxford, bishop of Norwich, 96,
husbands, see family 188, 189
John of Salisbury, xvii
Ibelin, see Jean d’ Johnson, Charles, xxxvin, g8n
immovables, xxv-xxvi, 79n, 120, 124-6, Johnson, H. C., Ixiiin
130 Joscelin, archdeacon of Chichester,
imprisonment, see judgment, mesne 188-9
process Joflon des Longrais, F., xxxixn, 64/!,
incidents, see tenures 167H, 184, 193-4
incontinence, 86, 90 judgment after trial: disinheritance, 86,
Ine, king of the West Saxons, xiii, 90, 91, 105, 159, 173; escheat, 86,90;
Ivii loss of land, 25, 35, 38, 42, 91, 98,
infamia, xxxvii, 36, 172, 173 104-05, 114, 115, 153; of advowson,
Inglesham, see Robert of 50; of court, 101; of gage, 166; of
inheritance and heirs, 184-6', xxiv, next presentation, 161; of goods and
xxvii, 27, 69-94, 103-11, n o , 145, chattels, 36, 89, 91, 173; of freedom
149-60; bastards, 87-9; daughters, and chattels, 56; of law, 25, 28n, 36,
75-7; eldest son (primogeniture), 75, 58; of life, 3, 171; of limbs, 3, 171,
77; representation (casus regis), xxivn, 177; hanging, i32n, 181; imprison­
xlvii, 77-8; socage, 75; usurers, 89; ment, 36,98; amercement, 43,51,98,
heirs of full age and under age, xxvi, 101, 113, 114, 127-8, 169, 170, 172;
xlviii, 82-3, 85, 90, 103-04, 106, fine, 25
107-08, 1450,149,151,153-4,136-60, judgment on default: loss of land, 6, 10,
169, 173, 186; lineal and collateral, 12, 40; of advowson, 49; of case,
75, 77> 79! heirs and alienation, 72-4; expenses etc., 20-1; amercement, 19,
and dower, 60, 63-9; and mort 20, 21, 119, 120; imprisonment, 42;
d’ancestor, 149-60, 165; and testa­ and see mesne process
ments, 79-81, 186; and see alienation, judicialisation, xiin, xxxixn, 179, 193
escheat, family, homage, lord, jury, 360, 114, 175, 181, 191; and see
marriage-portion, relief, wardship proof
injury (atrox iniuria), 25, 105 justices, bench, xii, 26, 94, 133, 189;
inquest, xii, 89, 171; and see proof itinerant, xin, xii, xiv, in, 28n, 98,
intestacy, 89 114, 188-9, see eyre; royal,
Ireland, Register sent to, xxxiv passim, esp. xiv, 188-9; chief justice,
Irnerius, xvi 61, 105, 112, 148, and see justiciar
Isabella de Fortibus, countess of Devon, justiciar, xii, xxxi-xxxiii, xiv, Ixx; see
196/1 Hubert Walter, Rannulf Glanvill,
Isidore of Seville, St, xiv Richard de Lucy; and see justices
Ivo of Chartres, xiv Justinian, emperor, xv-xvi, xxxvi, xln,
88n; and see Corpus Juris Civilis
Jacobus, xvi
James of Compostella, St, 150 Kantorowicz, E. H., bdn, lxiin
James, M. R., lxvin Kantorowicz, H., xvin, xxixn
Jean d’Ibelin, xv Kaufmann, H., xxxviiin, xln, xlin, xliin
Jenkins, C., lxvin Kent, law of, xiii
208 GENERAL INDEX
Ker, N. R., lviinn, lxiiin Leges Londoniis colleclae, lvii
king, praise of, i-a; special rights, 84, legislation, xiii-xiv, xxxiv-xxxvi; assize,
89, 90-1, 145*1, -185; killing of, 3, xxxiv-xxxv, 100(2), 101, 113, 126,
171-2; fighting in house of, xxi; 148. 155. 173. >74. >9i; constitution,
killing or injuring familia of, xxi; xxxiv-xxxvi, 28, 31, 36, 148, 167,
breach of peace of, xxi, 3, 20, 21, 25, 170; ordinance (statutum est), xxxv,
120; and see pleas and individual kings 50; and see law
knights, 58, 112; in Grand Assize, 30-7, legislation: Assize of Clarendon (1166),
111, 181; other duties, 11-12, 16, 99, xxxv, lvi, 171-7nn; of Northampton
102; military tenant, 72, 75-6, 79, (1176), xxxv, i49n, 171—7nn; of the
82, 145; knight’s fee, 108, 137; and Forest (c.1190), lvi; Constitutions of
see tenures Clarendon (1164), xxix, xxxiv-xxxv,
Kuttner, S. G., xvin, xviin, xviiin 52n> 53«. i°6n, 146-&M, i63n, 191;
Decretals, xxxix, 50n, 88n, 185;
Latin, xi, xiv, xii, lvii, lxii Lateran Council (1179), 182; Magna
law, common, xi-xii, xiv; ecclesiastical Carta, lvii, i4on, 179, 196-7; Ordi­
(canon), xi, xv-xviii, xxviii-xxix, nance of 1237, 196; Provisions of
xxxix, xli-xlii, 1, lx, son, 59, 68n, 88, Merton (1236), lvii; of Westminster
185, and see courts; feudal, xiv-xv, (I259)» *96n; Statute of Merton
xxvii-xxviii; Roman (civil), xi, xv- (1236), 196-7; Prerogativa Regis, 84a;
xviii, xxiii, xxv, xxviii-xxix, xxxvi- Quia Emptores (1290), 187; West­
xxxviii, lx, 36n, 69, Son, 88, 190, minster II (1285), 9an, 185; of
192, and see Corpus Juris Civtiis; Uncertain Date, lxii; Windsor,
romano-canonical, xxxixn, xln, 193- council at (1179), 181
194; secular, 3, 59; Anglo-Saxon, legitimacy, xxxix, 88, i97n
xiii-xiv; Lombard, xiv-xv, xxvii- Lehmann, K ., xivn
xxviii; Norman, xv, xxviii, nn; 16se-majest£ (treason), xxi, 3, 171-3,
Ripuarian, xiv; Salic, xiv; Scottish, >77
lx-lxi; and see courts, legislation, lessor and lessee, 190-1; and see term
pleas, Danelaw, Jerusalem, Kent, letting and hiring (localio-conductio),
Mercia, Wessex xxv, xxxvii-xxxviii, lix, 13a; letting
law and/or custom, of court, 14, 15, 3a, (locaiio), xxv, xxxviii, 117, 13a; hiring
40, 81, loo-oi, 112, 139, 177; of (conductio), xxxviii, 132; and see debt
realm, xi, xxxv, 1-3, 24, 40, 57, 63, Lewes, battle of, i96n
68, 69-70, 7a, 73, 75, 76, 79, 85, 86, Liber Curialis, lvi, lxiv
88, 89, 90, 108, 148, 173 Liber legum Anglie, lvi
law and discretion of court, 16, 17, ao, Liber Quadripartitus, xiv
a 1, 32, 39. 63. 74 Liebermann, F., xxixn, xxxivn, lv-
law and equity, 1, 28, 31, 32, 74 lvii, lxiv
law, literature of, xiii-xviii, xxvii-xxx; limitation, periods of, 180, 196-7; within
Anglo-Norman canonists, xviii; glos­ the assize, 114, 115, 167, 168; time of
sators, xvi, xln; ordines iudiciorum, Henry I, 23, 46, 115-16, 141, 144;
xxviii-xxix; summae, xvi, xviii, xxix; death of Henry I, 180; coronation
tracts on letter writing etc., 197-8; of Henry II, 46; first coronation
tract on procedure, 198; and see of Henry II, xxx, 23, 14a, 150, 151;
authors and particular works last voyage of Henry II to Normandy,
lay fee, xxxiv, 146-7, 148, 163-4, I9,_2 167, 168, 169
Lead am, I. S., lxiiin Lincoln, 188
le Bras, G., xvn L’Isle, see Baldwin de
legacy, 81 loan (commendatio), 155
Leges Henrici Primi, xi-xii, xiv, xxi, xxvii, loan for consumption (mutuum), xxv,
xxxivn, xliin xxxvii-xxxviii, 117-18; and see debt
 GENERAL INDEX 209
loan for use (commodatum), xxv, xxxvii- messuage, chief, 67, 75-6, 145
xxxviii, 37, 117, 123, 128-9, >32; and Metz, R., xviin
see debt Meynial, E., xvn
locatio-conductio, see letting and hiring Michael Belet, 188
Lombardy, xiv-xv Middleton, 137
London, 186 Milman, H. S., Ivin
Longchamp, see William minority, see inheritance
lord, of fee, xxiv, lxixn, 41-3, 79, 82-6, money, 57, 59, 120, 176
89, 90-1, 103-13, 114-15, 148, 14971, monks, 136
183, 186-7; ®f'villein, 53-8; chieflord, mort d’ancestor, see assizes
76, 78, 84, 86, 92, 140, 181; liege mortgage, xxv-xxvi, 121, 124; and see
lord, 104; and see escheat, homage, gage
inheritance, lordship, relief, wardship Morton, 137
lordship, 74, 106, 107, 174 movables, xxv-xxvi, 7gn, 89, 91, 120-4,
Lucy, see Godfrey de, Richard de 130; and see chattels
murder (murdrum), see homicide
McKechnie, W. S., 114n mutuum, see loan for consumption
Madan, F., lxvn Mynors, R. A. B., lxvii/i
Madox, T ., 1 ion
Maidand, F. W., vii and passim Narbrough, E. de, xxxin
manor, chief, 67 Navarre, see Philip of
manumission, 57 Neal, see Richard fitz
marriage, 59, 62, 65, 68n, 82, 85-8, neighbourhood, testimony of, 24, 27,
92-3, 103, 108, 112, 176, 183, 191, 110; and see proof
197” Nichols, F. M., non
marriage-portion (maritagium), xxiii, Norman, father of William, 95
xxiv, 58/1, 69-70, 86,92-4, 106, 135, Normandy, seneschal of, see William
191-2; and see frank-marriage fitz Ralph; and see law, limitation
Martin of Pattishall, xxxii Northampton, sheriff of, xxxiii; and see
Martinus, xvi, xxixn legislation
Maxwell Lyte, Henry, lxiiin Norwich, bishop of, see John of Oxford
measures, 82, 176; sester (of honey) 29; Novae Narrationes, xxx
stick (of eels) 29 novel disseisin, see assizes
Meekings, C. A. F., 1950 nuisance, 114, 168-9; and see assizes
men (free, lawful etc.), employment of,
22,23,46, 55-6,80,83,89, 101, 108- oaths, 83, 89, 92, 104, 106, 114, 115,
109, 114, 115, 140, 150, 169, 175; and 120, 171-2, 191; single-handed, 8;
see proof two or more, 101; three-handed, 100,
Mercia, law of, xi, xiv 105; of eight, 159-60; twelve-handed,
Merton, see legislation 7, 10; of twelve in Grand Assize,
mesne process, civil: seizure into king’s 30-6; in recognitions and assizes,
hand of tenement, 6, 8, 12, 20, 40, 150-66; and see proof
63, 117; of church, 46, 49; of barony, Obertus de Orto, Libri Feudorum, xiv-
n o ; into bishop’s hand of church, xv, xxvii-xxviii
48; into lord’s hand of fee, n o ; dis­ official of bishop, 48, 50
tress by lord, 105; replevin of land, ordeal (iudicium dei, lex apparens), xxxv,
6, 10, 46; of cattle, 142, 143; attach­ >7*> '73> 174, 175, 176; and see proof
ment by person, 42; by sureties, 64, ordinance, see legislation
117, 131; and see default, view Osbert fitz Hervey, xliv-xlv, 21 n, 64n, 189
mesne process, criminal: arrest, 20; outlaw, 91
imprisonment, 21, 171-2; attachment ownership, see right
by sureties, 83, 171-2, 173 Oxford, 188, 197-8; and see John of
2 10 GENERAL INDEX
Painter, S., 77/1 property, see right
parceners, 138 purchase and sale (emptio-venditio), xxv,
parentela, 27, 68«, 184; and see descent xxxvii-xxxviii, lix, 129-32; purchase
parson, 43-51, 67-8, 160-3, ‘ ^2 (emptio), xxxviii, 57, 129-32; sale
partible land, 75 (venditio), xxv, xxxviii, 27, 37, 57, 60,
pasture, 142, 143; common (of), 96, 169 65. H7> 129-32, 154, 181; and see
patron, xxxix, 43-53, 161, 182, 185 debt
Pattishall, see Martin of, Simon of purprestures, xxiv, 4, 96, 113-16
peace, see king, writs
Penaforte, see Raymond of quit-claim, 57, 95, 96, 122, 154
penance, 89, 126 quo aduocato, see writs
Peter, see Geoffrey fitz
Philip of Navarre or Novara, Lime au Raleigh, see William
roi, xv Ralph, see William fitz
Phillips, G., lxiii Rannulf Glanvill, justiciar, xxxi, xxxiii,
pilgrimage, lii, 16-17, l 5° xliiin, xliv-xlv, lvi, lvii, 1, 5, 9, 26, 36,
Pink, H. L., lxv/i 53 > 77nn, 78n, 87, 95, 96, 188
plaint, xiii rape, 3, 173/1, 175-6
pleas, classification, xviii-xix, xx, xxi, Rathbone, E., xviiin
3-5; civil, xi, xix-xx, xxii-xxvi, Raymond of Penaforte, lx
4-170; criminal, xi, xix-xxii, xxxv- Rayner, John, lxiii
xxxvi, 3-4, 171—7; royal (crown), recognitions, xxii, 4, 23, 34-5, 44, 125,
passim, esp. xxi, 3-4, 52-3, 114, 116, 126, 144, 145,148-70; seised as of fee
119, 146-7, 1770, and see king; vice- or gage, 125, 164-5, l 9°i died seised
comital (sheriff), xi, xix, xx, 4-5, asoffeeorgage, 125, 149,165-6, 190;
140-7, 177, 189; common pleas, xii, died seised as of fee or wardship, 149,
189; and see courts, law 157-8; presented by virtue of fee or
plegium, see surety wardship, 149,162; under age or not,
Plucknett, T. F. T., vii, xivn, xxi, xxiv, 149, 159-60; see also assizes, writs,
xxx, lixfl, yon, 77n, 92n, 179,181,187, Index of Writs; and see proof
.
190 193
Pollock, F., vii andpassim
record, xxiv, xxx-xxxi, xxxv, 51, 98-
103
pone, see writs reeve, 175
Poole, A. L., xi/i, 183 Reeves, John, lxiv, n8n
possession, see right Regiam Maiestatem, lx-lxii, lxv, 186
presentation, right of, 43-53, 67-8, 82, Register of Writs, xxxiii-xxxiv, Ivin,
182; last, 43-4, 49-51, 160-3, 182; lvii—lviii, 168/1, 189, 195-7
and see assizes Reiner, see Roger fitz
presentment (by notoriety), xxxv, Reinfrid, see Roger fitz
xxxvii, 171, 173, 174-7nn relief, xxi, xxiv, lix, 4, 76,82,84, 103-04,
price, 129 107-10, i n , 113, 186
primogeniture, see inheritance religion, habit of, 151
priors, 136, 185 religious community (collegium), 67
procedure, see appeal, default, essoins, religious house, 67
hue and cry, mesne process, present­ religious place, 69
ment, return days, summons rent, census, 132; redditus, 106, 120, 121,
prohibition to ecclesiastical court, rgi- 124, 138
192; xxii, xxvi, 53-3, 93, 126, 146-7 replevin, see mesne process
proof, see assizes, battle, inquest, jury, replication, 157/1
knights, men, neighbourhood, oath, representative, 192; nuntius, 5, 55; res­
ordeal, recognitions, suit, wager of ponsalis, 12; and see attorney
law, witnesses responsalis, see attorney, representative
 GENERAL INDEX 2 11

return days, 5-si, 48-9, 63, 15a 137-8, 141-3, 147-8, 164; and see
Richard I, king of England, xxx, 77/), customs
189 Sheehan, M. M., "jon, 8in, 186
Richard de Lucy, justiciar, xxxiiin, sheriff, duties, passim, esp. 17-18, 46,
xliiin, xliv-xlv, xlvi, "]8n 139, 152. 170; rights, 91, 113; and see
Richard fitz Neal, treasurer, xxxvin, courts, pleas
188, 189 Shouldham (Norfolk), 96, 189
Richardson, H. G., xiin, xiiiri, xxxivn, Shrewsbury, 155n
xxxvin, xiv, xlvin, lvn, lviin, lviiin, Simon of Pattishall, xxxii
lxnn, lxi, 29n, $6n, 89n, 170n, 17 m, Simpson, A. W. B., I55n, 184-5
1 go, 198ml sisters, see family
right, 192-4; and inheritance, 23, 46; Skene, John, lxn
hereditary, 68, 73; right/property socage, see tenures
contrasted with seisin/possession, sokeman, 75-6, 79, 82, 84; and see
xxxixn, lix, 4,6, 10,51,125,132, 136, tenures
148. 153. >54, *56, 158, 159. 161 sons, see family
risk in sale, 130 Southern, R. W., vii, xxxiin, xl-xli,
robbery, 3, 175 xliii-xlvii, xlviiin, xlixn, liin, lvn,
Robert, son of William, 137 lxviin, io6n, 180
Robert of Inglesham, archdeacon of Stafford, 1550
Gloucester, 188-9 Stamford, see Staunford
Robert of Wheatfield, xliv-xlv, xlvi, status, free or villein, xxii-xxiii, 4 ,53-8,
i2on, 188-9 176
Roger fitz Reiner, xxxii, 96 Staunford, William, Ixii—Ixiii
Roger fitz Reinfrid, 188-9 Stenton, D. M., vii andpassim
Roger of Howden, Chronica, xxxi, lv- Stephen, king of England, xii, xviii, 180
Ivi, Ixvi steward, 133
Roman law, see law stock, see descent
Stoke, 30
Salisbury, see John of; bishop of, see stretebreche, xxi
Hubert Walter Stubbs, W., Ixvi, 17 in
Sanders, I. J., io8n succession, see descent, inheritance,
Sayles, G. O., xiinn, xiiin, lvn, lviin, testament, will
lxin, 36/1, 170H, 17m, 1980 suit, 128, 132; and see proof
Schulz, F., xvin, xxxixn, an summons and summoners, xxii, lii,
seal, 127 5-20, 48-g, 63, 152; and passim in
security, for debt, xxv, 117, 128; for writs
prosecuting claim, 18-19, 54, 97, surety (plegtus) 8n; for appearance, 8,
150-1, 167-70, 171-2; for keeping 9-10,19-20,21, 54-5,64,83,97,103,
fine, g8; and see gage, surety 117,131,142,146,167, 170,171,172,
seisin, passim, esp. 148-70, 192-4; of 174; for debt, xxv, 117-20, 123, 126;
dower, 60; of gage, xxv-xxvi, 121, and see gage, mesne process, security,
124-6; of gift, 69-72, 78; of right to summons
present, xxii, 43-51; alleged in count,
23, 46, 62; and see right Tait, J., 58n, H4n
Selden, John, xxxin Tancred, lx
self-defence, 104 Tardif, E.-J., xvn, xxviii, 1 in
separation of husband and wife, 68; Tate, Francis, bdii
and see divorce Templars, master of the, 136
sergeanty, see tenures tenures, 186-7; burgage, xxxv, 82, 84,
services, 186-7; 29-30, 33, 41, 42, 79n, 137, 155; frankalmoin (free alms),
82, 84, g2, gs, 96, 103-07, 112-13, 106, 137,148,163-4; military (knight
2 12 G E N E R A L IN D E X

service), 72, 75-6, 79, 82, 108, 145, wager of law, 7/1, 58, 120; and see proof
155. 183; sergeanty, 108; socage, 71, Walter, see Hubert
75-6, 79> 82, 84, 108, 155, 183; and war, 50, I04n, 112, 155; and peace,
see baronies, knights, villeinage xxxvi, 1-2
term (terminus), xxv-xxvi, 121-3, 132, wardship, 186-7; xxiv, lix, 82-6,90,103,
190-1 107, 108, 145*1, 149, 157-8, 162-3,
testaments, 186; xxiv, lix, 79-81, I45n, 183
191; and see division, will Warner, G. F., bcvin
theft, xxi, 4, 91, 128, 130 -1,177, 181 warranty, 181-2; of land, xxii, xxiv,
Theobald, archbishop of Canterbury, 37- 43, 74, *07; dower, 60-5, 68, 86;
xviii homage, 78; marriage-portion, 94;
Thomas Becket, archbishop of Canter­ charter, 127-8; chattel sold, 130-1,
bury, xvii I77n; in recognitions, 166, 169-70
Thomas, P., 185 Wessex, law of, xi, xiv
Thomson, T ., lxn Westminster, 9, 10, 30, 47, 87, 94, 116,
Thorne, S. E., xxxin, lxiiin, 72n, 84^1, 189; and see legislation
980, 103B, 1630, 182, 185, 194 Wheatfield, see Robert of
toll, xiii, 6inn, 139 widows, see family
Tottell, Richard, lxii will (ultima voluntas), 70, 80,186; and se*
town, 58 division, testaments
traditio, see delivery William I, king of England, laws of
transfer of cases, 29-30, 54, 61-3, 136, (Wl. art.), xxix-xxx
139-40 William, earl, 137
translation of bishop, 106 William, father of Robert, 137
treason, see l£se-majest£ William, son of Alan, 188
treasure trove, concealment of, xxxv, William, son of Norman, xxxii, 95, 188
xxxvii, 3, 173-4 William Bassett, xiv
Tris Ancien Coutumxer, xv, xxviii, 1 in William Briwer, xiv
Tripartita, xxix-xxx, lvn, lvi—lvii William de Bendings, xiv
Turner, G. J., 6in William iitz Ralph, seneschal of
Twiss, T ., Ixiii-bdv Normandy, xv
William Longchamp, xvii; Practiea
legum et decretorum, xviii
uncles, see family William Raleigh, xxxii
usury, 89, 117, 124 William Vavasor, 188
Wilmot, J., lxiiin
Wiltshire, men of, xliii, xliv, xlvi, I20n
Vacarius, xviii, 193; Liber Pauperum, Winchester, bishop of, see Godfrey de
xviii; Summa de matrimonio, xviii Lucy
vadium, see gage Windsor, 181
Van Caenegem, R. C., vii and passim Winfield, P. H., Ixiii-bdvnn
Vavasor, see William witnesses, xxxix, 24-5, 32, 34-5, 37, 38,
venditio, see purchase and sale 57, 64-5, 80, 101, 120, 126, 127, 180;
Vetulani, A., xviin and see proof
view, of land, 22, 33, 150-a, 157, 160, wives, see family
162, 163, 165-9; of boundaries, 115; women, see family
and see mesne process Wood, S. M., 185
villeinage, xxii-xxiii, 182-3; status, 5, Woodbine, G. E., vii andpassim
53-8, 154; tenure, 58, 186; and see Woodcock, B. L., 191
tenures wounding, 4
villeins, 5,53-8, 141, 173, 182-3 writs, xi-xiii, xviii-xxvii, xxviii, xxxiii-
Vinogradoff, P., 57n xxxiv, lviii, lix, lxix, Ixx, 147, 180, 189,
 G E N E R A L IN D E X 213

195-7; de libertateprobanda, xxiii, 53*1; 191-2; Quare for trespass, 179; quo
de perambulations facienda, 143rt, 180; advocato, 47*1; reasonable division,
de plegiis acquietandis, 118rt; naifty, 53, 186; replevin, I42«; right, 6, 10, 147,
180; ne vexes, 180; peace, xiii, xxiin, 153, 16371, 166; right (de recto tenendo)
29rt, 181; pone, xiii, 6m; Precipe, xii- for land, xiii, xxii, Ixixn, 2gn, 115,
xiii, xxxixn, 179-80; Precipe for land, 148(1, 183, 196; for dower, xxiii, 183;
xxii, xxvii, 29B, 13711, 183; for advow­ for services, 2971; second summons,
son, xxii, 1Bon, 182, 183; for dower 17; and see assizes, recognitions,
unde nihil habet, xxiii, 65/1, 183; for Register of Writs; for a complete list see
homage and relief, xxiv; for fine not Index of Writs
observed, xxiv, 187; for debt, xxv,
186, 189, 190, 197; for debt with year and day, 58
gage, 190-1; for covenant and Year Books, xxx, Ixii
account, 179, 189; for entry, 179, York, province of, 186; dean of, see
i8r, tgo-i; prohibition, xxvi, 52(1, Hubert Walter