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HIST 1191 Comprehensive Lecture Notes

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University of Pittsburgh
HIST 1191

I.  Canon lyres of the Church as early as 12th/13th century spoke of natural rights o Major right: preservation of personhood  Anglo-Saxon England 6th century to 1066, ended by invasion of England by Norman ruler  Sanctuary: divine obligation to give succor to a person for a limited period of time o Not to avoid punishment, to give said person time to repent before death penalty Dooms of King Alfred (c. 800) mostly focuses on punishment/reparations for violence o Indicates violent society  Before explicit law codes, vengeance was the answer o Post-Christianity, law encouraged over vengeance  Violence disrupts social fabric (interdependence) o Part of social fabric: every male in a tithing: institution responsible for behavior of its members and the members of members' family  If a member commits an offense and doesn't have the capital to make reparations, the tithing will  Too many offenses - exile from village (virtual death sentence)  Crimes too heinous for reparations and punishable by death: o Murder - killing in stealth/by deceit - other more straightforward murders considered more like manslaughter o Burglary - only occurs after sun goes down (when the victim can't defend xyrself) o Arson o Robbery/assault of a person  Distinction between crimes and felonies - felonies (above) threaten society  Ordeals - for someone whose reputation is suspect o Cold water - sink or swim o Hot iron o Hot water - similar to hot iron  Ordeals leave discretion in the hands of the local community II. October 1066 William the Conqueror (Duke of Normandy) set sail with army of 5,000 French lords Lands SE England, Pevensie (Hastings) Anglo-Saxon army headed by King Harold - killed via arrow to the eye WtC used Anglo-Saxon coronation oath, not a continental/Norman/French oath Purpose: court favor with Anglo-Saxons Promises that Anglo-Saxons can keep Edward the Confessor's laws and legal customs Celts, Scots, Welsh not included in Norman England WtC brings new system of landholding, blends Norman/continental with Anglo- Saxon Edward the Confessor: Last legitimate Anglo-Saxon king (not Harold) Only medieval king to be canonized - known for miracles, holiness Therefore, no heirs WtC takes crown as a successor, not invader Norman heritage not a huge change, EtC grew up there Landholding change: Anglo-Saxon England - owned own land, could do as you liked WtC divides all of England and gives it to 500 French lords/elite warriors WtC wary as all medieval kings wary of warrior class That one tract of land: feud/fief Feudalism: power decentralized England was most thoroughly feudalized - not a piece free from feudalism Tenure - hold - no outright ownership of land because ownership rights always belong to people above whoever EX: Roger Bigod given much land - family governs Suffolk for centuries Suffolk, Kent, Normandy - all spread out to decentralize Bigod's power Bigod only takes part of the land, gives some to loyal follower Stanhart Stanhart also gives some away, etc. etc. King William I Roger Bigod - tenant-in-chief - House of Lords evolves from (by 14th century), royal courts developed by - governing body under permission fo king Stanhart/Robert - sub-tenants (tenants in demesne); vassals of tenants and lords of those below Each person given land has obligations 1. military service (land divided partially to provide army - feudal levy) 2. keeping law and order - of equal importance - hardest for medieval ruler Practical and moral obligation for ruler Oath of Salisbury 1086 (near Stonehenge) Ensures that all knights' allegiance is primarily to the king, not local lords Without WtC's savagery/governing prowess, Oath would fall flat Luckily Henries I and II were the same!!! (12th c.) Common law = feudal law Land vassal gets is reward for keeping obligations Contractual right to land, not proprietary No land wills in England until reign of Henry VIII in 1535 Cannot bequeath land because of the contractual/proprietary distinction Alienate land - sale - move title from one person to another 11th century way to get liquid capital - sell land - need lord's permission Language of the courts - Norman French (most) or Latin (religious) Churches hold tenure more often than not by free alms Only obligation - ray for the souls of lord and family who gave the church the land Warranty - guarantee vassal's title in court - and protection = responsibilities of a lord to his vassal If the warranty case is lost, lord obligated to compensate with land of equal value Privileges tend to evolve into rights (become institutionalized) Privileges of living on the land makes vassal think it's their right to pass land onto child(ren) for a sum of $ By 1200: lord has lost right to say no, land automatically descends to eldest son upon death and payment Rules emerge from facts of life, not defined by them Witnesses to homage of fealty help prove title Incidents of military tenure: Relief - $ paid by a son to a lord for the right to be put in charge of family land after father's death Marriage - lord's right to marry off vassals' children Wardship - right of a lord to take vassal's underage heir into protection Escheat for felony - if vassal's eldest son is convicted of a felony, he dies and his land gets taken from his family - goes to king (for a year and a day, then to lord) - and all their possessions go to lord Church land out of play - off the market No profitable incidentals for the Church's land III. Lines of tenure holding constantly crossing - leads to trouble, important legislature Vassals subject to incidents of military tenure Commercial revival of lords investing in merchants leads to global economic change Death of Henry I without legitimate heir threatens line of succession Daughter Matilda has difficulty ascending/holding the throne - cousin Stephen 1145-1154 civil war 1154 Henry II (grandson of Henry I, great-grandson of WtC) ascends HII's first order of business: bringing law and order Despite all the courts, HII's laws were ineffective HII pulls courts into the king's hands, creates a legal bureaucracy universally applied to all of England (AKA common law: law of king's courts) Rulers make law not alone, but with important people in the kingdom, regardless of the size of the latter's part in the process Kings and popes absolute monarchs but with a tradition of governing by consent Consent representative of both populace and nobility - great men speak on behalf of the lesser Great Roman law from Constantinople - contract, property, justice theory etc. - not really applicable to England England's common law haphazard, practical (lack of theory) Glanville justicier (chief justice) writes down emerging rules in a book called Of the Laws and Customs of England, speaks of the Assize of Clarendon, HII's legislation Centralization takes place through the law - beginning of the end for English feudalism Scutage/shield money BACKGROUND: FELONIES All felonies go to the king's court Appeal of felony: personal process that the victim begins; personal accusation for a public wrong E.g. if someone sees stealing at night, would make appeal of felony to accuse the criminal Difficult, long procedure Appeal decided by trial by combat (Norman institution) BACKGROUND: COURTS Overlapping jurisdictions creates confusion WtC let A-S keep courts, added manorial courts Homage of the manor - sitting in judgment of people living on the land who have been caught breaking rules - free and non-free tenants alike Ecclesiastical courts have to do with canon (Church) laws King's court can include large assembly of tenants-in-chief - by 13th/14th centuries, turns into House of Lords ON THE ASSIZE OF CLARENDON 1166 HII forces royal courts because they're unpleasant and unpopular "General ire" Despite unpopularity, people learn about self-government and general legislative things England becomes first country to have a successful representative institution Every county court has 30-40 men of good repute sitting as jury County court has oral records from villages and hundreds - Assize names the felonies being looked into King's man present - tantamount to presence of king - cases of felonies Creates office of the coroner to keep his subjects honest Clerk-in-court - vera billa (true bill/indictment) - addendum ignoramus if guilt is uncertain, if evidence points to guilt the suspect is tried Trial by ordeal of cold water, but even if the ordeal is passed, the suspect is exiled from England ON THE CONSTITUTIONS OF CLARENDON 1164 Background: Gregorian reform 11th century King Stephen introduces papal reforms to England, thereby empowering the Church at the expense of the king HII wants situation back to how it was, writes Constitutions of Clarendon to do that WRIT OF NOVEL DISSEISIN Civil matters - mostly land-grabbing What to do? Offer victim a legal recourse HII creates new writs from old A-S writs (Normans didn't have them) Witness' testimony is its judgment Cannot say "yes but" or plead collateral issues - only yes or no Short-term, doesn't take long WRIT OF RIGHT Praecipe in capite - tenants-in-chief Breve de recto - everyone else "which of these two parties has the better (older) right?" Necessitates lots of evidence and therefore lots of time - possibly years Winner now has a clear title to land forever and preclusive bar ASSIZE OF MORTE D'ANCESTOR Gives you legal recourse to take action in a court to your (late) father's lord (1) did your father die in possession of X land? (2) are you your father's heir? If the answer to both is yes, you get X land Vassal can now have proprietary right to land, not contractual IV. Effects of Norman invasion on England  Landholding o Feudalism direct result of conquest o Allowed WtC to rule despite being outnumbered o Snowball effect - hereditary  Society o Nothing changed for A-S peasants but towns grew o A-S aristocracy mostly thrown out unless they pledged allegiance to WtC and then they held land from a Norman o Normans replaced aristocracy, became ruling class o Slavery abolished o Domesday Book listed everything  Law o A-S manorial courts o Ordeals o Centralized courts and law o Oath of Salisbury o Role of women declined  Originally, WtC let A-S keep their legal customs What problems did HII face when he ascended? How did the Assize of Clarendon aim to solve them?  Problems o Anarchy from civil war disturbed law and order o Decentralization of king's powers o Too many courts with overlapping jurisdictions o Too many options of punishments given by the courts o Land stealing  Effects of Assize of Clarendon o Concerned with criminal wrongs o Legal system created by HII to remedy anarchy of Stephen and Matilda  King had monopoly over cases  Law and order system consisted of royal court; manor court; church; chancellory: place to get permits and visas o First act: solving violence  If felony, king was present via representative (royal justice), makes court royal court (general ire)  Group of 35 men (grand jury) takes presentments: accusations from the 35 about the commission of felonies in their neighborhoods for whom no one has been arrested and sent to an ordeal  Beginning of grand jury - NOT a trial jury, ordeal in its place  Major institution to come out of Assize of Clarendon o Can inherit land through feudal system o More rights to everyday man o Beginning of development of common law o House of Lords What was the method of trial mandated by the AoC? How did English kings view this method?  4 men from every town and 12 men from every 100 that met to share names of criminals  Ordeal cold water method o Innocent or guilty still punished either way - exile v. death respectively  Kings weren't necessarily supportive but kept as part of A-S culture and legal customs to keep populace appeased On ordeals  Churchmen began to criticize ordeals as temptations of God o When priest blesses whatever for ordeals, tempting God to come down and reveal himself  12th century renaissance - culture, learning, universities o Greater emphasis on science/rational thought o Ordeals criticized for being irrational  Peter Chanter tells story of 2 Frenchmen on a pilgrimage to Jerusalem; one comes home earlier, town suspects that the returner murdered companion; returner fails ordeal, is executed; weeks later other pilgrim (suspected murdered) shows up o Casts doubt on ordeals  Ordeals leave too much discretion in the hand of the locals - taught kings not to trust locals, but kings cannot abolish ordeals because they're too closely woven into social fabric of A-S life  1215: question of eliminating ordeal comes to light after church meeting (Fourth Lateran Council) in Rome o Pope Innocent III prohibits clergy from participating in ordeals o Now only possible ordeal is trial by combat  HII and sons do not allow fighting in royal courts  CRISIS  1219: HIII sends out justices riding circuit told that worst offenders (felons) are to be imprisoned; not put to death or harmed because not yet tried/convicted/gone through ordeal  Small offenses exiled  Medium offenses put to bail o Imprisoned until they agree to a trial by jury, sometimes coerced by peine fort et dure After ordeals: what do we do?  Lawyers familiar with writ system and neighbor witnesses as something close to jury o Also familiar with indictments/sitting of grand jury  13th century: all but 12 members of grand jury sent home, the remaining jurors converted to trial jury close to today's  mid-14th century: 12 sent home, new trial jury called for criminal cases  Emergence of real jury out of writ of novel disseisin o Blurred line between testimony and verdict changes when justices allow defendants to raise collateral issues o Jurata - petty jury for civil matters What was the Const of Clarendon? What role did it play in the struggle between HII and Thomas Beckett?  CoC set of 16 declarations to limit church courts o Jurisdiction of church/king's courts shifted o Also limited church's power in general o No more church appeals to Rome, have to go through king instead  King Stephen's concessions to Church: clergy tried in ecclesiastical courts, can only be excommunicated  HII wanted standard of common law, turned the clock back to pre- Stephen's concessions o Wanted all church criminals (criminist clerks) to be tried in criminal court even if they were from the church in the same way and with same degree of harshness  How it worked out: if church criminal found guilty, turned over to secular courts and tried as secular criminal  On Thomas Beckett: o Feud between Beckett and HII o HII gets mad, "Will no one rid me of this meddlesome priest" o Two vassals take this as their cue to assassinate Beckett o Beckett is told to flee but doesn't, is killed on high altar o Christendom takes offense, HII has to come to Canterbury and apologize Last week, X disseised you of your land, Blackacre. Which writ do you purchase?  Assize of novel disseisin  Recent, unjust, without court  Yes/no question - no yes-but or collateral issues You are on a crusade and after a year you return to find that your father has died and Lord X has disseised the land.  Morte d'ancestor  Heritable property  Abolishes right of lord to say that the land cannot descend  Two questions: Was your father in seisin when he died? Are you his heir? - if both are yes, you get the land forever You claim that your grandfather has been disseised by Lord X and you want to be returned the family land.  Praecipe in capite (writ of right)  Baronial to king's court  Knights decide who has the greater right to the land On writs  Novel disseisin and morte d'ancestor likely written at/around Assize of Clarendon  13th century: As legal system complicates itself, lawyers become necessary; legal class emerges  Centrality of writs to legal system and complicated writ system (900+ by 13thc)  Influence development of common law  Law frozen at point of 13th century until legal reform 19th century - lawyers stretch writs via legal fictions V. Quiz review (2 Oct)  Norman conquest  Troubles of 12th century  HI, anarchy of Stephen and Matilda  Most importantly HII "father of common law" o His reforms o His motives in putting them in place HII Moves in two directions:  Criminal (any event that involves use of violence) o First act: Assize of Clarendon  Creates grand (presentment) jury that holds inquests to gather information  Largely indictment jury  Ordeal of cold water = trial - even if found innocent, exile o Constitutions of Clarendon  HII's attempts to 'turn back the clock' and insist that a royal justice sit in on ecclesiastical court when the priest was being tried  Would ensure justice being done in ecclesiastical court  Thought "benefit of clergy" damaged royal efforts towards law and order and just wasn't fair  If found guilty, defrocked and turned over to regular court; if guilty twice, hanged  Civil (any event that doesn't involve use of violence) o Writ system develops haphazardly as needed, no grand master plan or overall system o Writs of right  Heard in royal court  Take the longest  Praecipe in capite  For tenants-in-chief  Royal court  Breve de recto  For non-chief tenants  Case is heard in lord's feudal court  Acknowledges lord's power and right to judgment, makes him money o 1179: Grand Assize of Windsor (HII)  No one has to answer for his freehold without the king's justice  X does not have to accept battle by trial, can "put himself upon the Grand Assize" instead  X can purchase a license from K (lord) that permits X to remove the case from Lord K's court and bring it into the king's court where judgment will be by a jury of 12 men  Increases jurisdiction of king's court over feudal courts o Writs of entry  Go to chancery, get a writ of entry sur disseisin claiming that X disseised you of this land  Does not have to be recent disseisin  Counters X's move to purchase the license from K to go to royal court  In the nature of an appeal, but not necessarily an appeal  Results of most of HII's reforms to centralize power, weaken power of feudal/ecclesiastical courts o Power + order o Keeping control of continental properties - controls 2/3 of France  Intermediary area between criminal and civil o Covers crimes of violence less than felonies: trespasses o Development of common law takes place largely in this area Private law  Largely agrarian society means land holds a very important position in life/law o Thus, majority of common law is land law o Holding land = having control over the land itself and the people who live there (in a feudal society)  Jurisdiction/dominium is a legally protected right  Each person involved in a feudal chain of ownership has some right to that land, the amount of which depends on their place in the hierarchy o Land = payment, contractual agreement with lord  Law respects rights of those seised in fee o Post-morte d'ancestor (post-1200), 'fee' implies the right as close to ownership as feudal society can get  'fee' comes from fief, means full right to land  Created by morte d'ancestor, allows descendable land  Potentially infinite as long as you continue having heirs o X seised in fee can give Y right to life estate - only theirs until they die  Y has rights of owner despite their conditional relationship with the land  Mostly exists in family setting  Wife would have life estate to dead husband's land  Purpose: provisioning family members in case of death  Morte d'ancestor does not apply o X seised in fee, gives Y life estate - when Y dies, Z (heir) gets life estate  Z is remainderman as designated by X  Reversioners given life estates that do not 'remain' out of X's possession, and revert to X or X's heirs after reversioners' death o X can give Y life estate as a fee simple/absolute which is a conditional fee  Purpose to tie hands of children/heirs/whoever  Keep land in family, build up patrimony  Statute de donis conditionalibus  Strengthens writ of formedon, which gives land back to father from son  Formedon in the descender - if son dies, other relatives can use  After 1285, if X gives Y Blackacre as a fee tail, they cannot sell it ever  Pleases fathers, displeases kings  Edward I needs money to fight wars, passes this to get $ from Parliament o Any settlement of land that prevents its holders from dealing with it freely (alienating it) is harmful to the king  Restrictions on selling land (perpetuities) prohibit land from being easily bought and sold strengthen the lords of the kingdom, which hurts the king  King will always advocate free alienation and active land market  If land is broken up, lords do not have a contiguous tract of land with which they can rally their forces, create solidarity, start rebellion  Conditional fee abolished, replaced by fee tail (cut-down fee) o 1573 Edward Plowden: "an estate in land is a time in land or land for a time" VI.  English common law conceptualizes rights in land differently  Land law most important part of MA law o Land not only living/sustenance/capital, but social/economic/legal power o To have land is to have control over people on land  Vassals  Peasants o Right to judge someone attached to landholding  Common recovery o A collusive fictitious action  Contingent remainder  Shelley's Case 1579 Estates in land  Estate = status  Life estate o Often occur within family setting: wife, son  Fee simple absolute o Closest to outright ownership  NOT full ownership because the owner still has a lord  If owner wants to alienate land, has to purchase license to alienate from lord  Lord can say no!!!  Limited until late 13th century o Die without issue - land descends to grandson  Absolute zero heirs - land goes out to collateral relatives  Fee conditional o 1200/1210ish  1220s/1230s - parents construct a device that will allow children to alienate sale  In nature of legal fiction  Goes forward on basis of court agreeing with the argument of the children when they argue that upon the birth of an heir, that fee conditional becomes a fee simple (freely alienable) o Cannot be alienated/sold by parents, must be there to be inherited by child (heir) o Can be perpetuity depending on forma donii  Can say conditional grant will last in perpetuity  Justices can allow legal fictions to go against perpetuities o Have to be enforced in royal courts  1579 Shelley's Case establishes free alienation (at least, for a century)  Statute de donis conditionalibus 1285 o "of conditional gifts" o Edward I coerced by lords to pass this in order to get money  Fee tail replaces fee conditional o "taille" French for cut; cut-down fee simple o Cannot be alienated o Creates perpetuity  Writ of formedon o Version for every kind of kinship VII. The Legal Status of the English Woman in Early Eighteenth-Century Common Law and Equity  Doctrine of Coverture o A married woman is covert and one in law with her husband  Dower estate =/= dowry o In marriage, the land the husband takes with him to the marriage is a dower estate  Wife holds it as a life estate  If he dies, the land is still there to provide for his family  She is seised of the dower estate as a life estate, but he controls it until he dies (if he dies)  If he sells it, she can purchase a writ of dower and get it back after he's dead o Purpose of dower estate is to preserve the family line and take care of husband if she dies  Courtesy estate o An estate that the wife brings to the marriage that becomes the husband's only upon live birth of a child who will inherit and who was "heard to cry within the four walls" o Husband's right in wife's land that she brings to the marriage is his courtesy estate o Only upon birth of child who will inherit the land  She does not have to die  Parent can give daughter fee tail female when she goes into marriage - will be inherited by a woman  In cities, femme coverts can claim to be unmarried in London courts so they can own businesses  Woman have numerical literacy, are bookkeepers  Court of King's Bench o Cases that most concern the king o Any case concerning a great noble family, one of his children, royal lands, etc. o Can deal with criminal matters  Court of Common Pleas o Hears other kinds of cases that the king doesn't care a whole lot about o Often land dispute cases o Can deal with criminal matters  Exchequer Chamber o Another court in which king is interested o Consists of several justices from Common Pleas and King's Bench o If someone owes a debt to the king that they haven't paid, they are sent to Court of Exchequer  Courts do not yet have monopoly over certain areas - not until 16th century  All courts exist due to king's duty to do justice by his people o Establishing all these courts d/n exhaust his judicial power; still holds his own place in judiciary above all  Begins with centralization of justice o HII's reforms pull an increasing amount of cases into the king's hands  Civil (land) & criminal cases o At first, king likely listened to cases personally (HI)  Beginning with HI, kings began to delegate hearing of cases to trusted men o 12-18 itine
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