The Kings courts and the start of the common law

Henry II sealThe legal reforms carried out by Henry II had a profound effect on the English legal system. This post looks at some of these.

The reduction in the powers of the lords

In one of the very early posts on this blog, I talked about sesein and how it was essentially possession of land which you held from a lord after doing homage.

Originally the sons of a land holder did not necessarily have the right to sesein after their father’s death. This was a matter for the lord to decide.

However as time went by gradually the custom built up that in most cases a mans heirs would have the right to inherit (although the precise rules varied from place to place according to local custom).

Then Henry II, who felt strongly about a sons right to his inheritance, developed the writ of mort d’ancester which forced the lord to allow the heirs of a deceased tenant to take sesein. This was always subject to any final decision of the court, for example in a claim brought under a Writ of Right.

In most cases though people did not want to embark on this long and formal procedure. So the decision reached by the jury in the mort d’ancester claim was in many cases effectively a permanent decision.

However the writ of right itself also brought about profound changes. It too overrode the previous situation where seisin was the deciding factor. Now someone who had seisin could be removed in favour of someone who had the right of seisin. In law therefore the right to hold a piece of land was (when recourse was made to the Kings courts) more important than the fact of seisin and possession. This was getting closer to an actual interest in (or even ownership of) the land itself.

These new writs were however only available in the Kings Courts. Which led ultimately to the abandonment of the lords own courts which gradually fell into disuse. Another avenue for the exercise of the lords power lost.

The question of proof

In olden times, a court would call upon God to decide a matter. We looked in an earlier post at oaths and ordeals, and the trial by battle procedure brought over by the Normans.

However in the reign of Henry people started looking to more secular solutions. This was not always easy though. In an age when few could read and write, written charters for property was rare. Monasteries would often have them, but monasteries were a special case. For most men, grants of property were made orally.

These grants were not wholly without proof though. The grantor would be expected to warrant his grant in court – and attend to testify if necessary. Even after the death of the grantor, people who had witnessed the ceremony of transfer would be able to attest to it. As could people who knew of it through local knowledge.

This was what Henry was harnessing with his new jury system – local people and the knowledge they had of local land holdings was the best method of proof of title that there was at the time.

Men die though and memories fade. Long term, a continuation of seisin within the same family over a period of many years was the best proof of right. Which is why the petty assizes which dealt swiftly with an interruption of sesein were so important.

The beginnings of the common law

The move to more secular methods of proof had another profound effect. It led to the development of legal questions and the science of pleading. Which are the foundation of the common law of England.

When a question is to be answered by God, for example via an ordeal, a choice would be made. But you would not know why – God cannot be interrogated and asked to give His reasons. With the introduction of the jury this changed.

Like God during an ordeal, juries provided ‘yes/no’ answers. However you can refine the questions which are put the jury so that they are in a form that they can understand. Questions considered to be outside the competence of the jury would be raised with the Judge in advance.

This is how many of the principles of the common law were developed and refined – in discussions which occurred before the jury was summonsed.

Baker (p85):

Inheritance can only become a legal concept when the pedigree can be discussed and someone can be asked to rule whether one descendent or another has the right to succeed. Owning can only become a legal concept when the details of a transaction can be looked into, and someone asked to rule whether they result in a debt.  ‘Legal development consists in the increasingly detailed consideration of facts’.

We owe much of the development of our common law system to Henry II and the reforms he set in place. It was the start.

The seal of Henry II photo is Wikipedia commons

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