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Dispossession – Illustrative Texts

LAW AND LITIGATION CONCERNING DISPOSSESSION, c. 1050-1250:

 

1: The interdict unde vi, from Justinian, Institutes, IV.15.6

2: The Formulary of Marculf, I, 28 (seventh century)

3: Gratian on Exceptio spolii, via Pseudo-Isidore (excerpts)

4: Libri feudorum (first half of the twelfth century)

5: Decretals of Alexander III (1159-81; from the Liber extra, decretal collection, 1234)

6: Selections from the ordo “Editio sine scriptis” by Ricardus Anglicus (c. 1179-89)

7: Writ of novel disseisin from Glanvill, ch. XIII, 33 (c. 1188)

8: Jocelin of Brakelond, Chronicle, showing a lord modifying his behaviour because of awareness of the assize of novel disseisin (text early thirteenth century)

9: Très Ancien Coutumier, ‘Part One’: Concerning disseisin without judgment” (c. 1200)

10: Pillius’ gloss on the Libri Feudorum, 1.4 (c. 1200, with a later addition)

11. Azo, Summa codicis, on the interdict unde vi (c. 1210)

12: Norman Writ of Novel Disseisin in the Très Ancien Coutumier, ‘Part Two’ (c. 1220)

13: Bracton on novel disseisin (c. 1230)

14: Novel disseisin in the Coutumes d’Anjou et du Maine (1246)

15: Norman Writ of Novel Disseisin in the Summa de Legibus (c. 1250)

16: Novel disseisin case heard before the French Parlement (1269)

17: Beaumanoir on novel disseisin (1283)

 

1: The interdict unde vi, from Justinian, Institutes, IV.15.6[1]

Translated by John Hudson

 An interdict is accustomed to be given for the sake of recovering possession, if anyone has been ejected by force from possession of an estate or of buildings; as for him is issued the interdict Unde vi, through which the ejector is compelled to restore possession to him, although he [the ejected person] was possessing by force or clandestinely or by revocable licence [precario],[2] from him who ejected by force. But, as we have said above, from imperial constitutions, if anyone occupies a thing through force, if indeed it is in his goods, he is deprived of ownership [dominio] of it, if it is another’s, after his restoration of it, he is also compelled to give the value of the thing to the one who suffered violence.

 

2: The Formulary of Marculf, I, 28 (seventh century)[3]

Translated by John Hudson

Charter regarding a hearing:

King X. to the illustrious man, Count Y. By God’s favour, our faithful man has come to our presence and put it to the clemency of our kingship that your pagensis [i.e. one of the people in the count’s area of control] has taken his land from him by force [fortia] in the place called Z., and is retaining it after him unjustly, and that he can attain no justice from him about this. Therefore we have sent to you the present order, through which we fully instruct that you constrain him in such a fashion whereby, if it is happening thus, he should strive to make good the case towards the aforesaid man according to the laws. If, indeed, he is unwilling, and it is not brought to an end properly before you, you are to take pledges from the said man, and you are to strive in every way to send him to our presence on the [specified] Kalends.

 

3: Gratian on Exceptio spolii, via Pseudo-Isidore (excerpts)[4]

Translated by M.W. McHaffie

Question II.

That someone who has been despoiled (expoliatus) cannot stand before a judge is proven by many authorities. Thus Pope John says:

C. 1. Before issue is joined, all goods are to be returned to their possessor. It was long ago decreed that the preceptor, bishop, or someone with the foremost authority (primas) should restore all possessions, everything that had been taken away (sublata), and all other fruits (fructus) to the possessor before issue is joined (ante litem contestatam).

C. 2. Concerning the same. Likewise, [Pope] Nicholas. All laws, both ecclesiastical and common (vulgares), publicly order that all things that have been taken away from someone ought to be restored to person who has been despoiled of his goods (rebus).

C. 3. No one ought to be accused when he has been despoiled of his goods. Likewise, Pope Stephen. No bishop, when he has been despoiled of his goods, ought to be accused until everything that had been taken from him by whatever means is restored (redintegrentur) to him in accordance with the laws, so that the ecclesiastical primates and synod completely restore all possessions and all fruits to the bishop concerning whom the accusation is made, prior to hearing the accusation.

(Gratian, Decretum, C. 2, q. 2, c. 1–3)

 

 4: Libri feudorum (first half of the twelfth century)[5]

Translated by Attilio Stella

 [1.4] Concerning dispute over investiture

If there is a dispute between a lord and a vassal over investiture of a fief, let us look what the law is. If investiture is made in the presence of peers of the lord’s court or with a certified charter [brevi testato], the lord is to be rightly compelled to put him who is invested into possession of the fief. If indeed he [who is invested] is in possession, and the dispute is moved against him by the lord, he should be granted defence [through oath] on the grounds of possession. If, however, he is not in possession, nor can make proof in the aforesaid ways, then defence [through oath] shall be his who is said to have made investiture.[6]

[1.21(22)] When a knight ought to seek investiture.

[…] We establish that no knight should be ejected from possession of his benefice unless by a proved wrong which has been pronounced through the judgment of his peers, as we said above. However, if the knight says that his peers have judged unfairly, the knight ought to stay in possession for six weeks and come to our presence together with those who have so pronounced and judged, and we ourselves shall decide.

[1.22(23)] Concerning dispute between a lord and a vassal over investiture.

If any knight is in possession of his benefice and the lord denies [having made] investiture, the knight should affirm by oath, if he can, that the benefice is his by his lord’s investiture. Moreover, if the lord possesses, and the knight likewise says that he was invested by his lord, and the lord denies, the knight’s peers should be summoned, and the truth should be found through them. And if there are no peers, the truth should be found through the lord, since it is not good that the truth is denied.

 

5: Decretals of Alexander III (1159-81; from the Liber extra, decretal collection, 1234)[7]

Translated by S. B. White

Book II, Title 13, Chapter 5

The question of canonical institution cannot be brought by someone suing for restoration of a benefice

Pope Alexander III to the bishop of Brescia

To your letter about that question, that is, when someone says that he was violently ejected from possession and his adversary says that he, i.e., the person ejected, was not canonically instituted, we respond that [the case] concerning the violent ejection should be sued before [the case] concerning the canonical institution, because even a thief ought to be restored according to the rigor of the law.

Book II, Title 13, Chapter 6

The exception of crime is not valid against someone suing by an interdict unde vi, because [it is] either by force or secretly

Pope Alexander III to the bishop of Exeter

Likewise, when someone says that he was violently ejected, or his adversary entered into possession secretly, and his adversary accuses him of a crime, so that by reason of the crime, he might be rejected from his intention, it does not seem to us that the adversary’s objection should be admitted, or that the execution of the principal case should be delayed on account of this, since his adversary cannot sue him in a criminal matter before restitution is made when he is presumed to be his enemy.

 

6: Selections from the ordo “Editio sine scriptis” by Ricardus Anglicus (c. 1179-89)[8]

Translated by S. B. White

Chapter XXXVIII

Concerning exceptions

What is true in a petitory action is not true in a possessory action, as in the Code: When anyone has received a field or any other property whatsoever under a lease, he should first restore possession of it, and then litigate concerning the ownership of the same. (C. 4.65.25)

Chapter XLI

Concerning the office of the judge

When someone is placed in possession for the sake of re servanda … [this might have been done because] his adversary was contumaciously absent or hiding and therefore, not defending his case. In which case, if the lawsuit was not contested and [the adversary] takes care to appear in court within the year, he will recover possession. But he who was placed in possession possesses it in the interim.

 

7: Writ of novel disseisin from Glanvill, Bk XIII, ch. 33 (c. 1188)[9]

Translated by Will Eves

 The king to the sheriff, greetings. ‘N.’ has complained to me that ‘R.’ unjustly and without judgment disseised him of his free tenement in such-and-such a vill after my most recent crossing to Normandy. I therefore give you the order that, if the aforesaid ‘N.’ provides you with security for prosecuting his claim, you are to reseise that tenement of the chattels which have been taken from it, and put that tenement, with the chattels, in peace until the Sunday after Easter. Meanwhile, you are to make twelve free and lawful men of the neighbourhood view that tenement, and have their names endorsed on the writ. And summon them through summoners of good-standing so that at that time they may be before me or my justices ready to make the recognition. And put the aforesaid ‘R.’, or his bailiff, if he himself cannot be found, under gage and reliable pledges so that he may be there at that time to hear the recognition. Also have there the summoners, and this writ, and the names of the pledges. Witness, etc.

 

 8: Jocelin of Brakelond, Chronicle, showing a lord modifying his behaviour because of awareness of the assize of novel disseisin (text early thirteenth century)[10]

Translated by John Hudson

In the tenth year of the abbacy of Abbot Samson [1192], by common counsel of our chapter, we complained to the abbot in his court, saying that the rents and revenues from all the good towns and boroughs of England were increasing and growing to the profit of the possessors and the benefit of the lords, besides this town [i.e. Bury St Edmunds], which is accustomed to pay forty pounds and is never raised to more. And responsible for this are the burgesses of the town, who hold such large and so many encroachments in the market­place, in shops and booths and stalls, without the assent of the monastery, and from the sole gift of the reeves of the town, who were annual farmers and, as it were, servants of the sacristan, removable at his pleasure. But when the burgesses were summoned, they answered that they were within the king’s assize and did not wish to answer, contrary to the town’s liberty and their charters, concerning the tenements, which they and their fathers held well and in peace for one year and a day without challenge. And they said that such was the old custom that, without consulting the convent, the reeves should give sites of shops and booths in the market­place, in return for some rent annually to the reeve’s office. But we made a counter-claim, so that the abbot would disseise them of such tenements, concerning which they had no warrant. Then the abbot came to our council, like one of us, and said to us in secret that he wished, so far as he could, to do justice [rectum tenere] to us; but that he must proceed according to proper procedure [ordine iusticiario], and that, without court judgment, he could not disseise his free men of their lands or rents, which they had, held for many years, whether justly or unjustly. He said that if he were to do this, he would fall into the king’s mercy through the assize of the realm.

 

9: Très Ancien Coutumier, ‘Part One’: Concerning disseisin without judgment” (c. 1200)[11]

 Translated by Will Eves, from an edition of the Latin text found in ms. Ott. Lat. 2964, which is not used in Tardif’s edition.

 Let no-one dare dispossess anyone of anything except by proper judicial process, for the identity of the person who had the last seisin in the most recent harvest shall be recognised by twelve sworn-men of the neighbourhood. If two or three of these do not know the truth of the matter, the case shall be decided by nine, if they know the truth of the matter.

 

10: Pillius of Medicina’s gloss on the Libri Feudorum, 1.4 (c. 1200, with a later addition)[12]

Translated by Attilio Stella

 Here [LF 1.4] defence [through oath] is given to the possessor on the grounds of possession, for possessing is the greatest advantage, as in the Digest, title ‘Concerning actions for the recovery of property’, law ‘He who’ (Dig. 6.1.24). And I think that this is to be understood in relation to just possession, because if one is found to possess by malicious deceit, such possession should not be protected, as in the Code, title ‘Concerning cases involving freedom’, title ‘She who’ (C. 7.16.21), and because one’s deceit should not profit anyone, as in the Digest, title ‘Concerning [the action on] partnership’, law ‘It is correct’ (Dig. 17.2.63.7). Hence, what shall it be if neither party possesses? You should answer that defence [through oath] shall be given to the defendant because defendants are treated with greater favour than plaintiffs, as in the Digest, title ‘Concerning rules of ancient law’, law ‘With greater favour’ (Dig. 50.17.125), and we should be more inclined to absolve than to condemn, as in the Digest, title ‘Concerning obligations and actions’, law ‘Arrianus’ (Dig. 44.7.47).

Ver. 1: And this [holds] when the defendant and the plaintiff are of the same reputation in all respects; otherwise the oath is to be assigned to the more reputable, according to what is noted in the Code, title ‘Concerning property loaned and the oath’, law ‘In bona fide contracts’ (C. 4.1.3) and in one of the following titles [of the Libri Feudorum]: ‘Oath-making should not always be granted’ [LF 2.33.2].

Ver 2 (amended addition – before c. 1250). And this [holds] when the defendant and the plaintiff are of the same reputation in all respects; otherwise the oath is to be assigned to the more reputable, according to what is noted in the Code, title ‘Concerning property loaned and the oath’, law ‘In bona fide contracts’ (C. 4.1.3) and in the Libri Feudorum, title ‘Concerning the custom of a rightful fief’, chapter ‘Oath-making should not always be granted’ [LF 2.33.2]. Consequently, what is said concerning the oath that must be given to the possessor, here [LF 1.4] as well as in the next chapter and in all chapters in which this is said, ought to be understood within the terms set in the aforesaid chapter ‘Oath-making’.

 

11: Azo, Summa codicis, on the interdict unde vi (c. 1210)[13]

Translated by Andrew Cecchinato

 3.6. Who is and is not a legitimate person of standing in courts

3.6.(3). What the interdict of momentary possession [is]

Nevertheless, the interdict of momentary possession is that by which it is sued concerning the retaining of possession: as the uti possidetis or the utrubi; or by which it is sued concerning the obtaining of possession: as the quorum bonorum, quorum legatorum; or by which it is sued concerning the recovering of possession: as the interdict unde vi. And therefore, it is called momentary possession, because although someone obtains possession, nevertheless, immediately, like a moment that has instantly passed, he can lose [the case] in an adjudication of property. And this is why he will be deprived of his possession.

3.6.(4). [Who is] condemned by the interdict unde vi loses the property

But in this interdict unde vi, this seems to be fallacious: because the [party] condemned in it loses the property, according to i. unde vi, law si quis. But that is certainly not done by the power of the interdict, but that of that constitution si quis in tantam C. unde vi, when the condition was proposed by that law.

 

12: Norman Writ of Novel Disseisin in the Très Ancien Coutumier, ‘Part Two’, ch. LXXIII. 2 (c. 1220)[14]

Translated by Will Eves

If someone should be deprived of their tenement after the last, or last-but-one, harvest, he ought to seek restitution through this writ:

The king, or the seneschal, to the baillie of such and such a place, greetings. Order ‘H.’ that he without delay reseise ‘R.’ of his tenement in such and such a place, whence he [‘R.’] was seised at the last, or last-but-one, harvest, and whence afterwards he [‘H.’] disseised him unjustly and without judgment. If he [‘H’.] does not do this, if he [‘R.’] gives you pledges for prosecuting his claim, then summon twelve lawful knights and men of the neighbourhood so that they may be at the first assize of your bailliage, ready to make a recognition upon oath concerning this. Meanwhile, ensure that land is viewed and is in peace, with its chattels, and summon the aforesaid ‘H.’ so that he may be at the view and at the assize, and have there with you the jurors, and the summoner, and this writ.

 

13: Bracton on novel disseisin (c. 1230)[15]

Translated by John Hudson

It has been said above how a disseisee can re-eject his disseisor at once, free from penalty and without writ, so long as he retains civil possession. Now, moreover, it must be said how recourse is had to the aid of a superior, when he has lost both types of possession, that is natural and civil. When, therefore, a disseisee has been so negligent in this respect that he does not wish or is unable to re-eject his disseisor, help comes to him from the prince’s favour, through the recognition of the assize of novel disseisin, pondered and invented over many wakeful nights, for the sake of recovering possession which the disseisee lost unjustly and without judgment, so that the matter may be brought to an end [terminetur] through a summary examination [cognitionem] without great solemnity of law, as it were through a short cut [compendium].

 

14: Novel disseisin in the Coutumes d’Anjou et du Maine (1246)[16]

Translated by M.W. McHaffie

 If any man, noble or commoner, comes to his lord – so long as the lord has jurisdiction (vaerie) in his land – and says to him, ‘Lord, such-and-such a man recently came to me and disseised me (a dessesi) of my house, or of a meadow, or vines, or land, or rents, or some other thing of which I have had enjoyment (j’ay esplétée) this year, the year before, and the year before that and for which I have been in the lord’s service up until the moment that he [the dispossessor] disseised me wrongly and with force; thus I ask you to take this matter into your own hands.’ The lord ought to say: ‘I shall willingly do so; but give me pledges to prove that he has disseised you wrongly and with force, as you have said.’ If he will not give pledges, then the lord does not have to disseise the other man. If he says: ‘I shall willingly give you pledges’, then the lord ought to take good pledges of sufficient value according to magnitude of the case. When the lord first takes the pledges, he should deliver a message orally or by letter (dire ou mander … message) to the other party that he [the complainant] has given pledges to prove that he [the accused] disseised him wrongly and with force of such-and-such a thing and he speaks about novel disseisin (nommera de nouvele dessesine): ‘I come to you to find out if you will give pledges to defend yourself.’ And if he says, ‘I shall give you nothing’, then the lord should give seisin to the other party [the complainant] because of the pledges that he gave; but if he [the accused] says, ‘I shall give you good pledges to defend myself that there is nothing to what he says, and that [I have acted] in accordance with law (c’est ma droiture)’, then the jurisdiction-holder (la justice) should give the two parties a day in court and keep the property (la chose) in his hand until one or the other party wins seisin by a judgment. […]

 

15: Norman Writ of Novel Disseisin in the Summa de Legibus, ch. XCIII.1 (c. 1250)[17]

Translated by Will Eves

It should be noted that the writ of novel disseisin is drawn up with these words:

Order Robert that he should justly and without delay reseise Richard of land at Becca [Le Bec-Hellouin], of which he [Robert] disseised him unjustly and without judgment after the last harvest before this. If he [Robert] does not do this, summon a recognition of the neighbourhood to be at the first assize of the bailliage. Meanwhile, ensure that the land is viewed and is in peace.

 

16: Novel disseisin case heard before the French Parlement (1269)[18]

Translated by M.W. McHaffie

The abbot and convent of Nogent were complaining that the lord of Coucy had recently disseised (de novo dissaisierat) them of the hay from a meadow—namely, a cartload of hay—even though they were in seisin (in saisina) of that meadow at Leuilly and had had the hay from it for many years, and that the meadow belonged to them by gift of one of his [the lord of Coucy’s] men. For this reason, they requested that the lord [of Coucy] be compelled to compensate them for this matter and [be compelled] to restore the said hay to them. For his part, the same lord argued (proponebat) that he did not have to do this because that meadow, after the death of his homo de corpore,[19] should have come to him [i.e. the lord of Coucy], and, according to the custom of his land (secundum consuetudinem terre sue), no one other than a homo de corpore was able to hold that meadow; he also offered other arguments for why he did not have to do this, and he offered to prove his arguments. He nevertheless confessed that the abbot and convent had been in seisin of the meadow for two years. For their part, the abbot and the convent denied every argument that had been put forward in favour of the aforesaid lord. Afterwards, when the court asked the parties if they wanted to hear a decision about whether the aforesaid abbot and convent ought to be reseised of that hay according to what had been said, they responded that yes they did. This was done: because the lord [of Coucy], who had recognised the monks’ seisin, had committed himself to hearing a decision in this manner before he had made his proofs for the things that he had said, it was judged that, according to what had been said, the abbot and the convent ought to be reseised of the hay.

 

17: Beaumanoir on novel disseisin (1283)[20]

Translated by M.W. McHaffie

§ 955. Novel disseisin is if someone takes something from me concerning which I have been in seisin peacefully for a year and a day.

§ 956. For this reason, if I hold or wish to make use of something concerning which I have been in seisin peacefully for a year and a day, and someone has taken it from my hand or from the hand of someone under my orders, or if someone wishes to take the property (la chose) from me by means of a large number of men or with arms, so that I dare not stay for fear of my life, then in such a situation I have a good case to complain about force and novel disseisin. You can see that there is no force without novel disseisin, but novel disseisin can take place without force, if it is as said above.

§ 961. When a plea of novel disseisin is defeated, then the person losing seisin may have the person who obtains seisin cited in court again concerning ownership, but this must be within a year and a day from when seisin had been delivered to him; if he lets a year and a day lapse, then he has renounced ownership, and may henceforth claim nothing further [concerning that property].


[1] For text in the original language, see Imperatoris Iustitiani Institutionum, ed. J. B. Moyle (Oxford, 1912), p. 612.

[2] For this interpretation of precario, see Ulpian (Dig. 43.26.1): A precarium is what is granted to one seeking with prayers, to use for as long as he who grants [it] allows.

[3] For text in the original language, see Formulae Merowingici et Karolini aevi, ed. K Zeumer (MGH, Legum sect. V; Hanover, 1886), p. 60.

[4] For text in the original language, see the online edition at: https://geschichte.digitale-sammlungen.de/decretum-gratiani/online/angebot.

[5] For text in the original language, see K. Lehmann, Das langobardische Lenhrecht (Handschriften, Textentwicklung, ältester Text und Vulgattext nebst den capitula extraordinaria) (Göttingen 1896), 87, 106-8; also https://clicme.wp.st-andrews.ac.uk/online-texts/libri-feudorum-vulgata/

[6] For a gloss on this text, see below, text no. 10.

[7] For text in the original language, see Emil Friedberg and Aemilius Ludwig Richter, eds., Corpus Iuris Canonici (Lipsiae: Tauchnitz, 1879, reprint 1959), pars secunda, 281-282.

[8] For text in the original language, see Ricardus Anglicus, “Editio Sine Scriptis,” in Quellen Zur Geschichte Des Römisch-Kanonischen Processes Im Mittelalter, ed. Ludwig Wahrmund, vol. 2, Part 3 (Innsbruck: Verlag der Wagner’schen Universitäts- Buchhandlung, 1915), 94-95, 108.

[9] For text in the original language, see Tractatus de legibus et consuetudinibus regni Anglie qui Glanvilla vocatur, ed. and trans. G. D. G. Hall, with a guide to extra reading by M. T. Clanchy (Oxford, 1993), pp. 167-8; also https://clicme.wp.st-andrews.ac.uk/online-texts/the-balliol-glanvill-a-draft-edition/

[10] For text in the original language, see Jocelin of Brakelond, Chronicle, ed. and trans. H. E. Butler (London, 1949), pp. 77-8.

[11] For text in the original language, see https://clicme.wp.st-andrews.ac.uk/online-texts/tac-vatican2964/; also Coutumiers de Normandie, i. Le Très Ancien Coutumier de Normandie; ii. La Summa de legibus Normannie in Curia Laicali, ed. E.-J. Tardif (Société de l’histoire de Normandie, Rouen and Paris, 1881, 1896), i. 21-2;

[12] For text in the original language, see A. Rota, L’apparato di Pillio alle Consuetudines feudorum e il Ms. 1004 dell’Archivio di Stato di Roma (Bologna 1938), 50-1 for version 1; Corpus Iuris Civilis. Volumen Parvum (Lyon 1560), col. 5-6 (available at https://amshistorica.unibo.it/176) for version 2. For the passage being glossed, see above, text no. 4.

[13] For text in the original language, see Azonis Summa aurea (Lugduni 1557, repr. Frankfurt am Main 1968), fo. 44va.

[14] For text in the original language, see Coutumiers de Normandie, ed. Tardif, i. 70.

[15] For text in the original language, see ‘Bracton, Henry de’, De legibus et consuetudinibus regni Anglie, ed. and trans. S. E. Thorne (4 vols; Cambridge, MA, 1968–77), iii. 25.

[16] For text in the original language, see Coutumes et institutions de l’Anjou et du Maine antérieures au XVIe siècle, ed. Charles-Jean Beautemps-Beaupré, vol. 1, pp. 103–5.

[17] For text in the original language, see Coutumiers de Normandie, ed. Tardif, ii. 220.

[18] For text in the original language, see Les Olim, ou registres des arrêts rendus par la cour du roi, vol. 1: 1254–1273, ed. Le Comte Beugnot (Paris, 1839), pp. 751–2.

[19] A man of less than free personal status.

[20] For text in the original language, see Coutumes de Beauvaisis: Texte critique publié avec une introduction, un glossaire et une table analytique, ed. A. Salmon, vol. 1, pp. 486, 488.