Dispossession Project

Law and Litigation concerning dispossession c. 1050-1250: a comparative study

The aim of this project is to break down the tradition of examining legal development in different countries and systems in isolation, rather than comparatively. It is brought to you by members of the European Research Council project: ‘Civil Law, Common Law, Customary Law: Consonance, Divergence and Transformation in Western Europe from the late eleventh to the thirteenth centuries.’

We have chosen ‘litigation concerning dispossession’ as our subject for several reasons. Dispossession was, and remains, a phenomenon of great social concern. A study of the legal history of dispossession therefore helps us to understand how this recurring social problem has been addressed in the past. It also sheds light on the history and nature of elementary legal ideas – for example, what is the nature of possession – is it a fact or some sort of right? Can actions concerning dispossession be classified as criminal or civil? A study of dispossession therefore exposes the interplay of ideas, practice, and broader social context, which was crucial to the development of law in this period.

In these podcasts, we examine some of the main historiographical traditions on the subject. We then explore the situations that led to litigation, how cases were brought and then decided, and finally the wider conclusions that can be drawn from these explorations.

We hope the discussions will be of general interest, and helpful to anyone who is teaching or studying mediaeval law. We have chosen to use audio-recording as our main medium to enhance the sense that comparative legal history needs to proceed through conversation. Further, the whole series, individual episodes, or short extracts may be helpful for teaching purposes. We provide some written materials, to accompany individual recordings and the project as a whole.

The participants are: Professor Emanuele Conte (University of Roma Tre); Professor John Hudson and Drs Andrew Cecchinato, Will Eves, Matt McHaffie, Attilio Stella, and Sarah White (University of St Andrews).

Production and editing: John Hudson and Sarah White.

Our particular thanks: to Dr Ingrid Ivarsen (University of Cambridge) and Mollie Krent (University of Michigan Law School); to the other members of the ERC project, Dan Armstrong, David de Concilio, Cinnamon Ducasse, Cory Hitt, and Kim Thao Le; and to Phil Taylor for the opening and closing music.

For purposes of reference please cite as ‘Litigation concerning possession c. 1050-1250: a comparative study’ (University of St Andrews, 2021).

The work has been supported by the European Research Council, through the Advanced grant n. 740611, “Civil law, common law, customary law: consonance, divergence and transformation in Western Europe from the late 11th– to the 13th centuries” (http://clicme.wp.st-andrews.ac.uk/).


Downloadable Material and Guide for Teaching Purposes

We have combined the ‘details and glossary’ material which accompanies each podcast, together with further illustrative texts, into a single downloadable document, which also contains a guide for teaching purposes. You can download the single combined document here.



Episode 1: Dispossession Project – Introduction

In this introductory episode, Emanuele Conte and John Hudson discuss with Sarah White the conceptual categories of possession and property and indicate ways in which dispossession may have been dealt with in the early Middle Ages.

Details and Glossary

 

Discussants: Professors Emanuele Conte and John Hudson. Chair: Dr Sarah White

Categories: starts at 1 min. 40 seconds

  • praetor urbanus – one of the highest magistrates in the Roman Republic and Empire, who had jurisdiction in Rome and the right to promulgate edicts to supplement or correct existing law. The law thereby created consisted primarily of procedural remedies, and is referred to as ius honorarium
  • usucapio, usucaption – right to full ownership acquired by continued possession by the lapse of time defined by law
  • action – legal formulae used by plaintiffs to initiate lawsuits against another party. Legis actiones were the oldest form of civil procedure in ancient Rome and became the
  • cornerstone of the Civil and Canon law ordinary procedure from the twelfth century onwards
  • interdict, interdictum – in ancient Roman law, a special decree by a magistrate ending a dispute before the judicial phase. In medieval Civil law, (1) a special decree by a magistrate ending a dispute before the judicial phase or (2) a form of action aimed at the recovery of possession
  • lease – an agreement regulating the use of property, by which a lessor conveys property to a
  • lessee for a given time or at will in exchange for some remuneration, such as the payment of rent or the provision of a service
  • possessio – possession
  • Vulgar Roman law – Roman law as practised in the late antique and early medieval west, and associated texts
  • vestitura putting in possession, installing; linked to the idea that someone can own something or exercise some power, including some public power, because he has been “dressed” (vested) by a superior
  • gewere – a notion often traced to ancient Germanic law, whilst probably linked to the ecclesiastical vestitura, meaning the lawful exercise of public or private rights over land or persons
  • exceptio, exception – a plea by a defendant that his opponent’s complaint or claim is inapplicable to the case, for reasons of fact or law; the defendant should not, therefore, be required to make a formal defence to the complaint or claim. A successful ‘peremptory exception’ should lead to dismissal of the case, a ‘dilatory exception’ to a halt in its progress
  • exceptio spolii – an exception that the litigant should not answer on another matter while despoiled
  • dominium utile – the rights over land acquired by the lord’s tenants and fief-holders
  • Pillius de Medicina, a law professor who taught in Modena from 1180
  • seisin – possession based on some justifiable claim
  • seise – transfer of land or another rights
  • Justinian, Eastern Roman Emperor, 527-65

 

Dealing with dispossession: starts at 7 mins 51 seconds

  • real (thing/property) – immoveable property, particularly land, and anything attached to or erected on it
  • subjective right – a legally recognized claim, for example to land
  • unde vi – Roman law interdict against violent dispossession
  • Lombard law – legal system based on the laws enacted by the Lombard kings of Italy, from the 7th century onwards
  • formulary of Marculf – late seventh-century legal text
  • pledge – a person who acts as a surety for another; sometimes also used of money or property

 

Conclusion: starts at 13 mins. 52 seconds

See also Illustrative texts: esp. nos 1-3.


Episode 2: Historiography

In this episode, Andrew Cecchinato, Will Eves, Matt McHaffie, and Sarah White discuss with John Hudson different traditions of legal historiography in relation to dispossession.

Details and Glossary

 

Discussants: Drs Andrew Cecchinato, Will Eves, Matt McHaffie, Sarah White. Chair: Professor John Hudson

Introduction

  • Assize of Novel disseisin – English procedure dealing with cases of recent unjust dispossession; probably established in 1166. ‘Assize’ can also refer to the legislation itself

 

 Roman law: starts at 1 min. 48 seconds

  •  ius commune – the law, both Roman and Canon, taught in universities as the standard law across western Christendom
  • Friedrich Carl von Savigny, Das Recht des Besitzes (1803)
  • Wilhelm Albrecht, Die Gewere als Grundlage des älteren deutschen Sachenrechts, Königsberg (1828; reprinted Aalen, 1967)
  • possessio – possession
  • gewere – a notion often traced to ancient Germanic law, whilst probably linked to the ecclesiastical vestitura, meaning the lawful exercise of public or private rights over land or persons
  • Francesco Ruffini, Actio spolii: studio storico-giuridico (Turin, 1889)
  • spoliation – dispossession
  • pseudo-Isidore – ninth-century Canon law collection
  • Gratian’s Decretum – twelfth-century Canon law collection
  • exceptio, exception – a plea by a defendant that his opponent’s complaint or claim is inapplicable to the case, for reasons of fact or law; the defendant should not, therefore, be required to make a formal defence to the complaint or claim. A successful ‘peremptory exception’ should lead to dismissal of the case, a ‘dilatory exception’ to a halt in its progress

 

Canon law: starts at 6 mins 28 seconds

  • unde vi – Roman law interdict against violent dispossession
  • condictio ex canone reintegranda, canon Redintegrandaan exception found in the False Decretals of Pseudo-Isidore (collected in in Causa 3, q. 1, c. 1-6 of Gratian’s Decretum), which were composed in the ninth century by an unknown author. According to this exception,a bishop whom secular authorities had deprived of his property or his bishopric was protected from any criminal prosecution until these had been returned to him
  • actio spolii – an action in Civil and Canon law allowed to recover any kind of right, goods or offices unlawfully subtracted to the plaintiff

 

English Common law: starts at 7 mins 25 seconds

  • Sir Frederick Pollock and F. W. Maitland, The History of English Law before the Time of Edward I (2 vols; 2nd edn reissued with a new introduction by S. F. C. Milsom, Cambridge, 1968)
  • Henry II, king of England 1154-89
  • mort d’ancestor – an assize in England whereby an heir may claim his inheritance through a recognition
  • Paul Brand, ‘Henry II and the creation of the English common law’, in Henry II: New Interpretations, ed. C. Harper-Bill and N. C. Vincent (Woodbridge, 2007), 215–41
  • R. C. van Caenegem, ed. and tr., Royal Writs in England from the Conquest to Glanvill, (77 Selden Soc., 1958–9)
  • Donald Sutherland, The Assize of Novel Disseisin (Oxford, 1973)
  • Mary Cheney, ‘“Possessio/proprietas” in ecclesiastical courts in mid-twelfth-century England’, in Law and Government in Medieval England and Normandy: Essays in Honour of Sir James Holt, ed. G. S. Garnett and J. G. H. Hudson (Cambridge, 1994), 245–54
  • iniuste et sine iudicio – unjustly and without judgment
  • G. Richardson and G. O. Sayles, Law and Legislation from Æthelberht to Magna Carta (Edinburgh, 1966)
  • exceptio spolii an exception (see above) that the litigant should not answer on another matter while despoiled
  • Gratian’s Decretum, Causa 3, q. 1, c. 1-6
  • Eugenius III, pope 1145-53
  • decretal – a papal decree concerning an issue of Canon law, usually issued in response to a query
  • Thomas Becket, archbishop of Canterbury 1162-70
  • S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge, 1976)
  • coutumiers – French law books, purporting to be statements of custom
  • attach – to compel a defendant to provide gages and sureties that he would appear in court on a specified day
  • Glanvill – English legal treatise (c. 1188-90)
  • appellor and appellee – respectively the parties bringing and answering an accusation
  • amercement – a monetary penalty, exacted from one who had fallen into the king’s mercy because of an offence

 

Northern and western France: starts at 15 mins 26 seconds

  • Ernest Champeux, Essai sur la vestitura ou saisine et l’introduction des actions possessoires dans l’ancien droit français (Paris, 1898).
  • Ernest Glasson, ‘De la possession et des actions possessoires au Moyen Âge’, Nouvelle revue historique de droit français et étranger, 14 (1890), pp. 588–633.
  • Robert Besnier, ‘Le procès possessoire dans le droit normand du XIIe et du XIIIe siècle’, Revue historique de droit français et étranger, 4th ser., 30 (1953), pp. 378–408.

 

Conclusion: starts at 20 mins 38 seconds

  • Joüon des Longrais, La Conception Anglaise de la saisine du xiie au xive siècle (Paris, 1925)

 

See also Illustrative texts: esp. nos 1, 3


Episode 3: The Disputes

In this episode, Will Eves, Matt McHaffie, Attilio Stella, and Sarah White discuss with John Hudson the kinds of dispute that involved dispossession and the types of litigant who were involved.

Details and Glossary

 

Discussants: Drs Will Eves, Matt McHaffie, Attilio Stella, Sarah White. Chair: Professor John Hudson

Introduction

  • nuisance – disturbance of another’s enjoyment of their rights, particularly real property

 

Who is allowed to bring cases? starts at 57 seconds

  • interdict, interdictum – in ancient Roman law, a special decree by a magistrate ending a dispute before the judicial phase. In medieval Civil law, (1) a special decree by a magistrate ending a dispute before the judicial phase or (2) a form of action aimed at the recovery of possession
  • unde vi – Roman law interdict against violent dispossession
  • civil possession – possession created and granted by law, by a lawful title
  • natural possession – the visible, material possession of a thing
  • Roffredus de Benevento – an Italian jurist (c.1170 – after 25 June 1243) born in Benevento, who wrote one of the most famous treatises in Civil law procedure (Libelli de iure civilis, c.1216-33)
  • coloni – tenant farmers tied to the land and paying the landlord with a portion of their crops
  • unfree tenant – a villein or serf
  • free tenement – a tenement held freely, for example in contrast to villeinage
  • Assize of Novel disseisin – English procedure dealing with cases of recent unjust dispossession
  • tenure– the terms on which land is held from a lord
  • villeinage – tenure by which villeins held land of their lords, which was subject to heavy
  • dues, often including labour service. Persons of free status might also sometimes hold lands by villeinage tenure
  • bailment – handing over of moveables to another for a specific purpose, to be carried out faithfully by the latter on the former’s behalf
  • tenant at will – a tenant holding by permission of another, without security of tenure
  • seise – to put in possession of lands or other rights
  • Customs of Anjou and Maine – early, anonymous coutumier from western France (1246); also known as the Customs of Touraine and Anjou
  • gentilshomme – nobles; elite
  • hommes coutumiers – commoners
  • Beaumanoir – French judge and jurist (c.1250–1296); author of the Coutumes de Beauvaisis (1283).
  • induct – appoint someone to an ecclesiastical office
  • darrein presentment – a procedure in England using a recognition to determine who is the lawful possessor of an advowson
  • presentation – the right of a lay patron to provide a candidate to a church office.

 

Who does bring cases? starts at 5 mins 34 seconds

  • plea rolls – rolls of parchment containing records of cases which came before courts
  • Les Olim – the royal court records from the Parlement; earliest records survive from 1254
  • Parlement – French royal court in Paris; operates both as an appellate court and a court of first instance
  • seigneurial courts – lords’ courts
  • contado– in Italy, a city’s surrounding district

 

Against whom are cases brought? starts at 8 mins 7 seconds

  • entry sur disseisin – in England, an action against someone whose entry to the land is based on the possession of someone who had committed disseisin
  • spoliation, despoliation – dispossession
  • patronage of a church – the right to present a new incumbent of a parish to the diocesan bishop for appointment

 

The circumstances in which disputes arose: starts at 10 mins 51 seconds

  • S.F.C. Milsom, The Legal Framework of English Feudalism (Cambridge, 1976)
  • tithes – a form of taxation consisting of one tenth of an individual’s income paid to an ecclesiastical or lay authority
  • benefice – an ecclesiastical living with an income, usually granted by presentation by a patron

 

Of what did the act of dispossession actually consist? starts at 17 mins 22 seconds

  • conveyance – the transfer of land or other rights
  • right of entry – the right to enter peacefully a tenement in order to exercise a lawful purpose, such as to take or resume possession
  • vis, vi – force, by force

 

Issues of force and violence: starts at 21 mins 22 seconds

  • coutumiers – French vernacular law books, purporting to be statements of custom
  • à tort et à force – wrongly and by force
  • Très ancien coutumier – Norman lawbook, the earliest version of which is from c. 1200
  • Milsomian – relating to the views of S.F.C. Milsom (see above)
  • Balliol manuscript of Glanvill

 

Does it have to be recent dispossession? starts at 25 mins 54 seconds

  • prescription annale – year-long prescription, prescription being a right to resist a legal claim based on lapse of time

 

Conclusion: starts at 28 mins 39 seconds

See also Illustrative texts: esp. nos 1-5, 8, 10-11, 14, 17


Episode 4: Bringing The Case

In this episode, Will Eves, Matt McHaffie, Attilio Stella, and Sarah White discuss with John Hudson the ways in which litigation concerning dispossession was started and the means used to get the parties into court.

Details and Glossary

 

Discussants: Drs Will Eves, Matt McHaffie, Attilio Stella, Sarah White. Chair: Professor John Hudson

Introduction

Bringing a complaint: starts at 32 seconds

  • writ – a formal written command issued by a competent authority
  • sheriff – a royal official with responsibility for the administration of a county on the Crown’s behalf
  • Très ancien coutumier – Norman lawbook, the earliest version of which is from c. 1200
  • bailli – an official (usually royal) whose function is to perform assorted, delegated functions
  • bailliage – the district of a bailli
  • Summa de legibus – mid-thirteenth-century Norman lawbook
  • serjeant-at-arms– in Normandy, a legal officer charged with various duties such as overseeing views of land and ensuring that the judgments of assizes are carried out
  • view – a procedure whereby a group of men inspected a disputed tenement, to establish its precise extent and appurtenances
  • praecipe – a writ conveying a command, disobedience of which will lead to the matter being heard before the king or his justices
  • executive writ – writ conveying an instruction
  • Customs of Anjou and Maine – early, anonymous coutumier from western France (1246); also known as the Customs of Touraine and Anjou
  • pledge – a person who acts as a surety for another; sometimes also used of money or property
  • libel, libellus – particularly in Civil and Canon law, the written document of the plaintiff containing his or her allegations and initiating the lawsuit. In principle, the libellus had to specify the actions to be brought against the opponent
  • attorney – a person who represents another in litigation or other legal matters
  • unde vi – Roman law interdict against violent dispossession
  • constitutio Si quis in tantam – a constitution enacted in 389AD by Emperors Valentinian, Theodosius, and Arcadius, which forbade owners to violently dispossess any possessor of a disputed property before due process, under penalty of the loss of ownership in favour of the possessor and payment of a composition (Codex 8.4.7). In the medieval Romano-canonical procedure, this constitution provided the grounds for an action for recovery of possession and chattels, with the option of claiming further compensation
  • rei vindicatio – Roman law action to claim ownership.
  • placitum – (i) a judicial court held by lords in their lordships, or (ii) a plea or lawsuit

 

Summons: starts at 6 mins 16 seconds

  • citation – lawful summons for a person to appear in court
  • mandate of citation –a written order of summons
  • peremptory citation – a final or ultimate summons to appear in court, after which no other summons or warning should be expected.
  • contumacy – wilful disobedience to the summons or order of a court, usually by non-appearance
  • serjeant – an official or servant, including of a court
  • bailiff – a legal officer whose function is to perform assorted, delegated official functions
  • vicinia – in Italy, a neighbourhood, the ensemble of villagers, dwellers of the same village or town; by extension, the public gathering involving all the vicini

 

Ensuring parties’ appearance in court: starts at 9 mins 0 seconds

  • attach – to compel a defendant to provide gages and sureties that he would appear in court on a specified day
    gage – a thing given as security
  • Bracton – English legal treatise, the earliest version of which dates from c. 1230
  • amercement – a monetary penalty, exacted from one who had fallen into the king’s mercy because of an offence
  • Ricardus Anglicus – a twelfth-century English canonist and lawyer who was trained in Bologna and wrote a number of famous legal works.
  • Justinian’s Code – component book of Justinian’s Corpus iuris, comprising of legislation
  • surety – a person pledged to ensure another’s appearance in court or fulfilment of some other obligation
  • excommunication – the formal exclusion of a person from the communion of the Church
  • outlawry – the condition of being put outside the protection of the law after failing to appear in court when accused of a crime, or when ignoring a summons in certain non-criminal actions
  • pre-judicial stages – stages of a case before final judgment

 

Consequences of unexcused non-appearance: starts at 12 mins 6 seconds

  • take into hand – take into possession, sometimes with restrictions as to use and disposal
  • joinder of issue – parties’ agreement to proceed with the case
  • default – failure to attend court when required, often resulting in loss of case
  • essoin – a lawful excuse for non-attendance at court
  • inspection days – days where the parties and judges go to the disputed property to establish
    the facts
  • Beaumanoir, Philippe de – French judge and jurist (c.1250–1296); author of the Coutumes de Beauvaisis (1283)
  • re servanda – ‘for the sake of preserving the thing in question’; the act of putting the plaintiff in possession in the absence of the defendant
  • in blasmo – in twelfth- and thirteenth-century Milan, a lesser degree of outlawry devised for parties failing to appear in court, which could be redeemed upon payment of a fine within a fixed period

 

Situation of disputed possession during the process: starts at 18 mins 53 seconds

  • Parlement – French royal court in Paris; operates both as an appellate court and a court of
    first instance

 

Conclusion: starts at 21 mins 30 seconds

See also Illustrative texts: esp. nos 5-7, 9, 12, 14, 15, 17


Episode 5: Deciding The Case

In this episode, John Hudson, Matt McHaffie, Attilio Stella, and Sarah White discuss with Emanuele Conte the conduct and judgment of cases concerning dispossession.

Details and Glossary

 

Discussants: Professor John Hudson, Drs Matt McHaffie, Attilio Stella, Sarah White. Chair: Professor Emanuele Conte

Pleading and arguments: starts at 47 seconds

  • recognitors – twelve law-worthy men empanelled to swear on oath whether the issue put to them (in these cases, the alleged disseisin) was true
  • period of limitation – the period of time in which a party must make a claim before the right to initiate an action is extinguished
  • exceptions – arguments raised by the defendant which, if accepted by the court, would delay or defeat the action
  • writ – a formal written command issued by a competent authority
  • free tenement –a tenement held freely, for example in contrast to villeinage
  • villeinage – tenure by which villeins held land of their lords, which was subject to heavy dues, often including labour service. Persons of free status might also sometimes hold lands by villeinage tenure
  • tenure– the terms on which land is held from a lord
  • Beaumanoir, Philippe de – French judge and jurist (c.1250–1296); author of the Coutumes de Beauvaisis (1283)
  • libel, libellus – particularly in Civil and Canon law, the written document of the plaintiff containing his or her allegations and initiating the lawsuit. In principle, the libellus had to specify the actions to be brought against the opponent
  • warranty – a guarantor
  • exceptions – arguments made in court which delayed or halted
  • proceedings. Dilatory exceptions paused litigation until they were resolved but did not conclude the case. Peremptory exceptions put an end to the case
  • minor – one not yet of age
  • intentiones – a list of main issues and minor points identified by the judge or court official, which parties need to prove
    positiones – a procedural step introduced in northern Italian procedure and in canon law in the late twelfth century according to which, after the joinder of issue, parties exchanged their versions of the facts relevant to a case through statements that could be either confirmed or rejected by the opponent. This stage aimed at identifying facts that were acknowledged by both parties which did not require proof in the following steps of the trial
  • joinder of issue – parties’ agreement to proceed with the case
  • replication – a reply to an exception brought by the opposing party

 

Decisions on matters of fact: starts at 8 mins 50 seconds

  • recognition – inquiry undertaken by recognitors (see above)
  • enquêtes – inquests
  • coutumiers – French law books, purporting to be statements of custom
  • inspection days – days where the parties and judges go to the disputed property to establish the facts
  • Parlement – French royal court in Paris; operates both as an appellate court and a court of first instance
  • interrogatories – in Canon law procedure, questions asked of witnesses
  • induct – appoint someone to an ecclesiastical office
  • Libri feudorum – the earliest and most famous collection of customs and decrees concerning
  • fiefs, assembled in northern Italy between the early twelfth century and the first half of the thirteenth century

 

Making judgment: starts at 13 mins 20 seconds

  • consul – in the ancient Republic of Rome, one of the two chief office-holders who ruled the state, elected annually. In high medieval Italy, especially from the early twelfth century onwards, a member of a panel of officials who jointly ruled a city commune. Consules were elected annually or every six months, depending on the local municipal custom
  • milites – knights
  • default judgment – a court judgment awarded in favour of a litigant upon the failure of their opponent to act or comply with certain procedural rules
  • prévôt – local official, usually of a lord
  • bailli – an official (usually royal) whose function is to perform assorted, delegated functions
  • seneschal – a lord’s steward who, in some parts of France, often had judicial duties
  • verdict – a jury or recognition’s decision on an issue submitted to them
  • assize – trial

 

Expenses and compensation: starts at 15 mins 57 seconds

  • constitutio Si quis in tantam – a constitution enacted in 389AD by Emperors Valentinian, Theodosius, and Arcadius, which forbade owners to violently dispossess any possessor of a disputed property before due process, under penalty of the loss of ownership in favour of the possessor and payment of a composition (Codex 8.4.7). In the medieval Romano-canonical procedure, this constitution provided the grounds for an action for recovery of possession and chattels, with the option of claiming further compensation
  • Glanvill – English legal treatise (c. 1188-90)
  • appellor and appellee – respectively the parties bringing and answering an accusation
  • amercement – a monetary penalty, exacted from one who had fallen into the king’s mercy because of an offence
  • sous – term for currency in France, comparable to a schilling in England; 20 sous equal a livre (or pound)

 

Re-opening disputes: starts at 21 mins 30 seconds

  • chancery – royal office responsible for the writing of documents
  • attaint – a process in English law for reviewing court decisions, through a jury generally of twenty-four men who might convict recognitors of having made a false oath
  • certification – a process in English law for reviewing a court decision, by re-assembling the assize justices, the parties, and generally the recognitors before another court, normally the king’s
  • dual process –the losing party in a case concerning possession thereafter bringing an action concerning property
  • writ of right – writ ordering a lord to do justice to a man typically concerning land, determining who has the ‘greater right’ to the disputed property
  • rei vindicatio – Roman law action to claim ownership

 

Conclusion: starts at 26 mins 35 seconds

See also Illustrative texts: esp. nos 8, 14, 17


Episode 6: Conclusion

In this concluding episode, Emanuele Conte and John Hudson discuss with Sarah White similarities and particularities of law concerning dispossession in different areas and systems, and also assess developments during the eleventh to thirteenth centuries.

Details and Glossary

 

Discussants: Professors Emanuele Conte and John Hudson. Chair: Dr Sarah White

Similarities across areas and forms of law: starts at 23 seconds

  • Alain Boureau, La loi du royaume. Les moines, le droit et la construction de la nation anglaise
    (XIe-XIIIe siècles), (2nd ed, Paris, 2004) – ‘judicial abstraction’
  • writ – a formal written command issued by a competent authority
  • libel, libellus – particularly in Civil and Canon law, the written document of the plaintiff containing his or her allegations and initiating the lawsuit. In principle, the libellus had to specify the actions to be brought against the opponent
  • nuisance – disturbance of another’s enjoyment of their rights, particularly real property

 

Differences across areas and forms of law: starts at 3 mins 22 seconds

  • ‘procedural fact’, ‘fictive fact’ – a particular narrative of what actually happened
  • positiones – a procedural step introduced in northern Italian procedure and in canon law in the late twelfth century according to which, after the joinder of issue, parties exchanged their versions of the facts relevant to a case through statements that could be either confirmed or rejected by the opponent. This stage aimed at identifying facts that were acknowledged by both parties which did not require proof in the following steps of the trial
  • free tenement –a tenement held freely, for example in contrast to villeinage
  • recognitors – twelve law-worthy men empanelled to swear on oath whether the issue put to them (in these cases, the alleged disseisin) was true
  • assize – trial
  • litis contestatio – joining of issue in court, signifying the close of the initial proceedings and indicating that the parties have agreed on the substance of the case

 

Developments in litigation and developments in ideas: starts at 7 mins 53 seconds

  • action – legal formulae used by plaintiffs to initiate lawsuits against another party. Legis actiones were the oldest form of civil procedure in ancient Rome and became the cornerstone of the Civil and Canon law ordinary procedure from the twelfth century onwards.
  • interdict, interdictum – in ancient Roman law, a special decree by a magistrate ending a dispute before the judicial phase. In medieval Civil law, (1) a special decree by a magistrate ending a dispute before the judicial phase or (2) a form of action aimed at the recovery of possession
  • easement – an interest in land owned by another, giving the right to use or control it for a specific limited purpose
  • servitudes – a right to limited use of a piece of land without possession of the land
  • gewere – a notion often traced to ancient Germanic law, whilst probably linked to the ecclesiastical vestitura, meaning the lawful exercise of public or private rights over land or persons.
  • seisin – possession based on some justifiable claim
  • vestitura – putting in possession, installing; linked to the idea that someone can own something or exercise some power, including some public power, because he has been “dressed” (vested) by a superior
  • Thomas Becket, archbishop of Canterbury 1162-70

 

Connections to specific circumstances and cases: starts at 11 mins 1 second

  • Azo – law professor at Bologna (died c. 1230)
  • solutio – answer given to question posed as subject for academic debate
  • Huguccio – canonist and bishop of Ferrara (died 1210)
  • petitory action – category of legal actions used to claim something to which the plaintiff is entitled. The burden of proof falls on the plaintiff. In Civil law, these actions were specifically brought to recover ownership over a thing on grounds of a lawful title. cf. possessory actions
  • possessio and proprietas – possession and property/ownership
  • homage – the ceremony of becoming a lord’s man

 

Procedure leading to changes in ideas and substantive law: starts at 15 mins 26 seconds

  • dual process –the losing party in a case concerning possession thereafter bringing an action concerning property
  • dominium – right to land; ownership
  • dominium directum – lord’s right to land
  • dominium utile – the rights over land acquired and enjoyed by the lord’s tenants and fief-holders
  • substantive law – the elements of law determining rights, claims, obligations; e.g., law as to whom an inheritance should pass on the death of a tenant. Generally distinguished from procedural law, concerned with the mechanics of court action
  • real (thing/property) – immoveable property, particularly land, and anything attached to or erected on it
  • Code Napoléon – French law code of 1804

 

Continuities: starts at 18 mins 3 seconds

Conclusion: starts at 19 mins 23 seconds

See also Illustrative texts: esp. nos 8, 11


***

Example Dispossession Cases

The supplementary podcasts below provide examples of dispossession cases from the regions discussed in the above episodes. These include disputes which are quite typical of those found in the surviving records, and also more unusual cases. Under ‘Details and Glossary’ you will find a summary of the details of each case, and a glossary to assist with the discussion. We have also provided references to further reading from our collection of ‘illustrative texts‘.

 

Early Canon Law Case: Papacy and Empire, 1085

Details and Glossary

Parties: Pope Gregory VII c. Emperor Henry IV

Date: 1085, in the village of Gerstungen, Germany

Issue: Excommunication of Henry IV

Source: Liber de unitate Ecclesiae conservanda, ed. W. Schwenkenbecher, in MGH, Libelli de lite…, vol. 2, 1892, pp. 234-5.

Briefsammlungen der Zeit Heinrichs IV, ed. C. Erdmann and N. Fickermann, in MGH, Briefe der dt. Kaiserzeit, vol. 5, 1950, p. 378, 13 e s.

Glossary:

  • Gregorian Reform – a papal reform movement, named after its leading pope, Gregory VII
  • excommunication –formal exclusion of a person from the communion of the Church
  • pseudo-Isidorean decretals – ninth-century canon law collection: ‘anyone dispossessed (spoliatus) of his property or rejected from his position cannot be accused, summoned, judged or condemned before being integrally restored’ Otto, cardinal of Ostia, later Pope Urban II
  • ius commune – the law, both Roman and Canon, taught in universities as the standard law across western Christendom

 

See also Illustrative texts: esp. no. 3

Discussants: Professors Emanuele Conte and John Hudson


Early canon law case, England, 1088

Details and Glossary

Parties: King William II ‘Rufus’ c. William of St Calais, bishop of Durham

Date: 1088

Location of disputed property: bishopric of Durham

Source: The De iniusta vexatione; edited and translated in English Lawsuits from William I to Richard I, ed. R. C. van Caenegem (2 vols; 106, 107 Selden Soc., 1990–1), no. 134.

Glossary:

  • Robert Curthose, duke of Normandy, son of William the Conqueror and brother of William
  • Rufus
  • William the Conqueror, king of England (1066-87)
  • Domesday survey, 1086.
  • disseise – dispossess
  • ‘according to his order’ – i.e. as an ecclesiastic
  • ‘according to the law of the bishop’ – according to Canon law
  • Salisbury, Wiltshire
  • sine judicio – without judgment
  • writ of novel disseisin – writ initiating procedure to deal with cases of recent, unjust disseisin
  • invest – give possession
  • despoiled – dispossessed
  • exceptio spolii an exception (i.e. court argument) that the litigant should not answer on another matter while despoiled
  • Lanfranc, archbishop of Canterbury (1070-89)
  • pseudo-Isidorean decretals – ninth-century Canon law collection
  • ‘Decreta Pontificum’ – literally ‘decrees of the popes’, here a reference to Lanfranc’s Canon
  • law collection, based on pseudo-Isidorean decretals
  • Library of Peterhouse College Cambridge
  • actio spolii – an action in Civil and Canon law allowed to recover any kind of right, goods or offices unlawfully subtracted to the plaintiff
  • sureties – people pledged to assure attendance at court

 

See also Illustrative texts: esp. no. 3

Discussants: Professor John Hudson and Dr Sarah White


Early French case, 1097 or 1098

Details and Glossary

Parties: Yves, a monk of Marmoutier c. Hugh, the viscount of Châteaudun

Date: 1097 or 1098, in a court at Châteaudun, presided over by Adela, countess of Blois, when her husband, Count Stephen, was in the Holy Land with the First Crusade

Location of disputed property: identified only as Castinniacum (? Châtenay); near Châteaudun (roughly 70 mi. south-west of Paris)

Source: Cartulaire de Marmoutier pour le Dunois, ed. Émile Mabille (Châteaudun, 1874), no. 156; survives as original (Archives départementales d’Eure-et-Loir, H 2431).

Glossary:

  • priory of Saint-Hilaire-sur-Yerre, roughly 6 mi. south-west of Châteaudun
  • Geoffrey Freslavena
  • fief – property, generally heritable land, held in return for service, usually military service
  • possessory – concerning possession
  • proprietary – concerning ownership
  • ius – right, e.g. to land
  • ante placitum – ‘before the trial’
  • actio spoliian action in Civil and Canon law allowed to recover any kind of right, goods or offices unlawfully subtracted to the plaintiff
  • spoliatus ante omnia restituendus – the principle that someone who has been despoiled must have those things returned before anything else can happen, i.e. before trial
  • pseudo-Isidore – ninth-century canon law collection
  • Blois – a county in northern France
  • Anjou – a county in north-western France; adjective is Angevin
  • Durham, 1088
  • seneschal – a lord’s steward, often with judicial duties
  • Robert Legisdoctor – ‘teacher of law’; also known as Robert Legisdoctus, ‘learned in law’

 

See also Illustrative texts: esp. no. 3

Discussants: Dr Matt McHaffie and Professor John Hudson


English case, 1202

Details and Glossary

Parties: Hugh son of Richard c. William son of Haldein

Date: 1202, court of itinerant justices at Lincoln (pleas before Eustace de Faucenberg)

Location of disputed property: Wellingore, a village in Lincolnshire about ten miles south of the city of Lincoln

Source: The Earliest Lincolnshire Assize Rolls, 1202–1209, ed. D. M. Stenton (22 Lincoln Record Soc., 1926), no. 345

Glossary: 

  • eyre – a visitation by the king or his justices
  • free tenement – a tenement held freely, for example in contrast to villeinage
  • plea rolls – rolls of parchment containing records of the cases which came before the royal courts
  • writ – a formal written command issued by a competent authority
  • chancery – royal office responsible for the writing of documents
  • sheriff – a royal official with responsibility for the administration of a county on the Crown’s behalf
  • recognitors – twelve law-worthy men empanelled to swear on oath whether the issue put to them (in these cases, the alleged disseisin) was true
  • view – a procedure whereby a group of men inspected a disputed tenement, to establish its
  • precise extent and appurtenances
  • period of limitation – the period of time in which a party must make a claim before the right to initiate an action is extinguished
  • verdict – a jury or recognition’s decision on an issue submitted to them
  • disseise – dispossess
  • writ of novel disseisin – a writ initiating a swift procedure, making use of a recognition, to reverse recent, unjust disseisin
  • lease – an agreement regulating the use of property, by which a lessor conveys property to a lessee for a given time or at will in exchange for some remuneration, such as the payment of rent or the provision of a service
  • villeinage – tenure by which villeins held land of their lords, which was subject to heavy taxation and, often, labour services
  • serf, villein – person of unfree status
  • mort d’ancestor – an assize in England whereby an heir may claim his inheritance through a recognition
  • acre – a unit of land area equal to 4,840 square yards
  • amercement – a monetary penalty, exacted from one who had fallen into the king’s mercy because of an offence
  • tenure– the terms on which land is held from a lord

 

See also Illustrative texts: esp. no. 7

Discussants: Dr Will Eves and Professor John Hudson


North Italian case, 1205

Details and Glossary

Parties: Nicola Capra c. Obertus pelliparius, a furrier

Date: 1205; case heard by Judge Petrus de Ranfredo, vicar of the potestas of the city commune of Savona, who was Wilielmus Guertius

Location of disputed property: a vineyard in Albisola, a small village in Liguria, north-western Italy

Source: D. Puncuh, Il cartulario del notaio Martino. Savona 1203-1206 (Genova, 1974), records no. 99, 119, 222, 802, 804.

Glossary: 

  • notary – a trained individual who produced legal documents on behalf of courts and litigants.
  • positiones – A procedural step introduced in northern Italian procedure in the late twelfth century according to which, after the joinder of issue, parties exchanged their versions of the facts relevant to a case through statements that could be either confirmed or rejected by the opponent. This stage of the trial aimed to identify facts that were acknowledged by both parties and did not require proof in the following stages of the trial.
  • libel, libellus – particularly in Civil and Canon law, the written document of the plaintiff containing his or her allegations and initiating the lawsuit. In principle, the libellus had to specify the actions to be brought against the opponent.
  • constitutio Si quis in tantam – a constitution enacted in 389AD by Emperors Valentinian, Theodosius, and Arcadius, which forbade owners to violently dispossess any possessor of a disputed property before due process, under penalty of the loss of ownership in favour of the possessor and payment of a composition (Codex 8.4.7). In the medieval Romano-canonical procedure, this constitution provided the grounds for an action for recovery of possession and chattels, with the option of claiming further compensation
  • chattels – moveable property.
  • marquesses of Ponzone, local noblemen from Liguria.
  • potestas, podestà – In Latin, literally, ‘power, legal authority’. In high medieval Italy, especially from the late twelfth-century onwards, the elected ruler of a city commune, usually coming from another city and theoretically less involved in local politics and feuds. Potestates were elected annually or every six months, depending on the local municipal custom
  • default judgment – a court judgment awarded in favour of a litigant upon the failure of their opponent to act or comply with certain procedural rules.
  • verdict – decision on an issue or case.
  • peremptory summons – a final or ultimate summons to appear in court, after which no other summons or warning should be expected.
  • default – failure to attend court when required, often resulting in loss of case.

 

Discussants: Dr Attilio Stella and Professor John Hudson


English case, 1206

Details and Glossary

Parties: William ‘Blackbeard’ c. Everard; Everard’s brother, Stephen, and several others

Date: 1206, court of itinerant justices at Lincoln

Location of disputed property: Booton (Norfolk)

Source: The Earliest Lincolnshire Assize Rolls, 1202–1209, ed. D. M. Stenton (22 Lincoln Record Soc., 1926), no. 1384

Glossary: 

  • eyre – a visitation by the king or his justices
  • gaol delivery – the process of trying prisoners currently in gaol to establish their guilt or innocence
  • plea rolls – rolls of parchment containing records of the cases which came before the royal courts
  • acre – a unit of land area equal to 4,840 square yards
  • writ of right – a writ initiating a proprietary action in England and Scotland. It was directed at the lord of land in dispute, directing them to ‘do full right’ to the parties
  • Newton Longville priory, Buckinghamshire
  • writ of novel disseisin – a writ initiating a swift procedure, making use of a recognition, to reverse recent, unjust disseisin
  • verdict – a jury or recognition’s decision on an issue submitted to them
  • compurgation – an oath taken with the formal support of a specific number of others, in order to prove or disprove a point in court
  • record – a formal statement of the proceedings of an earlier hearing of a case
  • default –failure to attend court when required, resulting in loss of case
  • judicial combat – a form of trial by ordeal in which two parties to a dispute would engage in a
  • duel, either in person or through their champions. In theory, God would grant victory to the party in the right
  • recognitors, recognition – twelve law-worthy men empanelled to swear on oath whether the issue put to them (in these cases, the alleged disseisin) was true
  • action of right – action, begun by writ, to investigate which of the two parties had the ‘greater right’ to the tenement in dispute
  • dual process – the losing party in a case concerning possession thereafter bringing an action concerning property
  • substantive law – the elements of law determining rights, claims, obligations; e.g., law as to whom an inheritance should pass on the death of a tenant. Generally distinguished from procedural law, concerned with the mechanics of court action

 

See also Illustrative texts: esp. no. 7

Discussants: Dr Will Eves and Professor John Hudson


Canon law case, England, 1267

Details and Glossary

Parties: Robert de Pitchford c. Thomas de Neville

Date: 1267-71/2, Court of Canterbury

Location of disputed property: church of Houghton on the Hill (Leicestershire)

Source: N. Adams and C. Donahue Jr (eds.), Select Cases from the Ecclesiastical Courts of the Province of Canterbury, c. 1193-1300 (Selden Society, 1981, Vol. 95), pp. 256-336.

Glossary:

  • sede vacante – the jurisdiction held (usually by the prior and chapter of a cathedral) while the episcopal seat was unfilled (i.e., there was no bishop).
  • beneficean ecclesiastical living with an income, usually granted by presentation by a patron
  • tithes – a form of taxation consisting of one-tenth of an individual’s income paid to an ecclesiastical or lay authority
  • Richard Corbet, the patron of the church of Houghton
  • quitclaim – the surrender of lands or other rights and all claim to them
  • right of presentation – the right of a lay patron to provide a candidate to a Church office
  • Nicholas, abbot of St-Pierre-sur-Dives
  • Robert, son of Richard Corbet
  • darrein presentment – a procedure in England using a recognition to determine who is the lawful possessor of an advowson
  • chirograph – an agreement written out twice (or three times) on a single piece of parchment, with the word CIROGRAPHUM written between the texts. The parchment was then cut, intersecting this word, and each party received a copy of the agreement
  • induction – the action of appointing someone to an ecclesiastical office.
  • papal legate – a representative of the pope, empowered to act as a judge in ecclesiastical matters.
  • rector – the incumbent of a parish church
  • prior of Bradley – the prior of an Augustinian priory in Leicestershire, to whom the papal legate, Cardinal Ottobuono, delegated the case in question
  • despoiled – dispossessed
  • proctor – a representative who appears in court on behalf of a litigant
  • Liber extra – decretal collection from 1234
  • decretal – a papal decree concerning an issue of Canon law, usually issued in response to a query
  • condictio de redintegranda – an exception found in the False Decretals of Pseudo-Isidore (collected in Causa 3, q. 1, c. 1-6 of Gratian’s Decretum), which were composed in the ninth century by an unknown author. According to this exception, a bishop whom secular authorities had deprived of his property or his bishopric was protected from any criminal prosecution until these had been returned to him.
  • exceptions – arguments raised by the defendant which, if accepted by the court, would delay or defeat the action
  • commissary – a representative appointed by the official of a n ecclesiastical court to act in his stead.
  • Official – an officer of the episcopal court (usually with legal training) to whom a bishop delegated his metropolitan authority
  • excommunication – formal exclusion of a person from the communion of the Church
  • plea rolls – rolls of parchment containing records of the cases which came before the royal courts in England
  • Shropshire
  • spoliation – dispossession

 

See also Illustrative texts: esp. nos 3, 5, 6

Discussants: Dr Sarah White and Professor John Hudson


French case, 1269

Details and Glossary

Parties: Abbot and monks of Nogent-sous-Coucy c. Enguerrand IV, lord of Coucy

Date: 1269, Pentecost term, at the Parlement, the royal court in Paris

Location of disputed property: probably Leuilly-sous-Coucy

Source: Les Olim, the registers containing the decisions of the Parlement, the royal court: 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. See Illustrative texts: no. 16.

Glossary

  • de novo dissaisierat – ‘had recently disseised’
  • arrêt – decision of court
  • Grand chambre – the primary judicial arm of the Parlement in Paris; refers both to the people who make up the court and a physical location (especially from the fourteenth century); cases often began and ended before the Grand chambre
  • seisin – possession based on some justifiable claim
  • reseise, resaisire – put back in possession
  • disseise, dissaisire – dispossess
  • homo de corpore (Latin), homme de corps (French) – someone of less than free personal status

 

Discussants: Dr Matt McHaffie and Professor John Hudson


Downloadable Material and Guide for Teaching Purposes

We have combined the ‘details and glossary’ material which accompanies each podcast, together with further illustrative texts, into a single downloadable document, which also contains a guide for teaching purposes. You can download the single combined document here.