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Warranty and Good Lordship in Twelfth Century England

Published online by Cambridge University Press:  28 October 2011

Paul R. Hyams
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Extract

This paper starts from charters. It may even be regarded as an attempt to trace and explain the rise and development of express warranty clauses in English private documents, an exercise in diplomatic. The main stimulus behind the investigation is, however, something quite different: the challenge of understanding English law before the advent of a common law. I want my explanations to be consistent not merely with the social relations that produced the charters, but also with the mental terms in which they were thought out and interpreted, their legal context.

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Articles
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Law and History Review , Volume 5 , Issue 2 , Fall 1987 , pp. 437 - 503
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Copyright © the American Society for Legal History, Inc. 1987

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References

1. Milsom, Legal Framework, is the prime illustration of what can be done by clever and imaginative speculation on the things common law sources exclude. Green, Thomas A., ‘Societal Concepts of Criminal Liability for Homicide’, Speculum xlvii (1972) 669–94CrossRefGoogle Scholar is another good example of the technique. Simpson, A.W.B. has shown in his Cannibalism and the Common Law (Chicago, 1984)Google Scholar and other recent studies what standard historians' research can contribute to the understanding of leading cases from the modern period. For the medievalist, there are other options, such as working from the records of one or more monastic houses. Clanchy, M.T., ‘A Medieval Realist: Interpreting the Rules at Barnwell Priory, Cambridge’, in Attwool, E.A.G., ed., Perspectives in Jurisprudence, (Glasgow, 1977) 176–94Google Scholar makes good use of a register composed in the 1290s.

2. EYC. I treat Greenway as an extension of the series. It is surprising how little use legal historians have made of these materials. One reason is the extreme difficulty of adequately reconstructing the context of the cases in the round. Appendix II carries details of some knowable ones.

3. See my article ‘The Common Law and the French Connection’, Anglo-Norman Studies iv (1982) 77–92Google Scholar.

4. This article will not present a nuanced survey of the previous literature on warranty. The main lines of inquiry can be traced from the following: Pollock and Maitland, History, at i, 301, 306–307; ii, 158, 162–64, 662–64; Bailey, S. J., ‘Warranties of Land in the Thirteenth Century’, Cambridge Law Journal viii (1942–1944) 274–90Google Scholar and ix (1945–47) 82–106; Bailey, S. J., ‘Warranties of Land in the Reign of Richard I’, Cambridge Law Journal ix (1945–1947), 192–209Google Scholar; Thorne, ‘English Feudalism’, at 193–209; Simpson, A. W. B., An Introduction to the History of Land Law (Oxford, 1961) 15, 49–50, 109–10, 118Google Scholar. For Milsom, see the next footnote. Maitland seems, as usual, to have made some of the observations crucial to the argument here long ago; see footnote 30 infra.

5. Milsom, Legal Framework, at 42–47, 58–59, 61–64, 75–77, 85–86, 108–109, 121, 126–32, 172–74, 183–84 (on warranty). Some of what follows is developed from my review of it in the English Historical Review, xciii (1978) 856–61CrossRefGoogle Scholar.

6. The expression ‘good lordship’ was probably a later medieval coinage. I follow the classic usage of McFarlane, K. B., The Nobility of Later Medieval England (Oxford, 1973) 113–14Google Scholar.

7. Many lawyers and some legally minded historians deny the existence of rights in the period before there existed a common law to enforce them. (The timely arrival on my desk of a paper by Stephen D. White on ‘Legal Argument and Claims to Inheritances in Western French Courts, c. 1050 to c. 1150: Their Implications for the Study of Earlier Anglo-French Law’, Traditio, forthcoming, did much to reassure me that the usage here is defensible. In any world where being put in by the lord is not the only acceptable form of title [such as twelfth-century England in my view], tenant-right is something broader than warranty. The tenant's simple denial, to put the demandant to proof of his claim, already implies something more. On the other hand, the warranty equation can only apply to those honourable tenures, which the common law will term tenure in, or as of, fee, where the tenant has full right ius.)

8. Any attempt to clarify what is meant by ‘family’ here and later would involve a consideration of what French historians call laudatio parentum. This is the practice by which charters recited the consent of kinsmen (and lords) of the grantor in an apparent effort to restrain their later interference in the grant. I eagerly await elucidation of the practice in White, Stephen D., Custom, Kinship and Gifts to Saints (Chapel Hill, forthcoming)Google Scholar. See also Tabuteau, Emily, ‘Transfer of Property in Eleventh-Century Norman Law’ (Unpublished dissertation, Harvard, 1975), 803–27Google Scholar. I am grateful to Dr. Tabuteau for letting me see, in addition to her dissertation, a draft for the warranty chapter in her forthcoming book.

9. I say something more below on the extent to which positive and negative warranty constituted a single institution.

10. The hypothesis is of course essentially a deduction from common law sources; see Milsom, Legal Framework, passim. Index references to Glanvill, Plea Roll entries narrow the search.

11. The earliest example noted, EYC, at i, 265; ibid., iv, 118 (c. 1137/61) was made by a religious house, St. Mary's, York, about whose drafting skill see text at footnote 75 infra. See further EYC, at viii, 111 (1159/64), made in the court of Earl Warenne and EYC, at iii, 1405 (1160/C.70), a ministerial grant.

12. As pointed out by Milsom, Legal Framework, at 103–53.

13. The two exceptions noted are late and unusual. In EYC, at x, 114 (1194/8), the lay vendor promised to return the purchase price if he was unable to warrant his sale. ibid. at v, 321 (early thirteenth century) was a grant (without reservation of tenure) to the grantor's lord; its warranty clause reflects the parties’ unequal bargaining power.

14. Good illustrations are Loyd, L. C. and Stenton, D. M., eds., Sir Christopher Hatton's Book of Seals (Oxford, 1950), nos. 84, 105Google Scholar (1146/8, c. 1153). Three confirmations to Fountains Abbey, each adding warranty to an existing confirmation, suggest a house policy: EYC, at xi, 21 (1156/75) after ibid. 20 (1156/62); ibid., at xi, 140 (c. 1180/90), to be compared with ibid. at 139–40; ibid. at 43 (c. 1182/1204), to be compared with nos. 25, 28.

15. EYC, at ii, 710, 716 (c. 1160/70, 1178/81); cf. also ibid. at i, 50, 55 (1187/1207, 1170/86); iii, 1535, 1605 (1165/80, c. 1175/1200). If this suggestion is correct, it would be interesting to know when the later presumption of tenure came in. See Milsom, Legal Framework, at 51, 91, and at 144–45. Landau, P., Jus Patronatus: Studien zur Entwicklung des Patronats im Dekretalenrecht und der Kanonistik des 12. und 13 Jahrhunderts, Forschungen zur Kirchlichen Rechtsgeschichte und zum Kirchenrecht xii (Cologne, 1975)Google Scholar details the Church's view of what lay patronage should have been; it wished to destroy the proprietary view of the lay interest without opening up an unrealistic gulf with consuetudo, i.e. such customs as the English law under consideration here. The patron retained the honor of defending the church from material deterioration. ibid. at 129.

16. Hall, , ed., Glanvill at iii, 1, 7Google Scholar (38,42). See Appendix I infra for details of these writs. For dower, see ibid at vi, 4–13, (60–65) and cf. S. J. Bailey, ‘Warranties of Land in the Reign of Richard I’, supra note 4 at ix, 196–97, 202–203. The language of lordship was, it is true, used for husbands (the wife's dominus) and there is also the unusual case of the heir who must warrant in claims for dower from his deceased father. On the question of who was the doweress’ lord before 1176, see Palmer, Robert C., ‘The Origins of Property in England’, Law and History Review 3 (1985) 13CrossRefGoogle Scholar.

17. Hall, , ed., Glanvill at x, 15Google Scholar, the reference back is surely to Glanvill vii. 2 on which see below text at n. 135.

18. Hall, , ed., Glanvill at x, 15–7Google Scholar, (130–31). CRR at viii, 271–72, 277–78 (1220) is a well-known case of horse theft that started in a court of the earl of Brittany.

19. II Atr., 8–8. 2; II Cn., 23, 24. 1–2 (In.); Wl.Art., 5; Leg.Wmi., 21–21. 3, 45; E.Cf., 22. 3, 28. la. All these citations are from Liebermann, F., Gesetze der Angelsachsen, 3 vols. (Halle, 1903–1916)Google Scholar by the sigla there adopted. Also Assize of Clarendon 1166, c. 12.

20. Hn., 43. 1, 94. 3 envisage a lord warranting his man against royal accusations of wounding and the like; ibid., 85. 2–2a makes it clear that warranty was not permitted in cases of serious crime. Cf. also Hn. Mon., 2 (possession of false coins). This kind of warranty seems to have survived in an attenuated form in some personal actions, where a defendant could claim to have acted on behalf of a lord, whose aid in the case he then solicited but could not compel. This was assimilated with Aid-prayer, for which see generally Bailey, , Cambridge Law Journal ix. 82–84Google Scholar and Milsom, S. F. C., ed., Novae Narrationes, Selden Society, lxxx, (London, 1963) cxlv, cciiiGoogle Scholar.

21. I have modified the translation of Smalley, B., The Study of the Bible in the Middle Ages (Oxford, 2nd ed., 1952), 118Google Scholar in the interests of legal clarity. Compare the Latin text ibid., at 118, n. 2. The defendants' grantors are to ‘pro illis stare et … garantizare’, very likely a reference to the common phrase ‘stare ad rectum’. This commentary was written before 1161/3 in France. ibid. at 87–88.

22. EYC, at ii, 983 (1153/c. 1160).

23. PRS, at xiv, 22–33 (1194). See Prawer, J., Crusading Institutions (Oxford, 1982) 415 and 427Google Scholar.

24. This need not be in court. References to the ‘warrant’ of the king or others for some money payment are common in royal records, e.g. Pipe Roll 15 Henry II, 23, 110 (1169). (All citations of Pipe Rolls are from the series published by the Pipe Roll Society.)

25. Pollock and Maitland, History at i, 59 saw chattel warranty references as ‘interesting by their analogy to the doctrine of warranty in the law of real property’.

26. Another was suretyship. I wish Davies, W., ‘Suretyship in the Cartulaire de Redon’ in Charles-Edwards, T., Owen, M. E. & Waters, D. B., eds., Lawyers and Laymen: Studies in the History of Law Presented to Professor Dafydd Jenkins on his 75th Birthday Gwyl Ddewi 1986, (Cardiff 1986)Google Scholar, with its deep understanding of early medieval law and society, had been available to me when I was writing this.

27. The evidence cited by Pollock and Maitland, History at ii, 71, n.2, for the existence of the same rule limiting voucher to three warrantors is a good indication of this. See also Ducange, C.Glossarium mediae et infimae Latinitatis … 10 vols. ( Faure, L., ed., Niort, 1883–1887)Google Scholar, sub verba ‘Garantus’, ‘Garantire’ and ‘Warantus’, iv, 26–27; viii, 403–404; Niermeyer, J. F., Mediae Latinitatis Lexicon Minus (Leiden, 1976)Google Scholar, sub verbum ‘Warantus’, 1128–129; Plezi, M., ed., Lexicon Mediae et Infimae Latinitatis Polonorum, (Warsaw, etc., 1975–1977)Google Scholar sub verba ‘Guarandia’, ‘Guarantia’, etc., cols. 646–50; and F. Liebermann, supra note 19 at ii, 471–72, sub verba ‘Gewährburge’, ‘Gewährleisten’. The French literature on warranty is almost nonexistent. Not figuring among the set topics of feudalism or Roman Law, warranty is little studied. Thirteenth century coutumiers nevertheless attest to its existence over a wide area. See Marnier, M. A. J., ed., Le conseil de Pierre de Fontaines (Paris, 1846), livres XV. x, lxix; XXIX. xxiii; XXXII. iv (pp. 113, 148–49, 350, 366–67)Google Scholar; Rapetti, L., ed., Le livres de jostice et de plet (Paris, 1850), IX. xv; XII. vi (pp. 177, 232–34)Google Scholar; de Beaumanoir, Philippe, Coutumes de Beauvaisis (Salmon, A., ed., Paris, 1899–1900; reissued 1970), c. 34, esp. sections 998, 1011, 1015 etcGoogle Scholar. For Scotland, see Stringer, K. J., ‘The Charters of David, Earl of Huntingdon and Lord of Garioch: a Study in Anglo-Scottish Diplomatic’ in Essays on the Nobility of Medieval Scotland (Edinburgh, 1985) 90–91Google Scholar. See also Wickham, C., ‘Land Disputes and their Social Framework in Lombard-Carolingian Italy, 700–900’, in Davis, W. and Fouracre, P., eds., The Settlement of Disputes in Early Medieval Europe (Cambridge, 1986) 105–24CrossRefGoogle Scholar, which volume regrettably came to my notice too late to be used here.

28. The evidence noticed to date is northern French. See Platelle, H., ‘Crime et châtiment à Marchiennes’, Sacris Erudiri, xxiv (1980) 195–58Google Scholar for an attempt 1033/48 to produce ‘tutorem … legitimum quem vulgo appellant warandum qui hanc rem testificaretur’ against a rent suit by a lay lord through a public court. The monastic landlord merely sent relics, which lost the case but induced the oppressor to repent. The account is very late eleventh century from near Charleroi, Belgium, ibid. at 161. In the early 1080s, Robert of Mortain insisted that the Norman priory he founded for Marmoutiers remain exclusively under his protection, so that he would be ‘advocatus et ut vulgo dicitur garantus eleemosinae meae, sicut laicus homo esse debet elemosinae in sua manu retentae. Paris, Bibliothèque nationale, MS Latinis, [hereinafter cited as Paris, B.N. Lat.] 12878 fo. 281v–282v (1060/90, ?early 1080s). A charter of 1153, makes a vendor monastery promise Homblières (nr. St. Quentin) not to refuse ‘tuitionem et quod vulgo dicitur guarandisam’ when required, Paris B.N. Lat. 13911, fo. 44r-v. I owe my knowledge of the last two texts to Professors Emily Tabuteau and Giles Constable respectively, and must also thank Dr. David Bates for advice on dating, etc.

29. Preconquest England lacks documented private land grants of the kind that might have included warranty clauses. Normandy, which does possess such documentation, lacks evidence of chattel warranty. Clearly, extant documents are an unsafe basis for general statements here. However, see text at notes 76–91 infra for argument to justify the statement in the text.

30. Thorne, Samuel E., ‘Livery of Seisin’, Law Quarterly Review, lii (1936) 345–64Google Scholar.

31. EYC, at iv, 91 (1173/4) illustrates the practice at Rielvaux.

32. Maitland realized this. Pollock and Maitland, History, at i, 306–307; ibid. at ii, 663. See the acute remarks of King, E., ‘The Anarchy of Stephen's Reign’, Transactions Royal Historical Society, 5th ser., xxxiv (1984) 138–39Google Scholar [hereinafter cited as TRHS]. English historians ought to consult the excellent studies on forms of protection in various regions of France by P. Duparc. See in particular his ‘Le tensement’, Rev. hist, de droit français et étranger 4e ser., xi (1962) 42–63Google Scholar, which reveals a context for the word tenserie in Anglo-Saxon Chronicle sub anno 1137. Also Duparc, P., ‘La commendise ou commende personelle’, Bulletin école des chartes, cxix (1961) 50–112CrossRefGoogle Scholar; ibid., ‘Le sauvement’, Bulletin philologique et historique du comité des travaux historiques et scientifiques (1961) 389–433 and ibid., ‘Libres et hommes liges’, Journal des savants (1973) 81–98. Little comparable has been attempted in England since the classic controversy over commendation in Domesday Book summarised briefly in my book King, Lords and Peasants in Medieval England (Oxford, 1980) 237–39Google Scholar. There is, however, suggestive material from one area in Stewart-Brown, R., ‘The Avowries of Cheshire’, English Historical Review xxix (1914) 41–55CrossRefGoogle Scholar and Barraclough, G., ‘Some Charters of the Earls of Chester’, in Pipe Roll Society, new series at xxxvi (1962) 25–43Google Scholar; esp. nos. 7–9 at 35–37.

33. For references to the literature on this, see my King, Lords and Peasants, supra note 32 at 261, n.158.

34. CRR at v, 77–79 (1207) is a good example, for whose circumstances see EYC at xi, 187–90 and Flower, C. T., Introduction to the Curia Regis Rolls, 1199–1230 A.D. Selden Society, lxii (London, 1943) 133–34, 217Google Scholar. Quite a body of material shows that when a tenant quarrels with his lord or finds he is saddled with an old enemy as his new lord, he sought the protection of an overlord by making direct homage.

35. EYC at iii, 31 (1138/47) Warenne to Nostell, a protection almost regal in its range of formulae; ibid., viii, 1510 (1177/c. 1185). This is a familiar theme of royal protections. See e.g., ibid. at iii, 1363 (1181) and 1462 (1170/85); and ibid., v. 240 (71181).

36. EYC at i, 164 (1160/5) to Rielvaux, a renunciation of false boundaries to which ix, 157 (Greenway, no. 247), supplies the context; ibid., v. 389 (c. 1155/77).

37. ibid. at viii, 34–35 (1147, after 1138) (both Warenne to Lewes are good examples). ibid. at v, 222, 347 (c. 1155/84, 1115/33) to St. Mary's, York. Clauses of this kind are usually phrased in the first person. The drafting choice between such words as ‘oro’, ‘volo’, ‘rogo’ or ‘precipio’ is noteworthy.

38. Greenway at 226, no. 351 (c. 1147/57): ‘quia non est michi amicus qui inde contumeliam fecerit’; ibid. no. 313 (c. 1170/86).

39. See the borrowed Frankish form of hold-oath (fealty) in Stubbs, W., Select Charters (9th ed. Davis, H.W.C., ed., Oxford, 1913) 73–74, 78Google Scholar and Hall, , ed., Glanvill at ix, §1, 104Google Scholar.

40. EYC at iii, 1352 (1150/c. 1160) records a life grant graciously accepted by William, earl of Aumale ‘pro adjutorio meo et manutenemento meo’.

41. EYC at ii, 1012 (c. 1126/9): ‘volo … ut heredes mei manuteneant et defendant eam ubique et contra omnes homines’; ibid. at iv, 10 (c. 1135) and 86 (1205/?1212).

42. EYC at ix, 125, 151 (Greenway at 165–66, 162–63, nos. 243, 236 (1154/7, 1154)) are the earliest ones noted. Also ibid. at iii, 1559 (1200/20) and x, 111 (1210/20).

43. EYC at xii, 74–6 (1143/54). I believe that the grantor may have had a hand in drafting these documents, which go well beyond the normal Nostell style. See ibid. at xii, 97–9 for information about his lands. This group of documents has interesting implications for those interested in the location of ‘ownership’ at this date. Important questions of tenurial definition and the responsibility for forinsec service were not clarified in writing until the confirmation by Osbert's son Ralph. ibid. at xii, 79 (1154/63).

44. Pollock and Maitland, History at i, 306–307.

45. This would be plain had more letters like Kemp, B., ed., Reading Abbey Cartularies Camden Soc. 4th s. xxxi, i (London, 1986), no. 464 (1141/4) survivedGoogle Scholar.

46. Kirkstall Abbey was assured by EYC at iii, 1655 (c. 1160/75) that it would receive another two carucates in the event of inability to maintain the original grant. This has the air of an express provision necessitated by the terms of the agreement, not a standard formula, as in warranty. See EYC, at viii, 45 (1138/47) ‘pro posse suo’.

47. Downer, L. J., ed., Leges Henrici Primi (Oxford, 1982)Google Scholar [hereinafter cited as LHP] at 178 (Hn., 57.8).

48. S. J. Bailey, ‘Warranties of Land in the Reign of Richard I’, supra note 4 at ix, 203 suggests that this is the origin of ‘advocatio’ = advowson. This would take the argument back at least to the Constitutions of Clarendon 1164, c. 1. See P. Landau, Jus Patronatus, supra note 15 at 9–10, n.32 also thought that the usage started in mid-twelfth century England.

49. Paul Brand has suggested in conversation a different distinction. He points out that an incumbent clerk was calling upon, not his grantor and predecessor-in-title (or representative thereof) as in ordinary warranty, but a patron with a mere right of presentation. The patron and the clerk claimed two quite distinct interests in the ‘property’. No patron could be expected to warrant the possession of a church. The best a clerk could do was to avow that this patron had presented him and let the patron establish his title or lose it.

50. On lords as ‘owners’ see Thorne, ‘English Feudalism’, at 193–209, S. F. C. Milsom, in his introduction to Pollock and Maitland, History at i, lxxxv. On advowry, see footnote 32 supra.

51. Yver, J., ‘Autour de l'absence d'avouerie en Normandie’, Bulletin de la société des antiquaires de Normandie 57 (1963–1964) 189–270Google Scholar; Emily Tabuteau, supra note 8 at 803–804.

52. Both references noticed concern the king. Rex v. Malkael, in Appendix II seems to stem from royal action to resume land from the supporter of a dispossessed rebel. Henry I granted to Robert de Lacy lands ‘quas idem Rex de Willelmo de Say avoabat’, according to Wightman, W.C., The Lacy Family in England and Normandy: 1066–1194 (Oxford, 1966), 36–37Google Scholar, a reference to a banishment. See EYC at iii, 1420 (1102/c. 1114). In the Welsh Marches and Ireland, ‘advocaria’ denoted in the thirteenth century lordship over men without landholdings. Dr. Brand also points out that in a thirteenth century action for customs and services the defendant could disavow holding of his plaintiff, and thus force him into an action of right.

53. Hn., 10. 3, 75. 7a; cf. ibid., 43. 3, 85. 1. See also Wuest, J., ‘Die Leis Willelme’, Romanica Helvetica, lxxix (Berne, 1969) 98Google Scholar.

54. See the translation of II Cn., 23, 24. 1 in F. Liebermann, supra note 19 at i, 327 and the Latin translation of II Atr., 8 sq. in ‘Quadripartitus’, ibid., i, 224 sq.

55. EYC at xi, 123 (c. 1140/50) and x, 88 (1151/6) are the earliest noticed. See also ibid. at ii, 1202; xi. 10 (before 1160); xi, 274 (c. 1170/93); xii, 69 (before 1181); and ii, 766, 1078(1180/90).

56. References to monastic advocates are not unusual in England. Yorkshire examples are EYC at viii, 17 (1118/30); iii, 1468 (1135/7); ii, 952 (1153/7); x, 105 (1180); and xi, 50 (1189). The point seems to have been to single out founders and others with similar duties; see Clay's introduction to EYC at x, xvii and n.l.

57. I discuss this ‘negative’ aspect of warranty further in my unpublished paper on ‘The Emergence of the Flat-arsed Conveyancer’. A copy is on file with the Law and History Review. Legal historians refer to it as the ‘homage bar’. See text at note 128 below.

58. Sir Christopher Hatton's Book of Seals, supra note 14 at no. 194 (early Henry II) is quite specific.

59. In practice this was mostly a matter of the probability of continued, untroubled tenure. One might wish to say that great churches armed with a string of royal and papal privileges had greater ‘right’ than mere laymen.

60. The writs they used are discussed in Appendix I.

61. Milsom, Legal Framework at 80.

62. CRR at i, 283, 295, 341 (1200) is one good illustration. Appendix I has others.

63. S. J. Bailey, ‘Warranties of Land in the Reign of Richard I’, supra note 4 at ix, 196, 201–202; Sutherland, Donald W., The Assize of Novel Disseisin (Oxford, 1973) 19–20, 37, 42, 131, and 218–19Google Scholar. The fact that leases contained express warranties is another indication that the institution was not seignorial in origin.

64. One would expect the same to be true of tenants in free alms.

65. In contrast, Palmer, Robert C., ‘The Feudal Framework of English Law’, 79 Michigan Law Review 1149, 1153 (1981)CrossRefGoogle Scholar sees the settlement of 1153 as investing tenants with a ‘germ of ownership’ for the first time. See discussion in Appendix III below.

66. It is hard to formulate this without an anachronistic invocation of the common law tenures. I have in mind some hypothetically ‘normal’ terms of lasting, honourable and non-servile tenure.

67. Stenton, F. M., The First Century of English Feudalism (Oxford, 2nd ed., 1961) 38–41, 260–61 gives one exampleGoogle Scholar.

68. See text at footnotes 162–64, infra, for the role of Church draftsmen in establishing the practice of express clauses.

69. See footnote 187 infra for some comment on the strict construction involved.

70. S. J. Bailey, ‘Warranties of Land in the Thirteenth Century’, supra note 4 at viii, 279–85 and ibid. ‘Warranties of Land in the Reign of Richard I’, supra note 4 at ix, 193–97.

71. Canon lawyers could have chosen a very difficult kind of security device from among Roman law formulae.

72. See note 28 supra.

73. EYC at i, 265 and iv, 118 (c. 1137/61). The earliest Yorkshire example comes from St. Mary's, York and includes the house's exchange exclusion. See also ibid at viii, 111 (1159/64), which is clearly not common form; iii, 1405 (1160/c. 1170); vi, 156 (1166/82). Macray, W. D., ed., Chronicon Abbatie Rameseiensis (Rolls Series, London, 1886), 273, 274–76Google Scholar, probably from the 1130s, suggests that Ramsey saw the obligation to warrant as normal by his time. Also Darlington, R., ed., The Cartulary of Worcester Cathedral Priory, Pipe Roll Society, new series xxxviii (London, 1962–1963) no. 439 (1143/5)Google Scholar. Tabuteau cites a comparable Préaux charter of 1101/6.

74. Early examples are EYC at i, 372 (1130/8); viii, 42,113 (1138/47, before 1152); iv, 12 (1136/45) (a probable example); and ii, 1223 (c. 1130/9) (a possible example). See Saltman, A., Theobald: Archbishop of Canterbury (London, 1956) 537–38Google Scholar, a narrative recounting a warranty demand of 1146 and prior to king Stephen's confirmation of the eventual exchange in Regesta, iii, at no. 150. From the 1160s one finds exchanges which can be related to their original failed grant. See EYC at vi, 140, 154 (1166/74, 1166/94) and iii, 1501, 1624 (1147/54, 1185/93). It is necessary to exclude references to exchange for such reasons as economic convenience (ibid. at ii, 1257), or compensation to a doweress for a grant of her dower land (ibid. at ii, 1250) or when evicting unwanted tenants (ibid., i, 250, 1049 of 1154/7 and 1155/63 ). The last case is not perhaps irrelevant to the matter in hand.

75. The earliest examples are from the abbacy of 1122/c. 1137, EYC at i, 310. See on this Barton, J. L., ‘The Rise of the Fee Simple’, Law Quarterly Review, xcii (1976) 112Google Scholar. See EYC at iii, 1303. ibid. at i, 264 suggests that the exclusion applied to all the abbey's franci tenentes’ in the area. Other examples in EYC are to be found at i, 369; ii, 1168 (Bridlington 1188/95, 1175/85) and iii, 1685 (Watton, ? late twelfth century).

76. What follows constitutes my interpretation of the arguments and material collected in a draft chapter (Cap. IV: ‘Modes of assurance: warranty’) of Emily Tabuteau's forthcoming book on Normandy. I have not seen her argument in its final form.

77. Fauroux at no. 159 (1061/3) is an excellent case to point.

78. See notes 114–21 infra.

79. Tabuteau quotes this charter in her book draft but did not give a full reference.

80. See note 75 supra, for St. Mary's systematic exclusion of exchanges from the 1127/36 abbacy. See text accompanying note 73 supra for the first smattering of express warranty clauses and see Appendix I infra for writs on the 1130 Pipe Roll that apparently offer royal assistance in the enforcement of a claim to exchange on default of warranty.

81. Domesday Book at i. 204d.

82. Domesday Book at i, 62b is typical.

83. See, e.g., ibid. at i, 148d.

84. ibid. at i, 135b is a good illustration; see Harmer, F. E., Anglo-Saxon Writs (Manchester, 1952), 310–11, 356–57Google Scholar (no. 91) for the way Westminster Abbey may have touched up their evidence (a writ confirming a pre-Conquest private grant) to persuade the king to back them up. See also Domesday Book at i, 141c.

85. See ibid. at i, 137d a protector is vouched against the king himself; the plea succeeded, Page, W., ed., Victoria History of the County of Hertford (London, 1912) iii, 63Google Scholar. See also Domesday Book, at i, 141d–142a.

86. Lords sometimes relied on proof that tenants were their men to establish lordship over the land, eg. Domesday Book at i, 220c, 225d.

87. Domesday Book at iv, 480 = f. 516b (Liber Exon.): tenant ‘invocat eum (the lord) ad guarant. Sed (the lord) inde omnino deficit ab illo die quo Rex W. nunc (the tenant) de ipsa terra resaisire fecit’. See also ibid. at i, 49d, 56b, 60a, 150a.

88. ibid. at i, la: townsmen ‘revocant (Odo of Bayeux) ad protectorem et liberatorem vel datorem’, last two words interlined; ibid. at i, 227c: claims the king as advocate; ibid. at i, 249b: ‘se defensorem facit against the king; ibid. at i, 276c: avows the king as protector but Henry de Ferrars as liberator.

89. See ibid. at iv, 480. See also ibid. at i, 103a (Chaureth, Essex); 238c, 244c (Flecknoe, Warwicks).

90. Blake, E. O., ed., Liber Eliensis, vol. ii, Camden Soc. 3rd series, xcii, (London, 1962) 21Google Scholar, gives a writ of 1082/6 promising ‘escambitionem’ to any Ely tenants put in by royal gift.

91. Fauroux at no. 113 (1043/8) is a nice illustration both of an early guarantee/confirmation by a great lord and of the further recourse to the ducal court as to a higher—but still private—power. See Bates, David, ‘The Earliest Norman Writs’, English Historical Review, c (1985) 266–84CrossRefGoogle Scholar.

92. See Milsom, Legal Framework at 174.

93. ibid. at 8 was unduly pessimistic on the prospects of knowing the seignorial world. Charters record something of both normality and disputes involving a breakdown.

94. Stephen D. White's ‘Legal Argument and Claims to Inheritances in Western French Courts’, supra note 7, demonstrates how complex the patterns of dispute resolution were in Western France. While his argument should make English historians more cautious, English courts were precociously dominant because of the absence of private war and for other reasons.

95. Milsom, Legal Framework at 40: ‘Seisin itself connotes … that seignorial acceptance which is all the title there can be.’

96. See note 74 supra for exchanges made after warranties had failed. Earl Richard de Clare's mandate of 1173, printed by F. M. Stenton, The First Century of English Feudalism, supra note 67 at 270, refers to a comparable inquiry (into rei veritas) made ‘ab antiquioribus hominibus meis’ but also fails to provide details.

97. The Prior of Spalding paid 5 m. in 1212 for his writ in Spalding v. Bicker set out in Appendix II.

98. See Milsom, Legal Framework at 47–50 for these cases.

99. ibid. at 49, 52–54, 93.

100. See, e.g., Foster, J. W., ed., Registrum Antiquissimum of the Cathedral Church of Lincoln i, Lincolnshire Records Society (Lincoln, 1931) 27Google Scholar, nos. 130–31 (1123/47).

101. Stenton, D. M., ed., Pleas Before the King or His Justices, 1198–1212, 4 vols. (Selden Society, London) lxvii–viii (1948–1949Google Scholar) [hereinafter cited as PKJ, lxxxiii–iv (1966–1967); PKJ, iii, 2007. CRR, at iv, 101–102, 198 (1206) is one example, whose background is clarified by Pipe Roll 6 John, 113; also Hardy, T. D., ed., Rotuli de Oblatis et Finibus (Record Commission, London, 1853Google Scholar) [herinafter cited as Rot. de Ob. et Fin.], 219 (1204). Spalding v. Bicker in Appendix II is another. Also Hardy, T. D., ed., Rotuli de Oblatis et Finibus (Record Commission, London, 1853)Google Scholar.

102. See Sudbury v. Clare in Appendix I. Pipe Roll 31 Henry I, 110, 114 may record the hopes of Countess Lucy of Chester to hold a similar inquiry.

103. See text at note 60 supra for the use of suits about warranty or homage as an alternative to upward claims by writ of right patent.

104. The text strictly holds only for disputes between the original parties to a grant. Most disputes came when one or both were dead.

105. See Samuel E. Thorne, ‘Livery of Seisin’, supra note 30 at 352.

106. Milsom, Legal Framework at 125, n.2, and 128, n.2 cites some relevant cases.

107. For attitudes towards charters in the royal courts at the time of the earliest plea rolls, see ibid. at 63, 89 and the cases there cited.

108. Mackenzie, W. J. M., Politics and Social Science (Harmondsworth, 1967) 126–27Google Scholar intriguingly hints at an early games theory approach to the politics of an almost contemporary society through saga literature.

109. See on this Cheyette, F. L., ‘Suum Cuique Tribuere’, French Historical Studies, vi (1970) 287–99CrossRefGoogle Scholar and, for some general thoughts on trial procedure, my own ‘Henry II and Ganelon’, The Syracuse Scholar (1983) 23–35.

110. See Le Goff, J., Pour un autre moyen age (Paris, 1977) 349–420Google Scholar on the associated ritual of investiture.

111. Against the model that justifies this very summary account of battle in my ‘Trial by Ordeal: the Key to Proof in the Early Common Law’, in Arnold, M. S. et al. , eds., Of the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, (Chapel Hill, 1981) 90–126Google Scholar, see now Bartlett, R., Trial by Fire and Water (Oxford, 1986)Google Scholar.

112. Stephen D. White, ‘Legal Argument and Claims to Inheritances’, supra note 7, suggests lapse of time before making a claim (prescription or negligence) and estoppel by quit claim as possibly decisive arguments.

113. Hall, , ed., Glanvill at iii, 7Google Scholar, (42). Pipe Roll 24 Henry II, 72 may well echo this procedure. The sheriff accounts for 8/- which Arnald f. Cliebern had offered to Robert f. Azo ‘pro servitio cujusdam terre quos (denarios) idem Azo noluit accipere’. I conjecture that Arnald offered his service on Robert's accession to his father's lordship and on refusal deposited it with the sheriff against a future royal lawsuit.

114. I exclude from consideration cases where two claimants seek to hold of two different lords, which could lead to a straight fight between the maintaining lords over the lordship. See Hall, , ed., Glanvill at iii, 6–8Google Scholar (41–43) and Appendix I.

115. Godric of Skeeby's Case in Appendix II is one example that happens to be relatively clear and almost certainly from the period before 1166 and novel disseisin.

116. See Milsom, Legal Framework at 61, 75. Robert C. Palmer, supra note 65 at 1136, 1141–142, 1145 seemed to go beyond Milsom, Legal Framework at 42. Professor Palmer has since explained his views to me by letter. He distinguishes between elder sons returning, say, from crusade and those (‘strangers’) claiming through a title distinct from the sitting tenant's. His conclusion, that ‘before 1176 … decisions were discretionary … not by rules of law that would compel a lord at times to make an inappropriate choice’ but for a stranger by ‘a complex calculus of factors … astronomically higher’ than for a returning elder brother, seems quite close to my argument. I am grateful to him for access to a draft of his article ‘The Origins of Property in England’, supra note 16 at 1–50, the first section of which is particularly relevant here.

117. Clear cases of this are very hard to find, especially for the period before private charters become common. One suspects that many charters were drawn up after suits where a lord's accepted tenant was genuinely at risk or had even lost his land. Draftsmen had no interest in recording that someone had once claimed to have ‘maius ius’ other than his grantee, though express warranty clauses do sometimes specify the likely claimant; see note 166 infra. Godric of Skeeby's Case in Appendix II despite its unusual documentation, is still not entirely clear. One can only point to likely examples. EYC at ix, 124 (?1147/57) seems to result from a suit in Roger de Mowbray's court by Rielvaux Abbey. ibid. at v, 245 (1155/68) resulted from a younger brother's suit by writ in the court of a lord who had recently released Easby Abbey from the obligation to pay relief on this land ‘nisi alius eam acquirat qui majus ius in ea habeat’ (ibid. at v, 243 unhelpfully dated by the editor 1155/95). ibid. at iv, 3 (1156/8) is a confirmation by Earl Conan of Richmond which assumes that the grantee, Kirkstall Abbey, will hear actions by writ (including ‘breve de recto’) against tenants in the vill. Quitclaim charters have a particularly powerful claim to consideration. ibid. at xi, 231 (c. 1160/75) records one made in the court of William de Percy. I guess that Sallay had on the basis of ibid. at 14 (c. 1147/54) sued Robert Coc, who as the man in possession and perhaps a Percy servant had unsuccessfully sought his lord's warranty. Other readings are possible. Also Reading Abbey Cartularies, supra note 45 at i, no. 349 (1158/65).

118. J. Hunter, ed., Pipe Roll 31 Henry I, (Record Commission, London, 1833; reprinted, Pipe Roll Society, London, 1921) 112: 105 m. ‘pro placito duelli inter eum et hominem suum.’ See Pipe Roll 13 Henry II, 102, 122 and perhaps Pipe Roll 26 Henry II, 29. See also Milsom, Legal Framework at 84–85.

119. See notes 169–87, infra.

120. Patterson, R. B., ed., Earldom of Gloucester Charters, (Oxford, 1973) 165Google Scholar, document no. 186 records an interesting Norman case dated c. 1155/62.

121. My pupil John Hudson suggests that some of the charter quit claims of tenants to their lords represent extracurial action by the lord to rearrange ‘his’ lands without the need to make a full exchange.

122. I discuss the chronology of these changes below.

123. See note 215, Appendix I, infra.

124. Downer, LHP, supra note 47 at 10. 1; Hall, , ed., Glanvill at xii, 1, 6–9Google Scholar, (136, 139–41) on which see Hurnard, N. D., ‘Magna Carta, clause 34’ in Hunt, R.W. et al. , eds., Studies in Medieval History … to F.M. Powicke, (Oxford, 1948) 161–62, 168, and 178–79Google Scholar. On tolt see note 162 infra. Campbell, J., ‘The Significance of the Anglo-Norman State in the Administrative History of Western Europe’, Francia, ix (1980) 117–34Google Scholar makes a powerful case for raising previous estimates of royal writ production from Henry I's reign, and indeed back into the eleventh century.

125. The viscontiel writs in Van Caenegem, R. C., Royal Writs from the Conquest to Glanvill, Selden Soc., lxxx (London, 1961Google Scholar) document nos. 1–2, 5–7, 9–10, 14, 18 and Section IX (nos. 130–58), at 413, 415–16, 417, 419, 421, 482–96 passim, have been curiously neglected. Such writs appear to fall out of favor early in Henry II's reign, no doubt because of newer forms. See Hall, , ed., Glanvill at vii, 7Google Scholar (81); ix, 9, 14 (113, 116); xii, 12–14, 16–17, 20 (142–46). On the Domesday Inquest, see my ‘No Register of Title’, Anglo-Norman Studies, ix (forthcoming).

126. N. D. Hurnard, ‘Magna Carta, clause 34’, supra note 124 at 160 is one of the few to pay attention to the overlord. CRR, at xiii, 219 (1227) would be a case to point, if one could believe the defence story; but cf. the different story in ibid. at iv, 48, 104, 205 (1205–6) and the related litigation in Stenton, D. M., ed., Rolls of the Justices in Eyre… in Yorkshire in 3 Henry III 1218–19, Selden Society, lvi, (London, 1937) 187, 1148Google Scholar; CRR, at viii, 49, 193, 308; ibid. at ix, 29; Maitland, F. W., ed., Bracton's NoteBook 3 vols. (London, 1887) 151Google Scholar; Parker, John, ed., Feet of Fines of the County of Yorkshire from 1218 to 1231 Yorkshire Archaeological Society, lxii (York, 1921) 36 (1219–20)Google Scholar. Another late illustration of tenants bypassing their immediate lord is cited in note 31 supra. Advice from one's own lord to receive homage from a particular claimant, perhaps in the overlord's court as in EYC at v, 309 (c. 1180/9), was not easily resisted. See also in this connection Chronicon Abbatie Rameseiensis, supra note 73 at 274–77 and 318–19.

127. S. J. Bailey, ‘Warranties of Land in the Reign of Richard I’, supra note 4 at ix, 197–98.

128. Thorne, ‘English Feudalism’ at 201–209.

129. ibid. at note to page 193. Since Thorne's lectures remain unpublished, we are left with charter references from ‘easily accessible books’ only.

130. See Holt, J. C., ‘Politics and Property in Early Medieval England’, Past and Present, lvii (1972) 3–52CrossRefGoogle Scholar.

131. Palmer, ‘Origins of Property in England’, supra note 16 at 4–24 takes a position not dissimilar in principle to that argued here, though our different usage of words like ‘rules’ may obscure this. My choice of a more gradualist line here was consciously reaffirmed in the face of the impressive warnings of Gould, Stephen Jay, The Panda's Thumb (New York, 1980) 179–203Google Scholar.

132. The rest of this paragraph depends heavily on Stephen D. White's forthcoming book Custom, Kinship and Gifts to Saints, supra note 8, which clarifies the laudatio parentum and much else. The argument in the text is thus rather provisional.

133. See Milsom, Legal Framework at 103–53 which cites many of the cases.

134. See Ourliac, P. and de Malafosse, J., Histoire du droit privé, 3 vols (Paris, 2nd ed., 1971) ii, 424–25Google Scholar.

135. Hall, , ed., Glanvill at vii, 2Google Scholar (74). The fact that heirs still tried to challenge their ancestors' grants illustrates the popular feeling that the heir's interest predated the ancestor's death. I hope to discuss elsewhere the implications of ‘rationabiliter’ with which Henry II qualified all free alms grants and confirmations from 1155 onwards. EYC at i, 76 is an early example: see also J. Yver, ‘Autour de l'absence en Normandie’, supra note 51 at 793. In 1202, Geoffrey f. Peter required a special privilege, Hardy, T. D., ed., Rotuli Chartarum in Turri Londinensi asservati vol I. 1 (Record Commission, London, 1837) 79Google Scholar, to get the rule waived in his favour. The innovation seems to have been a learned import to English law via the canonical prohibitions on the alienation of ecclesiastical lands.

136. Milsom, Legal Framework at 86–87.

137. Ibid. at 85, and 85, n.4. A case of 1194, SirPalgrave, F., ed., Rotuli Curia Regis, 2 vols. (Record Commission, London, 1835) i, 64–65Google Scholar [hereinafter cited as RCR] cited S. J. Bailey, ‘Warranties of Land in the Reign of Richard I’, supra note 4 at ix, 199, comes close to rejecting the Glanvillian doctrine and enforcing a deathbed grant even though seisin did not pass.

138. See my ‘The Common Law and the French Connection’, supra note 3 at 81–84.

139. Samuel E. Thorne, ‘Livery of Seisin’, supra note 30 at 356–63 is Milsomian avant la lettre! He demonstrates at pages 353–56, that mere symbolic delivery had prevailed earlier in the century.

140. I discuss Hall, , ed., Glanvill at x, 8, 18Google Scholar in my paper ‘The Emergence of the Flat-arsed Conveyancer in Medieval England’, supra note 57.

141. The fact that beneficiaries drafted most charters should restrain simple attempts to deduce the grantor's intention from the wording. It is hard to distinguish among what (ecclesiastical) draftsmen persuaded lay donors to ‘want’, what the customary formulas wanted them to want, and what they did want. The formulae remain an invaluable guide to donors' practice, but not to their original aspirations.

142. Some, like EYC at i, 619 (1161) were leases. In ibid. at i, 511 (1171/2) the warranty may have been limited to non-heritable land. The grantor of ibid. at v, 398 (1146/58) was an archdeacon who may have been unwilling to bind his heirs, though a canon of Drax, who omitted any reference to his own obligations (no doubt because as a monk he was civilly dead) took care to commit his heirs expressly. Not all can be explained away. I have at present no explanation for ibid. at i, 11 (1171/2) (to a single grantee) or ibid. at x, 43 (c. 1194). See also Godric of Skeeby's Case in Appendix II. One should naturally exclude from consideration here charters recording actual performance of warranty. Examples may include ibid. at viii, 80 (1164/86) and Greenway at 129, no. 179 (1173/84), probably to be connected with 128–29, no. 178 (1161/9) and cf. ibid. at 182 to no. 271.

143. EYC at viii, 42 (1138/47); xi, 21 (1156/75); iv, 38 (1156/?1162); v, 228–29 (1165/74, ?1174); iii, 1868 (1185/1200). Royal acts may be different; see for example, Delisle, and Berger, , Receuil des actes d'Henri II, 4 vols. (Paris, 1909–1927Google Scholar) i, no. 60 (1155/8).

144. A few charters appear to mix a personal promise with a later clause binding heirs. See EYC at xi, 193 (c. 1145/70); Greenway at 178–79, no. 264 (1154/86) which may be forged. See also EYC at i, 623 (c. 1180/90).

145. Milsom, Legal Framework at 42 remarks dismissively that this ‘may mean no more than that the authority is to be renewed on each change of parties’.

146. See EYC at i, 277 (1175/95) whose carefully drafted warranty clause specifies that ‘quicumque in hereditatem meam succederint’ were to warrant these alms.

147. White, Stephen D., ‘Succession to Fiefs in Early Medieval England’, Past and Present lxv (1974) 118–27CrossRefGoogle Scholar and Holt, J. C., ‘Politics and Property in Early Medieval England: A Rejoinder’, Past and Present lxv (1974) 127–35CrossRefGoogle Scholar, esp. 119–20, 130–32, take differing views of a small number of grants ‘to X and his (singular) heir’.

148. Hall, , ed., Glanvill at ix, 4Google Scholar (107).

149. J. C. Holt, ‘Politics and Property in Early Medieval England’, supra note 130 at 12 reminded students of the continuing importance within English custom even at Glanvill's time of the ‘French’ distinction between ‘acquêts’ and ‘heritage’. Further references see my ‘The Common Law and the French Connection’, supra note 3 at 87–88.

150. The missing element might be a reference to relief. The lord's acceptance of a tenant's heir was still far from automatic in Glanvill's day. There was no obligation to receive an heir's homage until arrangement had been made for the payment of relief. I believe that the use in the text here of dominus rather than donator etc. reflects the seignorial context.

151. England is unlikely to have lagged far behind Normandy, for which see Yver, J., Une boutade de Guillaume le conquérant: note sur la genèse de la tenure en aumêne, Etudes dédiés à Gabriel Le Bras, 2 vols. (Sirey, 1965) ii, 783–96Google Scholar, a study that needs replicating from English evidence.

152. F. M. Stenton, supra note 67 at 38–40, 260–61.

153. Lay grants for little or no consideration, such as the important grant in frank marriage, were as open to this objection as grants to religion.

154. See Thorne, ‘English Feudalism’ at 205–206 and notes 96–102, supra.

155. J. C. Holt's views evolved from his Past and Present article in 1972, supra note 130, to his ‘Feudal Society and the Family in Early Medieval England: Notions of Patrimony’, Transactions Royal Historical Society 5th ser., xxxiii (London, 1983) 193–220Google Scholar. Compare them to Thorne, ‘English Feudalism’, at 193–209, Stephen D. White, supra note 147 at 118–27 or Milsom, Legal Framework, passim. See also De Aragon, R., ‘The Growth of Secure Inheritance in Anglo-Norman England’, Journal of Medieval History, viii (1982) 381–91CrossRefGoogle Scholar.

156. See note 215 in Appendix I, infra.

157. What follows is of necessity impressionistic. There is no way to read or count lost documents, still less grants that never reached writing.

158. See notes 73–89 supra.

159. For St. Mary's, , York, see note 75 supra. EYC at i, 36Google Scholar (1154/63) is from the arch-episcopal neighbour at St. Peter's.

160. ibid. at viii, 111 (1159/64); iii, 1405 (1160/C.1170); vi, 156 (1166/82); iii, 1569 (1170/7); iii, 1638 (1170/80). Express clauses also appear in leases at about this time, ibid. at ii, 754 (1160); i, 619 (1161). Both of these limit the obligation to the original lessor and lessee, where later forms are closer to the full heritable warranty of grants in fee. See ibid. at ii, 763, 789 (1188, 1205). See also Major, K., ed., Registrum Antiquissimum, supra note 100 at vi, 1935–1936Google Scholar (c. 1160, c. 1160/70).

161. Stenton, F. M., Transcripts of Charters… to Gilbertine Houses, Lincolnshire Record Society, xviii (Lincoln, 1922) xxviii–xxxiiGoogle Scholar, the most quoted authority, points to the end of the century, but notes that it was already unusual in his sample to find a grant to religion without such a clause after the early years of Henry II. See also Holdsworth, C., Rufford Charters i, Thoroton Society, xxix, (Lincoln, 1972) lxii–lxiiiGoogle Scholar.

162. This is the most obvious reason why the argument that follows does not apply to lay grants in frank marriage, also often made for no service. Frank marriage charters are rarer than the importance of keeping a precise record of so anomalous a transaction would lead one to expect and contain express warranty clauses no more often than ordinary grants in fee. EYC at v, 262 (c.1175); iii, 1654 (c.1190/1205) xi, 213 (late 12th cent.) are early examples. See ibid. at xi, 215 (1148/56) for an heir's confirmation of such a grant that might have been expected to make the warranty express but did not do so. See further S. J. Bailey, ‘Warranties of Land in the Reign of Richard I’, supra note 4 at ix, 197.

163. See note 113 regarding Glanvill on this, and note voucher on the basis of homage and services performed continued to be legitimate without charter into the thirteenth century, Woodbine, G. E., ed., and Thorne, S. E., trans., Henry de Bracton, De Legibus et Consuetudinibus Angliae, 4 vols. (Cambridge, Mass. and London, 1968–1977) f. 382 at iv, 195–96Google Scholar.

164. Similar caution is evident in the recital of consent by a grantor's vassals, according to Thorne, ‘English Feudalism’, at 204–205.

165. But the writing capability of lay magnates was more recent. See, for example, R. B. Patterson, ed., supra note 120 at 9–23. Legal history stands to gain greatly from a proper diplomatic study of twelfth-century drafting practice.

166. Emily Tabuteau, supra note 8 at 812–14 suggests that Normandy saw the same development.

167. See Godric of Skeeby's Case in Appendix II. Another very interesting example is Gibbs, M., ed., Early Charters of St. Paul's Cathedral, Camden Soc. 3rd Ser., lviii (London, 1939) 243Google Scholar (1180/6), which should be read with ibid. at 166, 171.

168. Grantors given their head might have sought to satisfy a worried grantee with a promise of warranty limited to the anticipated troublemaker. I have not yet seen any clauses of this kind. The clauses excluding the right to exchange, mentioned above, amount to something very similar by creating grants incomplete in the Glanvillian sense and not carrying full warranty. Those from St. Mary's York, at least, were definitely not beneficiary-drafted.

169. The level of royal intervention may also have been quite high for a time in Henry I's reign.

170. Milsom, Legal Framework at 178 first pointed out the importance of the 1153 settlement to legal history. Robert C. Palmer took Milsom's suggestions further in two clever papers, containing much else besides, ‘The Feudal Framework of English Law’, supra note 65 at 1135–136, 1142–145 and ‘The Origins of Property in England’, supra note 16 at 8–13. In what follows I lean heavily on the first chapter of White, G. J., ‘The Restoration of Order in England, 1153–1165’ (unpublished dissertation, Cambridge, 1974Google Scholar), a copy of which was kindly lent me by the author.

171. I examine the evidence and arguments for this hypothesis in Appendix III.

172. Milsom, Legal Framework at 178.

173. Cheney, Mary, ‘A Decree of King Henry II on Defect of Justice’, in Greenway, D., Holdsworth, C. and Sayers, J., ed., Tradition and Change: Essays in Honour of Marjorie Chibnall … (Cambridge, 1985) 184Google Scholar and ‘The Litigation between John Marshall and Archbishop Thomas Becket in 1164: A Pointer to the Origin of Novel Disseisin’, in Guy, J. A. and Beale, H. G., ed., Law and Social Change in British History (London, 1984) 23–24Google Scholar assembles a good case for a high level of royal activity in the first years. The estimate of Bishop, T. A. M., Scriptores Regis (Oxford, 1961) 30–31Google Scholar that as many as forty percent of Henry's entire output of known acta came during the first seven years is probably on the low side for the English acta. Henry employed more scribes during these years than at any other time in the century. Of course, it was normal for kings to make a disproportionate number of grants at the start of a reign.

174. See E. King, ‘The Anarchy of Stephen's Reign’, supra note 32 at 145. Searle, E., ed., The Chronicle of Battle Abbey (Oxford, 1980) 152–56Google Scholar affords a vivid glimpse of the time.

175. The fact that representatives of English families pursuing some very old claims (see note 247 in Appendix III, infra) were among their number suggests that lost grants went to many besides tenants-in-chief.

176. Contemporaries may have considered a claim to lands covered by a confirmation as a plea of the crown. See the interesting suggestions of A. Harding, ‘The Medieval Brieves of Protection and the Development of the Common Law’, (1966) Juridical Review 115–49. Royal confirmations indisputably took the tenurial relations they covered out of the realm of the privata convencio; cf. Hall, , ed., Glanvill at x, 8, 18Google Scholar (124, 132).

177. Prof. D. W. Sutherland abandoned the contrary view expressed in The Assize of Novel Disseisin at 7 in the light of Millor, W. J., Butler, H. E. and Brooke, C. N. L., ed., The Letters of John of Salisbury, 2 vols. (London, 1955 and 1979) i, 189, no. 115Google Scholar.

178. All interested in the chronology of Angevin legal change must take careful account of Palmer, ‘Origins of Property in England’, supra note 16, esp. 8–24.

179. Mary Cheney, ‘A decree of Henry II’, supra note 173 at 183–93, especially (for the date) 192–93. For Tolt's previous limitation to ‘uncomplicated situations’, see Robert C. Palmer, supra note 65 at 1141-142. Appendix III has some further reference to legislation at about this time.

180. Robert C. Palmer, supra note 65 at 1145, n.22 citing Van Caenegem.

181. Robert C. Palmer, supra note 16 at 13–18 has recently offered some imaginative arguments for this proposition, not all of which are equally convincing. It is possible that other items, such as the invention of the returnable writ, might corroborate the emphasis on the Assize of 1176. See also Holt, J. C., ‘The Heiress and the Alien’, Transactions Royal Historical Society, 5th series xxxv (1985) 1–28CrossRefGoogle Scholar.

182. Documentation for this statement and much of the argument in the next paragraphs can be found in Appendix I.

183. See Robert C. Palmer, supra note 16 at 19–23 and, for Countess Amice's Case, Sudbury v. Clare in Appendix II. Haskins, C.H., in Norman Institutions (New York, 1918) 189CrossRefGoogle Scholar noted that the maxim was never so broadly recognised in Normandy.

184. Robert C. Palmer, supra note 16 at 22–23 perhaps makes this break a little too early and too sharp. The defence goes on into the early years of the new century; see the cases cited by Milsom, Legal Framework at 14–17, 52–54 and Donald W. Sutherland, supra note 63 at 19, 20, n. 1, 71, 214. However, the crucial facts were the accession in 1199 of a new king with no qualms about making the justices sensitive to his wishes and what appears to have been a politically inspired precedent (Sudbury v. Clare) in the required direction. Note that the cases where the justices sent an assize dispute back to the lord's court for settlement (e.g. Pipe Roll Society, supra note 23 at 134; RCR supra note 137 at i, 366) are all from Richard's reign.

185. See Van Caenegem, supra note 125 at 480, (no. 127) and Appendix I.

186. Hall, , ed., Glanvill at ix, 5Google Scholar (109). The possibility that this writ was originally framed to meet the situation at the death of a tenant who had acquired his land in Stephen's reign and retained it by agreement after 1153 is not unsupported by the evidence.

187. See Milsom, Legal Framework at 76–77, 174; S. J. Bailey, ‘Warranties of Land in the Thirteenth Century’, supra note 4 at 278 and ‘Warranties of Land in the Reign of Richard I’, ibid. at 193–94.

188. See Milsom, Legal Framework at 76–77, 101, 120, 130–31, 142, 174, 183.This is my own unauthorised synthesis.

189. I say more about this in my ‘The Emergence of the Flat-arsed Conveyancer in Medieval England’ supra note 57.

190. The wielding of personal influence can sometimes be documented from extra-legal sources, though I have noticed no illustrations directly referring to warranty. Hazeltine, H. D., ‘Judicial Discretion at the Time of Henry II’, Festschrift Gierke (Weimar, 1911) 1055–1068Google Scholar usefully summarises Glanvill's testimony, but better still would be a study of judges’ own litigation. For Henry of Whiston, J., see Rex v. Malkael in Appendix II.

191. Hall, ed., Glanvill at prol. (2–3) With Turner, R.V., The English Judiciary in the Age of Glanvill and Bracton, c. 1176–1239 (Cambridge, 1985CrossRefGoogle Scholar) should be coupled the perceptive survey of P. Classen, Die königlichen Richter des Common Law: Rechtswissenschaft und Rechtsstudium ohne Universität' in Classen, P., Studium und Gesellschaft im Mittelalter (Fried, J., ed., Stuttgart, 1983) 197–237Google Scholar.

192. Donahue, C., ‘What Causes Fundamental Legal Ideas? Marital Property in England and France in the Thirteenth Century’, 78 Michigan Law Review 59–88 (1979)CrossRefGoogle Scholar examines another aspect of this transformation by the light of the comparative method. I should like, in view of the remarks of Helmholz, R. H., ‘Advances and Altered Perspectives in English Legal History’, 95 Harvard Law Review 725–26, 733 (1982CrossRefGoogle Scholar) to repeat here my previously stated opinion that the Henrician ‘shift of control’ was not the work of an altruistic automaton but resulted from persistent conscious legislative experimentation by Henry and his advisors.

193. This is the context for the arguments about the need for ‘do’ and ‘concedo’, on which see S. J. Bailey, ‘Warranties of Land in the Thirteenth Century’, supra note 4 at 281–82 and ‘Warranties of Land in the Realm of Richard I’, ibid. at 195. A well-known case of 1194, Hurton v. Fitz Everard in Appendix II is a particularly good illustration.

194. Law and custom at the highest social levels are better assessed from political studies such as Jolliffe, J. E. A., Angevin Kingship (London, 1955Google Scholar) or Holt, J. C., The Northerners (Oxford, 1961Google Scholar) than any works of legal history.

195. For the lord as domestic enemy, see Johnson, C., ed., Dialogus de Scaccario, (Oxford, 1983) 101Google Scholar. In my King, Lords and Peasants, supra note 32 at 221–65, I argued that common-law villeinage originated in a decision to backtrack from a too wide provision of remedies for (free) tenants against their lords.

196. S. D. White, ‘Legal Argument and Claims to Inheritances’, supra note 7 indicates some of the approach's benefits.

197. There is a wealth of material in the introductions to recent volumes of the Pipe Roll Society Series, especially those edited by the late Lady Stenton. Hall, G. D. G., ‘The Early History of Entry Sur Disseisin’, 62 Tulane Law Review 584–602 (1968)Google Scholar, is a model for the integration of the different sources in straight doctrinal history. Robert C. Palmer, supra note 65 at 1130–164 also makes exemplary use of the evidence from financial records.

198. See particularly Appendix I. R. C. Van Caenegem, supra note 125 at e.g. 251–54, 231–33, 294–97, 329–30 and passim brings together a great deal of data from the pipe rolls of this period.

199. Most of my own efforts in this direction have so far been unproductive. See Appendix II: Select Cases.

200. As Palmer's witty title to his essay in Michigan Law Review implied, supra note 65, Milsom's book was more concerned with the feudal framework of English law than with its legal framework. This is intentionally my first mention of ‘feudalism’ or its derivatives in this paper. Too often feudal terminology seems to confuse rather than clarify. One can usually translate ‘feudal’ either as ‘French’ i.e., a borrowing of forms from abroad, or as ‘concerning lordship’. Since the assessment of French borrowings and the input of lordship were at the core of the concerns of this paper, talk of feudalism would at best have begged important questions.

201. Milsom, Legal Framework at 128–30, 172–3 and the cases cited at 41 n.2, 89 n.2. Milsom's suggestion that suing on warranty or homage was at the litigant's choice is considered below. See also S. F. C. Milsom, Novae Narrationes, supra note 20 at clviii-cix.

202. Both these supplementary sources contain only fragmentary survivals. One must always ask of twelfth century writs what interest men had in their preservation. As for the pipe rolls, the proportion of royal debts and, more specifically, judicial payments on them, remains obscure; I collected references to ‘warantia’, ‘homagium’ and similar terms. Many are irrelevant to the present purpose. The common payments of royal monies to individuals ‘pro escambio terre sue’ or the like in the terris datis section (e.g. Pipe Roll 4 Henry II, 151, 161) mostly reflect the king's acts as lord. Sometimes, though, the king is compensating a tenant whose land he has granted away to someone else, in a way no doubt common among private lords before royal enforcement of warranty became normal. The endowment of the Witham Charterhouse in 1182 (Pipe Roll 28 Henry II, 109; cf. ibid., 115) is a clear example.

203. Hall, , ed., Glanvill at iii, 3Google Scholar (39). I am equally grateful to Donald Sutherland for directing my attention to the intricacies of Glanvill's text here and to Jeffrey Hackney and Paul Brand for criticizing my first efforts to understand them.

204. Hall, , ed., Glanvill at iii, 1Google Scholar (37–38). In situation (1), the demandant should simply acquire a new writ and recommence proceedings against the genuine tenant. See also S. J. Bailey, ‘Warranties of Land in the Thirteenth Century’, supra note 4 at 83–84 for the lessee's aid-prayer.

205. Hall, , ed., Glanvill at iii, 6–8Google Scholar (41–43). This can only be resolved in the shire or a royal court; ibid. at xii, 8 (140).

206. Hall, , ed., Glanvill at iii, 1–5 (37–41).Google Scholar

207. See ibid. at lxvi-lxviii, 37 n. c. (37).

208. ibid. at vi, 9 (63) gives a parallel writ in very similar words for use in dower actions, to summon the heir of the deceased husband as warrantor.

209. ibid. at iii, 2 (39). Cf. Hazeltine, H. D., ‘Judicial Discretion in English Procedure of Henry the Second's Time’, Festschrift… Gierke (Weimar, 1911) 1057–1058, 1065Google Scholar. For the thirteenth century, cf. Hall, G. D. G. and De Haas, E., eds., Early Registers of Writs, Selden Society, 87 (London, 1963) lxxxvGoogle Scholar, n.13.

210. Hall, , ed., Glanvill at iii, 4Google Scholar (39–40) is thought by Paul Brand to imply that cape ad valentiam already existed. Chattel warrantors in theft cases were not unnaturally subject to immediate attachment. Ibid. at x, 16 (ed. Hall, 131). For the cape ad valentiam, see G. D, G. Hall and E. De Haas, eds., supra note 209 at J. 20–23, 27–29. Similar doubts on the constraint of warrantor (this time the deceased's heir in the widow's action of dower) surface in Hall, , ed., Glanvill at vi, 9 (63–64)Google Scholar.

211. S. J. Bailey, ‘Warranties of Land in the Reign of Richard II’, supra note 4 at 206 raises this unlikely possibility. Glanvill does not discuss all the procedures of his day. See my King, Lords and Peasants, supra note 32 at 166 for another likely omission.

212. See R. C. Van Caenegem, supra note 125 at 239–48.

213. S. J. Bailey, ‘Warranties of Land in the Thirteenth Century’, supra note 4 at 207–209, citing Wudecot v. Langford and Hurton v. Fitz Everard, which refers to the production of an original writ at a shire court in 1193. See also Donald W. Sutherland, supra note 63 at 219 and G. D. G. Hall and E. De Haas, eds., supra note 209 at xxxviii, n.1.

214. A proof in the shire court at York ‘per breve de warantia carte’ mentioned in EYC at xi, 232 could conceivably take the story back to 1182.

215. Pipe Roll 31 Henry I, 20: father and son proffer 10 m. to have their holding from Wilton Abbey ‘aut escambium ad valens in comitatu'; ibid. at 32: 20 m. ‘ut habeat escambium terre sue de E. ad valens'; ibid. at 71: 20 m. ‘pro concessione escambii inter eum et R. de S.’; ibid. at 74: 2 m. ‘pro placito hominis sui pro quodam escambio’. Some at least of these proffers were surely made to secure royal assistance against a warranty voucher. Cf. also ibid. at 145: two men made proffers of a mark of gold and 100 shilling respectively ‘ne escambium duraret quod fecit cum’, Stevenson, G. B. J., ed., Chronicon Monasterii de Abingdon, 2 vols., Rolls Series (London, 1858) ii, 85Google Scholar has two writs concerning a grant in free alms; the first addressed the disseisor but the second, addressed to the lord who had authorised the original grant, was effectively calling upon him to warrant one tenant against another.

216. The fact that the writ cited in R. C. Van Caenegem, supra note 125 at 480, no. 127 (1156/7) was issued by Queen Eleanor need not distinguish it from ordinary royal writs. The better text in B. Kemp, ed., Reading Abbey Cartularies, supra note 45 at 358, no. 467 agrees with the formulae of later writs. The editor kindly confirmed before publication that he knew of no charter in the abbey archives to which the writ might refer.

217. See J. W. Foster, ed., Registrum Antiquissimum, supra note 100 at 118, no. 189 (1156/66) refers to a charter. EYC at iii, 1458 (1164/75) refers to a charter in free alms; the royal confirmations ibid., iii, 1428 (1121/7) and SirDugdale, William, Monasticon Anglicanum: A History of the Abbeys and Other Monasteries… in England and Wales … 6 vols in 8 (London, 1817–1830) vi, 93Google Scholar (1154/8, ?1155) may also be relevant. R. C. Van Caenegem, supra note 125 at 480–81, where no. 128 (1170/83) refers to a charter and warns the vouchee not to harass his tenant. Pipe Roll 26 Henry II, 121 (1180), for which 40/- was due, concerned the dowry of the vouchor's mother. The absence of a charter reference in Pipe Roll 31 Henry II, 75 (1185), for which 5 m. was due, can be explained by the circumstances; see Somerville v. Lacy in Appendix II. Some of the many pipe roll payments ‘pro (or de) escambio’ may also be relevant, but many, such as those in the Terris datis sections, are not.

218. Pipe Roll 25 Henry II, 78 records a proffer of 10 m., which was paid off by 1182, Pipe Roll 28 Henry II, 118.

219. EYC at v, 198 (1162/81), for which see Godric of Skeeby's Case in Appendix II. Harper-Bill, C. and Mortimer, R., eds., Stoke-by-Clare Cartulary, 3 vols., Suffolk Charters v, Suffolk Record Society (Woodbridge, 1983) ii, 319Google Scholar (1173/93) envisages ecclesiastical suits as well as ‘coram rege’. See W. D. Macray, Chronicon Abbatie Rameseiensis, supra note 73 at 273 (1134/60) for an even earlier charter.

220. The existence of a temporarily separate action Quod Faciat Rationabile Escambium in the late 1190s might cast some slight doubt on the action's autonomy. See S. J. Bailey, ‘Warranties of Land in the Reign of Richard I’, supra note 4 at ix, 205, n. 199, 206, n. 108 and PKJ supra note 101 at i, 378, no. 3503 (1199) on which, however, see G. D. G. Hall and E. De Haas, eds., supra note 209 at lxviii.

221. Hall, , ed., Glanvill at ix, 1Google Scholar (103). See ibid. at ix, 2 (106) for the kind of technical hindrances to this speedy homage. The form changed little. See PKJ, supra note 101 at i, 398, no. 3528 (1199), a justiciar's writ relating to RCR, supra note 137 at ii, 11; PKJ supra note 101 at i, 219, no. 2427.

222. As in the so-called ‘Quo Warranto’ inquiries already considered.

223. Hall, , ed., Glanvill at ix, 45Google Scholar (108–109).

224. The point of the lord's denial that he had previously refused the heir's homage, Hall, , ed., Glanvill at ix, 6Google Scholar (109) was perhaps to escape amercement.

225. A third-party claim naturally ruled out a swift decision pendente lite. See Ickworth v. Colchester in Appendix II.

226. Hall, , ed., Glanvill at ix, 6Google Scholar (109–11) drifts off to discuss other situations. One can imagine defences based on allegations that the deceased had forfeited his holding before his death or on a preferred claim from some third party allegedly with better right than the deceased.

227. Ibid. at ix, 6(110).

228. See ibid. at vii, 9, 17 (82, 90).

229. The first relevant pipe-roll entry seems to be Pipe Roll 25 Henry II, 49 (1178–179): 60 m., hawk and horse ‘ut electus L. accipiat homagium suum de tenemento patris sui’. This concerned a hereditary sergeanty, and thus differs from the situation covered by Hall, , ed., Glanvill at ix, 5Google Scholar (109). It never came to court; the debt continued to be enrolled as due until Pipe Roll 10 John, 79 (1210), perhaps because of the promisor's poverty. See Clay, , ‘The Family of Amundeville’, Lincolnshire Architectural & Archaeological Society new series (London, 1945–1947), iii. 2 at 119–21Google Scholar. The only other examples noted before Glanvill are Pipe Roll 26 Henry II, 53 ( 60 m. ‘quia non cepit homagum J. de L.’), 104 (10 m. ‘ut Comes Cestrie recipiat homagium suum et reddat ei terram S.’, paid 1183, 29 Henry II, 36). See also Pipe Roll 25 Henry II, 122 (1177): 10 m. ‘ut rex accipiat homagium suum’, followed by 20 m. for seisin, presumably of the same holding. Entries relating to homages claimed of or due from royal tenants are not uncommon. It is hard to believe that PRS at xiv, 135–36 (1195), concerning a single virgate, was worth an expensive writ. Yet the case went to a grand assize, as did a parallel action of right, ibid. at 120, between the same parties concerning half a virgate in a different village. Of course, one expected to pay for a curia regis hearing. See Hall, , ed., Glanvill at i, 2–3Google Scholar (3–4). PKJ, supra note 101 at i, 219, no. 2427; i, 398, no. 3528; RCR supra note 137 at ii, 11 (1199) unhelpfully records an extant justiciar's writ.

230. The earliest payments that seem to relate to this writ are Pipe Roll 25 Henry II, 49 (1179), 60 m. from the son of a sergeanty tenant of the bishop-elect of Lincoln, and Pipe Roll 26 Henry II, 104 (1180), 10 m. that the earl of Chester receive homage for Serlo the huntsman's land. The 60 m. fine ‘quia non cepit homagium’, ibid. at 53 (1180), might come from another case.

231. It is certainly not beyond a lawyer's wit to think up other situations in which the writ of Hall, , ed., Glanvill at ix, 5Google Scholar (109) would be appropriate. See ibid. at ix, 1–2 (103–106) for situations where a tenant was alleged in his lord's court to incur forfeiture for committing an atrox injuria against his lord or otherwise acting to his disherison. Use in such situations would offer another example of a Precipe writ serving to bring into the royal courts domestic disputes from within a lordship. However, no such cases are known to me. One cannot often deduce the situation behind cases on the early plea rolls. CRR, supra note 18 at i, 139 (1200) is, however, one case that clearly does fit the Glanvill pattern; the plaintiff had recently recovered by mort dancestor. Another is Ickworth v. Colchester Abbey in Appendix II.

232. As Milsom, Legal Framework at 129–30. The plaintiff in Ickworth v. Colchester Abbey did possess a charter, while some Precipe warranty plaintiffs (for whom see below) did not.

233. One should note the general similarity to the Prohibition to Court Christian.

234. Hall, , ed., Glanvill at iii, 3Google Scholar; vi, 9 (39, 63).

235. See note 216 supra and Somerville v. Lacy (1185) in Appendix II, infra. The writ of summons needed less justifying; but see Pipe Roll 31 Henry II, 75 (1185), reciting a previous warranty or acquittal in Tickhill honorial court.

236. Not until 1169 does a pipe roll contain more than the odd reference to warranty or warrants. See Pipe Roll 15 Henry II, 17, 23, 26 (bis), 89, 110, which illustrate a range of possible meanings.

237. S. F. C. Milsom, supra note 20 at clviii-clxiii should be read along with G. D. G. Hall and E. De Haas, supra note 209 at xxviii, lxxvi, n. 13, Hib. 54, CC. 133, J. 35–40 and R. 457.

238. Milsom, Legal Framework at 178–79.

239. Robert C. Palmer, supra note 16 at 9–12. The writ of right's ‘operational peculiarity’ to which he refers is a function of its origins; the form of writ close (with its character of a one-off purchase, in contrast to the patent form of a lasting privilege) was not in the 1150s standard for litigation writs.

240. One settlement, the Berkeley double marriage pact was made in Duke Henry's presence and almost certainly according to his wishes at very much the same time as the political settlement. See for its terms, decidedly asymmetrical and hard to square with the alleged rule, Jeayes, I. H., Descriptive Catalogue of the Charters… at Berkeley Castle (Bristol, 1892) 4–6Google Scholar at no. 4 and see also SirBarkly, Henry, ‘The Earlier House of Berkeley’, Transactions Bristol and Gloucestershire Archeological Society viii (1883–1884), 205–206Google Scholar; Regesta at Hi, 272, 309–11. CRR at viii, 18–20 (Suffolk, 1219), though cited in support, is extremely hard to square with the settlement, indeed impossible if one accepts the story of the successful tenant. It shows well, on the other hand, the persistence of Civil War hatreds; this was at least the third occasion when representatives of Stephen's grantee tried to recover the possession the family had lost early in Henry II's reign. Other possible cases against the hypothesis under consideration are (i) Regesta at iii, 48–49, nos. 129–31, and see also Calendar of the Charter Roll… 6 vols. (London, 1903–1927), ivGoogle Scholar (1912), 442 (?1154); and (ii) Reading Abbey Cartularies, supra note 45 at 283–84, no. 349 (1158/65).

241. Robert C. Palmer, supra note 16 at 9.

242. Pipe Rolls 16 Henry II, 51; 22 Henry II, 184. References to werra from later in the reign probably refer to 1173–74, as Pipe Roll 25 Henry II, 119. See R. C. Van Caenegem, supra note 125 at 422, no. 21(1162/6): The Bishop of Norwich is to reverse a land occupation made ‘tempore guerre… et non remaneat pro assise mea’. See ibid. at 423, nos. 22–23. The inference that Henry considered Stephen a usurper is not required; in Normandy, he tended to ignore his own father's acts as if Geoffrey's time as duke were equally a mere interregnum, C.H. Haskins, supra note 103 at 135.

243. Milsom, Legal Framework at 178–79, inferred that this formula, making 1135 ‘the last moment of peace and legitimate title … set hard under Henry II’, during those early years when the writ of right's ‘regular machinery’ was born, ‘to implement the single decision that those put out during the… anarchy should be put back again’. Lanvalay v. Beauchamp in Appendix II supra is one relevant case.

244. It is not clear that anyone had the automatic right to plead such long seisin. Even in John's reign, litigants can be found making substantial proffers to make tenure before 1135 of the issue. (I have examined the twenty-one cases from the overlap between Richard I and John in CRR at i and vii.) The demandant in ibid. at i, 38, 61 (1198) paid 15 m. for his writ, Pipe Roll 8 Richard I, 40. See Rot. de Ob. et Fin., supra note 101 at 13, 414–15 for clearer cases; in the first 10 m. made the issue seisin in Henry I's time; in the second a tenant paid 40 ozs. of gold for the king to stay a writ of right concerning land which his ancestors had held in peace since Henry I's reign. For Englishmen, see further below.

245. See Regesta iii at xliii-xliv, xlvii-xlviii for list of acta. The formulation of grants and confirmations by either king or duke, separately or in each other's company, is outright and unconditional. Stephen twice in 1154 made general confirmations to religious of their property as held at or shortly after the Treaty of Westminster, (November-December 1153) in Regesta iii, at 97–99, no. 272. But Henry confirmed Savigny's property as at the date when he had crossed to England, L. Delisle and E. Berger, supra note 143 at i, no. 82 (1154), and his confirmation of the chamberlain's office (Regesta iii at 582), made before the peace treaty, conveys it as the grantee held it ‘in anno et die quo Rex Henricus fuit vivus et mortuus’. I cannot see that these confirmations differ much from earlier royal ones, other than in their number.

246. See, for example, R. C. Van Caenegem, supra note 125 at 421–44, 456–61, nos. 18–22, 86–94. Ibid., 457, no. 87 [Regesta iii at 286 (1136/41, ?1138)] is irrelevant here because of its corrected early date. R.C. Van Caenegem, supra note 125 at 277–78 attributes to the flood of confirmations during the reconstruction period the ‘legal presumption' that seisin under Henry I put a claimant in the right. Royal writs sometimes refer to the legislation or other events which occasioned them.

247. As I suggested in King, Lords and Peasants, supra note 32 at 252. See also R. C. Van Caenegem, supra note 125 at 501–502, no. 169. ibid. at 499, no. 165; Regesta iii at 134 (1135/9) is the possible precedent.

248. See Milsom, Legal Framework at 178–79, and especially his remarks about seisin in time of peace and ‘tempore guerre’. As he notes, counts in the action of right expressly contended that the seisin pleaded had been pacific. Though this feature might have become standard in the 1150s, it would certainly not have been out of place in the (admittedly different) land suits earlier in the century. Further research is needed. The dictum of Hall, , ed., Glanvill at xiii, 11Google Scholar (155) that assizes of mort dancestor were unavailable to anyone who had ever been ‘in guerra’ against the king may be making a similar point. Alternatively, it might be read as commentary on the 1173–74 revolt.

249. This paragraph essentially follows G. J. White, ‘The Restoration of Order in England, 1153–1165’, supra note 170 at 32–57. An intriguing testimony to the care with which contemporaries were watching the political changes of the day is Henry of Huntingdon's substitution of a new approving obituary of Henry I in recension VI of his Historia Anglorum. Diana Greenway will show in Anglo-Norman Studies, ix (1987Google Scholar, forthcoming) that this dates to 1153–54.

250. See my ‘Henry II and Ganelon’, supra note 109. But there was legislation at least for problem cases, especially early in the reign; see Mary Cheney, ‘The Litigation Between John Marshall and Archbishop Thomas Becket’, supra note 173 at 23–24 and below.

251. David Crouch's forthcoming project on ‘The Social Structure of the Medieval English Aristocracy, 1066–1272’. Meanwhile, J.Patourel, Le, ‘The Norman Conquest, 1066, 1106, 1154’, in Brown, R. Allen, ed., Proceedings Battle Conference on Anglo-Norman Studies (Ipswich, 1979) i, 114Google Scholar sq. offers some suggestive ideas on what he saw as the Angevin Conquest.

252. Brooke, C. N. L. et al. , eds., The Letters of John of Salisbury, supra note 177 at i, 162–63Google Scholar, no. 102. R. C. Van Caenegem, supra note 125 at 284, n. 2, 331–32 associates the edict with the king's channel crossing in either 1156 or 1158.

253. Hall, , ed., Glanvill at iv, 10Google Scholar (50). Commentary has concentrated on the relationship with Alexander III's decretal X, 3. 38. 19. Cheney, Mary, ‘The Compromise of Avranches, and the Spread of Canon Law in England’, English Historical Review lvi (1941), 193–94CrossRefGoogle Scholar andGray, J. W., ‘The Ius Presentandi in England from the Constitutions of Clarendon to Bracton’, English Historical Review lxvii (1952) 488CrossRefGoogle Scholar, n. 4 differ on the degree of seisin required to qualify for life protection.

254. See Stenton, D. M., ed., Rolls of the Justices in Eyre… for Lincolnshire 1218–1219 and Worcestershire 1221, Selden Society, vol 53, (London, 1934) lix–lxiiiGoogle Scholar and D. M. Stenton, supra note 126 at li-liii.