5th Class

1. 5th Class • Attendance sheet • Start audio recording • Agenda • Review • Modern Prosecution and Jury trial • Medieval Property Litigation • Before Henry II • Three Early Property Cases • Writ system • Henry II’s assizes • Novel Disseisin Cases • Next class • Assumpsit cases • Winterbottom v Wright • Donoghue v Stevenson

2. Review I: Smith, De Republica Anglorum • Jury no longer self-informing by 1560s • Witnesses (at least for prosecution) sworn and testify • Defendant tries to rebut • Trials quick • Same jury hears multiple cases • Jury sequestered without food or heat until delivers verdict • No lawyers

3. Review II: Throckmorton • Trial seems very biased against Throckmorton • Prosecution has lawyers, Throckmorton does not • Throckmorton’s witness excluded • Throckmorton won anyway • Turns bias to his advantage • Jury is sometimes safeguard of liberty • Jurors fined for verdict • Becomes illegal in late 17th century

4. Modern Prosecution • 17th & 18th centuries • Victim in charge of prosecution • JP helped, by taking witnesses statements and binding witnesses to testify at trial • Early 19th century America • States and counties start hiring public prosecutors • Partly motivated by need to prosecute alcohol offenses • In England, public prosecutor is seen as danger to liberty • Police become de facto public prosecutors • Sometimes hire lawyers to assist them • Professional prosecution only in 20th century

5. Modern Jury Trial • 17th & 18th centuries • Jurors with knowledge were supposed to declare their information in open court • 19th & 20th centuries • Persons with knowledge were excluded from the jury • Women and persons without property eligible to be jurors • Random selection of jurors form phone books or election registration records

6. Property Law Before Henry II • Most property disputes and heard in non-royal courts • Honorial Court. Court run by lord for disputes among vassals (free tenants) • Manorial Court. Court run by lord for disputes among peasant tenants • County court. Court run by sheriff for disputes between people claiming land from different lords • Royal courts • For disputes between tenants in chief • Other special cases

7. 3 Early Property Cases • 1) What do these cases suggest about property law, procedure in civil (not criminal) cases, and law more generally, before Henry II’s reforms? • 2) What did you find interesting or surprising?

8. Writs • Disputes in royal court generally started by writ • Writ is short letter written by king’s Chancery • Over time, writs get standardized • Each kind of dispute had its own writ

9. Writ of Right • “Henry, by the grace of God King of England … to Edward Earl of Lancaster, greeting. We command you that without delay you do full right to A. of B. in respect to 20 acres of land with appurtenances in J. which he claims to hold of you by the free service of one penny a year and of which W. of T. deforces him. And if you will not do so, let the sheriff of Nottingham do it, that we may hear no more complaint about this for want of right. Witness myself at Westminster on the eighth day of October…” • Appropriate for determining right to land between two persons claiming from the same lord • Problems. • Delay. • Lord has first chance to resolve • Essoins. Excuses for delaying trial • Proof. Battle

10. Petty and Grand Assizes I • New writs introduced by Henry II (1154-89) • Petty Assizes • Novel Disseisin. • If plaintiff had seisin (possession) at one point and was forced out, then royal court will restore seisin. • Mort d’ancestor. • If plaintiff’s father had seisin when died, then court will • Both Novel Disseisin & Mort d’ancestor • Trial by jury (recognitors), very few essoins • Grand Assize. • Defendant has the option of trial by jury on a writ of right

11. Free Tenements • Both petty and grand assizes only apply to “free tenements” • Free = land held for fixed services, • Services usually military or financial, • usually held by vassal • Unfree = land held for unlimited services • Services usually at least partly agricultural • Usually held by peasant • Distinction between free and unfree not clear until clarified by litigation pursuant to Henry II’s new writs • Usually, but not necessarily the case that free persons held free tenements and unfree persons did not • Massive increase in property litigation in royal courts

12. Writ of Novel Disseisin • “The king to the sheriff of N. greeting. A. has complained to us that B. unjustly and without judgment disseised him of his free tenement in C. after [the limitation period]. And therefore we command you … [to] cause 12 free and lawful men of that neighborhood to view the tenement … and summon them by good summoners that they would be before the justices at assize ready to make recognition thereon. And put by gauge and safe pledges the aforesaid B. … that he may be there then to hear the recognition … Witness …”

13. 4 Novel Disseisin Cases • 1) What is the relationship between the plaintiff and defendant in these cases? What does this suggest about the effect of novel disseisin on society? • 2) Can you figure out the legal rule in each case? It might help to formulate the rule as "The plaintiff may [not] recover if ...." • 3) How do you think the judges arrived at these rules? • 4) Who is more powerful, the judge or the jury? • 5) What did you find interesting, surprising, or puzzling?

14. Henry II’s motives • 2 views • Milsom. Henry II wanted only to make feudalism work according to its own principles and ideals • Common law just formalizes and enforces customary feudal rules • Brand. Henry II wanted to reduce the power of feudal lords • Came to power after Anarchy of King Stephen’s reign showed danger of powerful feudal lords • Must have known that royal adjudication would undermine power of feudal lords • Destroyed baronial castles

15. Henry II (1154-89) • In addition to petty and grand assizes • Assize of Clarendon– presentment • Regular eyres (circuits) • Professional judges • Official recording of cases • Failed attempt to revoke/modify benefit of clergy • For these reason, Henry II is sometimes referred to as father or founder of common law

16. Common Law • Initially meant royal law, which was common to all of England • In contrast to other laws, which might be local • Has come to mean • English system of justice, as exported to colonies such as US, Australia, and India • law administered by courts with juries (in contrast to equity, administered by judge (Chancellor) • Will discuss in next class