#1671 - Introduction Of The Real Actions - History of English Law

Change: Introduction of the real actions

Change came with royal intervention which destroyed the feudal state in miniature: the writ of right, the ‘writ of right’ praecipe, the petty assizes, and the writs of entry.

Shift from expectation in the heir, to a right in the heir, when it becomes possible to obtain royal intervention/a royal writ. To reach back into the past and overturn the L’s courts decision as wrongly made. If that can be done then the lord’s court ceases to be a feudal state in miniature; ends up simply as an agent applying the rules set elsewhere by the king’s judges. Also, the heir of the insane eldest son must have some claim to the land which does not depend upon being accepted by the lord as he himself has never been seised. He relies on the seisin of his grandfather – so his entitlement is not acceptance by the lord.

+ Milsom: The issuing of royal writs happened in the second half of the 12^th c. Milsom thinks this radically changes the situation – destroys the feudal state in miniature. There begins the possibility of entitlement to land which is not dependent upon acceptance by the lord. The form of royal intervention is a bureaucratised actions came with the ‘real actions’: petty assizes, writ in right etc.

Debate: Why did the king (Henry II) make royal writs available? What was in it for him?

+ Maitland: Saw in royal intervention a deliberate attack on feudal jurisdiction. Aimed to transfer jurisdiction over landholding disputes out of lord’s court into king’s court – bible supermarket theory (Milsom – buying same cornflakes in Tesco and Sainsbury’s). So in both courts people dispute an abstract concept, and the same question, but the jurisdiction changes. The king’s court has procedural advantage over the lord’s courts so he exploits this.

+ Milsom: Sees it as intending to make the feudal structure work according to its assumptions. Sees interference as having a different purpose and effect. Purpose: saw the real actions are designed to support the system and make it work according to its assumptions; to provide remedies for tenants where the lord had accepted improperly and therefore to support the feudal framework, rather than destroy it. Effect: Not to shift the same title dispute from one court to another but rather to change the nature of the dispute. In lord’s court the question is about vertical relationships with the lord. Before king’s judges by royal writ the question is about abstract entitlements, not about the relationship with the lord. Change dispute system about landholding.

+ Jones: Polar opposites – who is right?

• We do not know for certain – it depends which fits the limited evidence best. ‘Painting by numbers without the numbers’ (Milsom); see which picture best fits and then construct a picture. Both have constructed different pictures.

• Maybe neither is right.

Criticisms of Milsom’s view: Milsom never really responded to criticisms.

+ Hyams: ‘[I]t may be suggested that Milsom’s model, abstracted from the logic demanded by the common law’s earliest records, is really a mental construct of the late twelfth century. It is more an Angevin lawyers’ ideal of how lordships ought to have been run in the old days than any memory of how they actually were run.’ (P.R.Hyams, (1978) 93 English Historical Review, 856 at 858)

= Milsom’s is an ideal model of how feudal relationships ought to work, than how they did.

Social perception: Conflict between general historians (common sense real people approach) vs. legal historians’ (Milsom and Maitland) insistence upon a strict test for the existence of property.

+ Biancalana: Suggests Milsom has gone too far in revising Maitland, in that Milsom denies entirely/does not take account of the constitutional context of Henry II’s reforms – the context in which the real actions. Milsom simplified the relationship between the king and his barons and so is wrong. Argues the role of the king was perceived differently in diff spheres in the later 12^th c. So the king could assert monopoly control over some issues (coinage), but not in relation to disputes over landholding. King could not assert in the context that they were for his jurisdiction.

Suggests guiding principle: pattern of shared jurisdiction between royal and feudal laws. The king has jurisdiction only where the relevant feudal lord has failed to act properly/where there is some default. This justifies royal intervention and also limits royal jurisdiction. Argues one can see this principle at work in the wording of the real actions – they put principle into admin effect. Argues Henry II’s reforms affirmed a legitimate role for lord’s courts, whilst also establishing a legitimate role for the courts of the king.

= Between Maitland and Milsom – intermediate shared jurisdiction principle between king and lords, so the king might legitimately take jurisdiction over cases where the lord defaulted.

+ Brand: Discusses Milsom and Palmer. Suggests, as other have done (Jones thinks right), that the feudal state in miniature (free from outside intervention) before the 1150s never existed in practice. There was considerable royal interference in questions of landholding during the time of Henry I in the first quarter of the 12^th c. Pointed out that a T might belong to several honours, and hold land of several lands, and so might prefer to litigate in the county or king’s court and might be supported by the king in litigating outside the feudal context. Says there was anti-feudal bias in the time of Henry II.

So Brand’s model is that: There is external interference throughout the 12^th c. but before the time of Henry II it was less regular and bureaucratic. It is ad hoc interference by the king as the real actions had not bee introduced. Fits the general question of the common law during the 12^th c, which can be characterised as a process of increasing bureaucracy.

+ Hudson: Agrees with Brand that the feudal state in miniature never existed. Rejects the idea that Henry II had a consciously anti-feudal bias, but argues that we should not see Henry as having had a passive role in this area. It was the duty of a just king to settle disputes concerning land holding, just as it was to prevent heresy. Hudson takes Henry II at his word – King frequently said he was trying to restore things to how they had been in the time of Henry I, before the Anarchy. So if he is seeking to put things back, then as Brand also argued, he is seeking to put things back to a time in which the king had been very much involved in land holding disputes.

Hudson also deals with Biancalana’s principle of shared jurisdiction – he accepts the argument as powerful, but raises a doubt (probably correctly) as to how far that principle was seen truly as...