The Real Actions Notes

The Real Actions

Forms of action through which royal intervention in disputes of landholding manifested.

1. Writ of right patent: Used to establish who had ultimate feudal entitlement to land/ right to the property? King would command the lord (exceptionally sheriff) to do right by the writ and maintain the ‘full right’ of someone who claimed to hold of him as a free tenant but was being kept out. King would act where a lord failed to do right thing. C’s count had to trace a hereditary right from an ancestor seised in or before time of Henry I. Could not be defeated by any real action. Effectively applied inheritance customs retrospectively.

Importance: Right was necessarily ‘higher’ than possession because the claimant could assert a right to oust someone who was in seisin. Even a T who had been put in seisin by the lord’s court, and had done homage, was liable to be dislodged as a result of historical enquiries into events which might have occurred before he or his lord were born, or even before the writ of right had been invented. Gave rightful C more than just a contractual or moral claim against his lord. The effect of the writ of right was to give him a proprietary claim. He recovered the land itself, and it was the displaced tenant who now had to look for compensation under his own warranty. The lord’s sovereignty was beginning to evaporate.

+ Baker: Suggests law had begun to recognise something like ownership in the rightful tenant, for the ‘right’ to be seised is now an abstract legal title which transcends actual seisin and can be invoked to displace it. Seisin had become the bare fact of possession, as against the hereditary legal right of the owner.

Origins: Innovations which produced the writ of right patent lie in early years of Henry II’s reign (1154-1189), though the writ had a pre-history in writs ordering someone to do or to hold right to the bearer of the writ, and in writs ordering someone to seise or to re-seise the bearer of the writ with land, both of which were used in the late 11^th c. to delegate royal authority to hear pleas. Original types used to make both upwards and downwards claims:

• Upwards: If there is an L and T there can be claims upwards by the T against L, whereby T is claiming he has the right to be L’s tenant.

• Downwards: L seeks to eject a tenant.

Change: Early Henry II’s reign the writ came to include a phrase indicating that the demandant (C) claimed to hold land of the lord to whom the writ was addressed. Selection of this tenurial context made the writ a distinct entity – upwards claim only.

Why?

+ Milsom: Argued change connected with Treaty of Winchester which ended the Anarchy. Nothing in the text of the treaty talks of landholding, but monastic chroniclers said there was a rule that people put out of their land during the Anarchy would be put back. Once the person who got in during the anarchy died, he would be replaced by the original tenant or his heir. Milsom suggests that the writ was invented to implement the terms upon which the anarchy was brought to an end. It is to reinstate the disinherited T1, or will be used by his heir H. So usually heirs, but this was not a writ designed to protect inheritance. Just an artefact of time.

- Jones: Consensus is that Milsom is wrong. Palmer broadly accepts this view, but both Brand, Biancalana and George Garnett (recent book) doubt it. Difficulties with Milson’s view:

1. Nothing on the face of the writ mentions the Anarchy or the treaty. Does not make clear that this was the point. + Brand: Says ‘the day of Henry I’ maybe added later as a limitation period; not in original writs.

2. If it was originally to do with the anarchy, how did it become more widely applicable?

3. + Biancalana: Says the writ indicates his point about a shared principle of jurisdiction between kings and lords. Says to lord, do right to T, or the sheriff will. Good illustration of B’s idea. So on his approach it directs cases to the lord’s court, but provides a set procedure to take it out if the lord fails to do right.

Procedure: Trial originally by battle. In theory the champion was a tenant who had witnessed the seisin. Problem is that people hired champions. Could be brought by anyone except a tenant in chief.

Assize of Windsor (1179): Henry II introduced for Ds the ‘royal benefit’ of choosing the grand assize – a form of jury to enquire into the entire right to the land. Consisted of 12 knights of the county. This made it possible to raise questions other than that of first seisin; for example, a grant from the demandent’s ancestor. The procedure also had the advantage of removing a dispute into the king’s court.

Complicated procedure – many facts for the grand assize jury to consider so took a long time. Could deprive another of their right established by the petty assizes or writ of entry.

Magna Carta, c.34 (1215): Prohibited the issue of praecipe writs (‘I command’) so as to deprive lords of their jurisdiction. Royal court assumed a supervisory jurisdiction over the lord-tenant relationship. This intervention by the common law stopped the relationship being bi-lateral as King regulates. Aimed at deliberate poaching by the king’s courts, part of the supposed royal policy of undermining feudal jurisdiction.

‘Tolt’: Writ authorises removal of the case to county court, on default by the lord. Process authorised by the writ.

‘Pone’: Can be removed before king’s judges from county court. Judicial bit.

+ Glanvill approved of change: “It takes account so effectively of both human life and civil condition that all men may preserve the rights which they have in any free tenement, while avoiding the doubtful outcome of battle….justice, which is seldom arrived at by battle, is more easily and quickly attained through its use (II.7).”

Effect of the writ of patent: Lord seises T, but another C may appear with a writ of right patent. If C succeeds then the seised T must be put out. Should be provided with alternative land – his...

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