¹ Assigning two functions to the Assize straddles the much-debated issue of its original purpose. R. C. Van Caenegem has taken the position that it was part of a campaign against crime, that Henry II intended first to punish disseisors and that restoration of seisin to injured parties was a secondary, if useful, result. His viewpoint is set out in Royal Writs in England from the Conquest to Glanvill (Selden Society, Vol. LXXVII; London, 1959), pp. 283–290Google Scholar and again in The Birth of the English Common Law (Cambridge, 1973), pp. 40–46.Google Scholar Maitland, on the other hand, assumed that the Assize was originated for the benefit of the disseised possessor (Pollock, Frederick and Maitland, F. W., The History of English Law (2 vols.; 2nd ed. reissued with introduction and bibliography by Milsom, S. F. C.; Cambridge, 1968), Vol. I, p. 146).Google Scholar Lady Stenton by her own admission did an about-face on the point, originally writing that novel disseisin was probably a “compulsory benefit” administered by inquest (Cambridge Medieval History (9 vols.; Cambridge, 1923–36), Vol. V, pp. 586–587), but later inclining to the view that it was from the first an action made available to individuals at their election (English Justice Between the Norman Conquest and the Great Charter 1066–1215 (Memoirs of the American Philosophical Society, Vol. LX; Philadelphia, 1964), p. 36). H. G. Richardson and G. O. Sayles took what may be seen as a compromise position, choosing to use the language of tort and not criminal law in speaking of disseisins as “unrequited private wrongs” as opposed to the “public wrongs ” of murder, theft and arson. As logically follows, they considered that the Assize was made for the joint purpose of restoring order and assisting the disseised (Law and Legislation from Aethelberht to Magna Carta (Edinburgh, 1966), p. 95).Google Scholar A new dimension to the question has recently been added by Milsom, S. F. C. in The Legal Framework of English Feudalism (Cambridge, 1976).CrossRefGoogle Scholar Rather than taking any of the traditional positions, he has argued that the Assize was designed to protect a free tenant against abuse of process, or lack of it, in his lord's court by making lords and their courts follow their own customs (pp. 14, 36). In this view, the lord was the usual defendant envisaged by the creators of the action (p. 11). The Assize, then, would not have been a police measure in the sense that Van Caenegem used the term, in the sense of its having been designed to combat the gratuitous violence of a lawless society; as Milsom demonstrated with a number of examples, a defendant lord might have been substantively in the right and still more often there would have been at least a colourable dispute. But, as he also pointed out—it is one of the book's basic premises—neither was the Assize a deliberate attempt to replace seignorial with royal jurisdiction (pp. 14, 36–37, 66, 166, 186). Such intent on the part of the king is explicitly or tacitly assumed in most arguments for the civil nature of the Assize.

² Possibly it was also influenced by the Norman experience; Duke Geoffrey had used the sworn recognition to decide questions of property rights and seisin. Examples of his writs ordering or referring to such a recognition appear in Regesta Regum Anglo-Normannorum, Vol. Ill, ed. H. A. Cronne and R. H. C. Davis (Oxford 1968); perhaps the most interesting is one in which Geoffrey ordered that future disputes over land, claimed by Bayeux Cathedral, be settled by the sworn oath of lawful men as to who had had seisin in the time of the former bishop, Odo (No. 52). Charles Homer Haskins has, of course, discussed the Norman jury and its influence on contemporary English procedure in Norman Institutions (first published 1918; reprinted New York, 1960), esp. at pp. 196–238.

³ Van Caenegem has collected more than 35 such writs, 28 of them antedating the reign of Henry II; he has labelled them “Writ of ‘Novel Disseisin’,” even though in most of them no recognition is involved (Royal Writs in England pp. 444–464). It is his contention that “the history of the writ and that of the assize are not identical,” the writ in its original form being older (ibid., p. 394).

⁴ Regesta Regum Anglo-Normannorum, Vol. II, ed. Charles, Johnson and Cronne, H. A. (Oxford, 1956)Google Scholar, No. 736.

⁵ The term is Van Caenegem's; in Royal Writs in England he consistently contrasts “executive” and “judicial” writs. Throughout the book he has deliberately given “judicial writ” a meaning different from the usually accepted one; he defines as “judicial” any writ issued in connection with law court activity and the application of the judicial process, not excluding a writ which originates the action.

⁶ Regesta, Vol. II, No. 1860. The question of franchise enters here; having sheep folded on one's property was a profitable right because of the resultant fertilizer. In the thirteenth century sheepfolds were covered by proceedings in county court under the viscontiel writ of nuisance, not by the assize.

⁷ Earl William was a large landowner and a powerful (and overbearing) figure in Norfolk at the time, so that the probability is even greater that the sheepfolds were his. If he in fact neither erected nor owned the folds, the nature of the writ would change; in function, if not in form, it would become similar to the many writs ordering the sheriff or another to do justice in a given matter, leaving to him the decision on method of fact-finding. Ordering that something be put into the condition in which it esse debet et solet was really the same as ordering that it be put into the condition which was just, for what had been and what ought to be was the standard for determination of rightness. Presumably then the Earl would have had to inquire about the history of the sheepfolds.

⁸ The best, although atypical, example of the executive writ used for reseisin is perhaps Matilda's writ to Malcolm de St. Liz and his son, ordering them to reseise the monks of Colchester of land in Tey; it begins “I am greatly astonished [miror multum] that you have acted to disseise the church of Saint John of Colchester and the monks of that place of their tenement of Tey that I have given to them to hold in chief…” (Regesta, Vol. Ill, No. 239d).

⁹ Regesta Regum Anglo-Normannorum, Vol. I, ed. Davis, H. W. C. (Oxford, 1913)Google Scholar, No. 151.

¹⁰ The nature of the writ makes it difficult to decide in what capacity Lanfranc was being addressed. He was the regent and at the time this writ was issued William was probably in Normandy, since he was in Normandy in June and September of 1082 although he was back in England at Christmas. On the other hand, Lanfranc was also Archbishop of Canterbury and the bulk of the writ deals with the consecration of the abbot of Ely, a matter of interest to the archbishop qua archbishop although one in which the king had chosen to intervene.

¹¹ The entry is in Domesday Book, 189 a 1. It appears among entries for the Borough of Cambridge itself and it shows an early if perhaps inadvertent linkage of situations which would later be handled by novel disseisin for common of pasture and by nuisance. It reads

They [the burgesses of Cambridge] claim back from Picot the sheriff, however, the common pasture taken from them by and through him. This Picot made three mills there by which the pasture is taken up and many houses destroyed and a mill of the Abbot of Ely and another of Count Alan. These mills pay 9 li. yearly.

The Victoria History of the Counties of England: Cambridgeshire and the Isle of Ely (5 vols.; London, 1938–73), Vol. I, p. 359.Google Scholar The passage is quoted by kind permission of the Institute of Historical Research, University of London. Maitland discusses the mills in Township and Borough and raises the question of whether Picot had erected “three mills” or “a third mill,” since in the later history of Cambridge three mills existed only one of which could be attributed to the sheriff (Township and Borough, the Ford Lectures for 1897 [Cambridge, 1964], p. 190, s. 126). But the Latin, fecit ibi iij. molend. qui aufer. pasturam et plures domos destruunt et mol. unum abbatis de Ely et alterum Alani comitis, suggests three mills of Picot's construction and that translation is made still more probable by the fact that there were apparently no complaints registered against either the Abbot of Ely or Count Alan, as there might have been had their mills also been doing damage to land and houses. Maitland further questions whether ablatum should be translated literally as “taken away,” i.e., by seizure and fencing, and concludes that it probably should not (ibid., p. 191). Given the history and language of the complaint in its entirety, a true seizure of land seems highly unlikely.

¹² The date is uncertain; in Regesta it is followed by a question mark. Henry I ordered the sheriff of Bedfordshire to gather together “the county” of Bedford-shire and “cause the boundaries of the abbot of Ramsey to be recognised”; he also ordered that the sheriff “do full right to the same abbot about a mill which is newly made there.…” (Regesta, Vol. II, No. 957). The translation “do full right” brings to mind the writ of right, but the same idea is also expressed in the later viscontiel writ of nuisance and in fact the language here used differs significantly from both. The writ of right ordered quod sine dilatione plenum rectum teneas; the viscontiel writ readpostea eum inde iuste deduct facias. The language here is et fac[ias] ipsi abbati plenum rectum de molino … Even so, the “full right” could have been concerned with wrongful withdrawal of custom from a mill, a matter never handled by nuisance proceedings, although it equally well may have been a case of physical damage to the abbot's mill occasioned by the new structure. There was no explicit statement that “the county,” while it sat (or walked) to discuss boundaries also made a recognition about the mill, but the wording of the writ makes it reasonable to speculate that the men did so. Henry would not have been the first king to use such a gathering for determination of property rights; William I and William II had sometimes done so. For examples, see Regesta, Vol. I, Nos. 66, 85, 383, 448 and 449 and Vol II, No. 464.

¹³ The word is attemperentur, but the complaint is that the mills levata altius sum and the order is that they be dimittantur, lowered. The explanation must be that the mills in question were windmills, which seem to have caused many medieval disputes. See, for example, the account of the mill raised by Herbert the Dean within the liberty of St. Abbey, Edmund, narrated in Cronica Jocelini de Brake-londa de rebus gestis Samsonis Abbatis Monasterii Sancti Edmundi (trans, with notes by Butler, H. E. [London, 1949], pp. 59–60)Google Scholar; that matter was never actually litigated because it was settled by the abbot's strong-arm methods. The writ “about a mill raised to the nuisance of a free tenement”(de molendino iniuste levato) sounds more appropriate for a windmill than for a water-mill and is in fact given in terms of a windmill in at least one Register of Writs I have seen, Bodleian MS. Rawlinson C 331, f. 22 dorso; but the same description of the complaint was used regardless of which sort of mill was involved.

¹⁴ Recueil des Actes de Henri 11, Roi d'Angleterre et Due de Normandie, concernant les provinces Francoises et les Affaires de France, posthumous work of Leopold Delisle publ. Elie Berger (3 vols. in 2; Paris, 1916–27), Vol. I, No. CIII. The writ cannot be later than 1159 because it was witnessed by Robert of Newburgh, who died in August of that year.

¹⁵ The case shows use of a procedure other than the classical assize but that alone would be an uncertain basis for argument that the Assize of Novel Disseisin therefore did not exist. In passing, it should be noted that there is a viscontiel writ of Henry II addressed to the sheriff of Kent and the reeves of Canterbury and dealing with the same problem; it is included in the Historia Monasterii Sancti Augustini Cantuariensis, ed. Charles Hardwick (Rolls Series, Vol. 8; London, 1858), p. 462 and is also printed by Melville M. Bigelow in Placita Anglo-Normannica (London, 1879), p. 232. It was given at Argentan in Normandy but, like most of Henry II's writs, is undated. The editor of the Historia assigned the date “ 1182? ” to the writ; if that were correct, then the 1156–59 writ would of course be no evidence for the existence or non-existence of the Assize. But the date is almost certainly wrong. The Historia, itself a fifteenth century collection of raw materials for a projected history of the Abbey, is preceded by a chronological table of events which includes an 1178 entry about a charter ordering admeasurement and correction of the Canterbury mills, but the body of the Historia has no such document. The table, on the other hand, has no 1182 entry on the topic. Moreover, while the Historia includes the writ among documents from early June 1182, Henry II does not seem to have been in Normandy then (R. W. Eyton, Court, Household and Itinerary of Henry II (London, 1878), pp. 247–248). Neither 1178 nor 1182 is likely to be correct. Leopold Delisle's work with the documents of Henry IPs reign led him to conclude that an accurate method of dating involved examination of the royal formula used; after May 1173, Henry consistently added “by the grace of God” before his titles (Delisle, , Recueil des Actes de Henri II, Rot d'Angleterre et Due de Normandie concemant les provinces Francoises et les Affaires de France, Introduction [Paris, 1909], pp. 12–31Google Scholar). The formula used in this writ belongs to the pre-1173 part of the reign. If it is in fact from an undefined early period, the viscontiel writ in the Historia proves nothing except that the matter of the mills was a long-standing controversy; it could predate the writ ordering a recognition or it could represent a later attempt to implement the decision based on such recognition.

¹⁶ For examples from the reign of William I, see Cartularium Monasterii de Rameseia, ed. W. H. Hart and P. A. Lyons (3 vols.; Rolls Series, Vols. 791–79 “;London, 1884–93), Vol. I, No. 322, also in Van Caenegem, Royal Writs in England, p. 444 and see Cartularii Monasterii Sancti Johannis Baptiste de Colcestria, ed. Stuart Archibald Moore (Roxburghe Club; 2 vols.; London, 1897), Vol. I, p. 28, also in Regesta, Vol. I, No. 399 and Van Caenegem, ibid., p. 445. Matilda's highly personal writ to Malcolm de St. Liz has already been cited, n. 8, supra.

¹⁷ For an example from William I's reign see Regesta, Vol. I, No. 352, also in Van Caenegem's Royal Writs in England, pp. 444–445. For examples from Stephen's reign see the Thorney Red Book (MS., 2 vols.; Cambridge University Library Additional MSS. 3020, 3021), f. 21, as printed in Van Caenegem, ibid., pp. 455–456 and in Regesta, Vol. Ill, No. 886; and see Westminster Abbey MS. 13167, No. CXXXII, as printed in Regesta, Vol. Ill, No. 544.

¹⁸ See writs of Stephen in Westminster Abbey MS. 13167, Nos. CXII and CXDC and (for the second) Westminster Abbey MS. 8113, both as printed in Regesta, Vol. Ill, Nos. 546, 547. For a pre-1166 writ of Henry II see The Regislrum Antiquissimum of the Cathedral Church of Lincoln, Vol. I, ed. Foster, C. W. (Lincoln Record Society, Vol. 27; Lincoln, 1931), p. 100Google Scholar (No. 156); also in Van Caenegem, Royal Writs in England, p. 462.

¹⁹ As in the writs cited in nn. 17 and 18, supra. However, it must have been variable; for example, “the day that Walter Fitz Gilbert left for Jerusalem,” mentioned in one of Stephen's writs (Regesta, Vol. Ill, No. 546), obviously had meaning for only one situation. Generally “the time of King Henry” or the day on which Henry I died were mentioned by Matilda, Stephen and Henry II (before 1166) in their writs.

²⁰ The Treatise on the laws and customs of the realm of England commonly called Glanvill, ed. with introduction, notes and translation by G. D. H. Hall (London, 1965), p. 167. All citations here to the Treatise, hereafter called Glanvill, are t o this edition; all passages from it here set out (Bk. XIII, 33, 34 and 35) are quoted by kind permission of the President and Fellows, Corpus Christi College, Oxford.

²¹ Bracton, f. 164 b.

²² Maitland wrote that “we have… some reason for believing” that Henry issued the Assize of Novel Disseisin at Clarendon (History of English Law, Vol. I, p. 137) and that “perhaps” both ordinance and procedure were instituted at the Council (ibid., p. 145).

²³ Sutherland, Donald, The Assize of Novel Disseisin (Oxford, 1973), p. 7.Google Scholar Professor Milsom may agree; he has noted without comment that the Assize of Novel Disseisin is believed to have sprung from the Assize of Clarendon, adding “bu t the relevant part of the text is lost.” (Milsom, S. F. C., Historical Foundations of the Common Law (London, 1969), p. 117.Google Scholar) He has not mentioned the possible connection, however, in The Legal Framework of English Feudalism.

²⁴ Lady Stenton believed that a clerical error might well have been responsible for the omission of the novel disseisin provisions from the Assize of Clarendon (English Justice, pp. 41–42).

²⁵ Professor Va n Caenegem has written that the order for prosecution of unlawful disseisins was probably made when the eyre went out in 1166, quite possibly by separate writ or even by word of mouth to the justices (Birth of the English Common Law, pp. 42–43); he favours the idea of a separate writ, since there is reference t o “disseisin against the writ of the king” in Pipe Roll 12 Henry II (ibid., p. 43). Maitland noted briefly and parenthetically that the Assize could have been issued by way of instruction to the justices (The History of English Law, Vol. I, p. 137), but did not speculate on how the instruction was communicated. If a writ was used, it might have been addressed to both the travelling justices and the sheriffs and local justiciars if, as J. C. Holt has suggested, the Assize of Clarendon was already being enforced by local officials in various counties at the time of the eyre (Holt, J. C., “The Assizes of Henry II: the Texts” in The Study of Medieval Records. Essays in Honour of Kathleen Major, ed. Bullough, D. A. and Storey, R. L. (Oxford, 1971), pp. 95–106 at pp. 103–104).Google Scholar An interesting question then presents itself: what might Glanvill's constitutio have been? An order to the justices in eyre? To local officials? The Assize of Clarendon itself?

²⁶ It does not seem useful here to probe into the authenticity of the extant version of the Assize of Clarendon. Th e text was challenged by Richardson, H. G. and Sayles, G. O. in The Governance of Medieval England (Edinburgh, 1963), pp. 439–444.Google Scholar Their position has been accepted at least in part by Warren, W. L. in Henry II (Berkeley, 1973), pp. 281–282.Google Scholar Holt, on the other hand, after close analysis has bsen able to accept the existing text of the Assize as authentic (loc. cit., pp. 85–101).

²⁷ The evidence for the foundation of novel disseisin in a legislative act is summed up by Sutherland, op. cit., p. 6.

²⁸ Both Warren and Van Caenegem see the 1166 legislation as changing the customary law by making disseisin a breach of the king's peace, punishable as such (Henry II, pp. 336–337; Birth of the English Common Law, pp. 40–46). John Beckerman, on the olher hand, believes that 1166 marks not the original ordinance prohibiting unjust desseunins but the institution of a civil procedure involving a jury of recognition (Yale Law Journal, Vol. 83, No. 3 (January, 1974), pp. 623–636, at p. 629). Donald Sutherland at onme time suggested that the significant date might have been well in advace of 1166; he pointed the indisputable evidence of a rouyal “edict” on possession as early as 1158. In that year, a royal writ was produced ordering Archibishop Theobald of Centerbury to do justice to the Earl of Cornwall with regard to an advowson or to restore possession of the church involved to the Earl'S NOMINEE, WHO Hd been ousted “after the despature of the king against the edict of the same” (op. cit., p. 8). The case is found in Joannis Saresberiensis Episcopi Carnotensis Eppistolae (Magine, Patrologia Latina 199, col. iv) Ep. 6 and is cited in Avram Saitzman, Theobald, Archbishop of Centerbury (London, 1956), p. 161. Professor Sutherland has since altered his opinion, in part due to another letter to which he has kindly called my attention. It is found i The Letter of John of Salisbury, ed. W. J. Millor and S. J. and H. E. Bulter, revised by C. N. L. Brooke (LOndon, 1955), Vol. I. No. 115; it was written to the abbess of amesbury by John, acting as Theobald's secretary. On internal evidence, it must be dated between August 1158 and September 1160. The letter speaks of an ousting by the abbess of one Jordan, the treasurer, from the church of Froyle (Hampshire) post edictum domini regis in contemptum ecclesiae Romanae violenter et absque ordine iudiciario and orders that she permit him to hold it as he did “at the time the lord king crossed overseas.” Failure to do so would put the abbess in defiance of both archbishop and king and the letter warns that Theobald would ratify royal punishment because when the law is held in contempt “militar force must be called in for repression of malice” and, on authority of the church in general and Theobald in particular, cautions against any dispersion of church in general and Theobald in particular, cautions against any dispersion of church propertu ante iudicii examen. Clearly Theobald, or John, is not aware of any mandated, newly-standardised assize procedure for correcting the abbess' disseisin and the “edict” referred to cannot have contained the provisions for the assize of novel disseisin.

²⁹ The dating of the writ itself is an independent but related point which need not be explored here. Positions vary predictably; Lady Stenton thought the classic writ was formulated even before the Assize of Clarendon (English Justice, p. 39); Van Caenegem believes that the wording only slightly antedates Glanvill (Birth of the English Common Law, pp. 45–46).

³⁰ Pipe Roll 14 Henry II (The Publications of the Pipe Roll Society, Vol. XII; London, 1890), p. 137.

³¹ Pipe Roll 16 Henry II (The Publications of the Pipe Roll Society, Vol. XV; London, 1892), pp. 30. 160.

³² Ibid., pp. 148. 149.

³³ Pipe Roll 21 Henry II (The Publications of the Pipe Roll Society, Vol. XXII; London, 1897), p. 124; Pipe Roll 22 Henry II (The Publications of the Pipe Roll Society, Vol. XXV; London, 1904), p. 21.

³⁴ Pipe Roll 21 Henry II, pp. 31, 78, 98, 197; Pipe Roll 22 Henry II, pp. 37, 43, 50, 84, 93, 107, 108, 145, 186. Most of these are pro recognitione with the name of the defendant or the amount of the land or its location given. There is an interesting set of entries among the Yorkshire pleas heard by Ranulf GlanviU, Robert de Vallibus and Robert Pikenot in 1176; it is a series of ten showing money paid or owing for recognitions, many of the entries specifying the amount of land or the defendant's name, followed by an entry indicating a debt of two hundred marks “for the breach of the assize against Mathew Garnet” and by one showing forty marks owed “for failure of two assizes” (Pipe Roll 22 Henry II, p. 108).

³⁵ There seems to me no doubt that the translation must be “let the justices cause a recognition to be made” as has been usually accepted and most recently argued by John Beckerman (Joe. cil., pp. 627–628). W. L. Warren's translation of recognitio as “inquiry” and his conclusion that presentment is therefore involved cannot be followed (op. cil., p. 337). By 1176, if not earlier, recognitio had become a term of art.

³⁶ Professor Sutherland has pointed out that the entry in Pipe Roll 12 Henry II, “Peverel [Hundred] renders account of a mark for a millpond broken against the assize” (Pipe Roll 12 Henry II (The Publications of the Pipe Roll Society, Vol. IX; London, 1888), p. 128) probably actually reters to an individual rather than to a hundred despite the identification of it as such by the editor of the pipe roll (Sutherland, op. cit. p. 12). The entry is among 1166 pleas for Essex and Hertfordshire and entries for the same counties in later pipe rolls show frequent mention of the fee or the honour of William Peverell, or Peverell of London, or William Peverell of London. See, for example, Pipe Roll 19 Henry II (The Publications of the Pipe Roll Society, Vol. XIX; London, 1895), pp. 14, 16, 18, Pipe Roll 20 Henry II (The Publications of the Pipe Roll Society, Vol. XXI; London, 1896), pp. 68, 70, 72, 73. The entry is unclear, on the roll, “hundred” has been underlined, perhaps for deletion. But it is found near the end of a series of entries for the most part listing payments made or owing from hundreds and townships for murder or default. Thus no certain conclusion seems warranted. If the entry did indeed refer to a hundred it would be the earliest example of the enforcement of the Assize by presentment and would alone be convincing evidence that nuisance shared the early dual nature of the action of novel disseisin for free tenement.

³⁷ Pipe Roll 14 Henry II, pp. 133, 164–165, 196 (for the last see also Pipe Roll 16 Henry II, p. 138); see Sutherland, op. cit., pp. 12–14.

³⁸ Pipe Roll 15 Henry II (The Publications of the Pipe Roll Society, Vol. XIII; London, 1890), p. 7; Pipe Roll 16 Henry II, p. 116; Pipe Roll 17 Henry II (The Publications of the Pipe Roll Society, Vol. XVI; London, 1893), p. 14.

³⁹ Sutherland, op. cit., p. 14.

⁴⁰ There are later notes about amercements on townships “for breaking the assize”; there is no evidence, however, that these refer to disseisin. See Pipe Roll 16 Henry II, p. 150; Pipe Roll 17 Henry II, p. 109; Pipe Roll 21 Henry II, p. 152.

⁴¹ Throughout this paper I have used “the Assize of Novel Disseisin” to refer to the enactment and “the assize of novel disseisin” to refer to the enactment and “the assize of novel disseisin” to refer to recognitions pursuant to it.

⁴² Procedure in the assize is traced very thoroughly by Sutherland, op. cit., pp. 64–74.

⁴³ This assumes, of course, that the land in dispute was the plaintiff's only holding. Holdings in dispute often involved only a few acres or a messuage, e.g. the 1218 Lincolnshire entry concerning Leviva daughter of Hacke and her five and a half acres with messuage (Rolls of the Justices in Eyre: Rolls of Pleas and Assizes for Lincolnshire 1218–1219 and Worcester 1221, ed. Doris, Mary Stenton (Selden Society, Vol. LIII; London, 1934), p. 18Google Scholar) or, from the same assize roll, the entry involving Isabel daughter of Baldric and her three selions in Boston (ibid., p. 420) or, from the 1221 Worcester assizes, the case of Agnes, widow of Godfrey of the Brewery and her messuage worth six pence a year in rent (ibid., p. 490). Both rolls also include assizes with marginal notes indicating the poverty of an unsuccessful plaintiff, e.g., Pardonatur pro paupertate (ibid., p. 423) or Pauper est et ideo pardonatur (ibid., p. 490). The cases cited involve free peasants in the northeast, where small freeholdings were common. Other cases from the same rolls lend strength to Milsom's suggestions that the Assize was originally designed for the protection of the free tenant against his own lord and lord's court and that early in the thirteenth century the Assize was still doing the work “for which… it was designed,” that is, providing a sanction against the abuse of seignorial jurisdiction (The Legal Framework of English Feudalism, p. 14). Holders of relatively small tenements would have been especially vulnerable to such abuses. See for example the successful assizes brought by Alan of Kirmond le Mire, Anger son of Hugh, John of Kempsey and Osbert of Rashwood (Rolls of Pleas and Assizes for Lincolnshire 1218–1219 and Worcester 1221, pp. 40, 76, 463 and 526).

⁴⁴ The assize begun by the writ Questus est nobis N quod R iniuste et sine iudicio… [setting forth the act complained of] … ad nocumentum liberi tenementi sui in eadem villa is in this study, following common practice, referred to as the “assize of nuisance” although it is understood that the term is of later origin than the action. To speak of “the assize of novel disseisin for a nuisance” is accurate but unwisldy. Nevertheless, it cannot be overemphasised that “nuisance” was not the name of the offence in the pipe rolls, in Glanvill, or in the plea rolls of the period under discussion since during the twelfth and early thirteenth centuries nocumentum was not used as a substantive noun to describe either the actionable wrong or the assize. The writ for the assize makes clear that the basis for the complaint is a given physical act which has been done to the injury of a free tenement. One was not a defendant in an assize of nuisance because one had “committed a nuisance”; one was a defendant in an assize, often in its early history simply described as an assize of novel disseisin, because one had committed one of a number of specified acts, often in themselves legal and perfectly reasonable and proper, in a way which had caused harm to another's free tenement.

⁴⁵ The writ in the assize of novel disseisin for free tenement reads, in Glanvill: Rex vicecomiti salutem. Questus est mihi N quod R iniuste et sine iudicio desaisivit eum de libero tenemento suo in ilia villa, post [the appropriate limitation date]; et ideo tibi precipio quod si predictus N fecerit te securum de clamore suo prosequendo, tune facias tenementum illud resaisiri de catallis que in ipso capta fuerunt, et ipsum tenementum cum catallis esse in pace usque ad [the appropriate date]. Et interim facias duodecim liberos et legates homines de visneto videre tenementum illud, et nomina eorum inbreviari. Et summone eos per bonos summonitores quod tune sint coram me vel iusticiis meis parati inde facere recognitionem. Et pone per vadium et salvos plegios predictum R vel ballivum suum si ipse inventus non fuerit, quod tune sit ibi auditurus illam recognitionem. Et habeas ibi summonitores et hoc breve et nomina plegiorum. Teste etc. (Bk. XIII, 33.) The writ in the assize of nuisance, which follows the above and which is headed, significantly, aliud breve de eodem, is as follows: Questus est mihi N quod R iniuste et sine iudicio levavit quoddam fossatum, vel prostravit, in ilia villa ad nocumentum liberi tenementi sui in eadem villa post [the appropriate limitation date, the same as used in the above writ], Et ideo tibi precipio quod si prefatus N fecerit te securum de clamore suo prosequendo, tune facias duodecim liberos et legates homines de visneto videre fossatum illud et tenementum, et nomina eorum inbreviari facias. Et summone eos per bonos summonitores etc. ut prius.” (Bk. XIII, 35.)

⁴⁶ The History of English Law, Vol. II, p. 53.

⁴⁷ Brevia Placitata, ed. Turner, G. J., completed with additions by Plucknett, T. F. T. (Selden Society, Vol. LXVI; London, 1951), p. cxix.Google Scholar

⁴⁸ English Justice, p. 42, n. 59.

⁴⁹ Pipe Roll 12 Henry II, p. 128. The case concerned the breaking of a millpond against the assize.

⁵⁰ In the plea rolls of the period from 1194 well into the first decade of the thirteenth century, the most common subjects for nuisance actions by assize were houses, walls, mills, ditches, millponds (milldams) or hedges wrongfully raised or thrown down, ways narrowed or watercourses diverted. The scope of the assize was narrowed considerably by the second decade of the thirteenth century. But at no time were nuisance actions as common as assizes for disseisin of free tenement.

⁵¹ The earliest I have seen are a mill raised in 1194 (Three Rolls of the King's Court in the Reign of King Richard the First, A.D. 1194–1195, ed. Frederick [sic] William Maitland (The Publications of the Pipe Roll Society, Vol. XIV; London, 1891), p. 74); a wall raised in a pasture the same year (ibid., p. 67); and a ditch and houses raised in 1195 (Fowler, G. H., “Some Lost Pleas of 1195,” English Historical Review, XXXVII, No. 147 (July, 1922), pp. 403–405 at p. 403).CrossRefGoogle Scholar

⁵² Glanvill, Bk. XIII, 34.

⁵³ Ibid., Bk. XIII, 37.

⁵⁴ Pipe Roll 12 Henry II, pp. 7, 10.

⁵⁵ Pipe Roll 12 Henry II, p. 65. The reports are not absolute proof that the Assize of Novel Disseisin was issued in 1166; G. D. G. Hall some years ago pointed out in his review of Van Caenegem's Royal Writs in England that the first entry about disseisin “against the assize” does not appear under the heading Nova Placita et Nove Conventions, the “new business” heading (English Historical Review, LXXVI, No. 299 (April, 1961), pp. 315–319, at p. 318).Google Scholar Donald Sutherland has made the same point in The Assize of Novel Disseisin (p. 7). But Lady Stenton has noted that various entries which belong to the 1166 eyre are not reported under Nova flacita, where they would theoretically belong, when they make their first but belated appearance in the 1167 pipe roll. She has found other entries which suggest that later standardisation of recording practice had not yet been achieved so that perhaps too much weight should not be given to headings (English Justice, pp. 62, 64 and Pleas Before the King or His Justices, 1198–1212, Vol. Ill (Selden Society, Vol. LXXXIII; London, 1967), p. cix).Google Scholar J. H. Round long ago made similar comments in his Introduction to Pipe Roll 22 Henry II (p. xxi). The entries from 1166 about disseisin “against the writ of the king” are marked as pleas of the eyre and they follow closely on the heading De placitis Comitis Gaufr' et Ric' de Luci (Pipe Roll 12 Henry II, pp. 7, 10). The Yorkshire entry concerning Swein the Dean's mill, discussed infra, falls under the same heading. For the sake of consistency, one should perhaps leave out matter from 1166 which does not fall under Nova Placita. Even if one does, the earlier pipe rolls' silence together with the other eyre entries certainly seems to mean that in 1164–65 and in all years previous to that there was no Assize of Novel Disseisin being enforced as such for either dispossession of free tenement or nuisance, while actions pursuant to the Assize were being carried on in both situations in the eyre (and perhaps by local officials) in 1166.

⁵⁶ The entry relates only that Ralph son of Garnus owed 20 shillings because he broke a house against the assize (Pipe Roll 12 Henry II, p. 8).

⁵⁷ Pipe Roll 12 Henry II, p. 128; for the reference see n. 49, supra.

⁵⁸ Pipe Roll 12 Henry II, p. 47.

⁵⁹ Pipe Roll 13 Henry II. There is an entry noting payment of 10 marks by Swein the Dean who had owed 20 (p. 87) and there is an entry about payment made for the broken millpond (p. 156). As for new entries, one shows payment of five marks “for a dam” (p. 93); it is under the heading “Pleas of Alan de Neville,” who was largely concerned with pleas of the forest. Another new entry deals with a ditch made in the land of another person, possibly a disseisin of free tenement (p. 157). Obviously it is difficult to know whether the Assize was involved, whether an assize was held, and what writ, if any, was used. There are a number of entries in the early pipe rolls mentioning acts which later gave rise to an assize of nuisance but without the addition of “against the assize” or similar language. There was no common form on this in the 1160s, or even very much later, but the omission does make it even harder to categorise entries with certainty. An important example is the case of Gilbert Cam, discussed below. It is first mentioned in Pipe Roll 12 Henry II, p. 41, which shows the amercement of 10 marks “for a ditch not thrown down.” Pipe Roll 13 Henry II, p. 81 and Pipe Roll 14 Henry II, p. 82 show Gilbert paying off the balance of the amercement but in each case it is described only as “for a ditch not thrown down.” On the other hand, even the words super assisam in an entry, coupled with a description of a physical act which could constitute a nuisance, does not always make identification absolute; an example is the case of Ralph son of Garnus, n. 56, supra.

⁶⁰ Pipe Roll 14 Henry II, p. 43.

⁶¹ Ibid., p. 44. This entry and William of Gadingham's ditch are cited by Richardson and Sayles as early examples of nuisance (Law and Legislation, p. 109, n. 4). They do not give any of the cases from the pipe rolls for 12 and 13 Henry II, but they use the date 1166 for both cases cited here from the roll of 14 Henry II. Since the roll includes both cases under the heading “Pleas of the Archdeacon of Poitou [Richard of Ilchester], Guy the Dean [of Waltham Holy Cross], Reginald de Warenne and William Basset” and since Richardson and Sayles themselves have suggested that this eyre did not begin until at least late in 1167 (The Governance of Medieval England, p. 203) perhaps a somewhat later date could have been used. The earlier year, if justifiable, would of course help substantiate the theory of a well-developed action for nuisance appearing full-fledged in 1166.

⁶² Pipe Roll 14 Henry II, p. 107. I have some doubt as to whether boundary destruction should categorically be considered a nuisance. Sutherland lists thirteenth century cases where destruction of a boundary marker was so treated (op. cit., p. 12) but there is authority to the contrary; see The Earliest Northamptonshire Assize Rolls, A.D. 1202 and 1203, ed. with introduction by Stenton, Doris M. (Northamptonshire Record Society, Vol. V; Lincoln and London, 1930), p. 103Google Scholar; The Earliest Lincoln Assize Rolls, A.D. 1202–1209, ed. Stenton, Doris M. (Lincoln Record Society Publications, Vol. XXII; 1926), p. 255Google Scholar; and P.R.O. Just. 1/951, Mem. 13. In all these cases involving boundary destruction, the action was brought for disseisin of free tenement and was held good. A 1232 case seems to indicate some ambiguity on the matter in the minds of parties and recognitors; see P.R.O. Just. 1/62, Mem. 18. Richardson and Sayles prefer the nuisance slot; they speak of a boundary fence thrown down in 1166 as a nuisance although they give no citation (Law and Legislation, p. 109).

⁶³ Pipe Roll 14 Henry II, p. 107.

⁶⁴ Ibid., p. 219.

⁶⁵ Certainly by Bracton's time and sometimes even as early as the 1230s, the location of the ditch would have been a governing factor in determining the form of the assize to be used; see, for example, P.R.O. Just. 1/80, Mem. 12 (1235). But this presupposes an understood distinction not only between the forms but between the theories of the action and there is no evidence that such a distinction existed in the 1160s; it is unsafe to read a thirteenth century development into the twelfth century action.

⁶⁶ The word is fossatum. The concept of a ditch being “raised” or “thrown down” is difficult to understand in terms of the modern usage of the word and the translation “bank” is often used. But cases in the plea rolls show that medievally the ditch was the pile of excavated earth, not the resultant scooped-out hole in the ground. In parts of modern Ireland that usage still holds; the ditch is raised and the channel created by digging is the dike.

⁶⁷ Yorkshire is the county in which Holt believes that the Assize of Clarendon was executed before the intervention of the itinerant justices (loc. cit., p. 106). I have also seen one entry concerning disseisin which seems to have been dealt with outside the eyre, in Dorset, which the 1166 eyre did not visit. Alured de Muntsorel rendered account of ten pounds “because he disseised a girl of her land wrongfully.” He had paid seven pounds and owed three more; the payment must have been made all at one time because the entry is shown as a new plea (Pipe Roll 12 Henry II, p. 98). The entry strengthens the possibility that the Assize of Novel Disseisin was in fact promulgated as part of the Assize of Clarendon. And although neither entry specifically mentions the Assize, Gilbert Cam's case lends strength to the suggestion that it was from the beginning intended to cover nuisance; surely without royal authorisation a local official would not have taken jurisdiction over a variant of a new cause of action in the very year that the action was created.

⁶⁸ This suggestion would also explain why it was easy for the scope of the assize to to narrow considerably during the early thirteenth century, as it did; possibly the examples were by then interpreted as restrictive. But see Sutherland's comment that the very brevity of Henry's legislative texts suggests well-laid and widely-understood underlying plans which probably spelled out details of administration (op. cit., p. 15); such plans would have been akin to what we would call the legislative history of an enactment. It is possible that the scope of nuisance was an example of this.

⁶⁹ Law and Legislation, p. 109. The passage is quoted by kind permission of Edinburgh University Press.

⁷⁰ Richardson and Sayles set the date of the Assize of Novel Disseisin at the winter of 1165–66 (Governance of Medieval England, pp. 197–198, 444), probably at Christmas, 1165 (Law and Legislation, pp. 93–95).

⁷¹ See n. 62, supra.

⁷² I owe many thanks to the late Mr. G. D. G. Hall for his invaluable help when I began research for my doctoral dissertation on nuisance and to Prof. Donald Sutherland for reading and commenting on an earlier draft of this paper. Any errors in it are, of course, my own.