The Whilton Dispute, 1264-1380: A Social-Legal Study of Dispute Settlement in Medieval England

by Robert C. Palmer

Overview

Robert C. Palmer examines the Whilton dispute, an intrafamilial, multigenerational contest over a large estate that continued, primarily in the courts, from 1264until 1380.

Originally published in 1984.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691640761
Publisher:	Princeton University Press
Publication date:	04/19/2016
Series:	Princeton Legacy Library , #761
Pages:	320
Product dimensions:	6.40(w) x 9.30(h) x 1.00(d)

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The Whilton Dispute, 1264-1380

A Social-Legal Study of Dispute Settlement in Medieval England

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By Robert C. Palmer

PRINCETON UNIVERSITY PRESS

Copyright © 1984 Princeton University Press
All rights reserved.
ISBN: 978-0-691-05404-9

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CHAPTER 1

Introduction

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This book is concerned with the social history of the English state, particularly with English law in the thirteenth and fourteenth centuries. A few words are therefore necessary to explain the nature of the social history of the state and the particular relation of legal history to social history.

Social historians will not immediately consider the state to be within their proper purview. There is no precise determination of the nature of social history, but the standard areas of demography, wealth distribution, family structures, and social mores will seem quite distant from the traditional investigation of the growth of the state. That task has generally fallen to those who regard themselves as constitutional, institutional, or intellectual historians and who claim as their territory the analysis of the distribution of power and the protection of rights, the elaboration of governmental institutions, and the conceptualizations of state power, authority, and devotion. If it were possible thus to shear off an organization as important as the state from the study of society and constrict historical inquiry into set channels, the sometimes passionately maintained boundaries between social history and other kinds of history would make any attempt to contribute a social history of the state futile from the beginning.

The growth of the state, however, was not primarily a constitutional, administrative, or intellectual phenomenon: it was a social development. In one direction, this assertion coincides with the well-worn maxim that one should not reify the state, should avoid thinking of the state as an organism that acts monolithically, that has thoughts, that in some personal sense wages war — that it is a thing. That maxim is true enough. Any state is only composed of individuals: battlefield dead are dead individuals, not merely an injured part of a continuing whole. The concern here is not with that maxim but with the similarly obvious fact that it can so easily obscure: individuals do act as if the state were a thing. The state, after all, is highly coordinated power that can be brought to bear with crushing effect on innumerable aspects of an individual's life. Whether or not one is at any given moment the subject of such attention, the awareness of the presence of that power remains. People take it into account in their everyday lives: it conditions actions and expectations so continuously that some reflection is necessary to realize its subtle influence. In our own society, one need only consider the pervasive awareness of the state activities of revenue collection, policing, and adjudication of disputes to note also the consequent modifications of behavior either to conform to requirements or to avoid certain unwanted consequences. Although the impact of the state on the individual is incalculably greater today, of course, than it was in the thirteenth and fourteenth centuries, the investigation of such behaviors, thus modified by the awareness of state institutions, cannot but be properly within the scope of social historical studies.

From this perspective, legal history is of paramount importance to the early history of the growth of the state. In the most simple form, it speaks of the ways in which and the degree to which people made use of a certain set of state institutions to settle disputes. For England, it also speaks of an inflexible set of legal remedies and rules of law that set limits to what could be protected or remedied without recourse to violence. Thus these rules set obstacles in the way of the desired actions of a multitude of individuals, obstacles that invited circumvention. Furthermore, the interplay between, on the one hand, legal remedies and rules of law and, on the other hand, the ingenuity exercised in circumventing the law and using it for untoward purposes is extremely complex. The nature of that interplay changed gradually and repeatedly from the twelfth to the sixteenth century, but always in the direction of a law whose substance was more internally unified and less directly related to commonly held ideas of what was morally just. This is not at all to say that common morality (moralities?) did not affect the law. It did. And it did so just as much as the law affected common morality, so that neither the law nor common morality can be a stable reference point: the workings of each presuppose the other. But their interplay became characteristically more convoluted, less predictable, and with roots less easily recognized. This is a theme quite fertile for the historical understanding of society, but one, I hope, more easily understood at the conclusion of this work than in the introduction. Some detailed examples in this matter are truly worth much more than reams of theory.

The method of this book is precisely that: example. It examines an archetypical dispute to illustrate the ways in which some individuals used the law. The Wheltons, the Mortimers, and their descendants, though far from insignificant, were not the individuals who were shaping the destiny of England in the thirteenth and fourteenth centuries. Were this book really about them, it would merit only specialist interest. It happens, however, that the ways in which they acted show patterns of activity and of expectation that were broadly typical of those members of English society who had access to the king's court and the common law. From those patterns we shall eventually derive a comparison to show how the world in which the English lived changed drastically from 1160 to 1264, from 1264 to 1378, and from 1378 to 1540. The dates are not of particular importance; the changes are.

The degree to which a discussion of patterns of litigation will illuminate the social structures of medieval England depends of course on the degree to which the law was used. An accurate assessment of court utilization is not yet available. We do know, however, that in the two-year period 1327-1328 there were 13,031 cases brought in the Court of Common Pleas, the busiest branch of the king's court. Not all of these cases were determined by judgment, but that fact is irrelevant here. The initiation of litigation will force the opponent to examine one's claim more thoughtfully and to examine his own chances in relation, among other things, to the law. That examination, even in our society, usually results in some kind of settlement. And such a settlement demonstrates the potency of the law. Thus the number of cases initiated is satisfactory for our purposes, and a figure of 6,500 cases a year is impressive. But even that figure is certainly low, perhaps a result of political uncertainty in 1327-1328 while Roger Mortimer and Isabella were still controlling Edward III. The court records for 1327 at least are unusually short. As a counterweight, I have catalogued the litigation from only two counties in the king's court between 1331 and 1334. Those figures would argue a caseload 34 or 40 percent higher than in 1327-1328. A conservative estimate of a normal caseload only 33 percent greater than in 1327-1328 results in more than 8,500 cases a year in the Court of Common Pleas. No cases came from London, Cheshire, or Durham, of course. Thus, for the thirty-seven counties with regular access to the court, one must think of an average of 230 cases a year from each county, but with enormous variations between large, populous, or wealthy counties and small, sparsely populated, or poor counties. The actual and projected figures are presented in Table 1.

The number of people involved is more important than the number of cases. Some individuals, as is well known, were very litigious. In 1331-1334, counting all the litigation from the two counties of Bedfordshire and Cornwall in the two main branches of the king's court (the Court of Common Pleas and the Court of King's Bench), there was a total of 1,266 cases. The 636 cases from Cornwall involved 1,273 different persons as plaintiffs or defendants; of those litigants, only 10 percent were involved in more than two cases over the four years. The 630 cases from Bedfordshire involved 1,379 different individuals; once again, only 10 percent were multiple litigants. (In this calculation, for legal reasons, women appearing with their husbands were not counted as separate individuals.) These figures allow us to ignore the discounting process necessary to accommodate the very litigious and the multiplication required to allow for multiple plaintiffs or defendants in the individual case. The two factors balance each other out, and one can calculate the total number of persons involved as twice the number of cases brought. Some further allowance must be made for people who brought suits from more than one county. My best estimate here is nothing better than a prudent guess: 10 percent. The end result of these calculations and hypotheses is that nearly 15,300 different persons can be considered as caught up in the processes of the Court of Common Pleas as litigants each year. I hope someday to produce better figures, but for now we must be satisfied with concluding that something in the neighborhood of 0.5 percent of the total population of England were litigants in the Court of Common Pleas every year. Since the figures were based on a catalogue of individuals over a four-year period, expanding that figure to 2 percent of the population every four years would be justified. That is an extraordinarily high level of court involvement with the country.

Such a percentage, of course, underestimates the actual importance of the court, since it compares litigants with total population. Several corrections should be made to arrive at a better estimate. Married women should be excluded from the population figures because they were not able to sue on their own in the king's court. In the same way and for the same reason, monks and other members of religious houses — except for the abbot, prior, master, or other head of the house — should be excluded. Minors had only very limited access to the Court of Common Pleas and the Court of King's Bench; they should also be almost totally excluded from the population figures. Finally, some allowance should be made for London, the more important boroughs, Cheshire, Durham, and other great liberties that by and large precluded their inhabitants from litigating in the king's court concerning matters within their precincts. Our figures, however, are merely meant to fortify our assertions. The uncertainties involved in calculations to correct figures that are only guidelines boggle the imagination, and little would be gained for our present purposes. Yet it is clear the ratio of actual to total potential litigants was substantially higher than o. 5 percent annually or 2 percent over four years.

Even with such a hypothetical figure, many times corrected, one could not rest secure. Litigation affected many persons other than the litigants and their immediate families or houses. Neighbors and friends of litigants would have had some knowledge of the course of events and the problems encountered in the litigation. Likewise, the jurors from the county would have been directly involved in the trial and would gain firsthand knowledge of the law. Persons who felt wronged could themselves consult one of the band of saddle-sore attorneys who frequently traveled the roads between a county base and the courts at Westminster, even if, in the end, they decided not to sue. However one might arrive at a multiplier to yield an accurate assessment of the familiarity of Englishmen with the king's court and the degree to which it could and did affect their lives, there can be no real doubt about the final conclusion. A discussion of the common law is not confined to abstruse matters irrelevant to all but a handful of the wealthy. Rather, such a discussion can yield valid conclusions about normal social structure and behavior.

The primary considerations that could disallow such an undertaking concerning the common law would be the degree to which jurors were regularly bribed to perjure themselves and the degree to which violence was used as an auxiliary to lawsuits to bring one's opponents to forced submission. Both practices, if frequent, would nullify the law and legal rules as significant social features, and exaggerated statements have been made about both. It will not do, of course, to maintain that England was a quiescent country filled with staunchly virtuous and incorruptible landholders and altruistic aristocrats. But neither was England filled with a completely immoral population living in quasi-anarchy.

Bribery of and perjury by jurors was indeed a problem. There are cases alleging perjury on the part of jurors, but it should be emphasized that, in relation to the volume of litigation, these represent just a trickle. Moreover, many of these cases did not involve perjury at all; rather, they were mistakes made by jurors who were supposed to be self-informing about a factual situation sometimes long past and who were subjected to a trial in which the evidence presented was scanty and not governed by systematic rules about admissible evidence. The case we shall study offers an example of this kind of situation. This trickle of cases can be augmented by looking at the activity of the chancellor, who late in the fourteenth century began handling cases in which individuals maintained that their opponent was so feared in their county that they could not hope for a fair trial. This was a longstanding grievance. Yet the undeniable fact that bribery and perjury were problems does not mean that they were normal, and a handful of anecdotes and some literary satire will not replace quantification here — a quantification that is impossible. A measured estimate of the situation would take into account the great value placed on one's honesty and on one's oath. It would have been extremely strange if most juries were easily bought. Likewise, a self-informing juror seeking out the facts would almost certainly be the recipient of favors from both sides, but that does not mean automatically that he would sell his voice on the jury any more than he would unthinkingly sell his soul. Jurors were undoubtedly influenced by those who were influential, and a great deal of deference was due to authority. But the wealthy did not always win, and those in possession could be and were turned out by process of law. Finally, if the problem with perjury and bribery was as severe as some would have us think, it is hard to see why, among such an immoral population, people brought so many suits to the king's court instead of resorting to the more straightforward course of covert homicide. Bribery was a problem, but not one so rampant that it undermined the whole working of the law or even brought the law into severe disrepute. The rules of the law did bear a substantial relationship to the way in which cases were settled and to the way in which society worked.

Violence used as an auxiliary to litigation undermines our project as little as do perjury and bribery. Once again, it must be admitted that the problem existed. Anyone who has been involved in litigation can attest to the ferocious animosity that normal civil litigation can generate. It would be abnormal if occasionally that animosity were not converted into actual violence. There are examples enough in this period, and fortuitously one of the people involved in the litigation we shall investigate was a perpetrator of one of the incidents most often cited, although that incident had nothing to do with the litigation here examined. Men of the thirteenth and fourteenth centuries were accustomed to a certain amount of violence, but the vital question is whether the violence was systematic, so that it would undermine the legal system. Once more, colorful anecdotes, a few cases, and literary references will not suffice.

Violence used as an auxiliary to litigation was not frequent. We shall work on two assumptions: that serious nonfelonious violence (assault) would be more frequent in such matters than felonious violence (arson or homicide), and that land litigation would be a major source of such incidents. On these assumptions I examined the catalogue of Bedfordshire cases. Of those cases in the Court of Common Pleas and the Court of King's Bench from Bedfordshire, 28 percent went to the Court of King's Bench in the years 1331-1334. For Cornwall in the same years the figure was only 12 percent. Since King's Bench was more particularly concerned with trespasses and thus with violent activities, land litigation from Bedfordshire at this time would seem an excellent source for discovering auxiliary violence, if such was really rampant.

(Continues...)

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Excerpted from The Whilton Dispute, 1264-1380 by Robert C. Palmer. Copyright © 1984 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents

• FrontMatter, pg. i
• Contents, pg. vii
• Table of Documents, pg. ix
• Preface, pg. xiii
• Abbreviations, pg. xv
• A Whilton Dispute Chronology, pg. xvii
• CHAPTER 1. Introduction, pg. 1
• CHAPTER 2. The Origins of the Dispute, pg. 28
• CHAPTER 3. The Assize of Novel Disseisin and the Attaint, pg. 61
• CHAPTER 4. The Writ of Entry and the Writ Certiorari, pg. 87
• CHAPTER 5. Securing Title to Whilton, pg. 124
• CHAPTER 6. Litigation by Writ of Right, pg. 152
• CHAPTER 7. The Interlude, pg. 165
• CHAPTER 8. Resumption and Compromise, pg. 179
• CHAPTER 9. Formedon and the Use, pg. 192
• CHAPTER 10. Conclusions, pg. 210
• APPENDIX 1. Auxiliary Documents, pg. 221
• APPENDIX 2. Statutes, pg. 245
• APPENDIX 3. Glossary of Legal Terms, pg. 275
• Notes, pg. 279
• Index, pg. 287