The Latin of the Early English Common Law
The Latin of the Early English Common Law
Abstract and Keywords
A distinctive feature of the English royal courts created in the last quarter of the 12th century was that they kept a full record of their business in Latin and the clerks who did this developed a distinctive vocabulary to translate the Anglo-Norman French they heard in court. This paper looks at some of that Medieval Latin lexicography for the legal profession: the development of specific terms for litigants and their representatives and judges; for the writs for initiating litigation and to secure the appearance of opponents; for the plaintiff’s claim or complaint and the defendant’s defence; for the modes of proof and judgement. The chapter concludes with a more detailed examination of the specific terminology of a single action (of replevin) which allowed someone whose property had been taken in distraint to challenge the justice of an unjust distraint.
1. The Early English Common Law and the Latin Record of Anglo-Norman Speech
WHEN LEGAL HISTORIANS talk about the early English Common Law they are generally talking about two different, but connected, phenomena. One is a distinctive set of legal institutions and procedures: royal courts with a nationwide jurisdiction and with justices appointed by the king making judgements in them; standard forms of writ available from the king’s chancery for instituting civil litigation in those courts (and also for some litigation brought in county and seignorial courts); the use of jury trial as a way of determining issues of fact between litigants in civil litigation and also (from 1218 onwards) the guilt and innocence of those accused of major criminal offences in criminal trials. The other is the system of procedural and substantive rules which were applied and developed in those courts and which we can know from the surviving official records of the courts and (from the last quarter of the 13th century onwards) from the earliest surviving unofficial law reports. In both these separate, but connected, senses the early English Common Law was largely the creation of the last quarter of the 12th century and, more specifically, of the second half of the reign of king Henry II (1154–89), and the continuous history of the English Common Law in both these senses begins in this period.1
One of the other distinctive features of the new type of royal court created in this period, and of other royal courts created subsequently, seems to have been that the courts (and when we know more about this, each of the justices of these courts) kept a full written record of the proceedings in the court in which they sat on a term-by-term basis in the form of what legal historians (p.134) generally call their ‘plea rolls’, but which they seem simply to have called rotuli (rolls), with each individual membrane itself being a rotulus. No plea rolls now survive of a date earlier than 1194, but there are extracts from rolls that do not survive from as early as 1181 and other, indirect evidence suggests that the change to making and keeping a written record of proceedings took place in 1176.2 These judicial records were compiled in Latin, but it was a Latin with a distinctive vocabulary of its own. That vocabulary went on growing and became richer over time. Latin was not the spoken language of those courts, nor was English. The spoken language of all the new-style royal courts seems from the first to have been Anglo-Norman French, although this is difficult to prove directly or conclusively before the last quarter of the 13th century; by then Anglo-Norman French seems also to have become the language of the much older English local courts as well.3 One of the major contributions of the first generation of clerks who wrote these plea rolls seems to have been that of producing a standard translation of the Anglo-Norman French they were hearing in court into written Latin, and one that was then adopted and modified and extended by their successors. This chapter looks at some of this distinctive Latin legal vocabulary of the English royal courts, mainly as it is to be seen on the plea rolls of the king’s courts during the period down to c.1300. Much of this vocabulary, however, overlapped with the vocabulary of other Latin writings on English law written during the same period in the major treatises such as Glanvill and Bracton and in the many lesser legal works which are found in legal compendia,4 and thus it is possible to talk of a distinctive vocabulary of the English Common Law whose history and development begin in this period. The same vocabulary was also used extensively in English legislation enacted during this period when that legislation was enacted in Latin. Up to 1275 Latin was the sole language of English legislation; thereafter Latin and Anglo-Norman French seem to have been used almost interchangeably as legislative languages.
2. The Participants in Civil Litigation
Let me start with the main participants in civil litigation, the two parties to a suit. Already in Glanvill, the earliest treatise of the nascent Common Law, which was completed shortly before the death of Henry II in 1189, we find the (p.135) use of the term petens for the claimant in litigation about title to land and tenens for the current possessor or tenant of that land, the standard form found in later plea rolls.5 For other kinds of civil litigation (in which for the most part only damages were being claimed) we soon find the development of the separate standard terms querens (literally ‘one who complains’) for the plaintiff and defendens (perhaps literally meaning ‘the one who denies’ rather than ‘the one who defends’) for the defendant. This vocabulary seems to have been unique to the English Common Law courts.
The royal justices who presided over, but also made judgements in, these courts seem generally to be called justicia in the singular (perhaps mirroring the Anglo-Norman term justice) and justicie in the plural during the reigns of kings Henry II, Richard, and John.6 Beginning in Richard’s reign there is also to be found side by side with this term the newer, and perhaps less ambiguous, term justiciarius (plural justiciarii).7 That is the form used consistently in the original texts of the 1215 ‘charter of liberties’ (Magna Carta).8 It also seems to be used consistently (in the minority of instances where the designation is spelled out in full) from the beginning of the reign of Henry III onwards in final concords made in the king’s courts.9 The Classical Latin term judex is generally reserved in English Common Law usage for the judges of the ecclesiastical courts, who are called judices ecclesiastici in the writs of prohibition (p.136) given in Glanvill,10 but just judices in later registers of writs.11 It is also sometimes used for one specific class of lay judgement makers or finders (also known sometimes as judicatores) as distinct from the normal sectatores found in other local courts in the local courts of Cheshire and in the county court of Lancashire.12
The full, but not necessarily professional, legal representative of the English medieval common law courts was the attornatus (‘attorney’). This is a term whose first appearance can be traced to 1200, when it replaced the clumsier adjectival phrase positus loco X. The equivalent term used in Glanvill is the more classically sounding (though in fact equally non-classical) responsalis, a term that from the early 13th century onwards came to be applied solely to a representative appointed outside court without official approval and with very limited powers.13 The verb attornare from which attornatus derived comes from the French verb attorner meaning ‘to turn’ but in the more extended sense of ‘to assign for a specific purpose’. This may suggest that attornatus itself is derived from a slightly earlier word derived from the past participle of the verb (attorne) in Anglo-Norman. The older ponere loco phrase did not entirely disappear after 1200. It lived on in the classic form of plea roll enrolment recording the appointment of an attorney for a particular piece of litigation. This remained to the end of the 13th century and beyond X ponit Y loco suo ad lucrandum vel perdendum. By the last decade of the 13th century, with the rise to prominence of the professional attorney, it had become necessary to distinguish professional attorneys as a group or as individuals from those acting as attorneys who were not professional and thus not subject to professional disciplinary rules. It is then that we first find the use in certain specific contexts where this distinction was important of the terms generalis attornatus or communis attornatus for the professional attorney.14 There was a similar kind of representative (though one who, unlike the common law attorney, had to be appointed in a separate written document) in ecclesiastical courts, but this representative seems always to have been known by the common medieval European name of procurator (‘proctor’). The English Common Law courts also knew a rather different kind of legal representative or agent, one who spoke and argued in court on behalf of his client, but did not fully represent him or her and therefore needed no formal appointment, nor even any formal recorded acceptance by (p.137) the court.15 By the end of the 13th century this role had come to be entrusted in the main royal courts to members of a small and highly skilled professional elite, but it is only in the final decade of the century that we find any regular mention of them and of their names in the records of the courts and then only in connection with one of their subsidiary functions, that of involvement in the making of final concords in the Common Bench. From incidental mentions we can, however, see that throughout the 13th century the term most commonly used on the plea rolls for members of this elite was that of narrator (‘counter’), meaning ‘someone making a count’,16 and there was a straight equivalence between this term and the Anglo-Norman le contur. During the first half of the 13th century we occasionally encounter the more classical term advocatus.17 This was also the term used in this period and later for the professional lawyer who argued cases for clients in the ecclesiastical courts.18 From the middle of the 13th century onwards we begin to find the term serviens (and the Anglo-Norman le serjeant), meaning ‘serjeant’ or ‘servant’, or the portmanteau term serviens narrator (and the Anglo-Norman serjeant contour) for the men performing this function. John Baker has suggested that this name arose from the frequency with which serjeants received retainers or pensions for their services and subsequently from their obligation to provide service to the king’s subjects in return for their monopoly of advocacy in the Common Bench, but the reference may rather be to the way in which what they said could be ‘owned’ or ‘avowed’ (advocatus) or ‘disowned’ or ‘disavowed’ (disadvocatus) by their clients and its resemblance to the way in which lords could and did avow or disown the actions and words of their (other) ‘servants’ in court.19 By the end of the 13th century there were also specific terms for the client of the professional lawyer. He was called either the generic dominus (though without any implication that he was the lawyer’s ‘lord’ in tenurial terms) or the Classical Latin cliens (‘client’).20 A third role performed in Common Law courts (and in local courts as well) by agents was that of rendering excuses for the non-appearance of litigants or their attorneys or other persons incidentally involved in litigation. This role was one played by individuals described as essoniator(es) (‘essoiner(s)’) and the entries recording their appearances and the generic excuses they gave for the absence of those they were representing described them as ‘essoining’ (the verb is essoniare) their clients. The excuse given (of which there were several distinct types which might be held to justify an absence) was their essonium (p.138) (‘essoin’). Behind the Latin noun essoniator (first found in undated legislation of the reign of Henry II)21 and the Latin noun essonium and verb essoniare (which are first found in Glanvill)22 are Anglo-Norman terms of the same meaning, perhaps ultimately of Germanic origin. ‘Essoiners’, however, unlike attorneys and serjeants, never became a distinct professional group.
3. The Terminology of Legal Writs
One of the distinctive features of the new Common Law courts was that almost all civil litigation which took place in them was initiated by writ. After a brief period (which seems to have lasted only down to the reign of king John) when some litigation might be initiated by writs in the name of the chief justiciar, the head of the administrative machinery of government, during the king’s absence abroad,23 all such writs were issued in the king’s name by the king’s chancery. Like other written orders and authorisations issued by chancery, these were described as brevia (singular breve), a term with a long history prior to the 12th century. The chancery writs which initiated (or originated) litigation were, as early as 1200, being generically described as brevia originalia (singular breve originale), a term which reflects their function in originating and authorising litigation.24 Such writs also had two other characteristics from a very early date. One was that they generally belonged to one of a limited range of standard types (which soon developed names of their own such as breve de recto, breve de ingressu, breve de debito, breve de compoto) whose formulation may from the beginning have been approved through a process of consultation with the king’s council or some larger advisory group, as seems normally to have been the case later, in the 13th and early 14th century.25 Glanvill contains a collection of such writs but interspersed with much other material. The earliest datable collection of writs standing on its own is the so-called ‘Irish’ register of writs (Hib). This probably represents a copy of an official collection of English forms adapted for use in Ireland sent to Ireland on behalf of king John soon after his 1210 visit. It was during this visit that a formal decision was taken that the lordship of Ireland in legal matters should follow the rules and procedures of the English Common (p.139) Law.26 A substantial number of private copies of such formularies of writ types as used in England survive for the 13th century and by the second half of the century (if not before) such collections were probably being described as a registrum brevium.27 There are also some references which suggest, but do not prove, that there may have been some sort of authoritative official registrum brevium kept in chancery as a guide to the types of writ which its clerks could write.28 The second characteristic was that such writs were addressed to the local sheriff and authorised, or rather required, him to summon or take other action against the defendant to secure his appearance at a specific court on a specific day to answer the plaintiff on the claim or complaint outlined in the original writ. They also instructed the sheriff to report back to the court concerned on that day as to what he had done, sending the original writ to the court with his report on what he had done endorsed on it or attached to it. This soon came to be known as ‘returning’ the writ and the verb used is retornare, although the writ was not going back to where it had originally come from.29 The writ as ‘returned’ to the court then supplied the authority for the court to take jurisdiction over this specific case. It is not known exactly when the ‘returnable’ writ with this dual function was invented. It is to be found already in Glanvill, so we know that it had been invented before 1189. How much earlier it is impossible to say in the absence of surviving returnable writs of the period. The term breve retornabile is not attested by DMLBS before the last decade of the 13th century, but the thing itself had long existed and the term may also have existed before its first cited occurrence.30
The standard forms of process used to secure the appearance of the defendant in court (which developed and changed over time) and the terminology developed to describe them such as summons, the various forms of attachment and distraint, arrest, exaction to outlawry and the petty and grand cape, all of which had their own specific technical names, would require a separate paper. Each stage of process was something authorised by a further ‘returnable’ writ issued by the court in the king’s name but attested by one of the justices of the court. Each required the sheriff to take action and report back to the court on what he had done. Such writs were generically described as brevia de judicio or brevia judicialia, writs of judgement or judicial writs.31 (p.140) The same term was also used for the writs which the court might issue to ensure the appearance of others whose presence might be needed in litigation such as warrantors or those whose aid was sought or jurors required to appear to give verdicts and also to give effect to judgements given in the court.
4. What Happened when the Parties Appeared in Court
4.1 The count
Eventually and with perseverance, mesne process would ensure that both parties appeared in court. The formal enrolment of the pleading in the case would generally, if not invariably, start with an adaptation of the original writ explaining the plea (placitum) which the defendant had been ‘summoned’ or ‘attached’ or ‘distrained’ to answer, giving in outline the claim the plaintiff was making against the defendant and the quantities involved and the location, or his complaint of the wrong done by the defendant. This was then followed by a translated summary of the oral elaboration on the claim or complaint contained in the plaintiff’s writ made by the plaintiff’s serjeant or by the plaintiff in person. Over the course of the 13th century these became more and more detailed.32 The standard term for the whole of this, one that is not found in Glanvill but is already found on the plea rolls of the king’s courts by the last decade of the 12th century, was narracio, the ‘telling’ or ‘count’.33 In many, but not all, claims and complaints the plaintiff or complainant also included a claim for damages, giving a total sum of money but without any explanation of how that total had been calculated. This was introduced from around 1210 onwards by what soon became the standard phrase linking the count and the damages claimed et unde dicit quod deterioratus est et dampnum habet ad valenciam X, a standard phrase whose two constituent parts (though one looks backwards and the other to the present) seem to bear a virtually identical meaning.34 The count then ended with an offer of proof, most often an offer of ‘suit’, recorded as the ‘production’ or ‘proffer’ of suit (Et inde producit sectam), which seems to mean an offer to produce witnesses.35
This was followed by the ‘response’ (responsum) of the defendant. This seems always to start with some form of general denial of the plaintiff’s claim or complaint. In land pleas the defendant ‘denied’ (defendit) the claimant’s right (jus suum) and the seisin (seisinam) of himself or of the ancestor or predecessor on which the claimant had relied. In other pleas the defendant denied ‘the force’ (vim) (even if no force of any kind was alleged) and ‘the wrong’ (injuriam) and perhaps also offered a further subsequent (and binding) denial (of both).36 By 1284, this formal denial might be described as denying ‘the words of the court’ (verba curie) but this curious phrase, apparently distinctive to English legal Latin, is probably earlier.37 The formal defence might be then followed by some sort of exception (excepcio), an argument showing why the claimant or complainant should not be answered on the claim or complaint he had made in the form in which he had made it or on the original writ he had obtained to initiate his litigation. The term is one inherited from Classical Latin and was used in contemporary canon law as well. Even the broader categorisation of such exceptions into ‘peremptory’ (peremptoria) and ‘dilatory’ (dilatoria) exceptions also has nothing distinctively English about it.38 The same is not, I think, true for a different kind of ‘defence’, the avowry (advocacio).39 Here the defendant conceded the truth of all or the salient part of the complaint made against him but explained why what he had done was nonetheless justified. This is typical (indeed almost universal) in replevin actions heard in the Common Bench in which the plaintiff challenged the defendant’s distraint of his animals or other movables and the defendant in his avowry explained why his distraint had in fact been justified.40 It is also found in some trespass actions, in which the plaintiff alleged some harm had been done to his person or his goods or his property rights, where the same might also be the case. There might then be further argument between the parties about the alleged justification for what would otherwise be wrongful actions before an issue of fact or of law was reached.
An issue of fact might be determined by compurgation (lex) (one of many specifically legal meanings of this word), a denial by the defendant and normally eleven oath-helpers.41 Here the defendant had to ‘wage’ (vadiare) his law twelve-handed (se duodecima manu), that is make a promise to ‘make’ his law on some future occasion and to have eleven oath-helpers ready to swear in support of his denial on oath and to find sureties that he would do so, and then normally come at a later date to make his law (facere or prestare legem),42 by making an oath of denial on the bible or other suitable object, and then have eleven oath-helpers to swear their oaths in support. More commonly an issue of fact was determined by a jury (a jurata or recognicio or sometimes an assisa). When the parties asked for and agreed for jury trial this was normally enrolled as them ‘putting themselves on the country’ (ponit se super patriam), meaning a group of men from the particular area whose inhabitants might be considered to be best informed on the matter in dispute.43 Enough men were summoned from that area to allow twelve suitable jurors (juratores or recognitores) to give their verdict (recognicio or veredictum) on the matter in dispute, normally at a subsequent session of the court.
It might also be determined by a judgement given by the court itself. There were two quite different words for ‘judgement’ in the early English Common Law. One is the fairly obvious and expected Classical Latin term judicium.44 This is regularly used for minor judgements on procedural matters such as authorising the next stage in process against a defendant and also when the court wished to consider before giving judgement and so the parties were ‘adjourned to hear their judgement’ (dies datus est eis de audiendo judicio suo). But as important, if not more important, was the term consideracio and, even more commonly, the impersonal verbal phrase ideo consideratum est for the giving of the judgement. These were already in use by the late 12th century, and again seem to represent a distinctively English usage.45
The remainder of this chapter will focus on some of the more specific vocabulary of a specific type of proceedings heard in the king’s courts in this period, the form of action that allowed someone who had been distrained to challenge the justice of that distraint.46 This action was initiated by the writ of ‘replevin’ and was often known as the action of replevin (replegiari) because it commenced with an order to the sheriff to secure the release in return for sureties or pledges (plegii) of what had been taken in distraint and presupposed that the defendant had previously refused such an offer of sureties (to stand to justice) offered by the plaintiff.47 What seems to be an older name for the action which was still found in some contexts was vetitum namium (‘a distraint [whose release had been] refused’).48 A third name also sometimes used was capcio averiorum (or catallorum), the ‘taking’ of animals or chattels. In replevin the defendant was summoned to answer why he or she had taken averia, which is being used here in the generic sense of ‘animals’ of any kind,49 or catalla, which is also being used in the generic sense of any kind of inanimate chattels or goods (including fungible goods),50 and also why he or she had then unjustly kept them.
In the count the plaintiff gave details of when and where the distraint or distraints had been made and what had been taken (getting behind the unspecific averia and/or catalla of the writ to specify how many of what kinds of animal or chattel had been taken) and saying where they had been taken to be impounded (using the term inparcare),51 that is where they had been placed for safe keeping out of the control of the plaintiff, and then added that they had been unjustly kept ‘against gage and pledge’ (contra vadium et plegium), apparently meaning ‘despite an offer of a gage (an object of small value offered as a surety)’ and pledge (an offer to provide a personal surety or sureties) until they had been released by the action of the sheriff or a bailiff.
Distraints might be made for a variety of purposes. The most common types, however, were where animals belonging to the plaintiff had infringed on the property rights of the defendant or where the defendant had distrained to secure the performance of services or customary dues owed by the plaintiff (p.144) or a third party to the defendant which had not been performed or paid. In either case the defendant would normally make what came to be called an advocacio (an ‘avowry’), which was an admission and justification of the distraint. By the end of the 13th century this had come to be distinguished from a cognicio, where the agent (generally the bailiff) of a third party justified a distraint as made on that third party’s behalf, but sought their aid (auxilium), that is for an adjournment allowing them to appear in court and agree that they had authorised the distraint and justify it on their own behalf. This particular sense of advocacio is, of course, wholly distinct from that of patronage of a church or a religious house, another commonly occurring English legal usage of this same period. In the case of distraints for the infringement of the defendant’s property rights (such as grazing animals on the defendant’s several or in common land where the plaintiff possessed no rights of common) the avowry would concede the taking of the animals dampnum facientes or in dampno suo (‘causing harm or loss’), a very specific legal usage (not one, I think, reflected in DMLBS), and would say that he had impounded them as he was legally entitled to do (eos imparcavit prout eidem bene licuit). Avowries for customs and services were more complex. In the fully developed form of such an avowry found by 1300 the defendant would justify his distraint by specifying the land which the defendant (or some third party) held of him (predictum tenementum or predicta tenementa) where the distraint had been made by specified services; assert that he or an ancestor had been seised (seisitus fuit) of them; and explain that he had distrained (distrinxit) within his fee (in feodo suo) and on his true tenant (verum tenentem suum) (if not on the plaintiff). This same technical legal language is found in various other contexts as well: the person holding land or rights in land (with what looks closest to ownership over it) is described as the tenens (or tenens in dominico); his rights over the land are described as his tenementum or tenementa; the obligations that he owes for it are generically described as servicia or servicium or consuetudines or consuetudo (though also more specifically as relevium, redditus, scutagium, homagium, fidelitas, and others); and the person who benefits from these obligations as his dominus, with a further contrast being drawn between the dominus immediatus and the dominus superior or dominus mediatus; with the word feodum (which can mean simply a hereditary interest in land) here meaning the area over which a superior lord can exercise rights (most commonly rights of distraint) even when it is held by a subtenant. Much of this vocabulary is again clearly immediately derived from French and reflects the usages of life outside the courtoom as well as inside it, but its increasing precision is probably a legal artifact.
Enough has been said in this paper to demonstrate and illustrate how the English royal courts of the early Common Law had come within a century of their creation to use a distinctive and quite technical language of their own (p.145) and to go on refining and adding to that language. This is an area where there was clearly a continuing interaction between the Anglo-Norman French spoken in the courts, and increasingly also written by those involved in the law, and the Latin of the formal records associated with the courts and of some legislation and also some of the legal treatises of the early English Common Law. Legal historians have long used all these kinds of source but have not focussed on the specifically linguistic phenomena involved. They have tended to think it is a matter for the lexicographers, and so perhaps it is. There is certainly plenty of material for lexicographers to study and much of it is fortunately available for study in the now completed Dictionary of Medieval Latin from British Sources.
CurR Curia Regis Rolls i– (London, HMSO, 1922–).
DMLBS Dictionary of Medieval Latin from British Sources, ed. R. E. Latham, D. R. Howlett & R. K. Ashdowne (London, British Academy, 1975–2013).
EE Law Rep. Earliest English Law Reports, vol. IV, ed. P. A. Brand, Selden Society 123 (London, Selden Society, 2007).
E. Writs Early Registers of Writs, ed. E. De Haas & G. D. G. Hall, Selden Society 87 (London, Selden Society, 1970).
Fines Feet of Fines, MS TNA PRO CP 25/1.
Fines P. 1–7 Ric. I Feet of Fines of the Reign of Henry II and of the first seven years of the reign of Richard I, Pipe Roll Society o.s. 17 (1894).
Fines P. 7 & 8 Ric. I Feet of Fines 7 & 8 Richard I, Pipe Roll Society o.s. 20 (1896).
Fines P. 9 Ric. I Feet of Fines, 9 Richard I, Pipe Roll Society o.s. 23 (1898).
Fines P. 10 Ric. I Feet of Fines 10 Richard I and a Roll of the King’s Court in the Reign of Richard I, Pipe Roll Society o.s. 24 (1900).
Fines P. Norf & Suff Feet of Fines for the County of Norfolk for the reign of King John (1201–1215) and for the County of Suffolk for the reign of King John (1199–1214), ed. B. Dodwell, Pipe Roll Society n.s. 32 (1958).
Fines RC Fines siue pedes finium siue finales concordiae in curia Domini Regis, 2 vols Record Commission (1835, 1824).
Glanvill The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, ed. G. D. G. Hall, (London, Nelson, 1965) [by p.].
Novae Narrationes ed. E. Shanks & S. F. C. Milsom, Selden Society 80 (London, Selden Society, 1963).
Pl. K. or J. Pleas before the King or his Justices, 4 vols, Selden Society 67, 68, 83, 84, (London, Selden Society, 1932–67).
Brand, P. (1992a), The Making of the Common Law (London, Hambledon).
Brand, P. (1992b), The Origins of the English Legal Profession (Oxford, Blackwell).
(p.146) Brand, P. (1993), ‘“Nothing Which is New or Unique”? A Reappraisal of Judicium Essoniorum’, in P. Birks (ed.), The Life of the Law: Proceedings of the Tenth British Legal History Conference, 1991 (London, Hambledon Continuum), 1–7.
Brand, P. (1999), ‘Legal Education in England before the Inns of Court’, in J. A. Bush & A. Wijffels (eds), Learning the Law: Teaching and the Transmission of English Law, 1150–1900 (London, Continuum), 50–84.
Brand, P. (2000), ‘The Languages of the Law in Later Medieval England’, in D. A. Trotter (ed.), Multilingualism in Later Medieval Britain (Woodbridge, D. S. Brewer), 63–73.
Brand, P. (2012), ‘The Development of Professional Lawyers and a Legal Profession in the English Lay Courts: The Relationship Between the Earliest Professional Lawyers and Their Clients’, in P. Binski & E. A. New (eds), Patrons and Professionals in the Middle Ages, Harlaxton Medieval Studies 22 (Donington, Lincs, Shaun Tyas), 41–60.
Brand, P. (2013), ‘Chancery, the Justices and the Making of New Writs in Thirteenth-century England’, in M. Dyson & D. Ibbetson (eds), Law and Legal Process: Substantive Law and Procedure in English Legal History (Cambridge, Cambridge University Press), 17–33.
Carpenter, D. (2015), Magna Carta (London, Penguin).
Palmer, R. C. (1982), The County Courts of Medieval England (Princeton, NJ, Princeton University Press).
van Rhee, C. H. (2005), ‘The Role of Exceptions in Continental Civil Procedure’, in P. Brand, K. Costello & W. N. Osborough (eds), Adventures of the Law: Proceedings of the Sixteenth British Legal History Conference, Dublin, 2003 (Dublin, Irish Legal History Society), 88–105.
(4.) There is a large literature on these legal works. For some suggestions as to their possible educational context see Brand (1999). For one short legal treatise (Judicium Essoniorum) whose origins can be traced to an anonymous letter sent in response to queries about the Eyre from someone about to serve for the first time as an itinerant justice see Brand (1993).
(5.) Glanvill 19, 20, 22, 23, 26, 31, 33, 35, 152, 154 (but note petitor on 24). The clumsier is qui petit and is qui tenet are used for the claimant and defendant in litigation about advowsons (ibid. 44, 46–7) but tenens in connection with the assise of darrein presentment at 162.
(6.) This is the term consistently used in Glanvill. Our best source for the work of royal justices in this period is the final concords made before royal justices. In most of these their description is abbreviated to justic’ or just’ but when the word is given in full it seems normally to have been justiciis. For examples from Henry II’s reign see BL Cotton Charter XI, 73 (June 1176) and BL Additional Charter 20562 (September 1184); from the reign of king Richard see Fines P. 1–7 Ric. I, p. 11, no. 12 (May 1192); Fines P. 9 Ric. I, p. 85, no. 118 (23 January 1198); Fines P. 10 Ric. I, p. 20, no. 30 (18 October 1198), p. 66, no. 97 (6 November 1198), p. 92, no. 137 (18 November 1198), p. 93, no. 139 (20 November 1198), p. 134, no. 212 (20 January 1199), pp. 17–6, no. 260 (28 January 1199). For evidence of the continuing use of the term still as late as the final years of John’s reign see Fines P. Norf & Suff nos. 254–260, 262, 266, 270, 544, 546–8, 552; Fines RC i. 82, 248, 249, 335, 336. The term has a history in English royal administrative usage going back to around 1100.
(7.) For evidence of its use during Richard’s reign see Fines P. 1–7 Ric. I, p. 23, no. 24 (25 July 1195), pp. 80–1, no. 96 (21 January 1196); Fines P. 7 & 8 Ric. I, p. 82, no. 113 (22 April 1197), p. 94, no. 128 (23 April 1197); Fines P. 9 Ric. I, p. 80, no. 112 (19 January 1198); Fines P. 10 Ric. I, p. 208, no. 302 (16 February 1199). For evidence of its use during John’s reign see Fines P. Norf & Suff nos. 193, 197, 201, 206–7, 225, 509, 522. It is also used in 1199 by Geoffrey fitzPeter in his mandates to the justices of the Common Bench: Pl. K. or J. i nos. 3475, 3545.
(9.) For early examples from the 1219 Suffolk eyre see Fines 212/6, nos. 8–11, 13, 17–24 and from the Common Bench see Fines 213/7, no. 1.
(16.) For the count see below, §4.1.
(23.) For examples see Pl. K. or J. i no. 3473 (1190); no. 3554 (119531197); nos. 3481, 3483, 3486–8, 3495, 3497–9, 3506, 3509–12, 3522–4, 3526, 3528–31, 3533–35, 3538, 3540–41, 3543, 3546–47 (1199) and 3552–3 (1206).
(24.) DMLBS s. originalis.
(27.) For a reference to a registrum taken from a bailiff by his lord together with rolls, tallies, and statutes in 1286 see TNA: PRO JUST 1/375, m. 8.
(30.) DMLBS s. retornabilis.
(33.) DMLBS s. narratio.
(34.) The earliest evidence of this doublet (but in a slightly different formulation) seems to be in a case of 1210: CurR vi p. 22 (deterioratus est ipse et dampnum recepit ad valenciam.xx. librarum).
(35.) In the action of right for land and advowsons the ‘proof’ needed to be a man who claimed to be a free man of the claimant and to have been a witness to the seisin enjoyed by the claimant or his ancestor or predecessor or who asserted that his father had been and had enjoined him on his deathbed to bear witness on his behalf, and was willing to fight battle in support of the claim and the testimony of himself or his father. Glanvill 23.
(36.) Novae Narrationes p. xxxviii.
(37.) The phrase occurs earlier in French in the denial of the mos de la court: EE Law Rep. p. xxxii and n. 86. It also occurs earlier in Latin (as early as 1275) in the records of local courts: DMLBS s. verbum, 9b.
(39.) Not a usage reflected in DMLBS.
(40.) Until 1290, the lord or other distraining normally simply ‘acknowledged’ (cognoscit) that he had taken distresses and claimed that that had been just; thereafter the usual form was that ‘he readily avowed (bene advocat) the taking and justly’.
(46.) What follows is drawn from an unpublished study of the action of replevin in 13th-century England, which contains full references for the assertions made here.