English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...

, the assize of mort d'ancestor ("death of ancestor") was an action brought where a plaintiff claimed the defendant had entered upon a

freehold Freehold may refer to: In real estate *Freehold (law), the tenure of property in fee simple *Customary freehold, a form of feudal tenure of land in England *Parson's freehold, where a Church of England rector or vicar of holds title to benefice p ...

belonging to the plaintiff following the death of one of his relatives. The questions submitted to the jury were, "was A seised in his

demesne A demesne ( ) or domain was all the land retained and managed by a lord of the manor under the feudal system for his own use, occupation, or support. This distinguished it from land sub-enfeoffed by him to others as sub-tenants. The concept or ...

as of fee on the day whereon he died?" and "Is the plaintiff his next heir?" This assize enabled the heir to obtain possession, even though some other person might have a better right to the land than the deceased.

Origins, development and end

Mort d'ancestor was one of the so-called "petty assizes" established by Henry II in the wake of the

Assize of Clarendon The Assize of Clarendon was an act of Henry II of England in 1166 that began a transformation of English law and led to trial by jury in common law countries worldwide, and that established assize courts. Prior systems for deciding the winning ...

(1166) and the

Assize of Northampton The Assize of Northampton, largely based on the Assize of Clarendon of 1166, is among a series of measures taken by King Henry II of England that solidified the rights of the knightly tenants and made all possession of land subject to and guara ...

(1176). According to the Assize of Northampton, the lord must not prevent the heir having seisin forthwith on the ancestor's death, making this almost the final step in the development of common law heritability: "4. Item, if any freeholder had died, let his heirs remain possessed of such 'seisin' as their father had....And according to the result of the inquest let restitution be made to his heirs". Doris Stenton has argued however that it was only some time ''after'' the Assize of Northampton that the (purchasable) writ of Mort D'Ancestor itself was introduced, allowing individuals to seek justice for themselves in the royal courts (as opposed to the general enquiries of the two main Assizes). Whereas Northampton was mainly concerned with lords preventing heirs taking seisin, the new writ also covered the case of ''competing'' heirs to the same property.W. Warren, ''Henry II'' (1973) p. 344 Like the other petty assizes, the new writ was immediately popular, being quicker, cheaper and simpler than feudal justice; and like them too it gradually developed from a preliminary to a final action, while the range of relations who could claim heritage was also widened (in the 13thC) from close to far. With the other two petty assizes, it was abolished in 1833.

Examples

Ranulf de Glanvill's ''Treatise on the Laws and Customs of the Kingdom of England'' give several examples of mort d'ancestor writs, which were issued to a sheriff as a command from the king. The general form was: * The sheriff shall, upon receiving security from the plaintiff, summon twelve local men to testify in the king's court, ** whether the plaintiff's relative held the land as a heritable estate ("was seised in his demesne as of his fee"), ** whether the relative died after the king's coronation, and ** whether the plaintiff was his heir. * Before their court appearance, these witnesses should view the land and sign their names on the writ. * The sheriff shall also summon the defendant or his representative to hear the testimony. Two early instances of such an action are recorded in feet of fine from the reign of King John for a family dispute between members of the de Brantingham family in

Yorkshire Yorkshire ( ; abbreviated Yorks), formally known as the County of York, is a Historic counties of England, historic county in northern England and by far the largest in the United Kingdom. Because of its large area in comparison with other Eng ...

in 1202.The Surtees Society: 48The Surtees Society: 76 On 22 August 1202, one Matilda (or Maud), daughter of John de Brantingham, brought an action under the assize of mort d'ancestor against her sisters, Mary and Alice de Brantingham. Less than four months later, on 1 December 1202, John de Brantingham, son of Haldane the Deacon (and not to be confused with the later

John de Brantingham John de Brantingham (died before 1365) was an English Christian clergyman of the early 14th century and a member of the Brantingham family. He held a prebend of Derby Cathedral, value five marks a year, and the rectory of Askeby, worth 20 ma ...

, a Yorkshire

clergy Clergy are formal leaders within established religions. Their roles and functions vary in different religious traditions, but usually involve presiding over specific rituals and teaching their religion's doctrines and practices. Some of the ter ...

man), brought a similar action against his three daughters. In Ireland in the early 1300s John de Cogan succeeded in a claim for assize of mort d'ancestor before a Bench of judges headed by the

Lord Chancellor of Ireland The Lord High Chancellor of Ireland (commonly known as Lord Chancellor of Ireland) was the highest judicial office in Ireland until the establishment of the Irish Free State in 1922. From 1721 to 1801, it was also the highest political office of ...

.''Calendar of Irish Chancery Letters c.1244-1509'' From the surviving records of the

lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

the land in dispute seems to have been a substantial wooded area in

Maynooth Maynooth (; ga, Maigh Nuad) is a university town in north County Kildare, Ireland. It is home to Maynooth University (part of the National University of Ireland and also known as the National University of Ireland, Maynooth) and St Patrick's ...

. Most such actions were in fact for very small areas of land, a few furlongs or a handful of acres.

Origins, development and end

Examples

See also

References

Bibliography

Further reading