The Mortgage

"Mortgage" is a Late Middle English word from Old French, and literally means "dead pledge"; folk etymology will say the name signifies the debt dying when it is repaid. The use of "mort" originally had a different meaning.

When the Normans invaded the British Isles, they introduced an item of Norman law called a "gage of land." Say I was a landowner in need of money; for a sum from a lender, I (the gagor) would give possession but not ownership to the lender (the gagee) until I paid off the loan.

There were two types of gages: living and dead. In the living gage (Norman vifgage) and the dead gage (mortgage). With the living gage, any profit made by the lender while in possession of the land—such as selling the produce from it—went toward reduction of the debt. The dead gage did not reduce the debt, however much the land might have produced for the lender.

During Henry II's reign (1154-1189), he tried to right some wrongs that occurred under his predecessor King Stephen (1135-1154), during which many properties had been improperly seized. In the Assize of Clarendon, Henry created the right of novel disseisin ("new/recent dispossession"), by which the gage could go to the royal court and claim improper dispossession. The cases were dealt with swiftly, which was a plus, but they did not actually determine proper ownership: they merely judged whether the land should go back into the original landowner's possession, and the question of ownership was left for later. Yes, it could get messy.

Novel disseisin made the lender's life difficult, since the gage could at any time make a claim to repossess the land. The practice could easily be abused by a gage.

A frequent use of mortgage after 1095 was for the money needed to afford to go on Crusade. But who had the money to lend? Surprisingly, because of generous gifts, monasteries often had the cash to offer—interest feee, of course. Because so many Crusaders came back with less money than they started with, or no money at all, or never came back because they died on Crusade, monasteries gained lots of land for grazing their sheep or planting vines.

Keep in mind, however, that mortgages were not as common as they are today when everyone wants to own a house. Things were different when generations of families stayed in one building, and cottages could be built by one's own labor, or with the help of friends and family.

Speaking of mortgages and family, however, have you ever heard of mortgaging your children? You will, if you come back tomorrow.

The Assize of Clarendon

King Henry II of England had problems. The period known as The Anarchy was over, but the mercenaries employed during it were causing trouble in England now that no one was paying them. "Crusades Fever" was rampant, and aristocrats were leaving their lands for years at a time to liberate the Holy Land; when they returned, they might find someone else farming their estates without permission—and no office of land management that kept records as to who was the rightful owner. And, of course, the Church was doing as it pleased regarding the law, exercising sole authority over its clergy rather than allow them to be bound by civil laws.

Henry needed to put some order onto this chaos. We have already seen (later in his reign) the Assize of Arms. The major instrument of establishing new policies was the Assize of Clarendon in 1166. It was an attempt to establish the rule of law based on evidence and analysis rather than Trial by Ordeal, and to rest final authority with the Crown and its representatives.

It made certain that sheriffs kept records of any criminals in their territories, and that sheriffs would notify other sheriffs of criminals that fled in their direction, to be captured and held. A cleric who was found guilty in an ecclesiastical court was stripped of his office and turned over to the civil court. Compurgation was no longer sufficient as a defense in a felony. Sheriffs had to respond to requests by the "itinerant justices" (the "justices in eyre") sent around by the king.

One important innovation that modern law historians make note of is the first part of Clarendon:

1. In the first place the aforesaid king Henry, by thee counsel of all his barons, for the preservation of peace and the observing of justice, has decreed that an inquest shall be made throughout the separate counties, and throughout the separate hundreds, through twelve of the more lawful men of the hundred... [link]

This is seen as the first step to "Trial by Jury" with  jury of twelve of your peers chosen to analyze a case and help pass judgment.

Eyres

An "eyre" (Middle English, from Old French eire from Latin iter, "journey") was "a circuit court held in medieval England by a judge (a justice in eyre) who rode from county to county for that purpose." (New Oxford American Dictionary). The justices in eyre, sent from Westminster to all counties (all but two that is; see below), would hear and rule on crown pleas (criminal offenses), and civil pleas (lawsuits).

Eyres were declared in the Assize of Clarendon in 1166, put in place by the rule-loving Henry II (1133 - 1189)—who wanted to get away from solutions that involved Trial by Combat or Trial by Ordeal—but we have no records of the eyres from that decade. By the end of the century, justices in eyre were required to keep careful records so that sheriffs knew from whom and how much in fines they were supposed to collect. The resulting "eyre rolls" are rolls of parchments stitched together, filled with Latin abbreviations and legal terminology.

Durham and Chester were exempt from the justices in eyre. The king had no jurisdiction there, because they were palatinates, ruled by a local palatine [Latin: "of the palace"], a figure who had jurisdiction that normally belongs to a king. Durham and Chester were under the control of their bishops, and eyres could only be conducted there if a bishop were dead and his successor not yet appointed.