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• Book II: The Doctrines of English Law In the Early Middle Ages
• Chapter IV: Ownership and Possession
• Chapter V: Contract
• Chapter VI: Inheritance
• Chapter VII: Family Law
• Chapter VIII: Crime and Tort
• Chapter IX: Procedure
• Select Bibliography and Notes.
• I.
• (1): Original Sources.
• (2): Institutional Studies.
• II.
• (1): the Real Actions.
• (2): the Personal Actions.
• (3): Procedure.

II.

(1)

The Real Actions.

General and Background Discussions.

General accounts published since Maitland’s are: W. S. Holdsworth, History of English Law vol. 3 (Methuen, 5th ed. 1942); W. S. Holdsworth, Historical Introduction to the Land Law (Oxford Univ. Press, 1927); A. W. B. Simpson, An Introduction to the History of the Land Law (Oxford Univ. Press, 1961), replacing the last-named; and T. F. T. Plucknett, Concise History of the Common Law (5th ed., Butterworth, 1956). T. F. T. Plucknett, Legislation of Edward I (already cited) is also relevant at many points.

Any work touching the institutional, social or economic history of the period almost inevitably touches upon these matters. For the feudal background M. Bloch, Feudal Society (English ed. Routledge and Kegan Paul, 1961), and F. L. Ganshof, Feudalism (English ed. Longmans, Green, 1952) are important. For general studies of the factual background, the following seem specially illuminating: R. Lennard, Rural England, 1086-1135 (Oxford Univ. Press, 1959); G. C. Homans, English Villagers of the Thirteenth Century (Harvard Univ. Press, 1941); E. A. Kosminsky, Studies in the Agrarian History of England in the Thirteenth Century (English ed. Blackwell, 1956); Levett, Studies in Manorial History (Oxford Univ. Press, 1938); H. S. Bennett, Life on the English Manor (Cambridge Univ. Press, 1937). Tenurial and related studies from various view-points include: Sir Frank Stenton, The First Century of English Feudalism (Ford Lectures, 1929; Oxford Univ. Press, 2nd ed. 1961); S. Painter, Studies in the History of the English Feudal Barony (Johns Hopkins Univ. Studies in Historical and Political Science, Series 61, no. 3, 1943); D. C. Douglas, The Social Structure of Medieval East Anglia (Oxford Studies in Social and Legal History, vol. 9, Oxford Univ. Press, 1927); A. L. Poole, Obligations of Society (Oxford Univ. Press, 1946); N. Denholm-Joung, Seignorial Administration in England (Oxford Univ. Press, 1937); H. M. Chew, Ecclesiastical Tenants in Chief and Knight-Service (Oxford Univ. Press, 1932); E. G. Kimball, Serjeanty Tenure in Medieval England (Yale Univ. Press, 1936); W. O. Ault, Private Jurisdiction in England (Yale Univ. Press, 1923). There are also, of course, many studies of individual lordships. A recent study of Anglo-Saxon land-holding, disputing received views, is E. John, Land Tenure in Early England (Leicester Univ. Press, 1964).

Background to the Actions.

Turning to the specific matters discussed in the essay, Maitland’s picture of the development of the actions has been followed in its general outline. Even those who have been most concerned to show that he was too Roman in his thought have assumed that “the right” and “seisin,” however closely related to each other and however different from dominium and possessio, were none the less concepts of the same order, somehow less abstract but still existing in rem. Concomitantly, the actions have all been seen to start from some archetype of the writ of right, into the scope of which the lesser remedies progressively encroached. For the suggestions made, therefore, which go to a different framework of thought, the only modern works that can be quoted are those which, while not addressing themselves to these questions at all, see a world in which seignorial control and jurisdiction are so dominant that the purely abstract concepts seem inappropriate. The most striking is Sir Frank Stenton’s The First Century of English Feudalism (already cited), in which he expresses the belief that the king’s courts must have owed much to the honour courts; but of course he was not concerned in any way with the terms of legal thinking. The chief attempt to accommodate strictly legal phenomena and ideas to the feudal framework is S. E. Thorne’s important and controversial lecture “English Feudalism and Estates in Land” [1959], Cambridge Law Journal, p. 193. The conclusion reached, about the late establishment of heritability, has been seen as raising difficulties. On this question see Simpson, History of the Land Law (already cited), pp. 46 ff.; R. H. C. Davis, “What Happened in Stephen’s Reign,” History, 49 (1964), pp. 1 ff. But Professor Thorne’s lecture seeks only to work out in detail what must in principle have happened to produce the common law scheme of estates; and though again he cannot be quoted in support of the concept of “the right” proposed in the foregoing essay, he does indeed consider the difficulties until a late date in attributing anything like “ownership” to a tenant. The essay has suggested that an important step in the evolution of such a concept was that from heritability to alienability. For the mechanics of this, and for much else, reference should be made to S. J. Bailey, “Warranties of Land in the Thirteenth Century,” Cambridge Law Journal, 8 (1944), p. 274, ibid. 9 (1945), p. 82 and “Warranties of Land in the Reign of Richard I,” ibid. 9 (1946), p. 192.

Writ of Right.

For the early history of the writ of right itself see Royal Writs in England from the Conquest to Glanvill, ed. R. C. van Caenegem (Seld. Soc., vol. 77 for 1958-1959), esp. pp. 206 ff. It may be appropriate to mention here that Professor van Caenegem is now editing for the Selden Society a comprehensive collection to replace Bigelow’s Placita Anglo-Normannica; we shall know more about this and many other matters when that great task is completed. See also D. M. Stenton, English Justice (already cited), esp. pp. 26 ff. For the grand assize and the writ of peace see J. H. Round, “The Date of the Grand Assize,” English Historical Review, 31 (1916), p. 268; H. G. Richardson, “Glanville Continued,” Law Quarterly Review, 54 (1938), p. 381, esp. pp. 384 ff.; H. G. Richardson and G. O. Sayles, Law and Legislation (Edinburgh Univ. Press, 1966), pp. 110 ff. For the nature of the difficulty over the writ praecipe see N. D. Hurnard, “Magna Carta, Clause 34,” in Studies in Medieval History Presented to F. M. Powicke (Oxford Univ. Press, 1948), p. 157; M. T. Clanchy, “Magna Carta, Clause Thirty-Four,” English Historical Review, 79 (1964), p. 542. For the formalities in court on a writ of right see G. J. Turner in Brevia Placitata (Seld. Soc., vol. 66 for 1947), pp. lxix ff., lxxxv ff.; S. F. C. Milsom in Novae Narrationes (Seld. Soc., vol. 80 for 1963), pp. xxxi ff. The phrase vestu e seysi appears in the precedents in Brevia Placitata. See also Casus Placitorum, ed. W. H. Dunham (Seld. Soc., vol. 69 for 1950), p. 20/87; “Consuetudines Diversarum Curiarum” in Select Cases of Procedure without Writ, ed. H. G. Richardson and G. O. Sayles (Seld. Soc., vol. 60 for 1941), p. cxcv, at p. cc. If the phrase is indeed significant, Maitland may have been led to disregard it by one of his rare slips, apparently a misreading of his own work: in vol. ii, p. 33, n. 1, is a reference to a thief “vested and seised” of stolen goods; the case is Bracton’s Note Book, p. 1539, and Curia Regis Rolls, vol. x, p. 105.

Mort D’ancestor.

For the assize of mort d’ancestor see van Caenegem, Royal Writs in England (already cited), pp. 316 ff.; D. M. Stenton, English Justice (already cited), pp. 43 ff. Both writers emphasize the initial orientation of the assize as an interference between lord and tenant.

Seisin and Novel Disseisin.

On seisin and novel disseisin the principal literature, in chronological order, is: F. Joüon des Longrais, La conception anglaise de la saisine (Paris, 1924), reviewed by T. F. T. Plucknett in Harvard Law Review, 40 (1926-1927), p. 921; G. E. Woodbine in his edition of Glanvill, pp. 281 ff.; F. Joüon des Longrais, “La portée politique des réformes d’Henry II en matière de saisine,” Revue historique de droit, 4e serie, xv (1936), p. 540; S. E. Thorne, “Livery of Seisin,” Law Quarterly Review, 52 (1936), p. 345; H. G. Richardson and G. O. Sayles in Select Cases of Procedure without Writ (already cited), pp. cxxviii ff.; N. D. Hurnard, “Did Edward I reverse Henry II’s Policy upon Seisin?” English Historical Review, 69 (1954), p. 529; R. C. van Caenegem, Royal Writs in England (already cited); a review by G. D. G. Hall in English Historical Review, 76, p. 317; F. Joüon des Longrais, Henry II and his Justiciars had they a Political Plan in their Reforms about Seisin? (Limoges, 1962); D. M. Stenton, English Justice (already cited), pp. 23 ff., 33 ff.; G. D. G. Hall in his edition of Glanvill, p. 192; H. G. Richardson and G. O. Sayles, Law and Legislation (already cited), pp. 81 ff., 95, 112 ff. Royal orders for seisin and disseisin have also been considered in a quite different context by, e.g. J. E. A. Jolliffe, Angevin Kingship (A. & C. Black, 1955).

Any summary of the views of these writers could only lose the subtlety of thought involved; but the principal issues seem to be the following:

First, the suggestion that the legislation from which the assize immediately sprang was “criminal” rather than “civil” in emphasis has not been widely accepted. The direct evidence is small in quantity but telling; and it is congruous with Glanvill’s account.

Secondly, there is the question of the policy behind the assizes. Some have seen it as “anti-feudal” in the sense of being directly aimed to enlarge royal jurisdiction. Others are content to think in terms of public order and good government. The suggestion made in the essay would see it as “anti-feudal,” not because of any jurisdictional scheming but in the sense of being directed against improper “feudal” action; but also as intensely “feudal” in that it was intended to compel that due process upon which the whole structure was thought to rest.

Thirdly, there is disagreement about the part played by civilian learning. The possibility of general influence must remain, although Maitland’s specific canon-ist ancestry for novel disseisin has been rendered inadmissible by chronology. It would have accounted for iniuste et sine iudicio. Such phrases have been described as “the small change of the legist”; but sine iudicio at least suggests authoritative action.

Fourthly, and most intractably, there are the conceptual problems. Everybody agrees that Roman ideas of dominium and possessio do not fit the English facts; and indeed those ideas may have been attributed too whole-heartedly to Maitland. Even the developed English “right,” although it is hard to deny it some of the properties of “ownership,” differs in obvious and important respects from dominium and could be defined only in terms of seisin. Beyond that it is not easy to see how far consensus goes. Most writers think that the establishment of the assize was responsible for a contrast between the right and seisin to which the language of possessory was not wholly inappropriate; and that this, the purely factual content of an assize verdict, and the use of Roman language all came together to turn seisin into something very like possessio. They think difficulties have arisen from a confusion between this and an earlier sense of seisin, which was an undifferentiated “seisin-right.” But the nature of this earlier concept is not altogether clear. If there is law and the possibility of litigation, there must be ways of describing the position of the one who has the subject-matter and the one who thinks he has a better right to it. And if for example orders for reseisin could contemplate a subsequent adjudication of claims, it is hard to believe that some distinction like that between seisin and the right was not grasped. This seems to be the point at which Professor van Caenegem differs from the view, which in general terms he endorses, that the starting-point was a single idea. Although the undifferentiated seisin-right is presented in highly concrete terms, very much a relation between a person and a thing, the essay suggests that difficulty still arises from too abstract a mode of thought: the relationship between the person and the thing is seen to be or to generate a right in vacuo and existing against the world. In the feudal framework the lord who seises you is also the law that protects you; and against that background one could indeed suppose an undifferentiated idea to start with. On this view differentiation would mainly begin from the growth of the right to inherit, a claim that the lord should seise you; and the important jurisdictional event would be compulsion upon the lord to deal justly with this claim. On this view too the main consequence of the assize, of the Roman analogy, and of growing royal jurisdiction would be to make both seisin and the right appear to be things existing in rem; and this, combining with alienability at will, produced the idea that land was an object of property in more or less modern terms.

On the thirteenth century use and extension of novel disseisin, see Plucknett, Legislation of Edward I (already cited), pp. 85 ff. For an interesting example see D. W. Sutherland, “Peytevin v. La Lynde,” Law Quarterly Review, 83 (1967), p. 527.

Writs of Entry.

Individual writs of entry have attracted attention, mostly at a later period; and some attempt has been made to see how “the degrees” worked out in practice. For this see S. F. C. Milsom in Novae Narrationes (already cited), pp. cxxxii ff. For the thirteenth-century relationship between writs of entry and writs of right see G. J. Turner in Brevia Placitata (already cited), pp. lxxvii ff. On the original place of the writs of entry in relation to other remedies see D. M. Stenton, English Justice (already cited), pp. 50 ff.; N. D. Hurnard, “Did Edward I Reverse Henry II’s Policy upon Seisin?” loc. cit., p. 529.

Other Actions.

For other actions concerning land, services, etc., see C. T. Flower, Introduction to the Curia Regis Rolls (already cited) and the introductions to Brevia Placitata and Novae Narrationes (both already cited). On formedon and the rise of the entail generally see: S. J. Bailey, “Warranties of Land in the Thirteenth Century,” Cambridge Law Journal, 9 (1945), pp. 91 ff., and “The Countess Gundred’s Lands,” ibid. 10 (1948), p. 84; W. H. Humphreys, “Formedon en Remainder at Common Law,” ibid. 7 (1940), p. 238; T. F. T. Plucknett, Legislation of Edward I (already cited), pp. 125 ff.; S. F. C. Milsom, “Formedon before De Donis,” Law Quarterly Review, 72 (1956), p. 391; J. Updegraff, “The Interpretation of Issue in De Donis,” Harvard Law Review, 39 (1935), p. 200. On the relationship between maritagium and curtesy and on curtesy generally see G. L. Haskins, “Curtesy at Common Law,” Boston University Law Review, 29 (1949), p. 228; on dower generally see G. L. Haskins, “The Development of Common Law Dower,” Harvard Law Review, 62 (1948), p. 42; M. M. Sheehan, “The Influence of Canon Law on the Property Rights of Married Women in England,” Mediaeval Studies (Pontifical Institute of Toronto), 25 (1963), p. 109.

(2)

The Personal Actions.

General Accounts.

Maitland’s account in this book is supplemented by his posthumously published lectures on The Forms of Action at Common Law (first published with his lectures on Equity, Cambridge Univ. Press, 1909; published separately, Cambridge Univ. Press, 1936). Besides the general books, especially W. S. Holdsworth, History of English Law (already cited), vol. 3, and T. F. T. Plucknett, Concise History of the Common Law (already cited), the principal accounts since published are: C. H. S. Fifoot, History and Sources of the Common Law: Tort and Contract (Stevens, 1949); J. B. Ames, Lectures in Legal History (Harvard Univ. Press, 1913). Some of the material in the last-named was known to Maitland; and this is true also of much of the work gathered in Select Essays in Anglo-American Legal History (Little, Brown, 1907-1909), 3 vols.

Personal Actions in Local Courts.

Since the essay stresses the importance of what was happening in local courts, so largely neglected since Maitland’s day, it is right to draw attention to his own introduction to the rolls of the Bishop of Ely’s court at Littleport in The Court Baron (Seld. Soc., vol. 4 for 1890), pp. 107 ff., esp. at pp. 115-118. He did not himself have time to follow up the thoughts there set out; and it is possible that the posthumous publication of The Forms of Action did something to obscure his own thought by giving too definitive a form to an exercise in simplification. So far as contract is concerned, the only general attempt since to consider what was happening in local courts is R. L. Henry, Contracts in the Local Courts of Medieval England (Longmans, Green, 1926). Much valuable material is collected in the two volumes of Borough Customs, ed. Mary Bateson (Seld. Soc., vols. 18 for 1904 and 21 for 1906), and in the first volume of Select Cases Concerning the Law Merchant, ed. C. Gross (Seld. Soc., vol. 23 for 1908). Particularly illuminating also are the London materials in Calendar of Early Mayor’s Rolls of the City of London, 1298-1307, ed. A. H. Thomas (Cambridge Univ. Press, 1924) and in the successive Calendars of Plea and Memoranda Rolls of the City of London from 1323 on, the volumes for the years to 1437 being edited by A. H. Thomas, for subsequent years by P. E. Jones (Cambridge Univ. Press, 1926-1961).

Contract in Royal Courts.

Work on contract in the royal courts has mostly been concerned with the later story of the development of assumpsit, and the earlier actions have been subjected to little new scrutiny. The main exception is the action of account, not discussed in the essay. On this see T. F. T. Plucknett, The Medieval Bailiff (Creighton Lecture for 1953, Athlone Press, 1954), and Legislation of Edward I (Ford Lectures for 1947, Oxford Univ. Press, 1949), pp. 150 ff. A recent discussion with references to other literature is S. J. Stoljar, “The Transformations of Account,” Law Quarterly Review, 80 (1964), p. 203. Account and debt are both treated in R. M. Jackson, The History of Quasi-Contract (Cambridge Univ. Press, 1936). A survey of the early actions in general form the first part of W. T. Barbour, The History of Contract in Early English Equity (vol. 4 of Oxford Studies in Social and Legal History, Oxford Univ. Press, 1914). The early writs are treated in R. C. van Caenegem, Royal Writs in England (already cited), pp. 254ff. for debt, pp. 345 ff. for account. Although mainly concerned with later periods, there are relevant matters in A. W. B. Simpson, “The Penal Bond with Conditional Defeasance,” Law Quarterly Review, 82 (1966), p. 392; S. F. C. Milsom, “Sale of Goods in the Fifteenth Century,” ibid. 77 (1961), p. 257, and “Account Stated in the Action of Debt,” ibid. 82 (1966), p. 534. The language and concepts of both covenant and trespass are considered in S. F. C. Milsom, “Reason in the Development of the Common Law,” Law Quarterly Review, 81 (1965), p. 496.

Trespass.

On the origins and development of trespass and case, which on the view taken in the essay should be considered together, there is a substantial literature: G. E. Woodbine, “The Origins of the Action of Trespass,” Yale Law Journal, 33 (1924), p. 799, and ibid. 34 (1925), p. 343; T. F. T. Plucknett, “Case and the Statute of Westminster II,” Columbia Law Review, 31 (1931), p. 778, commented upon by W. S. Holds-worth in Law Quarterly Review, 47 (1931), p. 334; P. A. Landon, “Action on the Case and the Statute of Westminster II,” ibid. 52 (1936), p. 68; T. F. T. Plucknett, “Case and Westminster II,” ibid. 52 (1936), p. 220; E. J. Dix, “Origins of Trespass on the Case,” Yale Law Journal, 46 (1937), p. 1142; Select Cases of Procedure without Writ, ed. H. G. Richardson and G. O. Sayles (already cited), pp. cviii ff.; A. K. R. Kiralfy, The Action on the Case (Sweet and Maxwell, 1951); S. F. C. Milsom, “Not Doing Is No Trespass,” [1954] Cambridge Law Journal, p. 105; Select Cases in the Court of King’s Bench, ed. G. O. Sayles, vol. 4 (Seld. Soc., vol. 74 for 1955), pp. xxxvi ff., p. lxxi, n.; T. F. T. Plucknett, Concise History of the Common Law (5th ed. already cited), pp. 369 ff.; G. D. G. Hall, “Some Early Writs of ‘Trespass,’” Law Quarterly Review, 73 (1957), p. 65; S. F. C. Milsom, “Trespass from Henry III to Edward III,” ibid. 74 (1958), pp. 195, 407, 561. These discussions will not be summarized, but the principal issues raised are as follows: Assuming that trespass vi et armis was always a distinct entity, did it come from appeals of felony, novel disseisin, or from procedures in local courts, and did Roman law play any part in its development? Assuming that case was an entity derived from trespass vi et armis, was it through the in consimili casu clause of the Statute of Westminster II or in some other way? In either case, what part was played by proceedings by bill? And, lastly, was either trespass or case the entity supposed?

(3)

Procedure.

General Accounts.

For general accounts since Maitland’s see W. S. Holdsworth, History of English Law, vol. 3; T. F. T. Plucknett, Concise History of the Common Law, 5th ed.; and C. T. Flower, Introduction to the Curia Regis Rolls, pp. 335 ff. (all three already cited).

Writ and Plaint.

On the evolution of writs concerning judicial procedure see Royal Writs in England, ed. R. C. van Caenegem; D. M. Stenton, English Justice; and Brevia Placitata, ed. G. J. Turner (all three already cited). See also G. O. Sayles in Select Cases in Court of King’s Bench, vol. 5 (Seld. Soc., vol. 76 for 1957), pp. lxvii ff. The Selden Society will soon publish some early registers edited by E. de Haas and G. D. G. Hall.

On procedure by bill or plaint see Select Bills in Eyre, ed. W. C. Bolland (Seld. Soc., vol. 30 for 1914); E. F. Jacob, Studies in the Period of Baronial Reform (Oxford Studies in Social and Legal History, vol. 8, Oxford Univ. Press, 1925); Select Cases of Procedure without Writ, ed. H. G. Richardson and G. O. Sayles (already cited); Select Cases in the Court of King’s Bench, ed. G. O. Sayles, vol. 4 (already cited), pp. lxvii ff.

Procedure and Pleading.

See, generally, C. Johnson, “Notes on Thirteenth Century Judicial Procedure,” English Historical Review, 62 (1947), p. 508; D. W. Sutherland, “Mesne Process upon Personal Actions in the Early Common Law,” Law Quarterly Review, 82 (1966), p. 482; G. O. Sayles in Select Cases in the Court of King’s Bench, vol. 2 (Seld. Soc., vol. 57 for 1938), pp. lxxiii ff.

For the rise of inquest procedure itself, see under “Institutional Studies,” sub-heading “Jury,” in Section I of this bibliography. There has been no extended study of the growth of exceptions and other special pleas, although much material is now in print. For the forms of count and defence see Brevia Placitata and Novae Narrationes (both already cited). For the changing pattern of litigation and the place of the general issue, see the introduction to Novae Narrationes, pp. xxv ff., xxxiv ff. For an attempt to examine the significance of the change, see S. F. C. Milsom, “Law and Fact in Legal Development,” Toronto Law Journal, 17 (1967), p. 1.

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[p. 377, note 393.] As to the forfeiture of the goods of a man who dies desperate, see Art. 30 of the Preston Custumal (Harland, Mamecestre, vol. iii. p. xxxviii).

[p. 380, note 403.] Add a reference to Records of Leicester, p. 219. In 1293 the burgesses decide that the heir is to have the best cauldron, the best pot and so forth. In Scotland the “heirship movables” were of considerable importance. In the seventeenth century the heir would take, among other things, “the great House Bible, a Psalm-book, the Acts of Parliament.” See Hope’s Minor Practicks, ed. 1734, p. 538.

[p. 390, note 27.] An interesting historical account of the Scottish law of marriage by Mr. F. P. Walker will be found in Green’s Encyclopædia of the Law of Scotland. Pre-Tridentine catholicism seems to find its best modern representative in this protestant kingdom.

[p. 509, note 140, and p. 666, note 376.] The Annals of Winchester, p. 25, and Thomas Wykes, p. 235, differ about the number of the compurgators, which may have been 25 or 50.

[p. 562, note 400.] So the burgess of Preston who has charged a married woman with unchastity must proclaim himself a liar holding his nose with his fingers: Harland, Mamecestre, vol. iii. p. xl.

1 But in certain contexts it is common to speak of movable and immovable goods; in particular the usual form of a bond has “obligo omnia bona mea mobilia et immobilia.”