The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

BOOK TWO

SPECIAL PART

PART 1

PROCEDURE

SUMMARY

• chapter 1.The Forms of Action - - - - - -
• chapter 2.Civil Procedure - - - - - - -
• chapter 3.Pleading - - - - - - - -

CHAPTER 1

THE FORMS OF ACTION

The forms of action are in themselves a proof that the King’s Court only intended to intervene occasionally in the disputes of his subjects. It was no doubt possible to argue with perfect justice that the country was well provided with competent courts for all ordinary purposes, and that the King’s Court was only concerned with matters of state and matters of special difficulty which could not be otherwise determined. A few classes of cases with which the King’s Court concerned itself were therefore most naturally treated along formulary lines. They constituted one or two of the several routines of government which the administration had developed, and in order to handle them more easily it was a simple device to standardise the forms which were used. As long as this condition of things lasted a formulary procedure was clearly an advantage, and for a while it may have limited the activities of the administration and prevented them from overstepping the proper boundaries of their jurisdiction.

THE RELATION OF WRIT AND REMEDY

Whenever it became necessary to enlarge the scope of the King’s Court, the change could be effected simply by the invention of a new set of forms, and so the early development of the jurisdiction of the King’s Court very closely resembles the enlargement of the sphere of an administrative body by means of the invention of new administrative routines. Once the habit was formed, future development for a long time seemed simple. Glanvill had described a royal court which had very little interest in enlarging its jurisdiction beyond certain matters. Two generations later Bracton described this same court and shows us how greatly it had elaborated its machinery; indeed, Bracton was even ready to contemplate an indefinite expansion of the common law in virtue of which the King’s Court was to administer a law as rich in its variety and as wide in its extent as the Roman law itself. The means whereby such a prodigious expansion was to be effected (and indeed had already been begun) was the invention of new forms of action; many new forms were invented by Bracton’s hero Raleigh, and Bracton had no hesitation in saying that there will be as many forms of action as there are causes of action. “There ought to be a remedy for every wrong; if some new wrong be perpetrated then a new writ may be invented to meet it.”1 This was a bold programme. It contemplated special sets of forms through which the King’s Court would exercise general jurisdiction and afford a remedy for every wrong. One would expect that so ambitious a scheme would emanate from some great monarch such as Henry II, and in truth he may have taken the first steps in that direction; but it was under the comparatively weak rule of Henry III that the greatest progress was made—and here we have a striking example of the way in which organisations such as the King’s Court and Council could do effective and even constructive work although their nominal head was undistinguished. The secret seems to lie in a little group of lawyers whom we can only see, at this distance of time, in the appreciative pages of Bracton. As Maitland has observed, this formulary system is distinctively English,—

THE BEGINNINGS OF ROYAL INTERVENTION

It was, of course, civil business—common pleas—which was most susceptible of this treatment; pleas of the Crown, which at this time were mainly criminal, had already been provided with a different machinery necessarily based upon the system of local government. Of these civil pleas, then, those which first received the attention of the King’s Court were pleas of land. Reasons of state demanded that the Crown through its court should have a firm control of the land; the common law, therefore, was first the law of land before it could become the law of the land. But here, too, it was possible to argue that the existing local jurisdictions, communal and seignorial, were numerous enough and competent enough to administer real property law. In a sense this was true. Each landowner could litigate concerning his land in the court of his feudal lord; if, as often happened, it was part of the dispute who was the feudal lord (such as when A claims to hold a piece of land of X while his adversary B claims to hold it of Y), then recourse was had to the lord who had feudal jurisdiction over both X and Y, and in this way such litigation would very likely come before the court of the King himself. Again, it may be that there were practical difficulties; the feudal court may be weak or partial, and then, too, recourse will be had to a higher court. Frequently it seems that a writ from the King will facilitate matters in seignorial courts, and the Crown at an early date would issue sharp admonitions commanding feudal lords to do immediate justice or else to explain their action in the King’s Court. Such intervention was at first of a political or administrative character. The King used his influence, sometimes in the form of a threat, to set his vassal’s judicial machinery in motion. For this there was Anglo-Saxon precedent,1 and the early Anglo-Norman writ is undoubtedly continuous with the Anglo-Saxon writ (and here it must be remembered that the word “writ”, in Latin breve, means nothing more than a formal letter of a business character; it does not necessarily imply either a court or court procedure).2

THE NATURE OF THE EARLIEST WRITS

Some of the earliest of our writs, therefore, are not, strictly speaking, documents directly instituting litigation. They are in form administrative commands to an alleged wrongdoer or to some inferior jurisdiction to do justice in a particular matter in such wise that the King shall no more hear complaints concerning it; disobedience of this writ will be punished in the King’s Court unless a satisfactory explanation can be given. A writ of right, for example, may be in various forms. It may command the feudal lord of two contestants to do justice between them;3 but the Crown deliberately encroached upon seignorial jurisdiction when it devised a new variant which is called the writ of right praecipe quod reddat, which soon became the most usual form. This writ completely ignores the feudal lord and is directed to the sheriff of the county where the land lies; he is instructed to command the defendant to render to the plaintiff the land which he claims, justly and without delay, and if he fails to do so the sheriff is to summon him before the King or his justices to show cause, and the sheriff is to return the original writ together with the names of the summoners who witnessed its service. By the time we get to this form it is clear that we have only a slight disguise for a writ virtually initiating litigation in the King’s Court in complete disregard of the lawful rights—property rights as they then were—of the feudal lords. The writ of right praecipe quod reddat, therefore, has its beginning in somewhat discreditable circumstances; the Crown, by these writs, deprived feudal lords of their rightful jurisdiction.1 Thus it was that the insurgent barons extorted from King John a promise in the Great Charter2 that henceforward the writ called praecipe should not issue in such wise that a lord lost his court; though retained in all succeeding charters, this clause had little effect. The feudal court of freeholders was already declining; many lords voluntarily waived their rights in particular cases.3 Those who wished to assert their jurisdiction when it was imperilled by a praecipe, could obtain a writ for that purpose.4 As law became complicated, both lords and their tenants were disposed to avoid the responsibility of having to try writs of right,5 and so there was little serious opposition when, in the early years of Henry III, the Crown invented a variety of other writs in the form praecipe quod reddat—notably the very popular writs of entry.

Whatever its form, the original writ was not the assertion of the jurisdiction of the court, but rather a royal commission conferring on the judges the power to try the matters contained in it. For every case a separate ad hoc authority was thus conferred, and Bracton naturally compared the jurisdiction of the common pleas to that of papal judges delegate.6 The results of this situation upon pleading will be considered later.7

NEW WRITS UNDER HENRY II

At the same time it became an established principle that no freeman need answer for his land without a royal writ unless he chose. This rule is well known in the reign of Henry II and may date from the reign of Henry I.1 Its effect was drastic; any defendant if he chose could have real property cases removed from seignorial courts into the King’s Court. The steps were (1) a procedure called tolt which removed a plea from a seignorial court to the county court, and (2) a writ of pone which moved it from the county into the common pleas.2 On the accession of Henry II, therefore, the operation of this principle, combined with the growing practice of issuing the writ of right called praecipe, had already given to the King’s Court the basis of a very wide jurisdiction over land. Henry II improved the occasion by devising some new forms of action which again deliberately attacked the position of the lords. He modified the proceedings on a writ of right by allowing the defendant (or, more technically, the “tenant”) to choose if he wished trial by a Grand Assize, which was a jury of twelve knights, instead of trial by battle. The principle of recognition, or jury trial, was further extended by Henry II in the establishment of the petty assizes.3 These were all modelled on the general principle that a person who had recently been evicted from the quiet enjoyment of his land was entitled to be restored.

PETTY ASSIZES, SEISIN AND POSSESSION

Bracton set the fashion of regarding these actions as definitely designed for the protection of possession as distinct from ownership, but it has recently been objected with a good deal of force that Bracton’s use of these Roman terms “ownership” and “possession” does not accurately fit contemporary English law. Into this question we cannot enter in any detail, but it is clear that the petty assizes (which Maitland and Holdsworth, following Bracton, call “possessory assizes”) were based upon more than one consideration. “Disseisin”, as such wrongful ejection was technically called, was viewed partly as a crime, and so a defendant who was found guilty would be fined and occasionally imprisoned.4 The maintenance of peace and order was, therefore, one element in the petty assizes; but there was also a strong element of tort, for the plaintiff very soon recovered damages; at the same time it was a thoroughly real action, giving recovery of the land. In short, these assizes were designed to protect “seisin”, which was a conception peculiar to the middle ages; it is an enjoyment of property based upon title, and is not essentially distinguishable from right. In other words, the sharp distinction between property and possession made in Roman law did not obtain in English law; seisin is not the Roman possession, and right is not the Roman ownership.1 Both of these conceptions are represented in English law only by seisin, and it was the essence of the conception of seisin that some seisins might be better than others. The most solemn action in real property law, the writ of right, merely ascertained whether the demandant or the tenant had the better right (without prejudice to third parties), by investigating which of them claimed on the older and better seisin.

NATURE AND ORIGIN OF NOVEL DISSEISIN

Although the writ of right would answer the serious question of the relative merits of the two titles according to the antiquity of the seisin from which they were derived, there seemed room for the invention of forms of action of more limited scope. If A unjustly and without a judgment disseised B of his free tenement, then it seemed reasonable that B should be restored to the enjoyment of his property upon satisfactory proof, first, that he was in quiet enjoyment (that is to say, seised), and secondly, that A had turned him out. There was surely no need in a situation such as this, which in fact was usually brought about by acts of violence, to compel B, merely because he had been wrongfully evicted, to make out a title good enough and old enough to sustain a writ of right, and to compel him, if A so elects, to wage battle on it. It seems that we get at this point a trace of the influence of the canon law. The tenant (i.e. defendant in a real action) had marked advantages over the demandant (plaintiff); he could interpose almost interminable delays, and even when the case finally came to be argued the demandant had to sustain a heavy burden of proof. Hence, one who had been disseised and attempted to recover by a writ of right was at a great disadvantage.2

This problem of preventing a disseisor, spoliator, from acquiring procedural advantages from his own tort, was not local to England, nor peculiar to the twelfth century. The solution was in fact ancient. It consisted in the requirement that the spoliatus should be restored at once to his possession, and that he be not called upon to defend his title while he is out of possession. From the Sentences of Paul,3 early in the third century, the idea passed to the Theodosian Code (ad 319).4 It appears in the False Decretals of the mid-ninth century,1 and thence passed to our own Leges Henrici Primi2 and a little later to the Decretum of Gratian.3 The False Decretals which announced this principle also appear in the collection of canon law which Lanfranc4 introduced into England. The general principle had therefore long been common knowledge, and both the Conqueror and Henry I forbad the disturbance of the status quo until their court had pronounced on the rights of the dispute. In other words, novel disseisin was designed to redress the situation created by one party who had had recourse to self-help.

Such a policy is so obvious, that it is hardly necessary to look to canon law for its origin.5 The famous actio spolii in which the canonists finally enshrined their ancient principle seems actually later in date to the assize of novel disseisin.6 It is also to be remembered that “it is said that German Law without foreign help” went a good deal of the way towards novel disseisin.7

Henry II’s new action, the assize of novel disseisin, worked on these lines. One who had been ejected from his land was first of all to be restored. When he has been restored, and not until then, the rights and the wrongs of the case can be brought into question. If the ejector wished to raise questions of title he could then proceed later on as demandant in a writ of right.8 Henceforth he could not pursue his claim by the too-simple device of forcibily ejecting the tenant in seisin, thereby compelling him to assume the difficult rôle of a demandant in a writ of right. In its earliest form the assize of novel disseisin was thus subsidiary and preliminary to a writ of right. It was only natural, however, once the assize had passed, that the parties should in many cases be content with its verdict, and therefore the petty assize becomes a complete form of action and not merely a subsidiary to the writ of right. This idea was so attractive that Henry II applied it to several different situations, and by the end of his reign there were three petty assizes all fashioned on the same model. There can be very little doubt that one of his strongest motives was the desire to treat disseisin as an offence which should be cognisable solely in the royal courts. In France the same policy was pursued, in spite of protests from lords who found that their jurisdiction suffered serious prejudice thereby.1

SCOPE OF THE PETTY ASSIZES

In the case of the assize of novel disseisin the original writ was directed to the sheriff of the county where the lands lay, commanding him, if the plaintiff gave security for prosecuting, to summon twelve free and lawful men who should view the lands in dispute and be ready to recognise before the King’s justices whether the defendant had unjustly and without a judgment disseised the plaintiff of his free tenement since the period of limitation. In the assize of mort d’ancestor set up in 1176 by the Assize of Northampton,2 the assize of twelve is to recognise whether the plaintiff’s ancestor died seised3 in his demesne as of fee of the tenements in dispute, whether he died since the period of limitation, and whether the demandant is his next heir. The assize of darrein presentment applied the principle of novel disseisin to the difficult case of advowsons, and called upon the assize to say whether the plaintiff was the last patron in time of peace who presented a parson to the church in dispute.4 If so, he was seised, and is therefore entitled to present again. All three of these petty assizes ignored the court of the feudal lord; the assize of mort d’ancestor seems to have been definitely directed against the lords, for the defendant was frequently a feudal lord who refused to admit the heir of his deceased tenant to succeed him, and this assize therefore played a large part in the final establishment of the hereditary principle. A fourth assize called utrum also began as a preliminary proceeding in order to ascertain whether litigious land fell under the jurisdiction of the Church or the Crown, but in course of time the decision in this preliminary question became in effect a decision upon the principal question.5

THE ASSIZES SUPPLEMENTED

By the time we come to the reign of Henry III we find the beginnings of the Register of Writs; the forms of action are numerous enough to be collected in a formulary. Some new actions were invented about 1237 expressly to supply the place of gaps in the assize of mort d’ancestor; originally the only ancestor from whom one could claim was father, mother, brother, sister, uncle or aunt. Special actions which were not assizes, but variants of the writ of right, were now provided for claims based upon the seisin of grandfather (aiel) and great-grandfather (besaiel) and from “cousins”, which in law means all other relations (cosinage).1 “Great-great-grandfather by the use of the Chancery is called cousin.”2

THE WRITS OF ENTRY

By this time, however, it is abundantly clear that the King’s Court began to dream of something like a general jurisdiction over land without the slightest reference to the existing feudal courts.

We have seen that the petty assizes were based on the allegation that the tenant had obtained the land recently and wrongfully. The next step is to be seen in the writ of gage (which was another praecipe) demanding restitution of land which the tenant held lawfully at first, although later this title failed. In the case of the writ of gage it was alleged that the plaintiff made over his land to the defendant as security for a debt, and that since he is now ready to pay the debt the defendant has no more right to the land, but must restore it. The result was the pattern for a new and important group of writs called writs of entry.3 Like the writ of gage, they expressly alleged that the tenant only had entry into the land by a particular means which is set forth, thereby acquiring only a defective title. As time goes on a great variety of writs of entry is devised. At first the writ recounts all the hands through which the land has passed since the original defect, although there were limits placed upon the number of changes (whether alienations or descents) which could be alleged; finally, by statute demandants were allowed to say that the tenant had no entry save after (post) a particular defective title; dealings in the land subsequent to that event and leading down to the entry of the tenant no longer need be specified in the writ.4 Of these numerous varieties of writs of entry it will only be necessary to say that they all ignore the lord’s court and begin with the formula praecipe quod reddat. They were common in the time of Bracton,5 and the fact that it is impossible to say whether they are possessory or proprietary6 is only proof that these terms imported by Bracton really did not fit contemporary English law.

In one or two cases they supplement the assize of novel disseisin. That assize only lay between the disseisor and the disseisee. If in the meantime the disseisor had died and his heir entered by descent, the assize did not lie against the heir. So in 1205 a writ of entry sur disseisin was established to cover this case. If, on the other hand, the disseisee died, the assize again was not available to his heir, and so the writ of entry called “de quibus” or “entry in the nature of an assize” filled the gap.1 Other varieties were entry ad terminum qui praeterit, which lay to recover lands against one who held them originally for a term of years, which term had expired.2 An action which was very common during the middle ages was entry cui in vita, which lay for a widow to recover lands which were her own property, but which had been alienated by her husband, since she during his lifetime could not prevent his dealing with her property. If, however, the wife predeceases her husband, her heir can recover such lands by a writ of entry sur cui in vita. It frequently happened that a doweress wrongfully alienated her dower, and by a writ of entry “at common law” the reversioner could recover such lands only after her death. By statute, however, it was enacted that if a doweress alienated her dower the reversioner might obtain immediate entry (virtually a forfeiture) by a writ to be devised in the Chancery;3 this was called entry in casu proviso. But it did not apply to alienations by other life tenants, and so, after a famous incident between Chief Justice Bereford and the Chancery officials,4 a writ of entry in consimili casu was devised for use by reversioners and remaindermen against the alienees of tenants for life, and by the curtesy, immediately after such an alienation.

THE EARLIEST FORMS OF PERSONAL ACTIONS: DEBT

In one or two rare cases the King’s Court was prepared to intervene in matters which did not involve land, although the forms which it used were almost identical. The writ of debt, for example, was in the same form as the praecipe quod reddat, and at first looks very much as if it were a real action; as Maitland remarks, “We are tempted to say that Debt is a ‘real action’, that the vast gulf which to our minds divides the ‘give me what I own’ and ‘give me what I am owed’ has not yet become apparent”.1 There is fairly old authority for the theory that a contract consists of “mutual grants”—a view which seems to be merely a deduction from the consensual character of the sale of chattels in the later common law.2 Such reasoning, however, is really a sixteenth-century phenomenon; it is not to be found in the early days of the action of debt. Still more modern is the belief that because many actions for land beginning with a writ in the form praecipe quod reddat are real actions, therefore all actions so commenced are real actions, and among them the action of debt. There are no historical grounds for this view. Twelfth-century lawyers in the King’s Court were not given to metaphysical speculation, but were just practical administrators who saw a need for enforcing some of the commoner types of debt in the King’s Court. They propounded no theory of obligation; they said nothing about mutual grants, consent, consideration or any other theory of contract. All they did was to establish a procedure for compelling debtors to pay their obvious dues. It so happened that original writs at this critical moment were framed on a uniform pattern:3 the King tells the sheriff to order the defendant to do what he ought to do, and if he does not, then to summon him to the King’s Court. The only significance attaching to the words praecipe quod reddat is their indication of the date of origin of the writ, and its nature as a “demand” rather than a “complaint”; it is only the oldest actions which are cast in this form. The numerous writs praecipe quod permittat may be proprietary or possessory according to circumstances. As we shall see, later forms of action are based on a different model.

The writ of debt existed already in Glanvill’s day, and follows precisely the same form as the writ of right and was available for a number of purposes. It could always be brought upon “obligations”, that is to say, debts acknowledged by deed under seal, and in such cases the establishment of the genuineness of the deed was conclusive. Where there was no deed under seal, debt could still be used to recover a loan, to collect the rent due upon a lease, the price upon a sale, and, later on, to enforce various statutory penalties. The action of debt, therefore, was fairly comprehensive, but as time went by the defects of the action became more apparent. In the first place, trial was by compurgation (wager of law)1 , and as the middle ages proceed this was felt to be increasingly irrational; although decisions substituted trial by jury in a number of cases, the place left for compurgation still remained considerable. And secondly, as with all the oldest groups of actions, a particularly complicated system of pleading grew up around it. As a result, from the beginning of the fifteenth century we see a tendency to avoid using the writ of debt and to make other forms of action serve its purpose.

DETINUE

The action of detinue was very similar, and it is evident that the two actions were originally one. Glanvill describes but one action, which covers the field later divided between debt and detinue. The form of writ he gives is that of debt, the demand being for a sum of money, but he goes on to say that the “debt” may be demanded for various reasons, such as a loan of money, the price on a sale, the loan of a chattel, a letting to hire or a deposit. The writ was also available for a creditor against a surety on the default of the principal debtor. In his discussion of it, Glanvill speaks simply of “debt” and the writ is designed to secure to the plaintiff his debitum, his due, whether it be money or chattels. Even in the Year Books we sometimes find it expressed as “duty”. The basic idea of the action, therefore, is not confined to contract, or tort, or property concepts, but is simply the enforcement of what is “due”.

Superficially, then, it might seem that Glanvill’s undifferentiated action of debt-detinue will enforce any sort of obligation, but as with several other of our writs, the form is in broader terms than the practical scope of the action. In spite of a few sweeping words, Glanvill’s real meaning is to be found in the enumeration of situations in which the writ can be used. In the course of the succeeding half-century these are classified into two groups, one of which we have already described as the province of debt, while the remainder are allocated to detinue with a slight modification in the terms of the writ. A broad distinction grew up which treated detinue as the particular remedy of a bailor against his bailee—i.e. where the defendant acquired the chattel with the plaintiff’s consent. If the defendant had acquired the chattel by violating the plaintiff’s possession, however, the remedy was obviously trespass de bonis asportatis. A third situation was that classified by later lawyers as trover; here there was some hesitation.2

In their subsequent history, debt becomes an important factor in the history of the contract, while detinue contributes much to the development of the rules of personal property law. It is also worth remembering that a frequent use of detinue was to obtain possession of charters, on the principle that one who was entitled to land was thereby entitled to bring detinue for the deeds relating to it. Cases of detinue of charters, therefore, may contain important discussions of the law of real property.1

ACCOUNT

The action of account is particularly interesting and its history deserves more investigation than it has yet received. It appears on the plea rolls from 1200 onwards. In form it is a praecipe quod reddat, and is based on the existence of a duty to render a “reasonable account”.2 Originally it was used between a lord of a manor and his bailiff in order to compel the latter to account for the profits of the manor. The word “bailiff”, however, gradually shifted its meaning, and by the end of the fourteenth century account could be used against certain types of bailees who had to be described as “bailiffs”, although this allegation was not traversable.3 This transition was assisted, no doubt, by the fact that quite early in its career the action of account could also be used between partners; when commercial matters appear in the Year Books, it is usually in actions of account.

Account could also be brought against one who had received money to the use of the plaintiff. Here (as with the bailiff), the earlier law only concerned itself with the “common receiver” who was authorised to act as such for a period of time.4 Soon, a casual receiver, like a casual bailee, came within the action.

COVENANT

The action of covenant appears soon after the time of Glanvill, and is stated in some of the earlier sources to have very wide scope over contractual matters. The Statute of Wales in 1284 informs us that land or chattels may be demanded by the writ of covenant according to circumstances; “and forasmuch as contracts in covenants are infinite in their variety, it is impossible to mention each one in particular, but judgment is to be done according to the nature of each covenant and according to the statements and denials of the parties”. It would therefore seem that covenant almost became a general contractual action. In local jurisdictions it remained so until comparatively late. In the county court we find it used as late as 1333 to obtain damages for breach of a covenant to use care in handling a borrowed fishing boat.5 In the King’s Court it is mostly a covenant concerning land, apparently,1 and very often the writ seems brought merely in order to proceed to a fine, or final concord, which already was a popular conveyancing device. It had one other function—a minor one—and that was to afford a modicum of protection to lessees against their lords. Like the other writs we have mentioned, it was on the ancient pattern, slightly modified: praecipe quod teneat conventionem. It ceased to be of much importance after the reign of Edward I, when the rule became established that covenant would only lie on a deed under seal.

THE NEW PATTERN OF WRIT

So far, the writs we have considered have been either summary, like the petty assizes, or else based on a single pattern, that of the praecipe quod reddat, and as we have seen, this same pattern is used whether the action is real or personal.

At the end of the twelfth century a new formula appears, and many of the newer actions are commenced with writs of the new model. Instead of the archaic demand for restitution which was the essence of the praecipe quod reddat, we have a much more modern form which begins immediately with an order to summon the defendant (if the plaintiff has given security to prosecute) to come before the justices to show why he had done a particular act. The change is partly one of arrangement, for even a praecipe quod reddat concludes with a summons to show why the defendant has not made restitution; the new model begins with the summons, and the defendant is called on to explain his action, instead of his inaction as in the praecipe quod reddat. If the old model emphasises the failure to do what is due, the new one rests on a positive misdeed. This misdeed, moreover, is frequently described in the writ as being a breach of the peace.

THE ACTION OF TRESPASS

The summons ostensurus quare, to show why the defendant did something to the damage of the plaintiff and the breach of the King’s peace, was a momentous development, for it gave us the action of trespass. The breach of the peace, however, was not always alleged, and there are numerous examples of summonses to show why the defendant had done something which damaged the plaintiff where the phrase does not occur.

In accordance with a constant tendency, the commonest cases give rise to well-settled forms. Thus we get distinct varieties of trespass for assault, imprisonment, for taking away chattels, and for unlawfully entering upon land, and by 1249 we get a trespass case enrolled in what seems already a settled form. By the thirty-fifth year of Henry III (1250-1251) payments for writs of trespass become numerous on the Fine Rolls.1 Besides these, however, it is important to remember that in the early years of the thirteenth century there were numerous unclassified cases where defendants were summoned to show why they had caused damage to the plaintiff, with or without a breach of the peace, and with or without the allegation that the act was done vi et armis, with force and arms.2

Trespass is therefore one variety of the great class of writs which call upon the defendant to come before the justices ostensurus quare, to show why he caused damage to the plaintiff. We may note that the allegation of a breach of the peace is not necessarily present, and that the King’s Court takes jurisdiction over these cases, therefore, on broader grounds than a mere technical breach of royal peace. It is, however, quite clear that if a breach of the King’s peace is mentioned, no court save the King’s Court dare proceed. The great importance of trespass and its related quare actions is abundantly clear, but it is a great misfortune that Bracton, whose official career coincides with its formative period, did not live to write upon it the systematic treatise which he had planned.3

At first sight it seems strange that trespass begins to appear in the King’s Court only in the middle of the thirteenth century, and does not become common there until the middle of the fourteenth century. There is nevertheless good reason. The King’s Court was interested in land, in the first instance, for feudal reasons only; and it was interested in trespasses for criminal reasons only. Hence it was the felonies and indictable trespasses (later called misdemeanours) which received attention at Westminster. From the point of view of litigants, trespasses usually involved much less valuable stakes than real-property cases, and so it was much more difficult to persuade juries to trudge across the country to give their verdicts in the King’s Court. The issues would almost always be trivial in comparison with the trouble and expense. Trespass could not become a common action in royal courts until means were found to try it locally. In the late thirteenth century the baronial governments made extended use of judicial eyres; early in the fourteenth century the invention of the nisi prius system allowed juries to try issues reached at Westminster without going out of their counties. It is just at those moments that we find the action of trespass making sudden advances in the King’s Court.4

THE ACTION OF REPLEVIN

The continuous history of trespass to the person, to goods and to land stands out clearly from among the scores of quare actions in use at the beginning of the thirteenth century. But what became of the others? Some of them vanished, to be revived later under somewhat different circumstances; but many in their turn crystallised into distinct forms of action. This happened to quare ejecit (as we shall see later) which became an important remedy for lessees.

Still another became the action of replevin, and one of the most valued defences of the feudal tenant against his lord. In the thirteenth century this was often a quare action, calling on the defendant to show why he took cattle in distress and kept them in spite of the owner’s offer of gage and pledge. The final form of the proceedings was greatly modified,1 for the Crown realised the urgent necessity of moderating this powerful relic of self-help which still survived, as distress, in daily use.

The action of replevin was greatly used in the middle ages in circumstances such as these. When a lord distrained his tenant to perform services and the tenant desired to dispute his liability to do them, he could recover possession of the chattels distrained by giving security to the sheriff for maintaining his contention in a law court. The procedure was then for the tenant to declare that his beasts were taken, to which the lord might reply by denying that he took them, or else (and this was almost universally the case) by admitting the distress and disclosing the reasons—such as services and rents in arrear, homage not performed, relief unpaid, etc. This is technically called an “avowry”, and in this form of action a great number of questions relating to the feudal relationship could be conveniently raised. If the lord’s case is proved, judgment is given that he shall “have the return”; that, is the chattels which he originally distrained and which the sheriff restored to the tenant are given back to the lord by judgment of the court to hold again as a distress. In early times, if the question of the ownership of the chattels was raised in replevin, it was determined by interlocutory proceedings called de proprietate probanda. In the early fourteenth century the convenience of the action of replevin led to determined attempts to make it serve the purpose of certain other actions, and these attempts were nearly successful; in the fifteenth century we have this distinction drawn by Chief Justice Newton: “If you have taken my beasts, it is in my choice to sue replevin (which proves property in me), or to sue a writ of trespass (which proves the property in him who took them); and so it is in my will to waive the property or not”.2 By this time it was settled doctrine that even a thief acquired property in the stolen goods. We therefore have here in the choice between replevin and trespass a curious parallel to the doctrine of disseisin at election in real property law. In England replevin was generally restricted to its proper field of testing the legality of a distress, but in America it was frequently used instead of detinue.

THE ORIGIN OF TRESPASS

There has been much controversy over the origin of trespass. The question is certainly one of the greatest importance, for the later history of trespass has grown so wide as to cover the largest part of the field of law. This is not the place to undertake a fresh investigation into a very debatable subject, but some reference to it is unavoidable.

According to one theory the action of trespass developed from the old appeal.1 According to this view the changes which took place were as follows: the appeal of larceny (like the appeals of murder, mayhem or other felony) was in very truth a “form of action” for criminal matters. The injured party pursued the trail, caught the criminal and then formally charged him with the crime; if he denied his guilt, the action concluded with trial by battle; if the plaintiff was successful he recovered the stolen property, and if he had not already slain the thief in battle he was expected to hang him. Gradually, means were found for substituting jury trial upon the appellee’s allegation that the appeal was only brought by hate and spite (de odio et atia). Technically a side issue tried by jury, in fact it went to the root of the case.2 If trespass developed from the appeal, then the changes must have been these: first, where the stolen goods were no longer forthcoming, or would have gone to the king,3 the plaintiff in trespass is now able to recover their money value from the defendant; this seems to have been impossible by the appeal. Secondly, words of felony must be omitted; this was already optional in an appeal, which could thus be changed from a criminal into a civil action.4 This, it is suggested, naturally led to the idea of trespass.

Another theory would regard the action of trespass as having its origin in the assize of novel disseisin.5 The assize only gave recovery of the land; it was always uncertain whether chattels which had been on the land (most commonly crops) could be recovered—if they had been consumed, at first there was to remedy. Hence the assize of novel disseisin was modified so as to give damages representing the value of those chattels removed in the course of the disseisin whose restoration was impossible. And so in this way, too, the element of damages in trespass has been accounted for, although Woodbine insists that the idea of damages was borrowed from Roman law.

A third theory suggests that “Roman law was a solvent acting upon the appeal of larceny, from which the action of trespass by almost insensible stages separated itself”.1

THE PROBLEM RESTATED

These theories were framed with special reference to trespass for taking away chattels, but, as we have suggested, the problem is much wider than that. The origin of trespass de bonis asportatis is part of the larger question of the origin of all the actions which were directed against a defendant who had done damage to a plaintiff. The original writ in all these cases is in the same form ostensurus quare, and the origin of that form is the real root of the matter. If we may be so rash as to confound the confusion by offering yet another theory, it would be to suggest that in this, as in other matters, the King’s Court was adopting methods already in use in the local courts. From local customs which are still extant we can trace the gradual change (which in fact was not a very great or fundamental one) between the Anglo-Saxon bot and the later damages.2 The idea of damages, therefore, has no necessary connection with trespass as a form of action, being indeed much older, and there is no doubt that there was forms in use in the local courts whereby these damages could be obtained. If this would explain the nature of the remedy, it still remains to determine the origin of the form which the royal courts adopted. In the writs of trespass there is a constant formula. The King orders the sheriff to summon the defendant (or else to take pledges for his appearance) to show in the King’s Court why (ostensurus quare) he did certain things. In the enrolment of such cases upon the plea rolls the recital of the writ is immediately followed by the words “whereof A. B. (the plaintiff) complains that . . . (unde queritur quod . . .)”. It may be that in these words we have a clue to the origin of the form through which the royal courts gave remedy by damages. The origin of quare actions in the King’s Court lies near the year 1200, but many writs were granted at first only as a matter of favour. Even the writ of debt might be purchased at the cost of a champertous bargain to give the Crown a large percentage of the sum recovered.

A complaint might be pursued by means of a writ,3 and, indeed, Bracton constantly refers to novel disseisin as a querela. The writ does in fact use the phrase questus est nobis . . . to introduce the crucial words alleging the disseissin. But it is clear that a writ was not always necessary, and that many complaints were dealt with without an original writ.

We may well suspect that the earlier summonses to show quare were granted only of grace, but the political crisis in the middle of the thirteenth century coincided significantly with the final settlement of the form of trespass, and no doubt contributed largely to its popularity. In the course of the inquiries into abuses by royal officials which then took place, great use was made of a vague procedure of complaint (querela). In these circumstances anyone could complain of the oppressions of public ministers, and the enrolment of these complaints is curiously similar to that of an action of trespass.1 It is not without significance that in France, too, the Crown was developing machinery whereby such complaints could be heard.2 According to this hypothesis the procedure of complaint against public officials was extended to complaints against any wrongdoers in general, and this, combined with the already existing idea of damages in local jurisdictions, as well as the existing practice of the summons to a royal court ostensurus quare, would give us all the elements of trespass. However, no final settlement of these controversies is possible until more plea rolls of the earlier thirteenth century are available in print.

REMOTER ORIGINS

We have spoken of trespass as a newer type of remedy in the King’s Court, appearing at a slightly later date than the praecipe quod reddat type; but the first appearance of trespass on the rolls is by no means the actual beginning of the remedy. The King’s Court was a newcomer among much older institutions, and although it did invent some things (such as the petty assizes) it borrowed many more, and among these borrowings, the complaint, or querela, must be numbered. Moreover, even the Crown’s first venture into the field of general adjudication was likewise no new invention. There was litigation for land long before the King’s Court threw open its doors to litigants, and we have reason to believe that the writ of right also was derived from the older but unwritten procedure of the ancient courts of the shire and hundred.

The two main types of action in the King’s Court may both be traced back therefore to the age before the common law. In that age England still lived under a customary law which can be conveniently described as “Germanic”, and which was matched in many other European countries with similar customs; “in all probability neither the victors nor the vanquished on the field of Hastings knew any one legal formula or legal formality that was not well known throughout many lands”.1 Now this old Germanic custom had two main types of procedure. One was a demand for a thing or the enforcement of a due; the other was a complaint against a wrong. The former looked forward to specific relief; the latter to compensation, bot or some similar form of settlement.2 Here, then, we already have the prototypes of the two great groups of actions, the demand becoming the writ of right, and the complaint the action of trespass.

TRESPASS AND CASE

We must now examine these complaints. They are extremely varied, but those most persistently recurring will naturally turn into settled forms. The assizes of novel disseisin and nuisance (beginning Quaestus est nobis) separated under Henry II.3 In the thirteenth century the Crown will show a special interest in complaints of wrongs done vi et armis and contra pacem; in the days of Bracton, these complaints will involve outlawry,4 and will become familiar with their recurrent allegations of assault and battery, asportation of chattels, and breach of close. These also become separate actions. So too did quare ejecit infra terminum, about 1235.5 At first, the King’s Court concentrated upon these real or supposed breaches of the peace, and only occasionally troubled itself with other complaints. Local courts, however, preserved the undivided field of tort; in such courts “trespass was a rough equivalent of our modern tort in general; under it were included many wrongs (such as defamation) that the royal courts were later to reserve for the action of case. It was not limited to direct wrongs.”6

As forms became settled, it was evident that writs of trespass for assault, breach of close, and asportation were practically common form; the others were an unclassified mass of instances where the writ had to be specially drafted so as to include a good deal of narrative matter. Such writs were said to be “upon the case”—an expression constantly used of writs (and also of pleadings) which set out particular circumstances in unusual detail.7 In some (but not all) of these cases, the narrative was prefaced by an important preamble introduced by cum. This may recite the “custom of the realm” (as against innkeepers), or it may recite one of scores of statutes, the breach of which caused loss to the plaintiff; later still, it will recite the assumpsit which played so large a part in the history of contract. The ancient formula summone A. ostensurus quare . . . is thus immensely expanded (and complicated) by inserting the lengthy clause cum . . . immediately after quare.

This orderly development in the science of diplomatic took many years to accomplish. At the same time legal habits were growing up which attached certain forms to certain circumstances, and often hardened into law without much regard for formal propriety. Many anomalies were created, particularly in the use, or omission, of the words vi et armis and contra pacem. It was always necessary to distinguish trespass from case, because the defendant could be arrested or outlawed in trespass, but not in case (until 1504); but the line came to be drawn without close reference to the form of the writ, or to the nature of the complaint. Trespass and case are clearly distinguished as early as 1368,1 but for a long time every situation had to be considered separately in order to decide (a) whether the remedy was to be in the nature of trespass or case, and (b) in either event, what the form of the writ should be.

There seems to be no foundation for the belief that the action of case has any connection with the Consimili casu clause of the Statute of Westminster II, c. 24 (1285).2

THE RISE OF EJECTMENT

Another special form of trespass is de ejectione firmae. This lies for a lessee against anyone3 who ejects him, and at first gives him damages, although not the recovery of his term. This writ is therefore the termor’s equivalent for the freeholder’s quare clausum fregit. The distinction between them is nevertheless clear: the freeholder speaks of the breach of “his close”, but the lessee uses no such proprietary language; instead, the writ recites the lease to the plaintiff of the premises, and his ejection from his term (firma sua).4 At the end of the fifteenth century it would seem the courts finally decided to allow the lessee to recover his term as well by this writ,5 and soon afterwards this great change enabled it to be used instead of most of the old forms of real action. When two parties wished to try the title to a piece of land, one of them leased it to an imaginary person (John Doe), and the other similarly leased to another (William Styles). One lessee ejects the other (this will be all fiction), and in order to try the rights of the rival lessees the court has to enter into the question of the rights of the lessors. This procedure was known as ejectment, and after the close of the middle ages was the principal method of trying title to land. The nominal plaintiff in such actions was the fictitious John Doe on the demise of the real plaintiff; and so an action which to-day would be called A v. B used to be described as Doe d. A (that is, Doe on the demise of A) v. B. The fictitious William Styles was usually replaced by his lessor, for in the earlier proceedings the plaintiff’s solicitor writes a letter to the defendant in the name of “your loving friend, William Styles”, asking the defendant to defend Styles’s interest. This development took place in the seventeenth century, but it was not until late in the eighteenth that a judgment in ejectment became really definitive. Until then, a persistent but unsuccessful plaintiff could start a new action as often as he liked. Useful as it was, ejectment did not entirely supersede the old real actions. In 1852 the fictitious John Doe was abolished by statute, and in 1875 this, together with all other forms of action, was abolished.

ASSUMPSIT: TROVER

We have already mentioned1 that the preamble introduced into quare writs by the word cum may allege that the defendant undertook (assumpsit) to do something. This is a development of the highest importance, and it will be discussed in due course.2

Another (and the latest) of these clauses contains the allegation of trover, and deals with situations which involve neither bailment nor a trespassory taking. In Bracton’s day the appeal of larceny could be converted into an action de re adirata by omitting the words of felony. By this means a chattel could be recovered against a finder.3 Proceedings of that sort were typical of manorial courts, but an obscure note in a Year Book4 suggests that in 1294 detinue could be brought against a finder. Cases on stray cattle are not quite in point, for the franchise of estray had rules of its own, but detinue against the finder of charters seems to have been possible in 1389.5 But charters, like strays, have peculiar features, and these actions deal principally with executors who withhold the heir’s title deeds which came into their hands (devenerunt ad manus) with the ancestor’s chattels. In 1455 Littleton explained the “new-found haliday” which consisted in counting upon a finding (invencio) instead of the traditional devenerunt.1

The preoccupation of detinue with the two special cases of estrays and title-deeds persisted, and the general problem of recovering chattels which had neither been stolen nor bailed was only solved when a new start was made by inventing a new preamble to be inserted in the writ ostensurus quare. This preamble alleged that the plaintiff casually lost possession of the chattel, that the defendant found it, refused to restore it, and converted it to his own use. This development of case for trover and conversion had begun by 1510.2 Just as forms of assumpsit replaced debt, so in the seventeenth century trover3 replaced detinue.

By the end of the seventeenth century, therefore, the great bulk of the litigation of the kingdom was conducted through the various forms of action which had developed from trespass, and this remained the case until the nineteenth century, when first of all the real actions, and finally, in 1875, all remaining forms of action, were abolished by statute and replaced by a single uniform writ of summons upon which the plaintiff endorses his statement of claim. At that moment, the change was purely procedural, but it has undoubtedly affected the development of substantive law by freeing it from the mediaeval classification imposed by the old forms of action, and permitting broad general concepts (such as liability in tort) to aid in the development of a field which was formerly subdivided on lines which were traditional rather than rational.

ACTIONS REAL AND PERSONAL

As long as the forms of action were living things, this was the only classification which really fitted them. The writs praecipe quod reddat had a system of procedure and pleading quite different from that applicable to those which summoned the defendant to show why (quare) he had damaged the plaintiff.

The study of Roman law, especially in the pages of Bracton, introduced much confusion. Instead of this Germanic classification based on the nature of relief sought, the Roman classification was based upon the nature of the right asserted, and Bracton attempted to apply this classification to the existing English material. In the Romanesque introduction to his treatise he regards the assize of novel disseisin as a personal action because it is based upon tort, and because the procedure in it is directed against the person of the disseisor and not against the land,4 but when he comes to the detailed discussion of English law he changes his mind and says that novel disseisin is a real action because the judgment is for the restitution of a res, a specific piece of land.1 This latter decision brings him nearer to the old Germanic notion than to the Roman, but still it is not quite the same thing. The difference appears when the action of detinue is considered. On the old Germanic plan detinue belongs exactly where we find it, in the praecipe quod reddat group, because it is a demand for something which is the demandant’s right or due. Bracton discusses the nature of detinue in a well-known passage,2 and asks whether it is a real action since the writ demands the restitution of a specific chattel. He concludes that it is not a real action because in practice the defendant can elect between restoring the chattel or paying its price.

This was the test which was finally adopted in England: an action is real if it compels the specific restitution of the res. Littleton adopts the rule3 and since his day it has become current. The words “real” and “personal” in later ages came to be applied (or misapplied) in a very curious fashion to property. It became customary to call land “real property” while chattels were “personal property”, apparently because land could be recovered specifically in a real action, but chattels could only be made the subject of an action for damages.4 This usage becomes common in the late seventeenth century, after the time of Coke.5 The use of these distinguishing terms is not, of course, the origin of the distinction between the two different types of property; the differences between them are much older and deeper than these unhappy attempts to apply Roman terminology to English law, and will be mentioned later.

ACTIO PERSONALIS MORITUR CUM PERSONA

Our remarks about this famous brocard can happily take the form of an obituary notice. Although of mediaeval origin,6 the maxim owes its currency to Coke and is thus one of those fioretti which the faithful Ashe collected in his Fasciculus Florum: or, a Handfull of Flowers (1618). When Coke propounded it, the maxim certainly did not correspond with the state of the law of the reign of James I. There may have been a time, however, when such words as these would have summed up the situation with rough accuracy; rather curiously, however, the maxim certainly did not then exist.

Even as early as Glanvill, however, the heir is liable for his ancestor’s debts,1 and in Bracton we are told that an heir can enforce his ancestor’s credits.2 It would almost seem as if this were a twelfth-century innovation made with the deliberate intention of competing with the Church; if so, its success was bought at the cost of some inconvenience, and only in the reign of Edward I3 did the common law courts allow executors to appear before them in their representative capacity. This therefore did away with the cumbrous machinery of making the heir party to the litigation although the chattels were in the hands of the executors. Without legislation, therefore, the courts granted actions of debt by and against executors, and before the death of Edward I Fleta was able to say that the heir was not liable unless under a deed which expressly bound him.4 Statute soon afterwards gave executors an action of account.5

A certain amount of provision had therefore been made by the end of Edward I’s reign for the survival of personal actions, especially those of a contractual nature. Even so, serious limitations affected them; where the testator could have waged his law as a defence, the executors escaped liability, for they could not wage law in their testator’s name. Hence cases of this sort (and they were common) had to wait for equitable relief, which only came late in the fifteenth century.6

Actions of tort had a curious history. Trespass certainly died with the person, until the first tentative inroad upon the simplicity of the rule was made in 1267, when abbots were allowed to sue upon trespasses done to their predecessors during the Barons’ War.7 Sixty years later, the civil wars of the reign of Edward II resulted in the defeat of the Despenser faction, the deposition of Edward II and the accession of Edward III. The victorious Mortimer party secured a statute to the effect that the executors of those who were slain “in the said quarrel” should have an action in respect of the goods and chattels of their testators, if they had been members of the party.1 That was in 1327, and for the moment was merely an example of politicians, flushed by victory, sweeping aside established rules of law for their personal benefit. It did not rest there, however, for the reform seemed so beneficial that it was extended in 1330 to the world at large by the enactment that executors for the future shall have an action for damages against those who had taken the chattels of their testators during their lifetime.2 From these two beginnings the law by devious paths gradually abandoned portions of the principle that personal actions died with the person, but progress was much faster in the field of contract than of tort. The replacement of the old actions of debt and detinue by assumpsit and trover brought further complications by confusing the two lines of mediaeval development.3 In our own day the ravages of the automobile have completed the work begun by the feud of the Despensers and the Mortimers. The Chancellor, Lord Sankey, referred the rule to the Law Revision Committee over which Lord Hanworth then presided, and their recommendation4 to abolish the rule (except in cases of defamation and seduction) has now been carried out.5

CHAPTER 2

CIVIL PROCEDURE

It is universally observed that in old legal systems the place of procedure is especially prominent. In general, this is true. In repeating that statement, however, it should be added that procedure is by no means negligible even in modern law, and that if the observation is to be valuable, we must search for the reasons for its position in early law and in modern law respectively.

Superficially, our oldest sources speak mostly of procedural matters—especially the best sources. An orderly discussion of writs such as we find in Glanvill is more illuminating to the reader than the heroic (though hopeless) attempt of Bracton in the earlier part of his book to state the law in terms of general principles. To a historian, it is the practical detail of old sources which gives him his richest material. If historians prefer the precise detail of the plea rolls and Year Books to the obscure generalities of Bracton’s first hundred folios, it is because they are seeking the old law in action, rather than old law in theory. We may well believe that old lawyers themselves felt the same. The details of process and the practical side of pleading were as vital to them as recent cases or new statutes are to-day.

THE SLOWNESS OF OLD PROCEDURE

There is, however, a real difference between the place of procedure in the thirteenth and the twentieth centuries. Old procedure had to grow as it could. Much of it was ancient and traditional, but the very fact that it was not written in authoritative codes of rules left room for modification. Old procedure is therefore full of uncertainties, as a glance at any Year Book will show. Then, too, it has to contend with many difficulties which modern mechanical progress has eliminated. Most of the people whom it touched could neither read nor write, and so were easily victimised by dishonest officials. It could not rely on upright sheriffs, and sheriffs’ underlings were a by-word in the middle ages. Considering their difficulties, the middle ages achieved remarkably good communications, but at their best, those communications were apt to be slow and uncertain. Their system of sending out writs into the country, and the sheriff returning them with an endorsement, was based on sound principles of business routine, and it is now clear that these writs and returns were filed, and could be handled with comparative speed.1 But however good the system at the centre, there was always the peril of delay, mistake and fraud in the country. Procedure therefore had to be slow,2 allowing for accidents, taking an irrevocable step only after abundant precautions, and providing means for correcting blunders as it went along.

PROCEDURE AS A CONSTITUTIONAL SAFEGUARD

This slow and cautious procedure was therefore regarded as a valuable safeguard by litigants. Where modern public opinion would insist upon a trial which was substantially fair, the mediaeval public looked rather at the procedure and inquired whether all the steps in it were properly carried out.3 As a result, there is ample material for a history of mediaeval procedure, in the sense of process, for it was carefully recorded and widely studied, but very little light upon what actually went on before the eyes of a jury.

Procedure, considered as a safeguard, played a large part in constitutional struggles. Arbitrary action by the Crown or its officials necessarily involved a breach of procedural rules sooner or later. In 1215 the barons at Runnymede appealed to procedure as the only effective protection for their persons and property, and nearly two centuries earlier the same principle had been formulated in an edict of the Emperor Conrad II (1037) for the Holy Roman Empire. It is represented to this day in the due process clauses in the federal and state constitutions of America.

PROCEDURE AND SUBSTANTIVE LAW

The previous chapter has described the rise of the original writs and the forms of action which they initiated, and it will already be apparent that substantive law was discussed in terms of procedure. The rights of the parties will be expressed in the form of writs and pleading: the plaintiff in given circumstances can bring a particular writ, but if he does, the defendant in certain other circumstances may use a particular plea. Gradually there will come slight modifications as cases a little outside the ambit of the traditional forms are brought in, either by construction or by a modification of the forms. The result is a change in substantive law, but the machinery of the change, and its technical expression, will be in the rules about writs and pleadings.

THE SEPARATION OF LAW AND PROCEDURE

One of the most significant themes in the study of legal history is the growth of the power to think of law apart from its procedure. This power naturally can only develop when civilisation has reached a mature stage. It is essentially the statement of the results which have emerged from long and extensive experiment. Roman law, at the end of its long history, had reached this stage, and the results it obtained served in the middle ages as a valuable body of principles for the guidance of the younger national laws. In England, as elsewhere, premature attempts were made to express law in abstract terms by separating its principles from its practice. As we have already noticed, the failure of these attempts is clear evidence that the law was not yet strong enough to stand alone, for obscurity rather than clarity was the outcome. Glanvill is lucidly written wherever the author deals with writs, and it is only when he endeavours to generalise that he becomes obscure. Bracton’s first hundred and seven folios have caused endless discussion and are little use as a historical source unless their statements can be verified from the mass of valuable detail which fortunately forms the bulk of his treatise. Littleton, however, wrote at a time when it was just becoming possible to state some general propositions about real property; but the statute of uses soon robbed real property law of any trace of clarity, and thenceforward no attempt was made to write a text-book (apart from beginners’ manuals) on general lines.

Inspiration finally came, once again, from abroad. The middle of the eighteenth century is distinguished by the interest English lawyers took in French and Dutch works, and under this stimulus they attempted to think in terms of substantive law rather than merely of procedure. Mansfield on the bench set the example, and Blackstone at Oxford improved upon it by achieving the astonishing feat of writing his commentaries. At this time it is difficult to appreciate the daring of Blackstone. It can best be realised by looking at Viner’s Abridgement which then held the place of honour in legal literature. To abandon all the time-honoured titles from “Abatement” to “Withernam” and replace them by a logical and analytical scheme required great courage and great skill. Blackstone had both, and in his pages we find the first comprehensive attempt to state (as far as was then possible) the whole of English law in the form of substantive rules.

The procedure was still there, however; in actual fact, the law was still entangled in it, and Blackstone’s venture could be plausibly dismissed by conservatives as a mere literary device. In the course of the succeeding century the great revolution took place. With the abolition of forms of action and the unification of courts and procedure, it became possible for law to flow more freely and to escape the confinement of the old procedural categories. Only then did it become possible to consider the law in practice as being the application of substantive, rather than procedural, rules.

PROCEDURE IN MODERN TIMES

The separation affected procedure as well. Its position was more lowly henceforth, but its functions were more clearly defined, and its details could be more freely modelled in order to fulfil its objects. In the middle ages the rights of a party were the right to enjoy certain procedures, just as in the United States the citizen has a constitutional right to due process. In the newer order the place of procedure is purely ancillary—a means to an end. There is consequently growing up a science of procedure, based on an analysis of its functions, and a search for the quickest, cheapest and most reliable methods of organising the practical side of the law. Much experiment is going on, both in England and America.1

Confining our attention, for the moment, to contested litigation, any system of procedure must contain first of all a means whereby the plaintiff sets the machine in motion. Next the defendant must be notified and brought into court. Then we come to one of the most difficult problems—the discovery of the precise nature of the dispute between them, and its termination by judgment. In the more advanced systems there will have to be means of reviewing the first decision, and in all systems there will have to be some method for enforcing whatever ultimate decision is reached.

Bearing in mind these general remarks on the history of procedure, we may now turn to an examination of some of its characteristics.

THE INITIATION OF PROCEEDINGS

A good many relics of Anglo-Saxon procedure are preserved in mediaeval borough customs; thus we find that in the time of Glanvill, Whitby had this custom:1

The object of the provision was to prevent matters coming into court before it was clear that private negotiations had been tried and had failed. Several legal systems at the present day pursue the same end by a regular procedure of “conciliation” which is a necessary stage before litigation proper.

As we have already observed,2 the King’s Court adopted a similar principle in the writs praecipe quod reddat, the main difference being that the sheriff, instead of the party, made the demand for restitution.

SELF-HELP: DISTRESS

In some circumstances a party could do much more than merely demand his right. The ancient procedure of distress enabled him to take security from one who owed him services or rent arising out of freehold or leasehold tenure. There were rules, both of common law and statute, which prescribed the method. The distress must be made within the lord’s fee, and not on the King’s highway. Cattle were most usually taken, but plough beasts and certain essential implements of agriculture were privileged. If the tenant offered gage and pledge to contest the lord’s claim, then the cattle had to be restored pending an action of replevin. Throughout the middle ages the lord had no right to dispose of the things taken. They were merely security and the property remained in the tenant; if the lord misused the chattel he became guilty of trespass—and some thought, of felony. The right of distress was immensely enlarged when a statute of 1690 gave the distrainor power to sell the distress.3

SECURING THE DEFENDANT’S APPEARANCE

If private endeavours failed, the next step was to get the defendant into court. The coercive power of the State generally has no difficulty in doing this under modern conditions, but early law found it immensely difficult. It first resorted to long and patient persuasion, in the hope that the adversary would promise to come into court. Appearance, in fact, was contractual—one of the earliest contracts which the law undertook to enforce.1 Slowly, however, the State assumed coercive powers and undertook to compel appearance, but even when this was accomplished the forms were still relics of the earlier method. Instead of the party voluntarily giving gages and finding friends who would be his pledges, the sheriff is sent to take them, and if they are not forthcoming he will in the end seize the recalcitrant one’s property as a security for his appearance.

In the King’s Court we find a compromise between the old oral procedure and the newer machinery of written documents. The plaintiff began the proceedings by purchasing an original writ suited to his case. We find little more trace of the actual requirement of previous demands for right, although formal words long survived in the declaration on writs of debt saying that “the defendant though often requested has not paid the said sum to the plaintiff, but has so far refused, and still refuses”. If the older writs require the sheriff to urge the defendant to do right, the more modern type, represented by novel disseisin and trespass, begins at once with an order to summon.

Most original writs were not “served”; they went to the sheriff, and he carried out the order through machinery which looks very old. He appointed two “good summoners” (and at first they were certainly not officials) who went to the party and summoned him. In Glanvill’s day they had to come to court in order to testify whether they had properly summoned the defendant.2 Thrice was the party summoned, and if he had not yet appeared, process issued to take his land. This oral summons was a weak point, and disputes whether summons had been duly made were frequent. The early stringent proof of summons by the testimony of the summoners was soon relaxed, and it became general to allow wager of law—an easy “proof” of non-summons—as a means of “curing a default”.

Instead of merely failing to appear, the defendant might send certain excuses called “essoins”. A number of “essoiners” were sent to explain that the party was sick, abroad, on the King’s service, cut off by a flood, a broken bridge, and so forth. These secured delays of varying length, and in early times were verified. The court would send four knights to see whether the party was actually in bed. As one was entitled to an essoin if one had previously appeared, it was possible to spin out a long series of appearances and essoins. Worse still, in certain actions, especially debt, it was necessary to have all the co-defendants in court together. This might never happen if they arranged to cast essoins in turn. This practice of “fourcher” was particularly favoured by executors, until it was stopped by statute.1

The distinction already noted2 between “demands” and “complaints” was extended to the procedure. Upon writs of praecipe quod reddat the process consisted of a long series of distresses directed against the tenant’s land; upon writs ostensurus quare the process was a series of summonses, attachments, and possibly arrest (capias) and even outlawry.

OUTLAWRY IN CIVIL PROCESS

The dreadful penalty of outlawry was originally the last resort of criminal law. In the time of Bracton, however, it makes its appearance in civil procedure, and it is not surprising that the first form of action to involve outlawry was trespass. Further extensions of outlawry were made by statute to actions of account3 in 1285, debt, detinue and replevin4 in 1352, and to actions of case5 in 1504. Necessarily, this procedural outlawry had to be in a much mitigated form, and so what was once equivalent to a death sentence was shorn of such terrors as peril of life, corruption of blood and escheat of lands;6 the insurgent peasants demanded its abolition, both in civil and criminal proceedings, but without success; down to 1870 it still involved forfeiture of chattels.7 Moreover, the use of outlawry was hedged about with procedural precautions which left many chances of getting it reversed upon a writ of error.

JUDGMENT BY DEFAULT

The common law was reluctant to give judgment by default. The principle of the petty assizes, however, made it necessary, and so we find that, as part of the very summary procedure of the assize of novel disseisin, the twelve recognitors were summoned at the same time as the defendant; if the defendant persistently defaulted, then the verdict of the assize would be taken even in his absence, and judgment given. In other real actions judgment could be given against a tenant who had exhausted his liberal allowance of defaults. A tenant who lost by default was not for ever barred, but could regain his land if he succeeded in a writ “of a higher nature”; thus, if he had lost by default in an assize he could still recover (if his title was sufficient) in a writ of entry, or if he had lost by default in a writ of entry, he could resort to a writ of right. Even in a writ of right, a judgment by default will not bar a future writ of right except in certain circumstances.1

In personal actions the situation was rather different. The subject matter of the dispute was not indestructible like land, and there was the additional factor of the rights of the Crown. Especially in trespass, there was the idea that people ought to be punished for their torts as well as making reparation, and where the Crown and a subject were in competition, the issue was inevitable. Bracton indeed had argued that debts and damages ought to be levied from a defaulter’s personal property, but (as Maitland remarked) it took six hundred years for his view to prevail.2 There was a time when something of the sort could be done in actions of debt,3 but the experiment was abandoned and the common law clung to the principle that no judgment should be given in personal actions against an absent defendant. The Crown did, indeed, pursue him with rigorous process, but the resulting attachments and forfeitures only benefited the Crown and not the party.

THE NEW CONVENTIONAL PROCEDURE

In the course of the seventeenth century the courts and the profession combined to evolve a remarkable reform in procedure. This revolution—it was nothing less—was effected by a series of fictions, and had for its object nothing less than the abandonment of the old system of original writs.

We have already noticed the fact that the common law courts were often rivals for business, and this rivalry was no doubt the main motive of these reforms, for their primary object was not so much the relief of litigants as the attraction of business from one court into another.

PROCEEDINGS BY BILL

It had long been a principle with the mediaeval courts that proceedings could be taken by bill, without further preliminaries, against an officer of the court or against a person who for any reason was already within the jurisdiction of the court; particularly, the King’s Bench would hear bills based upon causes of action arising in the county where the court happened at the time to be sitting.4 The exploitation of this rule had far-reaching results. In the middle of the fifteenth century the King’s Bench allowed a real or fictitious bill of Middlesex to be proffered against a person, supposing him to have committed within that county (where the court had by now settled down) a trespass with force and arms. This was within the court’s normal jurisdiction, and if the defendant surrendered and was committed or bailed he was sufficiently within the court’s jurisdiction to be put to answer any other bill proffered against him while in custody. If the defendant did not come in, process called latitat issued, and eventually he might find himself in contempt. An ingenious but complicated system of bail gave some reality to the proceedings, but the Court of Common Pleas procured a statute in 1661 which rendered the device ineffective by enacting that arrest and bail could only be had if the process disclosed the true cause of action.1

The bill of Middlesex only alleged a fictitious trespass, and so was useless after the statute, until the King’s Bench took the simple course of adding to the fictitious trespass (which gave it jurisdiction) a clause ac etiam, “and moreover”, which set out the real cause of action. The King’s Bench therefore regained the use of this device to capture business (but not real actions) from the Common Pleas. Retaliation followed when the Common Pleas used its ancient writ of trespass quare clausum fregit with an ac etiam clause containing other matter, which enabled it to compete with King’s Bench.

In both cases the commencement of the proceedings was a document whose contents were completely fictitious, and in practice neither the bill of Middlesex nor the writ of trespass quare clausum fregit was issued. Process therefore began immediately with the latitat (in the King’s Bench) or with the capias (in the Common Pleas).2

In the eighteenth century this omission was extended to trespass actions which did not have a fictitious origin, with the result that most actions, apart from the older real actions, began with a capias instead of an original writ. By such devious means the courts achieved a considerable measure of reform, which paved the way for the more thorough simplification effected in 1832.3

The proceedings between appearance and judgment will be described in the next chapter in so far as they are pleadings; modes of trial and the nisi prius system have already been described.

APPELLATE PROCEEDINGS

The hierarchy of ecclesiastical courts—archdeacon, bishop, archbishop, pope—gave English lawyers their first sight of appeals being carried from court to court. Within the limits of their own system they copied it, at least in externals. Bracton likened the King to the Pope, and, like the Pope, the King could call into his court cases which were in progress in inferior tribunals. By means of tolt a plea could be removed from a seignorial court into the county, and by a writ of pone it could be thence transferred to the Common Pleas. It is interesting to observe that by 1294 these were merely paper proceedings, so to speak, and that such a case did not in fact come before the county court on its way to Westminster.1

If a plea in the local court had proceeded to judgment, it could be reviewed only in the King’s Court. There was thus no possibility of pleas moving up through a hierarchy of feudal courts, for as early as the reign of Henry I the principle was formulated that “false judgment is a royal plea”.2 The proceedings in the local courts were oral, and so they had to be committed to writing before the King’s Court could examine them. A writ of recordari facias loquelam in the form of an accedas ad curiam ordered the sheriff to go to the court of a lord and cause its proceedings in the case to be recorded; this record was then brought into the King’s Court by four suitors of the court below—or four knights if the case came from the county court. If one of the parties disputed the accuracy of the record, battle might be waged. The record being settled, the King’s Court would hear the objections to it and act accordingly; it might even continue the remaining stages of the case itself, for the error below will amost certainly have been a procedural one.3

The expression “false judgment” is not one which any prudent person would apply to the decision of a royal court. The proper expression will be “error on the record” if the acts of the Common Pleas are to be reviewed, and the procedure will be a writ of error to move the record (or rather, a copy of it) into the King’s Bench,4 and thence maybe to Parliament.5 Like false judgment, the writ of error will only secure a review of whatever appears on the record of the court below. This will be largely concerned with matters of procedure, although implicit in them there may well be a question of substantive law. Questions of fact, however, were definitely outside the operation of a writ of error.6

FINAL PROCESS

The successful demandant in a real action obtained a writ directed to the sheriff, who was thereby authorised to put him into seisin.1

The final process in personal actions, however, was not so simple a matter. The plaintiff had judgment for a sum of money as a debt, or damages, or both. Different possibilities have been open to such creditors at different epochs of our legal history. Obviously there are three principal types of execution to be considered, which may be directed against the defendant’s person, his chattels, and his land respectively.

Personal slavery in satisfaction of debts is an ancient institution and undoubtedly formed part of Anglo-Saxon law,2 as also of old German law.3 It disappeared, however, after the Conquest, with the result that for a time our law did not issue process against the person of a judgment debtor. Its reappearance is largely statutory. The King could always use it for Crown debts, but in 1285 masters, without judicial proceedings of any sort, were authorised by statute—one of the most drastic enactments in our history—to commit to gaol servants and bailiffs whose accounts were in arrears.4

Meanwhile, the statutes of merchants (to be mentioned later) gave similarly stringent execution against the persons of merchants, who, it must be remembered, were a well-defined class or estate, subject to peculiar rules of law, and against such others as had expressly placed themselves within the terms of the statutes. “Common persons” could not be imprisoned for debt until after 1352, when the initial process of actions of debt was assimilated to that of account.5 In terms the statute only dealt with mesne process, but by this time there was a common law rule that if a defendant could be imprisoned on mesne process, then he could also be imprisoned on final process; indirectly, therefore, the result was to introduce imprisonment for debt.6 The rule in question no doubt derived from trespass vi et armis to which it originally applied. Imprisonment was not extended to actions on the case until 1504.7 It seems early to have been established that if the plaintiff takes a capias ad satisfaciendum he must abandon all other modes of execution, and so (as a general rule) cannot proceed against the defendant’s property if once he has proceeded against his person.

It is not surprising, then, that the majority of creditors saw more chances of satisfaction by proceeding against the debtor’s property. Down to the reign of Edward I only the debtor’s chattels could be reached by the two common law writs available. Of these, fieri facias authorised the sheriff to “cause” the sum due “to be made up” from the debtor’s goods and chattels; levari facias went a little further and allowed it to be levied out of the produce of his land as it became available. This included crops, rents and the like, and leases,1 all of which the sheriff could take and realise.

These writs of execution were only available upon judgments in the King’s courts. In local courts “of wapontakes, hundreds, and courts of barons” it was only possible to distrain the defendant. This caused him harm, but it did no good to the creditor; a petition in 1348 that such distresses might be sold in order to satisfy the judgment was rejected.2 This archaic procedure must have had much to do with the decline of the local courts.

STATUTORY PROCESS OF ELEGIT

We have already hinted that dealings with, and through the medium of, the sheriff were not always entirely satisfactory in the middle ages. The levying of judgment debts could no doubt be done quicker and cheaper by the creditor himself than by the ancient machinery of the county executive. It took the common law some time to get over its repugnance to putting a creditor in possession of a debtor’s lands, and the restrictions on alienation may also have proved an obstacle. However, as early as 1215 the first step in this direction was taken. The Great Charter enacted that if a surety had discharged his principal’s debt to the Crown, then the surety could be put into possession of the principal’s lands, to hold them until he had levied the debt from the issues.3 The courts themselves made one more effort in this direction, in a situation which has already been mentioned,4 but a general procedure allowing the creditor to reach the proceeds of land without the intervention of the sheriff only appears in 1285. By the Statute of Westminster the Second,

The alternative procedure here provided was called elegit because the writ recites that the creditor “has chosen” it instead of fieri facias. A jury was summoned to make the “extent” or valuation of the land, and to fix a fair price for the chattels. The concluding clause of the statute is interesting, for it contemplates the creditor entering into possession of the lands, and protects him by novel disseisin, although it would clearly be anomalous to describe him as “seised”; we have here, therefore, an early example of a statutory estate which will not fit into the common law system of seisin.2 Leases held by the debtor were also in an anomalous position, for the sheriff might deliver them to be sold by the creditor as “chattels” or he might extend them as “lands”, in which case the creditor merely takes over the remainder of the lease from the debtor.

DEBTS OF RECORD

So far, this chapter has been concerned with contentious litigation. Many persons, however, desired to obtain the benefits of a judgment without the hazards and delays of a long process; particularly, lenders wished to have judgment entered at the moment the loan was contracted, and thus avoid the difficulties of getting the debtor into court, and also the further risks of meeting a defence of wager of law, of depending on the appearance of witnesses, or the risk of losing a bond under seal—for if it were lost or defaced, the action was extinguished. Prudent lenders in the early thirteenth century almost always solved these difficulties by bringing an action of debt and pursuing it as far as judgment against their prospective debtors—“and we may be pretty certain that in many cases no money has been advanced until a judgment has been given for its repayment”.3 Many actions, collusive no doubt, did not proceed to judgment, but concluded with a compromise which was recorded on the plea rolls, often with a covenant that the sheriff may levy the debt if it is defaulted. Still other cases are to be found on the close rolls of Chancery. These were not judicial records, but merely copies of State correspondence for official reference, but on the backs of the rolls numerous private deeds are to be found, generally concerned with debts. Private debts might also be acknowledged in the Exchequer.

The principal advantage of these measures was the ease with which the debt could be proved from documents which were kept in official custody with great care. Moreover, such a recognisance enrolled in a court of record operated immediately as a charge upon the debtor’s lands. Upon default fieri facias or elegit could be had.1 The Statute of Westminster the Second enacted that matters enrolled by the chancellor or judges, whether they concern land or debts, ought not to admit of further pleading, and that the plaintiff at any time within a year of the record may henceforth have a writ of execution upon them; if more than a year has elapsed, he may have a scire facias calling on the defendant to show cause why execution should not be issued.2

STATUTES MERCHANT

The class of merchants were particularly interested in procedures of this sort, and at this same moment were procuring legislation especially adapted to their requirements. Speed, ease of proof and drastic execution were the principles which they incorporated into the traditional deed enrolled and the recognisance. In 1283 the Statute of Acton Burnell made special provision for the enrolment of mercantile debts in the principal towns, where the mayor was to keep a roll, and a clerk appointed by the Crown was to enter upon it the details of recognisances; the clerk was also to draw a deed and give it to the creditor, sealed with the debtor’s seal and his own official seal. Upon default, the mayor was to order the sale of the debtor’s chattels and devisable burgage lands; if there were none within the jurisdiction, the Lord Chancellor was to make suitable process. If the debtor had no such property he was to be imprisoned, the creditor providing him bread and water only.3

Defects in the working of the statute soon became apparent, and there was talk of “malice and delay”. The matter was therefore taken up again two years later and the result was the great Statute of Merchants of 1285.4 The details of enrolment and sealing were changed so as to leave less room for fraud by the local officials, but the greatest change was in the execution allowed. The process was to begin with the imprisonment of the debtor, instead of using imprisonment as a last resort. There was to be no escaping this; if the gaoler did not accept the prisoner he (or failing him, the owner of the gaol) became liable for the debt. During the first three months the debtor was to have facilities for selling not only his chattels but also his land. If the debt had not been settled within those three months, the chattels were delivered to the creditor for sale and all the land (not merely half as by elegit) was to be held by the creditor, who was to be “seised” of it until the debt was levied from the issues. A very peculiar feature of the statute is that it makes all lands held at the time of the recognisance liable to execution, even if they had since been alienated.1

The object was clearly to circumvent the prejudice against compulsorily stripping a debtor of his land by selling it. The statute did not venture to do this, but the drastic process of immediate close imprisonment was evidently meant to compel the debtor to sell. A clause was necessary to declare that such sales should be valid, no doubt because at common law a deed made in prison could generally be avoided.

Recognisances entered into in accordance with this act were called shortly “statutes”, and a creditor who was in under the act was called a “tenant by statute merchant”. It remained the principal form of security during the middle ages, and even for centuries afterwards it was in very general use.

STATUTES STAPLE

Similar machinery was set up in every staple town by Edward III in 1353 for the special convenience of the members of those particular communities of merchants.2 The law and the forms were the same as for statutes merchant, the only difference being that the officials who took the recognisances were the staple officers, and that (at first) the recognisances were practically confined to operations in the “staple” commodities of wool, leather, etc.

In later times both statutes merchant and statutes staple were used by non-merchants.

AUDITA QUERELA

The principle behind all these devices was that no defence could be possible to a recognisance made under these forms. No provision therefore was made for pleadings or defences by the debtor.

It soon became clear that the legislature had been too optimistic in this respect. The resources of mediaeval fraud and forgery were considerable, and the complication of the land law introduced many nice points in the execution of “statutes”. We therefore find that the necessary procedure finally appears, taking the form of the writ auditaquerela.1 It issued out of Chancery and was directed to the judges of the King’s Bench or Common Pleas, ordering them to do speedy justice to the debtor, after having heard his complaint (audita querela) and the reasons of the parties. There is good ground for believing that this writ was first authorised by Parliament in 1336 as a remedy in these circumstances.2

The scope of the writ was, in general, to permit the defendant to raise matters which in ordinary cases he could have raised by way of plea in common law actions. It replaced the action of deceit and the writ of error to a large extent in matters arising under the statutes of merchants and staple, and later in the middle ages was used as a general remedy for those who had been the victims of the forgery or fraudulent manipulation of any type of procedure and records.3 It may be added that the defences available do not seem to extend beyond the common law’s traditional relief against the abuse of legal procedure, and that there seems to be no ground for regarding audita querela as being particularly “equitable” in its nature.4 It seems that the words of Stonor, C.J., “I tell you plainly that audita querela is given rather by equity than by common law”,5 simply mean that the writ allows the debtor to plead common law defences, although the statutes deliberately deprived him of that opportunity.

PREROGATIVE WRITS

The writs mentioned here and in the last chapter have been essential parts in the conduct of litigation; but the primary function of a writ was merely to convey the King’s commands to his officers and servants, of whatever nature those commands might be.6 The Register of Writs shows in fact a large variety of writs whose nature was administrative rather than judicial. Some of these writs acquired the name of “prerogative writs” in the seventeenth and eighteenth centuries.7 A few of them have been the subject of special study.8 At the present time, writs on administrative matters are of importance in local government matters, mandamus and certiorari for example; in the middle ages prohibition played an important part in the conflict of church and state,1 and could be used against the admiralty and local courts as well.2 Occasionally it happened that the constant issue of prohibitions would result in the creation of a new form of action.3

THE ISSUE OF WRITS

The precise functions of chancery in the drafting and issuing of writs leave room for controversy.4 The ambiguity of the word “writ” is a source of trouble, for it has led some historians to regard restrictions upon the issue of “writs” by the council’s authorisation as if they were restrictions upon its supposed power to create new writs for judicial use,5 and the efforts of Bracton and Fleta to explain the procedure are hardly successful. The statute in consimili casu of 1285 shows that chancery had important functions,6 and a famous year book passage shows how those functions were carried out.7 It was confessedly the aim of the writ-system to cover the whole field of law,8 and the responsibility of chancery in controlling so vast a movement was of the gravest—in effect it threatened to be the supreme legislator of the common law. But one great check was maintained over its activities: the common law courts could, and did, quash writs of which they disapproved.9 The ultimate decision to quash or to sustain a novel writ therefore lay with the common law judges.

Royal justice was so good that it could overcome the inherent defect that the issue of writs was almost a monopoly of the chancery—a distant and peripatetic office. Certain prudent concessions had, indeed, been made—plaints could be brought in local courts, and even in the King’s Court,10 and on the occasion of a general eyre some original writs could be got from the court (as judicial writs regularly could11 ). Some alleviation could thus be brought lest the writ-system become impossibly difficult, but the erection of local branches of the chancery never took place.1

NINETEENTH-CENTURY REFORMS

There have been two main lines of procedure, therefore, the one concerned with contested litigation, and the other with uncontested forms in which the proceedings consisted of final process issuing out of records upon which the parties had voluntarily enrolled their obligations. Parties who had not taken the preliminary precautions of entering into recognisances had perforce to go through all the forms of contested litigation, but as early as Coke’s day this was made less formidable by the practice of the profession.2 It had already become impossible, and indeed unnecessary, to pronounce judgment in open court upon the thousands of cases in which there was actually no defence. In such circumstances, where the functions of the court were purely ministerial, the attorneys carried on the proceedings between themselves, making up the record and procuring its enrolment, even going so far as to enter judgment in multitudes of cases which had never been mentioned in court. Of course, the record, if erroneous, was liable to be quashed if the defendant brought a writ of error, but the careful copying of approved forms out of the current books of practice (of which there was a great number) was almost always a sufficient precaution. The way was therefore well prepared for the still speedier and easier summary judgment which we owe to nineteenth-century statute law.

The conventional procedure of the seventeenth and eighteenth centuries likewise achieved a very large measure of reform which made the work of the legislature much simpler, for it constituted a substantial advance towards uniformity of process by its extended use of the capias in initiating all sorts of actions.3

METHODS OF REFORM

It is not without interest to notice the different methods of law reform which are illustrated by various episodes in the history of procedure (and for that matter, of other branches of the law as well). If a rule, a procedure or an institution is working unsatisfactorily, there are several courses from which to choose. The simplest is to abolish it and substitute something better. It is natural that so straightforward a remedy should only be employed when there are men with vigour and courage to carry it out. It is apt to be characteristic of the great moments of the common law, therefore, rather than of those less heroic times when the system is in repose. The last years of the thirteenth century may be rightly regarded as the golden age of the common law, and it was a moment when some things were being abolished by statute (especially in the field of procedure) and other new things were being established. It is not a little curious that the most conservative minds, looking back to a distant golden age, are apt to light upon a period which was distressing to the conservatives who lived in it; “new king, new laws, new judges, new masters” is the lament of a Year Book in reporting a case decided by Chief Justice Bereford, who is the brightest figure in the brightest period of the Year Books.1

A less drastic policy is to diminish the importance of the offending member without excising it. The long line of statutes of jeofail is an example. These statutes adopted the policy of enacting that certain minute slips in enrolling should not for the future invalidate the record.2 They began with slips of spelling, and proceeded by cautious stages to defects slightly less trivial. The result was disastrous. By excusing some slips, the others were by implication rendered still more grave, with the inevitable result that pleadings as a whole became still more dependent upon minute accuracy for their effect than they were before.

A third policy was to neutralise the wrong done at one point by introducing a new mechanism to counteract the old. This is surely the most tempting, and the most fallacious, of all. It is also the most frequent, for the courts must make their own reforms if the legislature will not, but the courts cannot (as a rule) abolish anything. Their efforts are therefore confined to providing safeguards against other legal rules. We thus get as a result an increase in the bulk of the law, for the old subsists with the new, and an increase in its complexity because the question of the relationship between the old and the new is bound to arise. Nor is this situation confined to judicial legislation, for even the statutes of Edward I raised the question by their failure to complete their work by abolishing unsatisfactory law. One of the most notorious examples, however, is the law of outlawry. Its traditional machinery was slow, but crushing. When it was felt that it was too severe, reform took the shape, not of modifying the nature of mesne process, but of insisting upon extraordinary accuracy in every detail of the outlawry procedure.3 This terrible engine was fitted with prodigious brakes, therefore, and so its energy, which might have been usefully applied, was carefully neutralised. The result frequently was that when it ought to have moved it did not, while at other times it might unexpectedly get out of control. The law of outlawry thus became notoriously tricky and ineffective.1 Another example we shall find later in the history of defamation. Early in the seventeenth century the courts felt that the law of slander was unsatisfactory because a great many persons invoked its protection. Such reasoning is not very promising, and the remedy devised was worthy of it—the courts insisted upon a fantastically strict observance of pleading and other technicalities. The greatest of all examples is of course the history of the conventional and fictitious procedure which we have just related, while nearly as remarkable is the development of vast masses of law dealing with “falsifying recoveries”, “counterpleas of voucher” and similar matters in real property law, where one procedure is piled on another in the hope that the last will counteract the defects of the earlier ones.

CHAPTER 3

PLEADING

In the well-known words of Littleton1 in his advice to his son, “it is one of the most honourable, laudable, and profitable things in our law to have the science of well pleading in actions real and personal; and therefore I counsel thee especially to employ thy courage and care to learn this”. Care and courage were indeed necessary to master the science of pleading as it flourished in the seventeenth and eighteenth centuries, though we may perhaps think that the pleading of Littleton’s day was sufficiently accurate and commendably free from the later subtleties which finally compelled its abandonment. Littleton’s words had the fortunate result of prompting Coke to write in his most concise style a little manual of the elements of pleading which is a useful introduction to the subject.2

THE ORIGINS OF PLEADING

It is clear that the origins of pleadings were oral altercations between the parties which took place in court. They were not preliminaries, nor were they part of process, but a distinct stage—indeed, the central stage—of the litigants’ progress. It may be conjectured that in their earlier form they consisted entirely of sworn statements, and so were part of the machinery for adducing proof. Thus in debt, the plaintiff swears:1

To this the defendant replies:

These forms therefore serve a double purpose: first, they make clear the nature of the dispute between the parties, and secondly, they contribute towards the proof. Upon a consideration of these pleadings, as we may call them, the court awarded the benefit of making the final proof by compurgation or ordeal.

For the period between the Conquest and the appearance of the first plea rolls the evidence is somewhat scanty and especially difficult to interpret. Changes undoubtedly took place, and the formulae, which are often described as rigid and invariable, suffered considerable modification. The position of the courts was strengthened, and so pleadings were expressly addressed to the court; the oath, on the other hand, is either eliminated or postponed to a later stage, and so the new type of pleading concludes with an offer to prove it, instead of opening with an oath. The steps in this development are obscure, but when we reach the thirteenth century, forms are once again well settled, both in local and royal courts, and specimens of them are easily available in contemporary treatises. Considering the relative activity of the royal and the communal courts during this period, it seems reasonable to conclude that the change took place in the hundreds and counties, and that when the King’s Court needed forms, it simply adopted those in common use.

THE LANGUAGE OF PLEADINGS

Two further changes took place—the introduction of French as the language of the courts at the time of the Conquest, and then its replacement by English in 1362,2 without substantially changing the forms, however. We thus find counts (i.e. tales, contes, or declarations) in such forms as this:

The example from which the above is abbreviated is particularly long, as it was drawn for teaching purposes and contains every imaginable complication. The outline, however, is clear. The whole count is addressed to the court, and the demandant “who is here” solemnly claiming lands from the tenant “who is there” reminds one of the ancient demand of right, and of the necessity of both parties being present. The statement of the demandant’s title drawn from an ancestor who took “esplees” looks more modern, although the claim that the lands are “his right and heritage” preserves, perhaps, one of the older and vaguer forms. The “suit” is the group of friends who are prepared to assert that the demand is just;3 as late as the reign of Edward III we find examples of the suit, or secta, being demanded,4 and Magna Carta confirmed the principle that no one should be forced to answer a bare demand unsupported by suit.5

The example just given is a count or declaration on a writ of right. The plea or defence would run as follows:

The demandant then replies that “wrongfully he denies etc.”, repeats the title and descent as in his count, and offers to substantiate (technically “deraign”) his right by his own free man, and so the “mise,” or issue, is joined.

PLEADINGS AND THE PLEA ROLL

It is essential to remember that these forms are oral, and that they were oral in their origin. It is only later that they became written, and it is clear that the change was brought about by the influence of the enrolling practice of the King’s Court. This is a peculiarity of the English system of “records”, and one of its features is the absence of any serious influence of canon law, whose method of pleading was different, and only adopted as a finished system in several other countries.

If we look at the earlier plea rolls, we shall find that they are brief and informal. Their object is merely to serve as memoranda of the proceedings for official use. They were not for the use of the parties, and the parties had no control whatever over the form in which their case was enrolled. The pleadings which we have set out above will be represented on the roll merely by a word or two, and that in a simple narrative form. Thus an action on a writ of right is briefly enrolled like this:

It will be seen that the record is merely a brief narrative of the proceedings which sweeps aside the forms of the pleadings and confines itself to their substance.

The next stage is the result of the establishment of a permanent and numerous organisation of enrolling clerks. The entries become much longer, and tend to become settled in their wording; what is still more important, they bear a fixed relationship to the oral forms which were used in court. By the early years of Henry III the change is complete and the forms remain substantially the same for the next six hundred years. The distinctive features of the final form of English enrolment can be seen by contrasting it with a continental roll, such as we find in Normandy. The Norman roll seems to compare most easily with the older type of English enrolment such as we have just described it. It is narrative, and ignores the forms used by the parties in an effort to state the substance in as few words as possible.2

THE CLASSICAL PLEA ROLL

The contrast of this with what we may call the classical style of English enrolment is unmistakable. Examples are easily found in Bracton’s Note Book, in the notes from the records printed by the editors of the Selden Society’s edition of the Year Books, in many old reporters who reproduce pleadings, notably Plowden and Coke, and above all, in the Books of Entries which consist of choice specimens of enrolments, collected for the use of pleaders in the days when pleadings were settled by the parties out of court, and merely copied on to the rolls.3

The new model begins with a reference to the original writ and the state of the process: “B is summoned” (or “attached” as the case may be) “to answer A in a plea that he render him” money (or chattels). Then comes a novelty: “whereof he says” (or in trespass “complains”) that—and here follows the substance of the count. The old oral count is therefore directly represented for the first time on the roll. It soon becomes clear that this carefully recorded Latin declaration on the roll is sharing the importance of the old French conte which was orally delivered in court. As we shall see, it became even more important at the close of the middle ages.

A slight, but significant, innovation is the fact that the rolls of the new model commence a new paragraph for the defendant’s plea, the plaintiff’s replication, and so on. The result is greater clarity from the point of view of the reader, but ultimately much more important consequences followed.

In the first place, there was undoubtedly a deliberate attempt to put on the roll all the essential details, and not merely the general substance of the parties’ allegations. Hence it will be increasingly possible to decide a case merely from the enrolment, now that the roll contains all that is necessary for that purpose.1

Secondly, lawyers will be driven to the conclusion that what really matters henceforth is not so much what they say (as under the old system), as what the clerks write on the roll.2 This led to two different results. On the one hand, lawyers could free themselves from the old bonds of the spoken forms and indulge in tentative pleadings and arguments, trusting that nothing will be recorded until the informal altercation has finished, and the parties have reached definite positions—the early Year Books are in consequence full of instances of counsel “licking their plea into shape” (as Maitland put it3 ) in open court. This was clearly an advance from the old system where the oral forms were binding. On the other hand, there are plenty of cases (and even statutes4 ) which testify to the great uneasiness felt by lawyers about the roll, for they could not get access to it, and could only guess what was on it.5 Their new freedom was thus limited by the fear of the mysterious roll, and they could not expect every judge to be as kindly as the one who warned counsel “mind what you say, for henceforth we shall record”.

Thirdly, it would seem that for a time the lead passed from the hands of the bar to those of the clerks. The future of pleading, and the settlement of its forms, became a matter for the people who drew up the rolls; in later times they were a distinct body of officials, headed by the prothonotaries, and under the control of the courts, but their early history is unknown. What is still more serious, we do not know what was their relationship to the bar on the one hand, or to the general body of royal clerks on the other. Some light is now to be had on the relationships between chancery clerks and law students,1 and a stage in the “inns of chancery” was normal for lawyers in the later middle ages, but how far there was contact, openly or secretly, between lawyers and court clerks is not yet known. For a moment, in the troubled years of Edward II, the office of chief clerk in the common pleas was a political issue,2 and at least once a chief clerk and keeper of the rolls of the common pleas was raised to the bench.3

Fourthly, as with almost every question which touches the general development of the law in this period, we must consider the matter from the point of view of Bracton’s treatise. We have already spoken of Bracton’s use of cases, and it now remains to insist that those cases were in fact enrolments. The examples he gave, and his discussion of “exceptions”—that is to say, defences—must have some bearing on the present subject. Was the plea roll in his day already such a vital document that a real understanding of the law depended upon understanding it? If so, Bracton’s book must have been a welcome revelation of the form which the old oral pleadings might take when the clerks enrolled them, and the eager study of Bracton’s book is easily explained. Or, was it the accident that Bracton had plea rolls at hand, and so used them, which first directed attention to enrolling practice, and so enhanced its importance? In short, was Bracton’s use of plea rolls the result or the cause of their importance as pleadings? To these questions there is no answer at present, but an appreciation of the Bractonian problem will be very helpful, we believe, in putting the common law system of pleading into its historical perspective.

THE PROFESSION AND THE PLEA ROLLS

Although lawyers had a glimpse, thanks to Bracton, of what the plea rolls might contain, those rolls in theory were closed to them, and in practice were not subject to their control. An awkward situation, undoubtedly, and what informal arrangements made it workable, we shall perhaps never know. The Year Books very occasionally note the clerks of the court as joining in the forensic conversation, and sometimes we read a note of what the clerk told the compiler. This sort of evidence may be just enough to suggest that the bar contrived to win the favours of the clerks by some means or other. It is certainly clear from the fourteenth-century Year Books that counsel no longer directed their attention solely to the oral words; on the contrary, it is plain that their great concern was to get some things on the record, and to keep other things off. Pleading was therefore the art of saying things in court in such a way as to produce a particular result on the roll,1 it being well understood that judgment would be on the basis of the enrolled pleadings, and not of the oral pleadings which in the course of the hearing might be advanced, withdrawn, modified—or just forgotten.

Granted that the enrolling clerks were in cordial relations with the bar, the system worked remarkably well. It demanded great learning and still greater skill from the serjeants, for they were in effect settling the pleadings in the heat of battle and in the presence of the adversary. On the other hand, there was the substantial advantage that the court joined in the discussion, which thus sometimes became a round-table conference of judges and counsel who joined in trying to find a way of pleading a case which would bring out the real points. We thus find in these cases a discussion of the legal effect of many proposed pleas which in the end were abandoned—which of course explains why the Year Books give us so much matter which is not matter of decision from the modern point of view. Later ages concur in regarding the age of Edward III as the golden age of common law pleading, and the Year Books 40-50 Edward III as being the best place to study it; hence the renown of this volume (familiarly called Quadragesms) as a text for the students of later centuries.2 The fifteenth century saw the beginning of a decline which became marked in the sixteenth; at the beginning of the seventeenth century Coke lamented the change, but his decisions actually accelerated it, and after the Restoration pleading became so subtle that a special branch of the profession grew up to guard its mysteries from the profane.

PAPER PLEADINGS

In the early days of its decline, a remarkable change took place. On the institutional side, it may be regarded as ultimately a victory of the bar over the clerks of court. We have already suggested that the root of the trouble was the gradual shift of emphasis from the spoken plea to the written enrolment, and the resulting anxiety of the bar as to what was put on the roll. We have also suggested that although there was occasional friction, yet in general the bar and the clerks contrived to work together in tolerably good relations. This relationship between the bar and the clerks took the form of the clerks acting as attorneys for litigants. This inevitably established contact between the clerks on the one hand, and the litigants (and their advisers) on the other. The situation was known to be dangerous, as affording opportunities for frauds of various sorts;1 but from the reign of Edward I it seems established as a permanent feature. The early fears that the system put too much power in the hands of the clerks had died down as the fifteenth century proceeded.

Then a change took place: instead of leaving it to the clerks to enrol a case in accordance with their own ideas of the way it was pleaded, the legal profession provided the clerks with drafts of the entries they desired to have, and so the clerks, in general, had nothing to do but to copy the drafts provided by the litigants’ advisers on to the roll. By this means the lawyers secured absolute control of what was written on the rolls, and were for ever relieved of the fear that the roll might contain unpleasant surprises—as, in the past, it sometimes did.2

On the obscure steps by which this revolution was effected, we have some valuable material collected by Reeves and Holdsworth.3 It seems that the first stage was reached when in the fourteenth century permission was gained (under certain circumstances) to amend the roll.4 This established professional contact between the bar and the clerks. The second stage is marked by the entry of the clerks of court into competition with the outside branches of the profession. There thus existed in the later fifteenth century two modes of proceeding: either counsel might be instructed to plead in a particular fashion, or the clerks of the court would be asked to draw pleadings on paper which were brought before the court by the parties (or their attorneys, perhaps) but certainly without counsel. The original motive of this departure may have been to plead simple cases, or undefended cases,5 without the expense of engaging a serjeant. Finally it became possible for the attorneys, with or without the advice of counsel, to draft the pleadings by exchanging papers, as far as an issue or a demurrer. In the case of an issue, the whole would be enrolled so as to serve as the record for the trial; in the case of a demurrer, the argument in court would take place on the basis of pleadings which had been settled out of court.

More than this it is impossible to say without indulging in speculation.1 The questions which arise, however, may be mentioned here, for they will indicate the importance of the change. For example, were pleadings drawn out of court at first for simple cases, or for difficult cases? It might seem natural that straightforward cases would be the first in which parties would dispense with counsel and allow the clerk or attorneys to make up a record concluding to a common issue for a jury. If this is so, it would no longer be necessary to see in the new system the result of the growing complexity of pleading.2 The reverse might even be possible, for it is easier to introduce subtleties in documents drawn at leisure, than in impromptu debate. It must certainly have been less costly in simple cases to have written pleadings, than to have serjeants to plead orally.

THE CONTINUITY OF PLEADING

However these questions may be answered in the light of future research, the main outlines given above can be regarded as established. Their principal significance is the continuity of common law pleading from the beginning to the end, in spite of changes of practice. From the Anglo-Saxon sworn demand and defence, through the Anglo-Norman conte and plee, to the Latin entry on the plea roll, the line is unbroken.3 The plea roll, however, came to be distinctive of English procedure, and it was inevitable that the main problem should centre round it. The roll underwent the attraction of the oral forms, and strove to represent them in its own idiom. But the more accurate and skilful the roll became, the more necessary it was for the legal profession to control the entries that were put upon it, and when they won that victory, it was a victory for the methods (based on oral tradition) of the old serjeant-conteur against the newer rationalism of ink and parchment.4 As Sir William Holdsworth has remarked, the sixteenth century was a time when the canonical system of procedure—which was very much written—seemed to some a tempting novelty. In Chancery and Star Chamber it had some influence, but the plea roll protected the courts of common law from so drastic an innovation, and the drawing of pleadings out of court perhaps seemed to most lawyers a sufficient concession to the idea of trial by paper. So the old counts, pleas, replications, rejoinders and the rest, with the accompanying issues and demurrers, continued in use, and, consequently, the substantive law which was implicit in them.

THE ORIGINAL WRIT

Pleadings begin with the original writ, and from the earliest days of the common law the writ assumed a position of great importance. Unlike the civilian and canonical procedure, the course of the common law started with a statement of the nature of the claim which was largely common form, prepared in the royal chancery and not by the plaintiff’s advisers. The fact that the writ was a royal writ made it for a time, at least, a formidable and rather cumbersome piece of machinery. On the one hand, it was regarded as the source of the jurisdiction of the court. The Court of Common Pleas was historically, and in legal theory, a court of delegates whose authority was not general, but derived from an ad hoc commission separately given for every individual case. Hence the court had no powers beyond those conferred by the original writ and could not go beyond the four corners of that document. It will not be surprising, therefore, that there should have been so rigid a boundary between the different forms of action, although we may expect the exercise of some ingenuity in the endeavour to make the system more elastic. On the other hand, this vital document remained for some years beyond the control of the parties: they had to take the writ ready-made, whether it quite fitted their case or not. Throughout the middle ages, therefore, the writ was largely a conventional document which generally throws little light on the real nature of the case. It is to the count that we must look for further information, and the very insufficiency of the writ must have compelled the continuance of the older system of the solemn declaration orally delivered in court.

The original writ, therefore, did not become anything like so informative as a libellus, for the good reason that it was drawn primarily in a public office and not by the plaintiff. Such a situation could not last if the use of the common law was to spread, and so we find traces of successful endeavours by the profession to influence the contents of the original writ. We have, in fact, in the thirteenth century, an anticipation of the problem we have already mentioned as arising late in the fifteenth century—the problem of the relationship between the legal profession and the clerical establishments of the State. Just as pleaders at the end of the middle ages succeeded in controlling what was entered upon the rolls of the courts, so in the thirteenth century they tried to influence the drafting of writs in the chancery. We find about the years 1285-1307 a little treatise which already has the suggestive title of Modus Componendi Brevia, “the way to compose writs”,1 and certain forms of action (such as writs of entry) clearly show that the parties themselves must have had considerable influence in drafting them. When this becomes possible, the attitude of the court towards these documents had to be modified. The great seal, no doubt, was there, but it was no longer possible to suppose that the document represented in all its details a direct command in considered terms by the Crown. The courts will therefore have to scrutinise the writ closely, and countless cases in the Year Books show that writs could be “abated” if their contents erred too much on the side of originality.

EXCEPTIONS

At the same time, there were certain old rules which disabled persons from being litigants; an outlaw is not entitled to be heard, neither is an outlaw from the Church, in other words, an excommunicate. Persons under age were often under a temporary disability. Here, then, was a fairly large assortment of “dilatory exceptions”, and Bracton’s treatise completed the tendency, already apparent, to fix the order in which they should be used. If they were unsuccessful, the court would order the defendant to “plead over” or to “say something else”, whereupon the proceedings get nearer the merits of the case.

The pleading not only explores the law of the case; it also serves to introduce new facts. As we have seen, the original writ contains the barest statement of the nature of the claim; the count amplifies this statement to some extent, but it is still mainly concerned with supporting the writ, for any variance between the writ and the count will be a serious matter.

The defendant may take an exception to the writ, and urge that under the circumstances some different writ ought to be used (and if he does so, the plaintiff will call upon him to “give us a better writ”). It sometimes happened, however, that in doing so the defendant came near to saying that the plaintiff had no remedy by this or any other writ. The plaintiff may then point out that “that is an exception to the action”. Usually the defendant became cautious at this point, and took care to withdraw from the general question so as to take up a defence based upon the particular circumstances of the case. In simple cases this often took the form of traversing some essential statement in the writ or the count. Thus, if A. alleges that B. disseised him of his free tenement (novel disseisin), B. may say that A. was never seised, and so could not be disseised, or that the tenement is not “free” (because, perhaps, it is in villeinage, or a term of years); some writs, such as the writs of entry, contain so many statements of fact that most defences will involve a denial of one of them.

The defence may rest upon facts which are not even hinted at in the writ or the count. Various methods were available for bringing such new facts into the discussion. The defendant may “confess and avoid”, admitting the plaintiff’s statements, but alleging other matters which will rob them of their importance. Or he may introduce new material followed by the clause absque hoc (on the roll), sans ceo que (in the oral plea), in which he formally denies the plaintiff’s allegations. This is called a “special traverse” and the plaintiff (as a rule) must answer the special or new matter so introduced.

RULES OF PLEADING

From the middle of the fourteenth century onwards there is an increasing rigidity of the rules of pleading; within limits this was all to the good. It clearly made for convenience when pleaders were excluded from “pleading evidence” and were driven to plead the fact itself, and not other facts which might or might not establish it. Rigidity had other effects, however, when it was combined with the fact that these pleadings were inscribed upon a public record. Under this rule it was impossible to deny facts which had been admitted in a previous case. Now as all facts not denied expressly were held to have been admitted, great caution was necessary. Hence we find long clauses protestando that the defendant does not admit numerous facts which the strict rules of pleading prevented him from denying in the ordinary way.

There were masses of rules1 to produce particularity, balanced by other rules against surplusage, and rules tolerating general pleadings where the record would otherwise be too long. Pleadings should not be argumentative; thus to an action on a bond to warrant lands, the defendant cannot merely say that the plaintiff has had peaceful enjoyment, but ought to plead that he has warranted and that the plaintiff has not been damaged.2 Nor must pleadings be double. One point must be selected and will be sufficient to decide the case; the rest can be eliminated as vexatious. This was an admirable principle, but in practice the rule against duplicity was difficult to apply, and in 1706 a statute3 allowed double pleas by leave of the court. Another vice of pleading was “departure”, and was analogous to duplicity save that the several matters were not in the same plea but in successive ones; thus if the plaintiff has counted on an action at common law, he cannot turn it into an action on a statute in his replication. Among the most curious of rules are those concerning “negatives pregnant with an affirmative”; Reeves has pointed out that this is the converse case of an “argumentative” plea, which is in fact an affirmative pregnant with a negative.4 Thus where a gift by deed is alleged, the reply that “he did not give by the deed” is bad (for the negative is pregnant with the affirmative that he gave by parole).

CERTAIN PLEAS IN REAL ACTIONS

Real actions were generally more complicated than personal ones, not only because they were older, but also because many persons were often concerned with the same piece of land. There was an old rule that all joint-tenants must be made defendants (or “tenants”) in a real action. Much use was made of it (by hasty feoffments to a friend who re-enfeoffed the tenant jointly with others) to obtain delays. Statutes finally stopped this manœuvre.1 A further means of delay, sometimes necessary, but not always so, was the demand for the “view”.2 If this is granted, an elaborate inspection of the land is made in order to identify precisely the property in dispute. Such an identification was not always easy when it consisted of scattered strips in open fields.

There were other pleas which had for their effect the joinder or substitution of new parties to the action. The need for such a procedure was largely the result of the old rule that a demandant must bring his writ against the person who is seised; this may be a tenant for life, and if so, the tenant for life may defend the action. He ought to “pray aid” of the reversioner, however, and if he does so, the reversioner will be summoned by the court and undertake the defence. Many tenants for life, acting in collusion with demandants, allowed judgment to be given against themselves by default, thus alienating the land and leaving the reversioner no remedy save a writ of right. It was therefore enacted that if a particular tenant is about to lose land by default, the reversioner may come any time before judgment and pray to be received to defend his right.3 This is called “receipt” in the old books and both aid-prayer and receipt are illustrated by thousands of cases. An understanding of the main principles of these two pleas is necessary, for discussions upon them contain very illuminating material on the nature of estates.

Finally, there is voucher to warranty.4 Deeds frequently contained a clause whereby the grantor binds himself and his heirs to warrant the grantee and his heirs;5 besides this, every lord owed warranty to his freehold tenant who has done homage, and the tenant in fee who has created entailed estates owes warranty to the tenants in tail by statute.6 Many tenants in real actions therefore “vouched to warranty” and numerous pleas might ensue. The demandant might urge that the tenant could not vouch at all, and the vouchee when he came might urge that he was not bound to warrant. The subject, already complicated, was rendered still more so by the misuse of vouchers for purposes of fraud or delay, with the result that several statutes established special procedures in certain cases.1 If the voucher was allowed and the vouchee defaulted or lost by judgment, the demandant had judgment against the tenant, but the tenant had judgment against the vouchee which entitled him to recover from him lands of equal value. If a voucher to warranty failed, then there was usually nothing lost but time, and the case proceeded.

COLOUR

Of all the curiosities of pleading, colour is the strangest; its history is worth examining, however, for it illustrates several important themes. In the early days of the assize of novel disseisin there was need for a summary action which would repress resort to self-help in disputes as to land. The assize therefore gave remedy to one who had been ejected from land, irrespective of the lack of title in the disseisee or the presence of title in the disseisor. Whatever the rights or wrongs of the parties, they must not resort to force. Hence in novel disseisin the demandant need not make out any title, save the fact that he had been seised and disseised.

With the progress of time this action, with its attractive rapidity, came to be used for trying questions of title as well as questions of seisin, and so both parties took to the practice of pleading title. A frequent situation was one where A., claiming land by a particular title against B., ejected B. B. then in turn ejected A., and A. brought the assize.

This situation was so common that it left its mark on the history of pleading. Under the old system the only course for B. in answer to the assize would be to say (if he could) that A. was never seised, or that B. never disseised him. Under the newer system, however, he was allowed to set out his own title and to plead that A. had entered under a certain pretence of title which was in fact bad, and that B. ejected him. Cases in Bracton’s Note Book seem to be half-way between these two systems. The new mode of pleading may therefore be regarded as a product of the early fourteenth century. The principal advantage was this: under the old system such a plea would be treated as amounting to the general issue, and so the case would go to the jury; under the new rules, the plea was regarded as raising a matter of law which might confuse the “lay gents” who were on the jury, and so it was reserved for the court. As time goes on, it is regarded as more and more desirable to leave for the court as matters of law many things which in older days were sent to the jury under the general issue. The defective title which the defendant attributes to the plaintiff is called “colour”, and in the earlier cases it seems that it really did represent the facts.2 It soon became the practice, however, to give feigned colour of a purely fictitious character; this raised a fictitious question of law not amounting to the general issue, and served as an excuse for leaving the whole case to the court—including, of course, the real question of law which under the old system would have been treated as merely an argumentative denial of the points of the assize.

The history of trespass was very similar to that of the assize of novel disseisin; both began as actions founded on tort, with a strong criminal element, and both became in the course of time actions for the trial of right to land or chattels respectively. The same line of reasoning which led to the use of “colour” in novel disseisin (and in its equivalent, entry in the nature of an assize) led also to its use in trespass. By 1440 we find a little treatise on the subject in the Year Books1 which seems to imply that the system was in full use at that date.

THE DEMURRER

The object of pleadings is to explore the law and the facts of a case by means of the assertions and denials of the parties until an issue has been reached. If it is an issue of fact, then the parties will have ascertained a material fact which one asserts and the other denies in terms so precise that a jury will have no difficulty in hearing evidence on the matter and finding the truth of it. If it is an issue of law, the parties will have admitted the relevant facts, leaving it to the court to decide whether the law applicable to them is as the plaintiff or as the defendant maintained. This is called a “demurrer” because one of the parties has pleaded that he is entitled to succeed on the facts admitted by the other, and is willing to rest (demourer) at that point. If his opponent does the same, then the demurrer is joined, the pleadings are at an end, and the court hears the arguments on the point of law, and decides it.

This appeal by both parties to the court’s “consideration” on a point of law is very common in the thirteenth century as an answer to dilatory pleas—questions of view, age, aid, voucher, and the like. It is only later that we find the main question of a case raised in a demurrer, and so as a means of concluding the pleadings we must regard the demurrer as a fourteenth-century device. The demurrer was frequently used to draw attention to trifling defects in form in the pleadings, which could thus be amended by consent, and with all the more ease when the pleadings were oral. They might be insisted upon, however, and then the case would have to be decided upon very technical points.

Several kinds of demurrer are distinguished, one of which may be mentioned here. Juries could often be persuaded to bring in special verdicts (sometimes drafted by counsel) without, however, giving a verdict for either party; the facts so found would be generally complicated and of such a nature that points of law were raised which the court would have to decide. But a jury was always at liberty to give a general verdict if so inclined, and so pleaders took steps to secure the advantages of a special verdict without its delay by means of a demurrer to the evidence. The evidence (documentary or parole) is thereby admitted to be true, but the question of its legal implications is referred to the court.1

In post-mediaeval times the demurrer required a good deal of regulation by statute. In 1540 a statute enacted that a number of highly technical flaws in the pleadings would be “cured by verdict” (as old books put it).2 In 1585 an important act commanded judges who gave judgment upon demurrers to decide “according to the very right of the cause and matter in law” without regard to various technical defects in the pleadings, unless those defects were specifically mentioned in the demurrer.3 In consequence of this act a sharp distinction was drawn between special demurrers which alleged a particular defect in the pleadings (which the court therefore had to adjudge), and general demurrers in which case the court’s judgment was based upon a consideration of the record as a whole. A much more radical inroad upon the principles of common-law pleading was made in 1705 when a statute allowed defendants, by leave of the court to plead multiple defences4 —a provision which the bench interpreted with considerable strictness.

THE GENERAL ISSUE

When the plaintiff has counted, the defendant can choose between two courses: he can make a special plea, or he can at once conclude the pleadings by taking the general issue. The latter course was the one most frequently taken in the earlier times of the common law, and always remained a valuable alternative, for by it the endless complexities and pitfalls of special pleading were avoided. It is very significant that when great trading companies were set up by Act of Parliament, they frequently procured a clause in their act empowering them to plead the general issue at all times, putting in their special matter as evidence;5 occasionally the same privilege was accorded to natural persons as against the Crown.6 Legislation of the Commonwealth had moved in that direction, and had been confirmed at the Restoration.1 The origin of the general issue is therefore to be found in the age when special pleading was little used, and consequently when the general issue was employed for most ordinary purposes. The scope of the general issue is therefore unexpectedly wide, and in order to understand old cases it is necessary to know what matters could be proved by evidence to a jury which was trying a general issue.

The two pleadings with which this chapter opened are illustrations of the count in a writ of right, followed by a plea of the general issue (which, in writs of right, was called the “mise”)2 —that is, the issue of the better right. In formedon, the general issue was ne dona pas; in debt on a specialty, non est factum (and on this issue the plaintiff is put to the proof of the whole of his declaration, while the defendant may show that the deed is void or obtained by fraud, but matters making it only voidable must be specially pleaded);3 in debt on a simple contract, nil debet, which denies the existence of the debt and permits the defendant to prove performance, release or other matter in discharge of the action;4non assumpsit similarly denies the existence of the contract, either in fact or in law. Thus matters of capacity, duress, want of consideration, the statute of frauds, payment, may all be proved under this general issue.5 In trespass and case, the general issue is not guilty. This plea in trespass denies the plaintiff’s property in the chattels (just as it denies his title in ejectment) and also puts the alleged acts in issue.6

THE HILARY RULES, 1834

It will be seen that the general issue relieved the pleader, at least, of most of his difficulties. Those difficulties, however, were apt to reappear at the trial. The scope of the general issue was often wide, and by it the defendant not only forced the plaintiff to prove the whole of his case, but could also compel him to come prepared to answer any or all of several defences. The trial was therefore a costly and difficult matter, possibly involving large masses of evidence on a large number of points which might, or might not, turn out to be necessary. There seems to have been no way of compelling a defendant to disclose more precisely what part of the plaintiff’s case he proposed to attack, nor which of the defences possible he proposed to raise. General pleading, as well as special pleading, therefore had its defects.

Just about a hundred years ago, the whole question came up for discussion, and the Civil Procedure Act of 1833 delegated to the judges the power to draw up a new set of rules; this they did, and the new scheme, because it came into force in Hilary Term, 1834, was called “the Hilary Rules”. The policy of the scheme was to strike a balance between the extreme precision of special pleading and the extreme vagueness of the general issue. On the one hand, they limited the general issue to the actual meaning of the words used—thus the general issue of non assumpsit was to mean henceforth just what it said, “the defendant did not undertake”, and was no longer available if the defence rested on matters of contractual capacity, discharge, voidance and the like. These matters must for the future be specially pleaded.

The policy was the right one; a plaintiff ought to be told as clearly as possible what defence he will have to meet, and to be informed what facts the defence admits, and what facts it disputes. In principle, there could be little objection to requiring a defendant to plead specially, and the attempt to make such expressions as non assumpsit, non est factum, and others, mean exactly what they said and not something entirely different, surely deserves commendation. The failure of the Hilary Rules, in spite of these merits, lay in their insistence on special pleading as it was understood late in the eighteenth century. That parties should plead precisely, and clarify as far as possible the issues between them, is one thing; that their endeavours to do so should be judged by the extremely artificial standards of the old system, was quite another. Unfortunately, the result of the rules was to extend the necessity of conforming to that system to a great many cases which heretofore had not been encumbered with it. It is not surprising that substantive law felt the effects of this change.1 The vagueness of the general issue permitted a certain flexibility in the law which Lord Mansfield, for one, had taken advantage of. Now that special pleading was required in such cases, this vagueness had to yield before statements so precise that subtle changes which had taken place in substantive law were forced into light, and found to be inconsistent with older authorities which now became of great importance. Hence the doctrine of consideration hardened along seventeenth-century lines, and the distinction between different forms of action was emphasised anew, although in the preceding century it had become of less vital importance.

The Hilary Rules only aggravated the situation, and it remained for the various Common Law Procedure Acts of 1854 and onwards to prune the luxuriant growth of pleading, and finally for the Judicature Acts to substitute a new system2 which, in the view of some, leans to the other extreme of laxity.

LAW AND FACT

Gradually there is a growing recognition in English law of the distinction between law and fact.1 It is so familiar as to seem obvious to modern English lawyers, yet there was a time when it did not exist, and the distinction, even when it was recognised, was not always drawn at the same point. If we look back to the days of the ordeal we find that the ordeal or the oath decided the whole case, and the case had not yet been analysed into its components of law and fact. Even the early common law retained the same attitude. In the writ of right the question at issue is whether the demandant or the tenant has the greater right to the land, and this issue was decided one way or the other by the outcome of the battle. Even if trial were by the grand assize, the members of the assize find for the demandant or the tenant without any discussion whether this is in consequence of a particular state of facts, or of a particular rule of law.

Even the jury system, therefore, existed for a while without forcing lawyers to recognise this distinction. The growth of formalism soon gave opportunities, however, for judgment to be given without a verdict—defects in writs, inconsistencies between writs and pleadings, reliance by a party upon a previous judgment—all these are common grounds of judgment in the earliest years of the thirteenth century. It thus became apparent that there were matters (generally preliminary matters) which might put an end to a case before the question of right or wrong had been formulated. Litigants who betake themselves to matters of this sort are generally raising what we should call matters of law. The commonest examples are those where a party rests his case upon the default of his opponent; as the law of process grew more elaborate, extremely difficult points of law were involved, as every reader of the year books knows.

Jurors as well as parties felt that some things were fact and others were law, and the assize of novel disseisin constantly forced it upon their attention. As early as 1202 an assize said “we will speak the truth of the matter, and having heard it, let the justices judge”.2 Half a century later (in discussing novel disseisin) Bracton3 declared that “truth is to be had from the juror, justice and judgement from the judge”. In the next line he had to admit, however, that the verdict of an assize is often upon law as well as facts. By 1285 statute4 is clearly distinguishing law from fact by enacting that jurors shall not be compelled to say whether there has been a disseisin, so long as they tell the facts. In other words, seisin is no longer an obvious fact but an obscure legal technicality. This change was possibly the most potent single factor in forcing the distinction between law and fact, and as time went on litigants devised means of raising questions of law, which earlier times had treated as questions of fact. Hence the frequency of special verdicts and of colour. From the assizes these devices spread to writs of entry and finally to trespass.

As early as 1329 a jury found a special verdict of se defendendo to an indictment of homicide.1

When commercial cases came into the common law courts, law and fact were often left indiscriminately to the jury until the time of Lord Mansfield,2 and the same sort of thing happened in Admiralty; in both cases the development of clear principles upon which merchants could base their dealings was prevented.3

PART 2

CRIME AND TORT

SUMMARY

• Crime and Tort - - - - - - -
• chapter 1.Criminal Procedure - - - - - -
• chapter 2.The Felonies - - - - - - -
• chapter 3.Misdemeanours, Trespass and Tort - - -
• chapter 4.Liability, Civil and Criminal - - - -
• chapter 5.Defamation - - - - - - -

CRIME AND TORT

The distinction between criminal and civil law has been a commonplace with English lawyers for over seven hundred years. Glanvill began his treatise with the remark that “some pleas are criminal, and some are civil”.1 Already, then, the distinction in practice is of a procedural nature; Glanvill has simplified the question to a distinction between criminal proceedings and civil proceedings. What, then, are criminal proceedings? This question is confused by the existence of another distinction which nearly corresponds with it, but not entirely. This is the division of pleas into pleas of the Crown, and common pleas.

PLEAS OF THE CROWN

The older text-books to which we look for information on criminal law almost universally bear the title “pleas of the Crown”; thus Staunford (1557), Coke’s third Institute (1644), Hale, and a host of others throughout the eighteenth century. Now the test of a plea of the Crown is purely historical, and although many of them would be classed as criminal under any system of classification, others owe their position there to historical accidents.

The antithesis to pleas of the Crown is “common pleas”, and most of the matters dealt with in the Court of Common Pleas are obviously civil.2 In the main they are concerned with adjusting the rights and relationships between private parties, but all through these proceedings the Crown is apt to step in and exact fines and amercements which, in some cases at least, are clearly punitive. In the words of Sir James FitzJames Stephen:

We are therefore faced with an impossible task if we are required to state the limits of criminal law as it was understood in early times. Glanvill’s distinction was good enough as the first arresting phrase of a treatise, but it bore little relation to the state of the law in his time. In this matter, as in others, there are two practical considerations which override formal and analytical distinctions. First, the middle ages were more intent on doing what had to be done than on classifying the ways of doing it. If some things which we regard as criminal could be dealt with more effectively under the forms of civil litigation, then they became common pleas. If other things, which now seem indubitably civil, could only be effectively dealt with under criminal forms, then they became pleas of the Crown. Indeed, we shall find, even in the Tudor period, that the Court of Star Chamber developed the law of libel without regard for any distinction between crime and tort. It would be hopeless to attempt any classification in the face of these facts, and a modern history of criminal law is therefore bound to be a history of those matters which now are considered criminal, irrespective of whether they were in the middle ages common pleas or pleas of the Crown. Secondly, the financial element has been even stronger in criminal matters than in others during the middle ages. Jurisdiction over felonies and lesser offences was a steady source of revenue consisting partly of fines and amercements, and partly of forfeitures and dues of Court. To establish that a particular proceeding is a plea of the Crown may mean that it was (in modern estimation) a serious crime, but it may also mean that it is merely a plea cognisable in the King’s Court and not elsewhere. The only contemporary significance all this had was that the King took the profits instead of some local franchise holder. When it is said that the breach of the King’s peace is a plea of the Crown, it does not mean that the whole field of trespass, in which this allegation is generally made, is part of the criminal law; it simply means that the plaintiff wants to sue in the King’s Court, and the King’s Court has devised a convenient technicality for inviting him to do so. When the case comes to be pleaded, we shall find that the so-called plea of the Crown will be enrolled on the records of the Court of Common Pleas—although, for that matter, even down to the reign of Edward I cases which are purely criminal are said to appear occasionally on the rolls of the Court of Common Pleas.1

CRIME AND TORT

The modern distinction between crime and tort is therefore one of those classifications which it is futile to press upon mediaeval law. This has long been recognised. Maitland2 observed that the criminal law, at the time of the Conquest, was also the law of torts; it is just as reasonable to put it the other way round (as one writer3 has done) and to say that the early period shows a progression from tort to crime, instead of from crime to tort. Trespass undoubtedly was more punitive, more criminal, in its early days than at the end of the middle ages, and so we can say that tort has grown out of crime. On the other hand, Anglo-Saxon proceedings consequent upon a murder, maiming, theft or serious outrage had little to do with the Crown and were conducted entirely by the party aggrieved; they might result in a punishment, but their principal element was undoubtedly compensation or restitution. Their main characteristic was thus analogous to that of a modern action in tort. Later on, the Crown took a much larger part in such proceedings, and so it is quite plausible to argue that the original stem was mainly tort, and that crime branched off from it. The imposition of a modern classification upon mediaeval facts thus leaves us with the inevitable result—a barren choice between two epigrams.1

THE NATURE OF CRIMINAL LAW

Once the distinction was established, criminal law was set aside as separate from other branches of law, and its distinctive nature was recognised as involving special rules. Examples are the “common-law misdemeanours” which English law has viewed with deep suspicion, the principle that statutes setting penalties should not do so retrospectively,2 and the principle commonly expressed in the maxim, nulla poena sine lege.3

CHAPTER 1

CRIMINAL PROCEDURE

In very general terms, the history of criminal procedure seems to follow this course. First, it is almost entirely in the hands of the injured party and his opponent, and takes place in local courts. Then the influence of the Crown makes itself felt, beginning with a cautious list of pleas of the Crown. There is for a long while no question of the Crown actually trying such cases—all it can hope for at first is a share of the proceeds. The second stage is when the Crown sets up machinery to discover hidden crimes. Many must have escaped altogether by reason of the unwillingness of anyone to bring an “appeal”, and this results in a loss of possible revenue to the King (to say nothing of the encouragement to criminals). The Crown henceforth will have a mass of crimes presented by grand juries, and will have to devise measures for trying them. Rapid development is therefore found in the various trial commissions, and the rise of the justices of the peace added materially to the resources of the Crown both in discovering crimes and in trying criminals. Thirdly, the existence of this elaborate machinery will permit the enlargement of the list of crimes since there are now numerous institutions capable of dealing with them. Many statutory felonies will be created, and many offences less than felony will be made cognisable by justices of the peace; this last development will be at the expense of those local jurisdictions which so far had dealt with them, and will also include some matters for which so far only trespass (in substance now a civil remedy) had been available.

ANGLO-SAXON CRIMINAL LAW

As we have already remarked, the Anglo-Saxon period is long1 and yet it is difficult to trace clear development over those five centuries for which we have written remains.

It is tempting at first to make a neat plan of the progress from warfare—the feud between the two kin of the criminal and the injured—to money compensation. One would expect the early laws to say more about fighting, and the later ones more about payment.2 The sources, however, do not align themselves so easily as this. Our earliest laws (Ethelbert’s) are mainly tariffs of payment; our later ones say much about feuds. In the middle of the tenth century Edmund is still laying down rules for the feud,3 and Canute is still legislating on it just before the Conquest.4 It is not easy, therefore, to establish an orderly progression, and it seems more probable that several stages of development were in fact existing side by side. Indeed, half a century after the Conquest we read this:

The avenger is thus something in the nature of an executioner, save that the trial of the slain takes place post mortem as part of the defence of the avenger.6 Quite early, however, it became possible to “buy off the spear” if one preferred not to “bear it”. An offer of wergeld will therefore prevent the avenger doing justice himself, and in criminal as well as civil matters, no action ought to be taken until a formal demand for satisfaction has been made and proved ineffectual. The laws of Alfred are very explicit on the matter:

We have here at least one element of legal procedure—delay. These intervals are obviously designed so that the offender may be put into touch with his family and friends with a view to settling the matter by paying (or promising to pay) the composition.

An even more striking fact is that so large a part of Anglo-Saxon criminal law had to be expressed in terms of money.

PLEAS OF THE CROWN

Gradually we hear of state-sanctioned punishments. Perhaps the injured party or his representatives will carry out the sentence, but the significance of the change lies principally in the fact that some of the greatest offences are now corporally punished and are not “emendable” with money save only by the King’s very special grace. In the reign of Canute we get the first explicit lists of royal pleas—and it is significant there are are different lists for Wessex, Mercia and the Danelaw.3 In Domesday Book4 we find differing lists for various counties, and even for various towns, while some of the greater sees and abbeys had received even these royal rights by grant from the Crown. Typical pleas of the Crown are foresteal (murderous assault from an ambush), breach of the King’s peace (in general, only if the peace had been granted under the royal seal), and hamsocn (violent breaking into a house). In some places larceny was a royal plea, but not generally. Glanvill gives us a short list5 which is the basis for the common law of future centuries: treason, concealment of treasure trove, breach of peace, homicide, arson, robbery, rape and the counterfeiting of the King’s seal or coinage. Larceny is omitted, as being only a plea of the sheriff.

By Glanvill’s day the old scheme of wer and wite had vanished, leaving very few traces. If all the payments were exacted (and as Maitland has calculated, the bill may be long and complicated) it is hardly imaginable that any ordinary person could pay it. The value of money changed, and the Normans reckoned by a shilling of twelve pence instead of the old English shilling of four or five pence. The Normans, moreover, with their memories of the duke’s “pleas of the sword”, may have given a much more precise meaning to the old conception of pleas of the Crown.1 Henceforward, the pleas of the Crown will be not merely pleas in which the Crown takes a particular pecuniary interest, but offences which were held to be committed against the Crown; the avenger will thus be the Crown as well as the injured party or his kin. These two ideas, one old and one new, make two alternative procedures necessary; and such in fact we find to be the case.

THE OLD PROCEDURE

The old procedure is of two sorts. The first dealt with the criminal taken in the act, and for him there was short shrift. Many local custumals2 relate the various deaths assigned to the hand-having and back-bearing thief. In the Anglo-Saxon age there was the possibility (at least in theory) of a thief redeeming his life by paying a sum equal to his own wer.

When the theft was not manifest, some sort of procedure was felt to be necessary. Its general features are the summons of the accused by the accuser; when both are present, the accuser makes a solemn fore-oath in support of his charge, and to exclude frivolous or malicious accusations. In some cases it might be supported by oath-helpers. Then the accused as solemnly denied the charge upon oath, and the court proceeded to the “medial” judgment which was generally to the effect that the defendant should “clear himself” by one of the ordeals. This sort of procedure long survived in those places which preserved ancient customs unaffected by the common law, such as London and various boroughs.

The Norman Conquest brought one great innovation—trial by battle; the sworn accusation and the sworn defence were transformed by introducing the charge of “felony” (a Norman and feudal conception), and the battle served as the ordeal. Soon the difficulties of conflict of laws were overcome3 and the mingling of races proceeded so far that, if the old procedure were invoked, it was generally the “appeal”, as it came to be called, and not the ordeal (save in some localities). The common law therefore accepted the old procedure into its system in the form of the appeal only.4

The appeal was in common use throughout the middle ages in county and other local courts. Even in the King’s Bench appeals were allowed,1 and appeals of treason were a particularly bizarre form of state trial. The “lords appellant” in the reign of Richard II are not the only nor the first examples. Robert de Montfort appealed, and convicted, Henry of Essex of treason in 1163,2 and there was a curious case in the Court of the Constable of England in 1453 when Lialton appealed Norris of treason. The Court assigned counsel to each party (trainers, armourers and painters), gave them equipment, and the King ordered “a convenient skaffold for us to have the sight of the said battaill”, and more curious still, the Crown bore all the costs and treated the alleged traitor with the same consideration as the appellant.3

Appeals survived particularly as a means whereby the relatives of a murdered person could still harass one who had been tried and acquitted. Spencer Cooper (a future Chancellor’s brother, and himself a future judge) was appealed after being acquitted of murder, but the process was quashed;4 the last case was Ashford v. Thornton, in consequence of which appeals of felony were hastily abolished.5

THE NEW PROCEDURE

Of the proceedings of the judicial and administrative Eyres of the earlier twelfth century, we have little detailed knowledge. It is only towards the end of that century that our knowledge becomes precise. The Assize of Clarendon (1166) set up machinery for discovering alleged criminals by means of the jury of inquest—the grand jury of modern times.6 This measure can hardly be explained save by assuming that the old procedure of private accusation had failed to give satisfaction. The King evidently hoped to hear of many criminals through the grand juries who would have escaped prosecution by private parties. Communal accusation is thus added to private accusation as an alternative procedure. The assize did much more than this, however, for it laid down the principle that persons indicted could be tried by the King alone, and that the forfeitures were his only. The indictment procedure therefore superseded all local jurisdictions both in the matter of trial and of profits. From this time onwards it thus became very necessary for the Crown to maintain a regular succession of travelling justices to “deliver the gaols” of those who had been committed to prison on indictment.

LATER DEVELOPMENT OF INDICTMENT

These indictments were at first taken before royal justices and sheriffs. The next great enlargement of the procedure was in the growth of the powers of justices of the peace, whose early history has become known only recently.1 In the reign of Edward II they were given powers of taking indictments, in addition to their older functions. Once again there must have been a sudden increase in the number of indicted persons awaiting trial. Justices of gaol delivery had therefore to be commissioned with more frequency; it was out of the question to send justices from the superior courts, and so, even in Edward II’s reign, we find that commissions of gaol delivery were issued to small groups of experienced and trustworthy justices of the peace. The next reign saw the logical development of this; the justices were allowed to try indicted persons themselves, and without the issue of separate commissions, although not for all offences. Commissions of gaol delivery continued to issue, although the work of the commissioners was much lightened by the activity of justices acting under their enlarged commissions.

The early fourteenth-century indictment was as simple a document as later ones were complex. There were no formalities, but merely the date, list of jurors, and brief statements that A stole an ox, B burgled a house, C slew a man, and so on. The “fear of God”, the “instigation of the devil” and the rest of the horrific jargon of the classical forms seems not to be mediaeval. Too much simplicity gave room for abuse, in fact, and statutes were needed to protect the indictment from being “embezzled”,2 and to ascertain the precise person accused by describing his station in life—a clause known as the “addition”3 and productive of much technicality later on, when indictments fell into the hands of the special pleaders, who had further to use the greatest precision in setting out every element of the crime charged.

INFORMATIONS

The principle of private initiation was not lost; indeed, the strength of that principle is characteristic of the common law. Anyone who cared to could procure an indictment and carry on the necessary proceedings—and if the statute book is to be believed, many indictments were in fact procured out of hate and spite. On the other hand, a grand jury could ignore a bill as it saw fit. The Crown had not yet gone very far in the direction of initiating criminal proceedings; at most it had made it reasonably easy for a private person to do so. From Edward I onwards, the Crown occasionally used “informations” to put a man on his trial for treason, felony or misdemeanour, and thus at last the Crown found ways of directly initiating a criminal proceeding.1 The Star Chamber (and later on, statutes) allowed private persons as well as the law officers of the Crown to put in informations. It was the use of informations by the Council and Star Chamber, coupled with their lack of jurisdiction over felonies, that probably gave rise to the newer rule that informations lie only for offences less than felony. They became involved in the political and constitutional struggle of the seventeenth century, and strong efforts were made to get them adjudged illegal. These attempts failed, and informations, properly pruned by statute, received a settled position in criminal procedure.2

PROCESS AND OUTLAWRY

Criminal as well as civil procedure is to some extent the result of standardising and formalising natural impulses. The criminal caught in the act is thus summarily dispatched after a brief altercation before a local court or bailiff. When a crime has been discovered the natural thing to do is to call for help and pursue the trail of the criminal. This is regularised as “hue and cry” and neglect to raise it is a serious matter; even if the diligence of the hue and cry does not result in a capture, the whole vill will be amerced; so too it is a serious offence to raise the hue and cry without justification. The neighbours ought to turn out with their weapons (specified in the Statute of Winchester3 ) and go from vill to vill. The criminal who is caught as the result of hot pursuit will be dealt with summarily as just described.

If an appeal was begun against an absent person, the preliminaries to outlawry began (and it took five successive county courts to complete the process). If an absent person has been indicted, the sheriff ought to arrest him, but it generally happened that arrest was impossible, and so once again the long procedure of outlawry began.4 The result of outlawry on criminal process is, in effect, a conviction; the outlaw is “attained” and forfeits his chattels, while his free land (after the King’s “year, day and waste”) will escheat. If captured, the outlaw could be hanged merely upon proof of the outlawry having been made.1 Anyone could capture him and kill him if he resisted. It needed a resolution of the judges in 1328 to save his life against anyone who took a fancy to kill him,2 and the forfeiture for outlawry was still preserved by the Forfeiture Act of 1870.

SANCTUARY

It quite frequently happened that in the meantime the accused had fled to a sanctuary. In general, this would be a local church or monastery; once there, the accused had the right to “call for the coroner”, confess to him, and abjure the realm within forty days. The coroner assigned the nearest port, and the criminal was allowed safe conduct thither, and had to take the first available passage abroad.3 Under Henry VIII he was also branded in order to facilitate his identification if ever he returned—which would make him liable to be hanged as a felon.4 Flight to certain great liberties, such as the palatinates, the liberties of St. Martin le Grand, of Westminster, and others, afforded much greater protection. In these places the King’s process did not run, in consequence of a “mixture of law and custom, grant and prescription, forgery and usurpation” which makes the history, as well as the legal foundation, of these greater sanctuaries very obscure.5 In such favoured places even the coroner could not enter, and the sanctuaryman was completely immune. The lords of these places enforced discipline, registered their new subjects and took an oath of fealty from them. The houses of Lancaster, York and Tudor struggled hard against these anomalies. Henry VIII abolished many, and substituted eight “cities of refuge”.6 Acts of Parliament availed but little, and many sanctuaries whose legal existence (if any) had been cut short, continued to flourish—like “Alsatia”—merely by virtue of gangster organisation and the absence of official police.

EXAMINATION

The old books make little reference to the examination of accused persons pending their trial, and in ordinary cases there was probably none; in cases of political or social importance, however, there are indications that prisoners were examined, and occasionally tortured. Coke’s attitude towards the matter throws a curious light upon his own and his age’s point of view. In the preliminaries to the trial of Edmund Peacham for treason, the prisoner had been examined under torture by Bacon (then Attorney-General), who communicated the results to Chief Justice Coke, who would normally have tried the case. Coke properly protested, and Peacham was therefore tried by the Chief Baron. That was in 1614. The very next year, however, Coke himself did much of the investigation and collecting of evidence against the Earl of Somerset, whom he then proceeded to try for murder.

For lesser folk there was a statutory procedure of examination by justices of the peace. From quite early times, a coroner had the duty of making inquiries in certain cases, both by his jury and by examining on oath persons who could give information. In 1554 a statute1 required him to commit to writing the results of his investigation, and at the same time extended the principle to justices of the peace. They were therefore empowered to examine prisoners and those who proceeded against them, and to write down the material portions of what they said for use subsequently at the trial. Stated in this way, it would appear that the act intended to introduce a reform of great importance into criminal procedure. It did effect an important reform, but apparently by accident, for the motive of the enactment was, it seems, to prevent collusion between justices and criminals;2 it was alleged that justices were much too easy in bailing suspects and so the act required them to write down the statements of the prosecutor, the prisoner and the witnesses before bailing them—evidently to prevent a matter being stifled at its inception, and to prevent abuse of the power of admitting to bail. The next year another act3 extended the procedure to cases where the prisoner was not bailed but committed, and soon it became apparent that an important novelty had been introduced, albeit obliquely, into criminal procedure.

These examinations were purely ministerial, and need not be taken in the presence of other parties. The effect was to turn the justice of the peace into something between a detective and a juge d’instruction. The creation of a professional police force in 1829 and succeeding years relieved the magistrates of the duty of investigation, and so it was possible to change the character of their preliminary examination; in 1848 Sir John Jervis’ Act4 required that witnesses should be examined in the prisoner’s presence, and should be liable to cross-examination by him. The accused was permitted by the act to call witnesses who were to be treated in the same way, and was entitled to have copies of the depositions. If the proceedings raise a “strong or probable presumption of guilt” in the minds of the magistrates, they are to commit or bail him for trial. The magisterial inquiry has thus become, in form at least, although not in substance, a judicial proceeding.

TRIAL BY JURY

Of arraignment and the prisoner’s plea, and the imposition of jury trial sanctioned by the peine forte et dure, we have already spoken.1 Of the old procedure by “appeal” we have likewise given an example.2 It is now time to consider the proceedings on the occasion of a jury trial.

There is not much light on this subject in the mediaeval sources. The information they give us is generally concerned with state trials and there is the obvious difficulty of deciding how far they represented normal practice. There are rules about the challenging of jurors which Bracton lays down in rather general terms3 —rules which he seems to have derived from the canonist rules which disqualified witnesses on the ground of relationship, interest, etc. Bracton also recommends the discreet justice to examine the jury rigorously on the grounds upon which their verdict is based.4 By means unknown the rule arose, sometime between Bracton and Fortescue, that the prisoner could challenge up to thirty-five jurors peremptorily.5 Here it is well to notice the difficulty which Sir James Stephen feels;6 if the jurors were witnesses (as he believed), how strange it is that a prisoner can peremptorily exclude up to thirty-five of them. The answer clearly is, that jurors never were witnesses but were rather representatives, as we have seen. Challenges were freely used in the middle ages, both in civil and criminal cases, and leave their mark on the record in the words “the jury being elected, tried and sworn say upon their oaths that . . .” A juryman who was excluded from the jury might yet be competent as a witness to inform the jury.7 Indictors, as we have seen, were removable by challenge from a petty jury since 1352.8 The number of peremptory challenges in trials of petty treason and felony (but not high treason) was reduced from thirty-five to twenty in 1531.9

Fortescue says little of criminal trials, save the wide powers of challenging jurors, both peremptorily and for cause; he leads us to conclude that the proceedings in the presence of the jury are analogous to those on the trial of civil issues—the swearing of witnesses, their examination and so forth.

A century after Fortescue, we have a fairly full description of a criminal trial by Sir Thomas Smith.1 He tells us of the arrangement of the court room, the criers, the proclamations and the impanelling of the jury. The case opens with the justice who committed the prisoner bringing into court the depositions taken under the act of Philip and Mary, which are read—from which it will be seen that they already serve the new purpose (for which they were not designed originally) of serving as evidence. The prosecutor, the constable and the witnesses are then sworn, give their evidence, and seem to engage in a lively altercation with the prisoner which lasts until “the judge hath heard them say enough”. He then charges the jury, although Smith does not distinctly say that he sums up. They then proceed to the next case, and by the time two or three more cases have been heard, the jury will protest that their memory is sufficiently taxed, and will ask to retire to consider their verdicts.

The main features of the Elizabethan criminal trial have been admirably summarised by Sir James Stephen in these words:

These remarks seem a fair summary, save perhaps that it ought to be mentioned that bail was granted freely, and so there was some opportunity for preparing a defence in such a case.

REPRESENTATION BY COUNSEL

It was a very ancient principle that no counsel was allowed to persons charged with treason or felony against the Crown; counsel were allowed in an appeal as this was brought by a private person and not by the Crown. A slight relaxation was made in the late fifteenth century when it became general to allow counsel to argue points of law,1 which at that time were generally objections to the indictment. The origin of the rule seems to have been the fact that counsel was hardly necessary. As we have seen, in Bracton’s day the court took charge of the proceedings, and viewed indictors, prosecutors, jury and prisoner with impartial distrust. There was little that required expert knowledge until indictments became technical documents, and when that point was reached, counsel for arguing them was allowed almost at once. When the use of witnesses was more clearly understood, and a technique of examining them developed, the situation was again materially altered, and the prisoner was at a disadvantage in attempting to cross-examine when the case for the prosecution was sprung upon him, and his own defence still unprepared. This time the law did not bring its own corrective, and made little attempt for a long time to meet the changed circumstances.

From 1640 to the Revolution there are unmistakable signs that public and also professional opinion was dissatisfied with the existing trial practice in criminal cases, and the Revolution was quickly followed by reforms.2 In 1696 momentous changes were made in trials for treason. The accused was allowed counsel, a copy of the indictment, and to bring witnesses on oath,3 but not until 1837 was counsel allowed in cases of felony.4

WITNESSES

From the earliest days of the jury, witnesses were used, although by differing procedures. At first the jurors themselves might have first-hand knowledge of the facts, or they might obtain that knowledge by private inquiry. It was later possible to bring witnesses to give testimony before the jury, but they did so at some risk. As late as 1450 it was considered normal for the jurors to go to a man’s house and ask him what he knows about a matter, but if he goes to the jury, it is maintenance.5 Honest witnesses were therefore reluctant, although in Chancery proceedings a useful method was devised by summoning them by sub poena, which enabled them to testify without fear.6 At common law witnesses were not compellable, and no process issued against them. In civil proceedings counsel were so closely identified with their principals, and so great an obligation rested on them to tell the truth, that the allegations of counsel seem to have been treated as evidence.7 Even Coke was moved to say that the evidence of witnesses to the jury is no part of a criminal trial, for trial is by jury, not by witnesses. The jury was indeed inscrutable, and trial by witnesses had been distrusted for some five hundred years in Coke’s day.1

Nevertheless, the importance of witnesses steadily grew in spite of this tendency to what must have been already mere archaism. A great landmark is Elizabeth’s statute2 which established a process to compel the attendance of witnesses and made perjury by them a crime. This act seems only to touch civil proceedings, but as we have already noted, witnesses could be bound over to appear under the second act of Philip and Mary,3 to testify against the prisoner, and so the Crown could compel its own witnesses.

A curious sign of the new spirit appears when courts began to allow prisoners to produce witnesses, although refusing to let them be sworn. A greater advance is to be found in an act of Elizabeth creating a new offence of “embezzling” arms from royal arsenals. This act concludes by allowing a person charged under it “to make any lawful proof that he can, by lawful witness or otherwise” for his defence.4 So too under an act of 1606 making certain felonies done by Englishmen in Scotland triable in England, prisoners are allowed to produce witnesses, who shall be sworn, for their defence.5 The same privilege was allowed on trials for treason in 1696, and in 1702 the legislature finally extended the principle generally by enacting that in treason and felony the defence may bring witnesses and have them sworn.6

EVIDENCE

The oldest portions of our law of evidence are concerned with the deed under seal, which for a long time was the only type of evidence to which it paid any regard, and which it has always treated with special respect. Somewhat analogous to this were the transaction-witnesses of Anglo-Saxon law, who had a somewhat similar function in criminal law. Just as the deed was a solemn evidence of civil obligation, so the transaction witnesses were pre-ordained evidence which could be used if need be as a defence to an accusation of theft. This type of evidence was in constant use during the middle ages, and combined neatly with the desire of lords to restrict buying and selling as far as possible to markets and such-like public occasions when the lord got his market-dues and the parties obtained the protection of publicity in their dealings.

Evidence given by witnesses to a jury, as we have seen, was for a long time an informal adjunct to legal proceedings rather than part of their essence. It is not surprising, therefore, that there was hardly any law governing its admissibility—evidence of previous convictions, for example, was admitted without comment.1 An old phrase alleging of two witnesses that one heard and the other saw occasionally appears, and in treason cases there was the statutory rule requiring two witnesses.2 This was perhaps of foreign origin, and English law did not adopt the general principle of merely counting witnesses.

The prisoner himself could not give evidence.3 The statements he made in court as he conducted his defence were not made upon oath, and the questioning he underwent in court in the sixteenth century based upon the magistrates’ examination, though often searching, did not result in sworn evidence by him. Moreover, the examination itself was inadmissible if it were made upon oath, for an oath was regarded as involving some degree of compulsion. Questioning prisoners at the trial fell out of use at the Revolution, but prisoners were still allowed to make statements in the course of the trial, and when they had counsel, such statements were often made on their behalf.4 In 1848 the magistrates’ examination was, by statute,5 to be preceded by the warning that it might be used in evidence, and that the prisoner need not make a statement unless he so wished. As a result, prisoners could not now be questioned either before or at the trial. Such a state of affairs, as Sir James Stephen observed,6 did not necessarily work injustice if the defence was carefully prepared and skilfully conducted; but in practice most prisoners could not afford an elaborate defence, and for them the system often meant disaster. It was felt that expense and time could be saved if prisoners could give evidence on oath, and that this was the only practicable course in many cases if the real defence was to be elicited at all. A series of acts during the nineteenth century sponsored by Lord Denman and Lord Brougham enlarged the class of competent witnesses in civil cases, but not until 1898 were accused persons made competent (but not compellable) witnesses at their trial.7 Compulsory examination on oath has never been applied to prisoners except in the Star Chamber and the Court of High Commission.8

BURDEN OF PROOF

Rules of evidence and procedure (and especially those which are now obsolete and so outside our personal observation) cannot be judged apart from their actual working, and when that practical aspect of them is investigated, the result may be surprising. For example, the rule that the burden of proof lies upon the prosecution is now considered as a valuable safeguard for the accused. As at present administered, this is true, but it has not always been so. In times past a corollary was drawn from it to the effect that as the prosecution had the burden of proof the defence need do nothing;1 hence the defence could not call witnesses nor engage counsel. Both were superfluous, for if the Crown proved its case, that was an end of the matter; if it did not, the failure would be apparent in spite of the silence of the defence.

On the other hand, the canonical system, as applied in the eighteenth century to clergy, and to laymen who had been tried under the Church’s criminal jurisdiction, adopted the principle that it is for the accused to prove his innocence. This sounds harsh to modern ears, but the logical implication was drawn that since the accused bore a burden of proof he was entitled to call witnesses for his defence. The prosecution, having a merely passive rôle, could call none.2 Acquittals consequently followed with monotonous regularity.

SUMMARY TRIAL

Very gradually the legislature ventured to make some offences triable “upon examination” by justices of the peace, that is to say, without a jury. This was a serious break with common law tradition at several points. An early experiment in this direction was made in the reign of Henry V, when justices of the peace were empowered to examine both masters and labourers who had transgressed the statutes of labourers “and thereupon to punish them upon their confession as if they had been convicted by inquest”.3 It would seem that, if they did not confess, the justices could not proceed further without a jury. A statute of Henry VII apparently extended this power of trial on information by the Crown without jury to all statutory offences less than felony.4 This statute was repealed5 at the accession of Henry VIII, but new statutes were made embodying the principle, and became very common under the Restoration, dealing with a vast number of petty offences. By 1776 a leading practice book devoted nearly two thousand pages to the offences triable by this procedure. Gradually it became customary for such statutes to grant an appeal to quarter sessions, but in the vast majority of cases there was no appeal.1

BENEFIT OF CLERGY

This ancient and curious privilege dates from the twelfth century.2 Judging from the Anglo-Saxon laws, clergy were generally amenable to the same jurisdictions as laymen, although they had preferential treatment in the matter of proofs and penalties. The problem of competing jurisdictions became evident after the conquest. The Norman kings asserted the principle that clergy who also had a lay capacity (as earls and feudal tenants) could be tried by the King in respect of their misdeeds committed in their lay capacity. The Constitutions of Clarendon (1164), coming immediately in the midst of the conflict between Henry II and Becket, profess to perpetuate the practice of Henry I’s reign—a “criminous clerk” was to be charged in the King’s Court, tried by the Church and degraded if guilty, and returned to the King’s Court for punishment as a layman. The murder of Becket produced such a psychological revulsion, however, that the Crown made no further attempt to enforce the Constitutions of Clarendon, and surrendered criminous clerks unconditionally to the Church.

That was the high-water mark of ecclesiastical privilege; the rest of the history is the story of its slow decline. There seems no sign in Bracton of that decline, but soon after his day it becomes apparent. Clergy were always charged in the first place before the secular court, and many of them immediately claimed their clergy; others, however, preferred to take their chance with a jury, and only demanded their clergy if the verdict was against them. The royal courts clearly preferred this latter course, and eventually came to insist upon it; even if clergy were claimed immediately upon arraignment, the lay court would proceed to a verdict before relinquishing them as “clerks convict”. In the meantime the convict’s property is taken into the King’s hand to abide the event in the Church Court. By 1352 the clergy are complaining that clerks have been hanged by judgment of secular courts, and the Crown admitted that things had moved too fast, and promised that “clerks convict” of petty treason or felony should be handed over, the Church in return promising to imprison them and punish them duly.3 By this time, moreover, the usual test of clerical status was ability to read, although for a time some regard was paid to the prisoner’s dress and tonsure. Once in the ecclesiastical court, various modes of trial were in theory possible, but in practice it was almost universally compurgation, or “canonical purgation” as it was technically called. With the decline in estimation for this form of trial a serious situation arose, for acquittals were much too frequent, the trial becoming little more than a formality. Even if the clerk failed in his purgation, there was considerably difficulty in preventing him from escaping out of the bishop’s prison.

The whole affair thus became highly artificial, and queer results sometime followed. Thus, a married man could have the benefit (for clerks in the lowest orders were not excluded from marriage). But a bigamist lost his clergy, and a bigamist was a man who had (a) married twice, or (b) married a widow. Thus a married man’s life may depend on whether his wife was a virgin when he married her, and the Court can “find that out straight away from a jury”.1

In 1376 a curious petition in parliament observed that bigamists were now numerous, “by reason of diverse pestilences”, having married twice, or having married widows. Others had avoided this perilous condition by not re-marrying after their first wife’s death, but were living in sin. They suggest that benefit of clergy should not be lost in such circumstances. To this touching appeal by bigamists who evidently anticipated that they would some day commit felony, the crown replied with a short refusal.2

In 1490 it was enacted that a clerk convict should be branded,3 for it had become a rule that the benefit could only be used once; this would make enforcement of the rule easy. The Reformation would at first sight seem to have been a convenient moment for abolishing so troublesome a relic of Rome, but in fact policy fluctuated. It was actually extended in 1547 to bigamists, and to peers of the realm whether they could read or not,4 and peers were excused the branding, too; it was further extended partially in 1624, and completely in 1692, to women.5 In 1707 all the world were admitted, by the abolition of the reading test, or “neck verse”.6

As a matter of fact, all this means that the nature of benefit of clergy had undergone a radical change. In 1576 it was enacted that clerks convict should no longer be handed over to the ordinary, but should be forthwith discharged, and so the last connection of the benefit with either Church or clergy was severed, but the same act authorised one year’s imprisonment before discharge, at the discretion of the court.7 Even before the Reformation, Parliament had ventured to enact that petty treason should no longer be clergyable (perhaps justifying its boldness on the ground that it was the statute de clero1 which had made it so). After the Reformation a long line of statutes made murder, piracy, highway robbery, rape, burglary and a host of other crimes non-clergyable. The result was important. The gap between felony and misdemeanour was much too large, and by using the benefit of clergy Parliament was able to make some crimes capital for a first offence (non-clergyable) and others capital only for a second felony (clergyable). Thus a rough classification of crimes into more than the two mediaeval categories became possible. This process was carried further by developing the policy of the Act of 1576, and condemning persons convicted of clergyable larceny to transportation for seven years. Thus the survival of clergy greatly modified the harshness of the penal law and permitted the growth of a graduated scale of punishment.

Benefit of clergy was abolished in 1827, but its ghost continued to haunt the law until less than a hundred years ago.2

CHAPTER 2

THE FELONIES

Even in Anglo-Saxon times, as we have seen, the Crown began to establish a list of pleas over which it had particular rights. Some of these became, after the Conquest, felonies. Not all of them, however; the breach of the King’s peace, for example, became steadily less serious as the peace became further extended. As a serious crime it was confined to the days when the peace was given (as it was also in France) by a solemn diploma under the royal seal.

Felony is a feudal conception particularly applying to the breach of the fidelity and loyalty which should accompany the feudal relationship which has been consecrated by homage. Its characteristic punishment is therefore loss of tenement—escheat. On the continent felony was often confined to this class of crime, but in England, by means unknown, there came “a deep change in thought and feeling. All the hatred and contempt which are behind the word felon are enlisted against the criminal, murderer, robber, thief, without reference to any breach of the bond of homage and fealty”.1 The transition may have been helped by the fact that already in Anglo-Saxon law there were crimes which put their author at the absolute mercy of the King, their property, limb and life. The King’s “great forfeiture” may thus have caused these crimes to be equated with true felony which resembled it. In any case, this extension of the meaning of felony must have been welcome to lords, for it was they who reaped the harvest of escheats (subject always to the King’s wasting the tenement for a year and a day).

The list of felonies during the middle ages was always short, and the definitions of the crimes within the list were generally narrow; they almost always were subject to benefit of clergy, and could always be prosecuted by appeal. Indeed, the appeal is distinctly an appeal of felony, and at least one crime, mayhem, was a felony if prosecuted by an appeal, although it was not a felony upon indictment.1

TREASON

The history of treason in the middle ages is as distinctive as the nature of the offence. It is one of the very few crimes which were defined by statute during that period; and it is one of the equally few crimes whose scope was extended by “construction”. Unlike treason, the mediaeval felony was (generally speaking) neither statutory nor constructive.2

High Treason was never clergyable, and more than one prelate has paid the penalty; for a time, however, there were certain sanctuaries which claimed the extraordinary privilege of protecting traitors. The definition of treason before the statute was certainly wide, including the murder of royal messengers, and apparently even highway robbery. Such extensions fell heavily on lords who lost their escheats (for these offences were capital felonies even if they were not treason). The matter was therefore raised in Parliament with the result that the famous statute of treasons in 1352 laid down a definition, coupled with the proviso that any further definitions in doubtful cases shall be made in Parliament. The statute makes treason to consist in3 —

all of which involved forfeiture of land and goods to the Crown. The statute further defined “another sort of treason” (which was generally called petty treason) as being—

• “the slaying of a master by his servant;
• the slaying of a husband by his wife;
• the slaying of a prelate by his subject, secular or religious.”

These were to involve escheat, and not forfeiture, of lands. Then follows the provision for the parliamentary declaration of treason in future cases not covered by the act, and a declaration that riding armed, robbery, kidnapping for ransom and the like are not treason, and a rescission of recent judgments to the contrary, with the restoration of the forfeitures already exacted by the Crown to the lords of the fee as escheats. The motives of the statute are patently to prevent the loss of escheats by treating felonies of certain sorts as treason. This is made perfectly clear, moreover, in the petition which led to the statute.1 There is no trace of political theory in the act.

It is impossible to enter here into the large number of judicial and statutory changes which took place in the ensuing five centuries of history. Many times of unrest produced statutory extensions which were repealed when quiet was restored, but all through the succeeding ages it has been felt that treason should, wherever possible, rest solely on the act of 1352. A few of these later statutes have become permanent or are otherwise remarkable. Thus there is the famous act declaring that service with a de facto king shall not be treason to the King de jure,2 and the act requiring two witnesses of the overt act or acts alleged in the indictment.3

The act of 1352 may itself have hampered the orderly growth of the law relating to offences against public security by including so few of them in the definition of treason, making no provision for the lesser (but still serious) crimes. It remained for the Star Chamber and the Legislature to introduce some order into a tangled and dangerous mass of law by separating from treason such crimes as riot, sedition, espionage, incitement to mutiny, and the like. Similarly, the petty treasons were reduced to ordinary murder in 1828 (9 Geo. IV, c. 31).

MURDRUM

Murder is the product of many different lines of development. Slaying wilfully or accidentally had the same consequences in Anglo-Saxon law—the offender must bear the feud, or else he must provide the sum of money amounting to the dead man’s wer. Even before the conquest, however, deliberately planned assassinations came to be distinguished and put into the list of Crown pleas as forsteal. The original sense of this word was lying in wait to ambush the victim. After the conquest this is expressed in various terms in French and Latin, but frequently takes the form of assault purpensé, or assultus premeditatus. In time this yields before malitia excogitata, and so introduces us to the very troublesome word “malice”.4 Numerous pardons for accidental slayings explain that the offence was not done of malice aforethought, but on the positive side the word was used very vaguely; it seems impossible to maintain that it signified spite or hate, or indeed any definite allegation of intention. It is best regarded as a traditional form which only occasionally coincided with the natural meaning of the word. The Anglo-Saxon forsteal, like much else of the older legal language, survived only in local courts, and like its surroundings gradually sank to a petty significance. Forsteal thus became “forstall”, an offence which consisted in intercepting sellers on the way to a market and attempting to raise prices artificially.

The word “murder” has also had a devious history. Its original sense is the particularly heinous crime of secret slaying. After the conquest it was observed that Normans were frequently found dead under mysterious circumstances, and so William I enacted that if anyone were found slain and the slayer were not caught, then the hundred should pay a fine; this fine is a murdrum.1 The practice soon grew up of taking inquests and if it were presented that the dead man was English, then the fine was not due. In 1267 it was enacted that accidental deaths should not give rise to murdrum,2 and finally in 1340 presentment of Englishry and murdrum were abolished.3 Henceforth the word slowly tends to get linked up with “malice aforethought” and so we get the classical formulae describing the crime of murder.

Suicide (especially if it were done to avoid capture) involved forfeiture of chattels, and so it was argued backwards that it was a felony.

MURDER AND MANSLAUGHTER

In the thirteenth century misadventure and self-defence were still recognised, not so much as defences to a charge of homicide as circumstances entitling one to a pardon; but if these defences were not involved, there was but one other case, and that was homicide. Whatever might be urged in mitigation of this offence could only be urged before the King as part of an appeal for pardon; it could not be considered by a court of law.4 It is important to remember that the prerogative of mercy was the only point at which our mediaeval criminal law was at all flexible; hence pardons were issued with liberality for all sorts of felonies throughout the middle ages and long afterwards, and it is in the history of pardons, therefore, that the gradual growth of a classification of homicides is to be sought. A beginning was made in 1328 when a statute called in general terms, for restraint in issuing pardons,5 and in 1390 the Commons secured a statute which recognised certain pardons as issuing from the Chancery as a matter of course (no doubt cases of self-defence or misadventure); with these the statute contrasts pardons for “murders done in await, assault, or malice prepense”. In such cases pardons were subjected to almost impossible conditions.1 The pardoning power in other cases was not touched, and so the Crown retained its normal powers and procedure for pardoning homicide, except cases of what we may call wilful murder. The distinction becomes clearer in the Tudor reigns when benefit of clergy was being redistributed among the various crimes. Thus, James Grame wilfully murdered his master, Richard Tracy, on 9th February 1497 and then pleaded his clergy. An indignant Parliament was determined that he should hang, and so attainted him, and abolished clergy for his and all like cases of prepensed murder in petty treason.2 A number of such statutes followed in the reign of Henry VIII, and one of them3 uses (probably for the first time) the words “wilful murder”; from that date it is clear that the statutes have, in effect, divided the old felony of homicide into two separate crimes, “wilful murder of malice aforethought” which was not clergyable and therefore capital, and on the other hand, those homicides which were neither in self-defence, nor by misadventure. Some such division was obviously necessary, but unfortunately the boundary was generally sought in glossing the ancient formula “malice”. “Manslaughter”, as it came to be called, exercised the analytical skill of writers on pleas of the Crown for a century and more before very much order could be introduced, and even now serious questions as to the import of “malice” in murder have been raised.4

LARCENY

Few headings in criminal law have had so interesting a history as larceny. Its earliest form is naturally determined by the circumstances of agricultural life, and so the scope of larceny has gradually developed from the original type of cattle theft. We have already seen that the procedure derived from Anglo-Saxon times and remodelled as the appeal of larceny was merely a standardisation of the normal steps which would be taken upon the discovery of a theft of cattle—the hue and cry, the pursuit of the trail, and so on to summary judgment. One old distinction died away. This was the difference between manifest and secret theft. In Anglo-Saxon England, as in many early systems, the manifest thief fared much worse than the one whose guilt was only established after a lapse of time. No reasons seem to be evident for the rule in England,1 but some savages are said to adopt it as a special condemnation for those who are not merely thieves, but incompetent thieves. The distinction between grand and petty larceny is also ancient, although the explanation by a glossator of Britton that a man can steal enough to keep himself from starvation for a week without committing a major crime seems more modern than the rule; perhaps the gloss is under canonical influence, for the Church would not condemn a famished man for stealing bread.2

Bracton adopts the Roman definition of theft,3 but there has been some doubt whether contemporary English (or Norman) law really did look for an animus furandi, “intent to steal”. There are dicta by judges, statements by text-writers, and even miracles, attesting the rule that a man who takes another’s chattel, even without intent to steal, may be held guilty of theft.4 The burden of all of them is that a lord who distrains will get into trouble if his conduct is not scrupulously correct. That lesson had to be taught (and it has been learnt), but there seems no actual case where a distrainor who sold the goods was hanged. It would almost seem that these are stories told from the bench to assembled landlords and that the gruesome ending was merely in terrorem. Their ultimate basis, however, lies in the impossibility of expecting a jury to ascertain a person’s state of mind.5

The list of things which can or cannot be the subject of larceny has varied, and for centuries after the reigns of the Norman kings became steadily more absurd and confused. Wild animals were easily excluded, unless they were game on a private estate; deeds could be stolen under King John but not under Edward IV; Coke without any authority extended this exception to all choses in action and so it became a rule of the common law that the theft of a bank-note was not larceny. One judge even suggested that the theft of diamonds was not larceny because their value was dependent largely upon fancy. So, too, peacocks and sporting dogs were luxury articles without economic value. A huge mass of legislation has tackled all these points separately and with little reference to related points. Often the rules of benefit of clergy were employed in order to introduce some sort of gradation in larcenies and their punishment.6

QUASI-THEFT

The nature of larceny is expressed in the old charge that the thief “stole, took, and carried away”. This is clearly an old form derived from the simplest type of stealing, and was made the basis of the theory that larceny is a violation of possession. It covered the great majority of cases likely to arise in simple agricultural communities, but as society became more complex and newer forms of economic relationships became frequent, many sorts of crime escaped the old definition of larceny. Not until the reign of Henry VIII do we find much effort made to include them, and not until the eighteenth century is the legislation on the subject very extensive. Both in Normandy and in England there is some mention, even in the middle ages, of “quasi-theft”, and in Normandy it is clear that the conception was capable of filling many of the gaps in the old law of larceny. It included the use of false weights, measures and coins; concealment of wreck and treasure trove; refusal to replevy a distress; the use of forged bonds; usury; and removing boundary marks.1

Bracton occasionally uses the expression quasi-theft, but his list is not so extensive as it was in Normandy, for treasure trove and the use of false coins might involve a charge of high treason, and coinage offences soon became statutory felonies as well; weights and measures were governed by their own assize and were best dealt with (although that best was imperfect) locally;2 withernam became a serious offence, but separated from larceny owing to the need for special procedure; and the use of forged deeds in court (but not elsewhere) seems to have been dealt with summarily by the court which had been deceived.3 Bracton does use the idea of quasi-theft in connection with treasure trove,4 and more curiously still, in an argument that robbery is also larceny.5 The Mirror of Justices would have it that a great many sorts of fraud and dishonesty were (or ought to be) larceny,6 but it is plain that they were not. Usury (a quasi-theft in Normandy) was left to the Church in England.

How, then, were the gaps in the law of larceny supplied in practice during the middle ages in England? We suggest that the action of account will give the clue. This action was available against bailiffs and also against receivers of money or goods to the use of their masters; it was also used commonly between partners and joint traders of various sorts, so that a great many business relationships fell within its scope. The statutory process upon it was remarkable, and indeed unique. Persons entitled to an account from “servants, bailiffs, chamberlains and all manner of receivers” were allowed to appoint auditors, and if the accountant was in arrear, the auditors could commit the accountant to prison. There he was to lie until the account was discharged; if it was disputed and the accountant “could find friends” the matter could be reviewed in the court of exchequer.1 This drastic procedure whereby imprisonment could be ordered without a court or trial, at the discretion of purely private persons (whom Coke2 later had to call, nevertheless, judges of record), must have provided speedy sanctions against those who were later subject to the statutes on embezzlement and kindred offences.3

BREAKING BULK

Account, however, had its limitations and occasions arose when criminal sanctions were deemed necessary. An early example is to be seen in the curious case of breaking bulk.4 The facts were that a carrier entrusted with merchandise to be transported to Southampton broke open a bale and misappropriated the contents. There was much argument first in the Star Chamber and then in the Exchequer Chamber whether this was felony. A majority of the judges finally held that it was, influenced no doubt by the fact that the owner of the goods was a foreign merchant who took his stand upon his treaty rights and the law of nature. In short, it was politically expedient to punish the carrier for larceny, but the devious reasoning by which this was accomplished was a native product of some antiquity;5 it left its mark for centuries to come on the law of larceny.

STATUTORY CRIMES IN THE NATURE OF LARCENY

From the breaking bulk case it is clear that the great defect in the common law of larceny was the rule that larceny was a violation of possession; this, coupled with the rule that a bailee has possession6 permitted a great many fraudulent misappropriations to pass unpunished. The exception of cases where bulk had been broken depended on accident, and so the legislature was finally moved to intervene.

It began with the case of servants entrusted with their master’s goods who leave their employment, taking the goods with them, or who “embezzle” them while in service; an act of 1529 made this felony if the goods were of the value of forty shillings or more, but it excluded from its penalty persons under eighteen years of age, and apprentices.1 The statute therefore confirmed a tendency already apparent in case law2 to distinguish possession from “charge” (the control which servants have over their masters’ goods, which charge did not amount to possession, with the result that misappropriation was a violation of the master’s possession and so larceny). The use of the word “embezzle” in this and several later statutes dealing with theft from arsenals and government departments does not correspond with the present definition; it later gave way to the word “purloin” which commonly appears in statutes dealing with thefts from factories—and it is typical that separate trades procured legislation covering their own machinery and operations instead of a general enactment about theft. There was, for a long time, therefore, not merely the law of theft, but various bodies of law of theft from weaving sheds, spinning mills, iron works and the like, which were not uniform.

“Embezzlement” in its modern form appears in the statute law in 1799 which reached “servants or clerks” who embezzle effects received in the course of their employment;3 in 1812 it was necessary to extend this to brokers, bankers, attorneys and other agents who were neither servants nor clerks;4 the frauds of factors were made criminal in 18275 and in 1857 trustees and bailees were reached.6

Most of these statutes were the immediate result of some unusually disturbing decision of the courts, and as a rule went little further than reversing that particular decision. The sum total was a frightfully complicated mass of law containing many artificial distinctions which made the work of a prosecution especially difficult, for it was often impossible to say which of several minutely differing crimes might eventually appear from the evidence. Indictments therefore became immensely long and technical documents as they endeavoured to provide for all eventualities.

Successive Larceny Acts of 1827,7 1861,8 and 1916,9 consolidated this vast mass of statutory exceptions to the common law, but did not provide a definition of larceny, as Sir James Stephen remarks.

OTHER COMMON LAW FELONIES

Every one of the common law felonies pursued its separate history with little reference to the others. Robbery gradually approached larceny, and blackmailing became a constructive robbery (and constructive felonies were rare) before it was made criminal by statute.1 Burglary had some curious statutory adventures, especially when it was accompanied by putting inmates of a house in fear.2 Rape, like several other crimes, could be made the subject of an appeal of felony, in which case it was variously punished, sometimes with mutilation, rarely with death. If no appeal was brought the crown could prosecute, and then the penalty was fine and imprisonment, and the offence seems in practice to have been dealt with rather leniently until 1275 when a statute prescribed two years’ imprisonment—one of the first statutes to prescribe a fixed term.3 Ten years later another statute brought a drastic change of policy by making rape a capital felony both on appeal and on indictment.4

The Larceny Act, 1861, was one of a group of consolidating acts passed in that year which repealed and consolidated the results of hundreds of statutes. Criminal law is very largely statutory, and periodical revision is essential where large numbers of acts dealing with comparatively minute sections of a subject are constantly being passed. A larger scheme was soon proposed. The application of English law in suitable circumstances in India made it desirable to “restate” it (to use a modern expression) in a form clear and compact enough to be intelligible in a distant and very different land. An Indian Penal Code was drafted by Lord Macaulay and a quarter of a century later was enacted as law in 1860. In 1878 a draft Criminal Code, drawn by Sir James Fitzjames Stephen, was introduced into Parliament, but subsequently referred to a royal commission. It was not proceeded with, but from time to time large topics of criminal law and procedure have been codified, and recodified, in the course of the last two generations.

THE RECOVERY OF STOLEN GOODS

As long as the appeal of larceny was in common use, the appellant recovered the goods if his appeal was successful—recovery being, in fact, one of the main objects of the procedure. Indictment was felt to constitute a rather different situation. The discovery of the thief was to the credit of the grand jury, not of the loser; the accuser was the Crown, not the loser. Even an appeal might be quashed if it had not been brought with considerable diligence, and if none were brought at all, it was felt that the owner ought to lose his claim.

The felon forfeited his chattels to the King, and if the stolen goods were among them, they too went to him, unless by a prompt and successful appeal the owner had recovered them.1 If the thief had been convicted after indictment then clearly the owner’s remissness had extinguished his claim. From this followed the plausible (but not strictly accurate) deduction that a thief acquires property in the goods.2 This seems to have been the law in the early fourteenth century and it remained law until it was enacted in 1529 that a writ of restitution should issue after conviction on indictment in the same way as it issued after conviction by appeal.3

There was, however, another aspect of the appeal. It could be brought against anyone found in possession of the goods, and a successful appellant could recover his chattels in this way from one who was not a thief; in other words, purchase in good faith would serve as a defence of the purchaser’s neck, but it would not give him title against the owner. Our earliest plea rolls are quite clear on the point. There was in early times a tendency to treat secret sales as in themselves suspicious, and so this defence is often one of purchase in market overt. Towards the end of the middle ages, there was a tendency for the privilege of market overt to be enlarged, and to allow a bona fide purchaser in market overt even to acquire title in stolen goods, but this development was checked by decisions that the statutory writ of restitution would lie even against such a purchaser.4

RECEIVING STOLEN GOODS

There was clearly a strong popular feeling that receiving stolen goods ought to be a felony, but it took some centuries before the legislature finally accepted that view. As an appeal of felony could be brought against any possessor, it seemed to suggest that he could be properly regarded as a felon, and it was certain that the receiver of a felon (although not of the goods) could be hanged as an accessory. When this is coupled with the fact that stolen goods generally ended up as forfeit to the Crown, it will be seen that receiving stolen goods looked very much like a felony. In the twelfth century the possessor of stolen goods, if of ill-fame, was sent to the ordeal;1 in 1219 the receivers of a thief (but not of the stolen goods?) were hanged in circumstances which brought an amercement upon the judges;2 in 1221 some receivers abjured and others were hanged;3 late in the century a formula book treats “receiving larcenously” as a plea of the Crown.4 We read of an appeal of receiving stolen goods in 1291,5 and the hundred court of Maidstone certainly hanged a woman in 1300 for receiving stolen goods, the only objection raised when the justices in eyre went into the matter twelve years later being that she had received the goods in one hundred, but was convicted in another.6 As late as 1358 a man was indicted for receiving, and tried for the offence on the assumption that it was a felony.7

In the middle of the fourteenth century, however, the superior courts adopted a policy of strictly defining the various crimes, and even restricted the already narrow scope of larceny. Hence we find in 1351 and 1353 that appeals of receiving stolen goods are no longer admissible.8 There was uncertainty under Elizabeth,9 and eventually parliament began to move, and made receivers of stolen goods accessories10 (those who received the thief himself were of course accessories at common law). This step did not advance matters very much, for even accessories had many chances of escape, especially in the rule that they could not be tried until their principal had been convicted.11 In the next century this line was abandoned and receiving was made an independent misdemeanour12 in 1707 and an independent felony13 in 1827.

ATTEMPTS

It was tempting to “take the will for the deed” and to punish attempts as if they had been successfully accomplished, but the temptation had to be resisted; our mediaeval common law was ill-equipped as yet for investigating a prisoner’s state of mind, and Bereford was not alone in his distrust of the tendency.1

CHAPTER 3

MISDEMEANOURS, TRESPASS AND TORT

Anglo-Saxon law knew neither felony or misdemeanour. In so far as it classified crimes at all, it was into “emendable” and “botless” crimes, and the latter became in most cases the felonies of later law. Even after the Conquest the idea of botless crimes still flourished, and the Norman kings sometimes enacted that a particular offence would be visited with the King’s “full forfeiture”, and so the heavy penalty of loss of chattels might be inflicted for crimes which fell far short of felony. Henry I had to abandon this, and in his coronation charter promised what seems to be a return to the Anglo-Saxon system of pre-appointed fines or wite.1 From the rolls of Henry III, however, it is clear that the King’s courts once again used a wide discretion, this time in committing offenders to prison, with the understanding that the imprisonment would normally be commuted to a fine.

Fines were so common, however, even in civil proceedings, that they could not be regarded as typical of misdemeanour, and in fact criminal law was (apart from statute) practically confined to the felonies. This becomes all the clearer when it is remembered that most of the characteristics of criminal proceedings did not attach to misdemeanours. Thus they were not subject to benefit of clergy, nor to attaint of blood and its accompaniments, escheat and forfeiture; nor did the Crown use its oppressive power of forbidding counsel and sworn witnesses to the accused; on the other hand, the accused did not have the protection afforded him in felony trials of peremptory challenges to the jury. All this seems to indicate that the Crown regarded prosecutions for misdemeanours as being more akin to civil litigation than to trials for felony. It is not surprising, therefore, that misdemeanour and tort together occupy a large field where it is impossible in many cases to assign to each its severalty.

TORT IN THE THIRTEENTH CENTURY

An examination of the early plea rolls indicates that there was a very wide field of tort in the reigns of John and Henry III.1 As these are cases in the King’s Court it is natural that most of them are concerned with torts to property, and especially to feudal interests, but nevertheless there is a large variety of them. The form is almost universally a summons or attachment to show quare, why, the defendant had damaged the plaintiff—in other words, the form which soon became typical of trespass. Some of these torts were litigated through the form of an assize, such as the assize of nuisance, but others continued in later years as trespass (for example, impleading a person wrongfully in Court Christian) or case. Early in the thirteenth century this type of action is much more common than the more familiar forms of trespass de clauso fracto, de bonis asportatis, and assault.

MISDEMEANOUR IN THE THIRTEENTH CENTURY

At this moment it would seem that a great deal of minor crime was dealt with in the local courts. The King’s Court was not interested in that sort of work, and even when royal justices went on tour, they seem mainly concerned with real property matters and felony only, as may be seen from an examination of Lady Stenton’s recent volumes of Eyre Rolls published by the Selden Society.

Late in the century several changes take place. The writs quare were extended to cases which would now be described as trespass; some of these new cases were independent of feudal rights and overlapped the old criminal law. Thus mayhem, which was a felony if the injured party proceeded by appeal, now became a trespass if he preferred to bring his writ. It must always be understood, however, that at this date the action of trespass (as distinct from the wider group of quare actions) had a criminal element which was sufficient to allow such a shifting of mayhem to seem reasonable, and that the word trespass was sufficiently vague and wide for Bracton to say that all felonies were trespasses, but all trespasses were not felonies.2 The familar quare formula thus began a new branch with the addition of the words contra pacem which were characteristic of the new complaints of assault, breach of close and asportation of chattels. It is a significant illustration of Bracton’s dictum, that only certain varieties of quare action acquired the name of “trespass”, and that those varieties used the allegation of contra pacem, and covered situations which might be considered with equal plausibility as crime or tort. The investigations made by the baronial reformers3 show clearly that there was much oppression and injustice which the local jurisdictions failed to check, and it seems extremely likely that the King’s Court deliberately extended its quare actions so that they should cover these non-felonious “trespasses” of which Bracton spoke. The expedient was successful. It brought about the decline of the local courts and extended the work of the King’s Court, but it made a symmetrical scheme of either crime or tort impossible, for those trespasses in breach of the peace (which might well resemble misdemeanours) soon partook of the civil nature of the other quare actions, and so became finally torts.

The second change during this period was the creation of several statutory trespasses or “actions on the statute” as the old books classify them. For example, in 1275 a statutory writ of trespass against poachers1 gave punitive damages to the plaintiff, an arbitrary fine to the king, and three years’ imprisonment for the defendant; another statutory writ of trespass2 might involve even imprisonment for life as a “punishment”. The same procedure therefore gave a civil remedy to the plaintiff as well as punishment for the misdemeanour of the defendant.

MISDEMEANOURS AND INDICTMENT

Until recently, the only conclusion possible from the available evidence was that our mediaeval criminal law consisted of (a) the felonies, and (b) the few statutory misdemeanours of the sort just mentioned. Clearly this was much too meagre even for the needs of fourteenth-century England and the problem of discovering how the deficiency was supplied became very difficult. The solution suggested was that much of the law of misdemeanour was missing entirely, and that its place was taken by the civil action of trespass, which by this time was undoubtedly of considerable scope and importance. Tort had therefore taken over a great deal of the field of criminal law, and the civil aspect of trespass had ousted the criminal aspect.3

So difficult a hypothesis is now no longer necessary. It is now known from the Fine Rolls that by 1250 the action of trespass was rapidly getting common, and from the Trailbaston Rolls that at the death of Edward I petty larceny could be punished by imprisonment at the rate of a week for every penny stolen (three days for a halfpenny).4 Moreover, thanks to the fascinating volume of Proceedings before Justices of the Peace recently edited for the Ames Foundation by Professor Putnam, it is now abundantly clear that the justices of the peace handled an enormous quantity of business, and that trespasses in great variety were indicted before them. Consequently there is no longer need to suppose that the civil aspect of trespass had overshadowed the criminal: on the contrary, the indictable trespass is now known to have been the common and normal way of dealing with offences less than felony from the reign of Edward II onwards. The fact that the vast majority of these indictments were found and tried locally, and so appeared but rarely in the Year Books, resulted in their existence being unknown until the records of the justices of the peace were discovered and printed.

From the material now available it would seem that most matters which would support an action of trespass could also be laid in an indictment as constituting a misdemeanour,1 although as early as the reign of Edward I it was recognised that an action for damages, on the other hand, was a civil action.2 Moreover, matters which constituted a felony could be regarded alternatively as constituting a misdemeanour. Bracton had stated this long ago, and the new documents show that this was more than a piece of academic analysis, for the indictments bear him out, and in fact carry on the story down to the time of Marowe who wrote in 1503: “although a man has taken my goods feloniously, I can if I please treat that felony as a mere trespass, and so can the king if he pleases; for one wrong shall not be excused by another wrong.”3

THE SEPARATION OF CRIME AND TORT

So far, then, the story has been briefly this. Early in the thirteenth century the royal courts have a well-defined jurisdiction over felony, and a very large and varied assortment of torts which could be redressed by a quare action. Local courts, on the other hand, have a large jurisdiction over many sorts of minor offence which we may call misdemeanours (the word itself, however, is modern). In the middle of that century, trespass contra pacem puts the quare action to a new use, and begins to remedy certain violent offences by means of a civil action in the King’s Court, which may also result in fine and imprisonment in some cases. Trespass contra pacem was thus double in its nature, but soon it began to lose its criminal characteristics, perhaps reflecting the overwhelmingly civil atmosphere of the Court of Common Pleas. At the beginning of the fourteenth century the justices of the peace were becoming the principal jurisdiction for criminal matters, and in their sessions the indictable trespass is as conspicuous as the civil trespass was in the Common Pleas; consequently, there was no gap in criminal law forcing litigants to use civil remedies for lack of criminal ones. The contrast between indictment and original writ thus corresponded nearly enough with the distinction between crime and tort. Parliament in the fourteenth century realised this. Instead of adding “punishments” to actions of trespass (as it had done under Edward I), it created new offences less than felony by making them indictable as trespasses under Edward III and his successors—riot, forcible entry, maintenance and labour offences are typical examples. Early in the sixteenth century the word “misdemeanour” served to distinguish the indictable from the actionable trespass. It is, of course, characteristic that the distinction should be procedural rather than substantial.

THE STAR CHAMBER

The Star Chamber had equal influence with the legislature in developing the field of misdemeanour, largely, no doubt, because an old tradition (reinforced by many statutes) excluded the council, and all similar authorities, save the ancient courts of the Crown, from jurisdiction over felony, which involved judgment of life and loss of the sacred freehold. But just as the Common Pleas did not trouble to distinguish civil from criminal law when it appropriated a new field with the writ of trespass contra pacem, so the Star Chamber in turn administered civil and criminal justice simultaneously in dealing with its expanding list of “Star Chamber cases”. Forgery, perjury, riot, maintenance, fraud, libel and conspiracy were the principal heads of the Star Chamber’s jurisdiction according to its clerk, Hudson. Even crimes which were treason or felony at common law might be punished in the Star Chamber as high misdemeanours, while it claimed the right to punish as crimes acts which escaped the existing classification. It also developed the principle that an unsuccessful attempt might itself be criminal.

This development took place at a fortunate moment, for the manipulation of rules relating to pardons and benefit of clergy was at the same time introducing more variety into the common law system. When the Star Chamber was abolished, the King’s Bench realised that much of its work was of permanent value, and so a great deal of its law of misdemeanours finally passed into the common law.

THE FIELD OF TORT

The field of tort was by no means extensive until the last century, and consequently its development had not reached a very advanced stage. Much of it was also annexed to neighbouring provinces with the approach of modern times. Trespass de clauso fracto and de ejectione became part of the law of property, and deceit, with its derivative assumpsit, became one of the roots of the law of contract. The rapid prominence and growth of the law of tort in the last few generations is clearly associated with the sudden mechanisation of contemporary life, and with the growth of large and wealthy businesses (necessarily carried on through fallible servants and agents) engaged in finance, insurance, transport and an endless variety of enterprises which are productive of torts and tort litigation. There can be no doubt that the universal practice of insurance has provided the superior courts with thousands of cases which would probably have escaped the reports if parties had no other resources than their own in contesting them.

TORT AND THE FORMS OF ACTION

Although in our own day it has become possible to speak of tort as a homogeneous body of law, it is still useful at times to remember that this field is really the result of the enclosure of many different acres, and that the old boundaries between them are still visible. Some scores of torts were actionable early in the thirteenth century by means of special varieties of quare action. Many of these survived in the next century and later to form the unified action of case. The commonest type of tort was certainly assault and battery, and breach of close. These soon coalesced to form another group, trespass. By the end of the fourteenth century much of the law of tort was comprised under one or the other of these two heads, but it was only slowly that theory supplied a test to distinguish between them. A formal distinction grew up1 since it had never been customary to allege vi et armis in some cases. Those cases became fixed upon no clear principle. Thus in the two chapters of Fitzherbert’s New Natura Brevium (which is usually cited as F.N.B.) dealing respectively with trespass and case, it will be found that some of the writs he classifies as trespass do not allege force and arms,2 while some of the writs which do contain this clause he describes as trespass on the case.3 We can hardly say, therefore, that any distinction (other than tradition) served to distinguish the scope of trespass from that of case, even so late as Henry VIII’s reign.4 Even the test which later prevailed, namely, trespass for direct and case for indirect damage, would hardly apply to some of the cases discussed by Fitzherbert; thus if A. breaks his own pond in such wise that it causes B.’s pond to overflow, the remedy is trespass vi et armis.5

Gradually case acquires a few substantial characteristics. Thus case is appropriate when the defendant himself did not act, although his servants have caused damage for which he is liable. So, too, an old allegation of negligence becomes more prominent, until negligence finally became one of the most important features of the action. This does not mean that the notion of negligence was entirely absent from trespass; it was, however, concealed under another form. The defendant in trespass has long had the defence of inevitable accident. Any damage which he could have avoided will therefore charge him, although that which is “inevitable” will not. In case, on the other hand, the plaintiff (who has to prove the defendant’s negligence) in practice can only demand a moderate standard of care which undoubtedly fell short of that implied in trespass.

As a result of causes which have been skilfully traced by Professor Winfield and Professor Goodhart,1 case (based on negligence) supplanted trespass (where negligence need not be proved) in the course of the nineteenth century. The reasons for this were procedural for the most part. An old statute2 had the result that a verdict of nominal damages in trespass should carry with it nominal costs as well. In many cases there must also have been doubt whether the facts would show direct or only consequential damage, for the line between the two is necessarily vague. As a result, many cases which might have supported an action of trespass were framed in case, so that the idea of negligence implied in case has supplanted the older and stricter (though by no means absolute) liability which characterised the action of trespass. At the same time, this newer view of negligence has been now extended even to certain cases where the plaintiff has endeavoured to base his action on trespass and not on case—notably trespasses on or from the highway.3

THE TORT OF NEGLIGENCE

For many centuries it would have been impossible to state the common law otherwise than in the form of a list of various torts which have been remedied by various forms of action. As we have seen, the King’s Courts were not anxious to entertain personal actions of any sort, and even in the sixteenth and seventeenth centuries there was legislation designed to keep actions not involving title to land in local courts.4 Reluctantly more and more torts were admitted to the list of those actionable in the King’s Courts, but still there was no theory which would draw all these details together into a coherent system. The forms of action stood in the way.

It was the action of case which first evolved a principle sufficiently wide to cover many of the constantly recurring forms of tort. This principle was negligence and its history will concern us in the next chapter. Here we are only concerned with the formal exterior of tort actions; for this purpose it will suffice to say that actions of case were very generally regarded from about 1800 onwards as being based on negligence. It became common to speak of “case for negligence”, “actions for negligence”, “actionable negligence”.5 Such language was perhaps made more attractive because there still remained an older tradition about the nature of trespass with which “case for negligence” could be (rightly or wrongly) contrasted. By this time the emphasis on the general concept of negligence has become so steady and universal that it is possible to argue that we have outgrown the old method of “matching colours” whereby new cases were brought in under the cover of old ones, and that we now have created a distinct tort of negligence.1

CHAPTER 4

LIABILITY, CIVIL AND CRIMINAL

For reasons we have already mentioned, it is impracticable to speak of our early law in terms of a distinction between crime and tort. This observation becomes necessary once more in tracing the history of liability, for such few principles as there were had been derived from experience drawn indifferently from all parts of the law of wrongs. Nevertheless, some interplay between notions drawn from clearly criminal cases and those drawn from obviously civil ones may be expected, and in fact actually took place.

LIABILITY IN ANGLO-SAXON LAW

English writing on the subject generally goes back to a series of striking articles by Dean Wigmore which appeared in the Harvard Law Review in 1894. The author there set forth his theory that in early law (including Anglo-Saxon law) liability was absolute:1

and a great many similar propositions are advanced which do not all concern English law. In short, “a man acts at his peril”. This theory, even then, did not represent the unanimous opinion of common lawyers, for Mr Justice Holmes had already criticised it in 1881, doubting whether the common law had ever held such a rule in its best days.2 Professor Winfield has more recently and more thoroughly examined the question, with the result that he declares it to be merely a myth.1

There was indeed a maxim qui inscienter peccat, scienter emendet, but there is no need to assume that maxims represented the state of the law with much more accuracy in 1100 than they do now. We may surmise, however, that there was a fatalistic attitude to life in earlier times which made men accept misfortune (in the shape of heavy liability for harm they did not mean to do) with more resignation than now.2 We have also to bear in mind that “law in books” was itself a rarity in the four centuries preceding Glanvill, and so was much less in contact with “law in action” than it is to-day. The question of liability is frequently discussed by the author of the Leges Henrici Primi, but as Professor Winfield shows, he expressly warns us that his crude maxim is not the whole law, and frequently mentions the reduction of the compensation or penalty according to circumstances. Even the Anglo-Saxon laws themselves plainly discriminate between care and carelessness, and recommend clemency.

A passage appended to one of the laws of Aethelred (c. 1000) seems to represent the thought of his age in the determination of liability, and suggests that the Anglo-Saxon system of preordained payments was more flexible than would appear on the surface. It reads thus:

No doubt this is homiletic in tone, and perhaps even in origin, but the mere fact that it insists on principles seems to show that practice had already admitted the possibility of discretion in assessing liability, and was feeling the need of principles in exercising it. A few years later, the passage we have just quoted was embodied in the laws of Canute,4 almost verbatim, and so we may conclude that it was certainly more than mere moralising by an unpractical cleric. As we have just seen, the author of the Leges Henrici Primi is equally emphatic, a century later, on the possibility of discretion. Moreover, the Church had long ago prepared the way, and the Penitentials of the seventh and eighth centuries were already abandoning the idea of fixed tariffs as a measure of human responsibility.1

This view of Anglo-Saxon practice in fixing liability is all the more attractive since it coincides with the results obtained from investigating German as well as English legal history.2

It may very well be that the history of tort liability has run the same course as the history of homicide which we have outlined in a previous chapter,3 that is to say, a simple and severe legal rule, to which discretionary exceptions could be made by competent authorities, is typical of the first stage; the second stage is represented by the recognition by the law itself of those exceptions. Looking merely at the history of the formal rules, we thus gain the impression of an absolute liability which is in course of reduction to more rational limits; if, on the other hand, we take into account the discretionary tempering of strict law with mercy which the sources frequently allude to, the change seems to be one of form rather than of substance.

TRESPASS IN THE EARLY PLEA ROLLS

It is naturally to trespass that we first look for the later history of the onerous standard of liability just discussed. Here we have to recognise that the scope of trespass has considerably changed in the course of the centuries. Our earliest examples seem all to be cases of undoubted violence with a strong criminal element. The plaintiff has been beaten, wounded, chained, imprisoned, starved, carried away to a foreign country, and has suffered many “enormities”.4 In later times it is agreed that many of these expressions are just traditional forms without much meaning; but there clearly was a time when they accurately represented the plaintiff’s case. Defences to trespass in its earliest form therefore take one of two lines, a denial of the facts by a plea of not guilty, or a plea in justification such as self-defence, lawful authority, or the like.

LIABILITY IN TRESPASS

This was certainly the original nature of trespass, and as long as it was confined to cases which involved acts which must have been deliberate, there was little room for questions of liability to arise. A momentous departure was made when the common law began to admit what we may call constructive trespasses, and to remedy them by an action which hitherto had been confined to deliberate acts of violence in breach of the peace. The date of this revolution has not been ascertained, but it is very desirable that it should be, for we are clearly in the presence of a turning-point in the history of tort liability. The use of traditional formulae naturally tends to obscure the change. The beating, wounding, evil entreating, and other enormities continue to be alleged, but as words of court with purely artificial meanings. The persistence of the pleading rule that a defence of “not guilty” puts the facts in issue (and nothing else), and its corollary that proof of the facts is sufficient to condemn the defendant, must finally have raised the whole problem of liability. Such a change would hardly have been sudden, nor would purely technical trespasses have appeared immediately; we should expect, on the contrary, a gradual transition from the deliberate assault, through the accidental injury, and thence to the merely technical assault. Consequently, the problem of liability would only present itself gradually and in fragmentary fashion. Such cases become prominent when firearms are in general use;1 how much earlier they are to be found seems at present unknown.

If we turn to trespass to land, the same stages of development are discernible. The action of trespass in its original form was concerned with violent invasions by marauders, accompanied in most cases by serious assaults on the owner and his servants, and the forcible removal of cattle and stock. Such a state of affairs was common enough in the time of the barons’ wars, the period of the ordainers, and the Wars of the Roses. The admission of the plea that the close was not the plaintiff’s freehold but the defendant’s, introduced a technical element, however, by laying emphasis on the right of the plaintiff rather than on the tort of the defendant. Considerations of title thus became closely associated with trespass quare clausum fregit, and may be the explanation for the growth of highly technical trespasses to land. An early and very important example is the case in 1466 which is frequently cited all through the later discussions of liability.2 The defendant clipped a thorn hedge, the clippings fell on the land of an adjoining landowner, and the defendant entered and removed them. The question was, whether this entry was an actionable trespass (the falling of the clippings was not laid as a trespass in the pleadings, it seems, although it was discussed in the argument). Upon demurrer, a remarkable debate took place.

For the plaintiff it was urged that “if a man does something, even something lawful, and in doing it tort and damage are caused against his will to another, yet he shall be punished if by any means he could have prevented the damage”, or, as another serjeant put it, “if a man does something, he is bound to do it in such wise that no prejudice or damage thereby ensues to others”. The defendant seems to have set up the view that the trespass was justifiable, and that he could enter to remove the clippings, just as he could enter if his cattle had strayed from the highway to drive them out. This proposition was denied by Littleton, J., who declared that “the law is the same in small matters as in great”, only the damages might be slight in some cases. Choke, J., suggested that if the defendant had pleaded that the wind blew the clippings on to the plaintiff’s land, then the defendant would have been justified in entering to remove them. Among other points touched upon, a clear distinction was drawn between criminal and civil liability. Malice prepense was essential to felony, it was said, and an accidental wounding could be trespass, even if it were not felony.

Such was the discussion; Mr Justice Holmes said that judgment was given for the plaintiff, but the Year Book says nothing of judgment either way. The case is hardly authority for any view of liability for it contains no decision; the preponderance of opinion seemed to be on the side of those who urged that the defendant was liable, but the most significant thing of all is the way in which it was argued. It seems clearly to have been a new point, and although imaginary cases were put (and disputed) there seems no confident appeal to any settled rule. However, the numerous dicta in this case were repeated some years later and gained force in the repetition. Particularly, the remark about an accidental wounding while shooting at butts was repeated with approval1 and stands at the head of a long line of cases arising out of shooting accidents. A later age, therefore, concluded from this case of 1466 that the better opinion was that put forward for the plaintiff, and that liability attached for all harm done in the nature of a trespass, however involuntary, if it was “in any way” avoidable.

NEGLIGENCE AND TRESPASS

It is largely a matter of terminology how this standard of liability is described. It may be called “absolute” in that it is unconnected with the defendant’s intention, and it might be argued that the exception of inevitable happenings is tantamount to saying that the defendant did not act voluntarily. On the other hand, it has appeared possible to some to regard this exception as the source from which the idea of negligence entered into these discussions, especially since in modern times the test of inevitability has varied. Thus, if we regard results as inevitable if no reasonable care would have prevented them, then the “absolute” liability will be reduced to liability for negligence only. It is quite conceivable that such a transition took place, although the case of 1466 is perfectly clear in describing the plaintiff’s demand that liability attached if the defendant “by any means could have prevented the damage”. There is language in cases around the year 1800 which lends colour to this view;2 it may be that it helped, together with the procedural changes which Professor Winfield regards as being primarily responsible, in spreading the idea of negligence throughout the field of trespass.1

It seems, however, rather too high an estimate of this possible transition in the measure of inevitability to say that “there has never been a time in English law, since (say) the early 1500’s, when the defendant in an action of trespass was not allowed to appeal to some test or standard of moral blame or fault in addition to and beyond the mere question of his act having been voluntary”.2 Professor Winfield has collected a line of cases from the early seventeenth century where the defence of accident or misadventure was rejected as inadmissible.3 These seem to indicate clearly that the fifteenth-century standard of inevitability was still maintained.

If we look back we shall see that the flexibility of Anglo-Saxon law seems to have vanished with the advent of the common law. The early Year-Book period apparently contains no authority on liability for accident in trespass (although it was settled that no criminal liability attached). When we do find dicta, late in the fifteenth century, they state a rule which seems severe and inflexible, and in the time of Coke this is embodied in emphatic decisions. (At that very moment, as we shall see later, the liability of bailees was also greatly augmented.) The early seventeenth century seems therefore the age of greatest severity—and it is well to recall Holmes’ remark that if there ever was a period of “absolute” liability it was “in that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction”.4

If we look forward, we see no great development in trespass until the early nineteenth century. The old principle, enshrined in rules of pleading, was maintained. As we have indicated, there may have been a tendency for a moment to reduce liability by changing the standard of inevitability; but much more important were certain fairly old rules about cattle trespassing from the highway into adjoining land, for they were used as a guide in the multitude of traffic cases which are so prominent at the present time. Equally crucial are the procedural considerations which have led plaintiffs to abandon an action of trespass and bring case instead. We must now turn to the action on the case, therefore, and trace the principles of liability applicable to it.

NEGLIGENCE AND CASE

We have already suggested that the violent trespasses were the first varieties of quare action to acquire an independent existence. Of the large and varied collection which remained, some seem to have fallen out of use, others became independent actions in their turn, and the rest survived and were classified eventually as “actions on the case”. For a long time, case must have been an immense “miscellanea” in the classification of forms of action, and particular topics must have been put there because they would not fit in anywhere else, rather than because they had any logical connection with one another. Repulsion from trespass is therefore the main test, as soon as tests are thought to be desirable, and so we get the positive principle that direct assault to the person, and violation of the possession of chattels or land, constitute trespass; damage less direct, or damage caused by means less personal, will therefore be classified perforce as “case”. This view helped considerably when the damage was caused by the defendant’s omission. Thus if A “maliciously” breaks his own pool so that the water floods his neighbour’s land, trespass lies,1 but if A fails in his duty to clean his ditch or to repair his banks, and so his neighbour’s land is flooded, case will lie.2 Here we have an important admission that some sorts of inactivity which cause damage are actionable. There are, in fact, grounds for believing that the word “negligence” was first used in this sense: the defendant “neglected” to do something, and thus caused the damage.3

The primitive conditions which are seen in violent trespasses and thefts were perpetuated in the principle that trespass, like larceny, was a violation of possession; consequently a bailee could not “steal” the chattels delivered to him,4 and if he damaged them trespass would not lie either.5 He had not violated the plaintiff’s possession. The only remedy (apart from detinue) was case.6 Closely connected with this notion was the feeling that if I ask someone to do work on my chattel, or even to operate surgically or medically upon my person, trespass will not lie if ill betides. Indeed, it would seem that no action lay of any sort, for the plaintiff himself invited trouble. This position was turned by the development of assumpsit; the defendant will not be liable unless he “undertook” to produce a particular result. If he gave this undertaking and failed to carry it out, then the plaintiff can frame his case in the nature of deceit. The earliest example was one in 1348. The report is brief:

The case has some of the features of a new experiment. It was heard by bill while the King’s Bench happened to be at York, and so the record is less technical than it would have been on an original writ. The nature of the action is obscure. The bill seems merely to have stated the facts. Richmond’s objection seems to be that those facts prima facie might sustain an action of covenant, or an action of trespass; but since it alleges no covenant under seal, nor any use of force and arms, it does neither, and so the bill must fail as disclosing no cause of action. This dilemma between tort and contract henceforth appears with monotonous regularity in later cases, but its effectiveness as a dialectic device depends on the assumptions (which Richmond evidently had in his mind) that “tort” means only those wrongs which were actionable by trespass vi et armis, and covenant means only a covenant under seal. Baukwell was prepared to regard the facts as constituting a “trespass”—whether vi et armis or not, we are not told. According to the report the plaintiff alleged an assumpsit, but as we have seen, the judge declared that the action really was trespass.

The record, on the other hand, does not contain the word assumpsit although it does say that the defendant “ferryman” had “received the mare to carry safely in his ship”. The verdict further says that the boat was loaded “against the will of the plaintiff”. This seems to foreshadow the action of case against bailees, while the omission from the record of an express assumpsit, coupled with the description of the defendant as a ferryman, resembles the form used against those in common callings. All these indications of case are difficult to reconcile with the Year Book’s statement that Baukwell, J., held that it was trespass. Luckily the report is amply confirmed on this point by the record which shows that capias issued against the vanquished defendant. Now capias (which may lead to outlawry) was possible in trespass, but impossible in case.1 The report is therefore correct, and the bill was treated by the court as a bill of trespass, although from the point of view of later lawyers, it seemed an example of case on assumpsit.2

In the farrier’s case3 we get a stage further. The writ was brought “on the case” and did not allege force and arms, nor that the defendant acted maliciously but was upheld in spite of these objections. There was, however, no mention of an assumpsit, for the farrier’s is a common calling.

Other cases might also be considered, but their general effect seems to be that just after the middle of the fourteenth century it was not considered vital to distinguish the three forms of trespass, case, and assumpsit. That task was left for the reign of Richard II, and more particularly to the fifteenth century, which seems to have felt a special vocation for establishing logical distinctions. As a result of that development, assumpsit became in effect contractual;4 and so we are left with trespass on the case.

Assumpsit left its mark, even on some of those types of trespass on the case which did not continue to allege it. When brought against physicians and horse-doctors, in particular, there was a tendency to insert in the writ and the declaration an allegation that the defendant had acted “negligently and recklessly” or similar words.5 At first these words seem to be merely an example of that solemn abuse of the defendant which we expect in mediaeval pleadings,6 but gradually they acquire a meaning; moreover, they seem to profit by an ambiguity, for by this time case was available where the defendant had “neglected” to do a duty (such as enclose, or repair, his property). Hence the combination of negligent action and passive inaction covers a fairly large part of the ground included in “case”. The trees were familiar to English lawyers long before they formed an idea of the wood, and not until 1762 did it occur to the compiler of an abridgment to collect material under the heading “action on the case for negligence”. As Professor Winfield remarks, “Comyns was not writing the law of torts; he was trying to classify remedies”.7

By 1800 “case for negligence” was a common expression, and it began to be said that the action was actually based upon negligence.8 Thenceforward it became possible to argue that negligence was an independent tort.

VICARIOUS LIABILITY

So far, we have been concerned with the liability of a man for his own acts, intentional or unintentional. We now have to consider the liability which he may incur for the acts of others.

Even criminal law occasionally visited the sins of the fathers upon the children. The traitor’s and the felon’s issue were disinherited, and the wife and children of a juryman convicted by attaint were to be thrust out of their homes. Indeed, the converse has also been maintained, and Dean Wigmore has argued that parents and masters were liable for the crimes of their children and servants. There certainly was some liability for the crimes of a slave, one passage suggesting that it could be discharged by the noxal surrender of the slave or his redemption at a fixed price.1 The institution of slavery, however, has left little mark on our law, and most of what we find in earlier sources on masters’ liability is rather of a police nature; the master must produce any members of his household in court if they are wanted. If he fails, the master may be pecuniarily liable.2

The liability of husband for wife, parent for child, and master for servant is a broader question, and needs a little comment. Dean Wigmore has collected a typical sample of the material.3 From it he concludes that “there certainly was a time when the master bore full responsibility for the harmful acts of his serf or his domestic”,4 although by the Norman period there was an “idea that it made a difference whether the master consented to or commanded the harm done by the servant or other member of his household”.5 It made so much difference that it seems more natural to state the law in the converse, i.e. the master (like everyone else) is liable for acts he commanded, or subsequently ratified. If he proves that he did neither the one nor the other, he is quit. But (and this is important) he is very frequently put to his proof, for the thirteenth century in its wordly wisdom gravely suspected the master of complicity in the servant’s misdeeds; so gravely, in fact, that it often imposed upon him the burden of proving his innocence. Such a suspicion, based upon a shrewd knowledge of contemporary society, is quite different, however, from a rule of law making the master criminally or civilly liable. Such cases are fairly common in local courts, but are hardly to be found in the King’s Court. Indictment before the King’s justices was a more serious and risky proceeding than a presentment or a plaint in a leet, and so we need not expect to find the King’s Court systematically applying a presumption of the master’s complicity whenever a servant is before the court. If the master is to be reached, it must be on a clear charge of being a principal or an accessory, and this later became the view even in local courts.

The attitude of the King’s Court is well illustrated by the picturesque case of Bogo de Clare in Parliament in 1290. Having a suit in an ecclesiastical court against the Earl of Cornwall, Bogo obtained a citation which was served on the earl as he was walking up Westminster Hall to Council. This was to the manifest contempt of the King, who laid his damages at ten thousand pounds.1 Bogo had hardly got out of this dangerous situation when one of his own adversaries tried to serve a citation in Bogo’s own house. Bogo had just learned that citations were distasteful to the King, and his lackeys promptly made the apparitor eat his process, parchment, wax and all.2 Bogo had not realised that circumstances alter cases, and found himself defending an action of trespass in Parliament.3 His defence is an important text for our purpose, for he took the line that he was not liable for a wrong that his servants had done, and demurred. The plaintiff was examined and admitted that Bogo himself neither committed nor ordered the threspass, and so Bogo had judgment. He still had to answer the King for the breach of Parliament’s and the King’s peace by men in his mainpast. He mustered all his retinue, but the authors of the outrage had fled, and the others swore that Bogo knew nothing of it and never commanded it, and so the affair died down, as nothing could be done to Bogo criminally until the principals had been convicted.4

One who had others in his mainpast was under an obligation to secure their attendance if a charge was brought against them. In some places it certainly was a custom to exact a payment from the mainpast if there was a conviction.5 But it is equally clear that the mainpast could defend a criminal charge by proving that he neither commanded nor condoned the offence.6 The King’s Court did not tolerate these notions. In 1302 it held that fining the mainpast was illegal,7 and in 1313 Staunton, J., declared “let those who have done wrong come and answer for their own misdeeds”.8

We therefore do not feel justified in saying that a master was criminally liable for his servant’s acts, save in the obvious case where he commanded them or approved them. Was he civilly liable? There is only one passage in the borough custumals on the point, and that comes from Waterford, where there was a rule that a citizen was liable for damage done by his apprentice, just as for his son who is of age (i.e. able to count twelve pence).1 This is very meagre evidence for the proposition that mercantile custom held masters liable for their servants’ torts. Hardly more illuminating is an oft-quoted passage in the statute of staples, which according to one view “states the general principle applicable to the master’s liability for the torts of his servants”, by abolishing liability formerly imposed by mercantile custom.2 The statute says:

The master’s liability here mentioned can only mean such liability as that of the master of a ship for the acts of his crew, which was being laid down at this moment in maritime jurisdictions.4 But the most common case of the loss of goods which the statute remedies is of quite a different nature. The Crown was constantly straining the law of forfeiture, and had obtained decisions that if a bailee incurs a forfeiture, the goods bailed to him are liable to it and the merchandise in his hands goes to the Crown.5 So, too, a thief on conviction forfeited the stolen goods to the Crown.6 Some boroughs had succeeded in maintaining a custom that the rule should not apply to them, and others got charters exempting them from its operation.7 It was this indefensible rule which the statute finally abrogated for the whole country. As often happens,8 the statute did not deal with the whole question, but only with one particular case—that of a servant. The Cinque Ports alone at this time had a general rule that bailed goods are not forfeit by the felony of the bailee.9 One thing is clear, and that is that the object of the statute was not to change the law of liability (mercantile or common law), but to relieve merchants from a strained application of the law of forfeiture.1

Down to the close of the middle ages, therefore, the common law had stuck to its simple principle. A man is liable for his own voluntary acts, but he is not liable for his servant’s acts unless they have become his own, by reason of his previous command or subsequent ratification. There were few exceptions. The innkeeper was liable for the harm done by his servants, but that is only incident to a still wider liability; so too, there was the liability of a householder for a fire started by his servant; the liability of a shipmaster for his crew belongs, on the other hand, to a completely different line of history.

RESPONDEAT SUPERIOR

In its best days, the common law has always been willing to moderate its rules where public policy requires, and the establishment of the principle of respondeat superior is a good example. A long line of statutes deals with the problem of the oppressive official—sheriff, under-sheriff, escheator, gaoler, bailiff, etc. The sheriffs themselves were not above reproach, but their underlings bore a thoroughly bad reputation in the middle ages. It was useless to make them civilly liable to injured members of the public because in many cases the underlings were themselves men of little substance, and if a defendant had no considerable land within the county there was little prospect of enforcing a judgment for damages against him. The legislature therefore set up the rule that if the underling of certain public officials was insufficient to satisfy a judgment, then his superior should answer.2 This liability is therefore only applicable to public officials3 and not to employers generally, and it is only a secondary liability which comes into play when the original defendant is unable to satisfy judgment.

GROWTH OF THE MODERN RULE OF EMPLOYER’S LIABILITY

As late as 1685 the courts were clinging to the mediaeval rule that if a master orders his servant to do something that is lawful, and the servant “misbehave himself, or do more”, the master is not liable in trespass.4 With the advent of Lord Holt, the mercantile law (with which he was specially familiar) began to exert through him a considerable amount of influence on the common law’s doctrine. In a shipping case, Holt took the opportunity of laying down a general rule—“whoever employs another is answerable for him, and undertakes for his care to all that make use of him”.1 As a principle, the rule was clearly maritime (and eventually Roman); but the introduction of a strange rule can hardly take place unless plausible arguments can be produced tending to show that it is conformable to some things already established in the common law, and fortunately those excuses were easily found in certain rules about common callings, liability for fire, the respondeat superior rule, and the ratification which could be inferred if the master profited by the servant’s tort. Holt was willing to place the development on the broadest basis of convenience and public policy; others took refuge in various technicalities according to their taste or learning, and even Blackstone preferred to base an employer’s liability on a variety of separate considerations rather than on the general policy of social duty.2

Even in the middle ages there were a few special situations in which the general rules of liability were modified, and a few words about them will illustrate the policy of the common law.

THE BAILEE’S LIABILITY

This subject has been much controverted, and has several features of special interest.3 Before the time of Bracton it is difficult to deduce any settled rule out of the few cases available.4 It is clear that a bailee could bring the appeal of larceny against a thief; this is a natural development, for, as we have seen, the appeal was a procedure which grew up as a result of the normal actions of persons who have lost chattels. The bailee who discovers that the chattels bailed are missing, will, of course, begin to look for them, follow the trail, raise the neighbours, and consequently challenge the thief and claim the chattels. Similarly, if need be, he can replevy them. This perfectly natural procedure has been translated into terms of legal theory by saying that “the bailee, because he was possessor, had the rights of an owner as against all the world except his bailor”.5 This is certainly true, but confusion crept in at an early date, for some of the cases show the bailee supporting his appeal (perhaps unnecessarily) by the further statement that he had paid (or ought to pay) compensation to his bailor for the loss.6 It seems a little hazardous, however, to make the further deduction that “the bailor, by reason of the bailment, had lost his real right to the chattel, and could only assert his better right by a personal action [sc. detinue] against the bailee”,1 for we find a case2 where the bailor seems to bring the appeal against the thief, offering to prove by the body of the bailee from whom the goods were stolen, and who was bound to repay them to the owner.

It has likewise been maintained that the liability of the bailee was absolute, both before and after the time of Bracton. There is singularly little evidence for this proposition,3 which must be regarded at present as conjectural.

When we come to Bracton we find a difficulty which is so typical that it deserves mention, not only as part of the history of bailees’ liability, but also as illustrating the Bractonian problem in general. Bracton has an elaborate classification of bailments and says that in some cases the bailee is liable for fraud and negligence only.4 What are we to conclude from this? Is Bracton stating Roman law on a point where English law had not yet reached a decision, or is Bracton stating real English law, although in Roman terms? No amount of study of Bracton will settle this, for until we have independent evidence of the English law of Bracton’s day, we must remain uncertain of how far we can take Bracton as stating current law and not merely his own Romanesque speculations. The principal situation which would raise the question is when the goods have been stolen from the bailee without his connivance and without his negligence. There is one early case where the bailee’s defence was that the goods had been stolen when his house was burnt, but unfortunately judgment was given on default without discussing the point.5

The pre-Bracton law of bailment is very obscure. It is easier to speak of the two centuries following Bracton, and they seem to contain clear evidence that the bailee’s liability was not absolute. Britton states as law that the borrower of a chattel is not liable for fire, flood or theft unless they were due to his fault or negligence.6 Such a defence was actually allowed7 in 1299. Another case in 1315, once obscure, but now clarified by the printing of the record by the Selden Society,8 shows conclusively that theft without the default of the bailee was a good defence. Further cases in 1339,1 13552 and 14313 confirm this, and in view of such a line of authority it seems difficult to maintain that “these attempts thus to modify the liability of the bailee never materialised”.4 The evidence seems rather to support the view that the attempts were successful for nearly two centuries after Bracton.

Unfortunately, the peculiar nature of the Bractonian problem prevents us from saying whether there is clear continuity from the pre-Bracton period, for there is still, perhaps, the unanswered question whether Bracton was truthfully stating the law of his own day. If this was not the case, then there might be the possibility that the post-Bracton cases were in fact decided on the strength of his Romanesque exposition of the subject. A further element of ambiguity is suggested in the Harvard manuscript of Brevia Placitata, where it is alleged that a distrainor may be legally liable for accident, and yet escape by taking the general issue and trusting the jury to be lenient in the matter of damages.5 It is, of course, very rarely that an experienced and crafty practitioner affords us so fascinating a glimpse of mediaeval law in action.

Be this as it may, it seems clear that from Britton down to 1431 it was familiar doctrine that a bailee was liable for fraud and negligence only. Just after the middle of the fifteenth century the discussion took a different turn. It had been settled for centuries that a bailee could sue a thief or a trespasser, and from time to time it had been suggested that this right to sue was perhaps based, not on his possession, but on the fact that he was liable to the bailor.6 This view was argued in the famous Marshal’s Case7 in 1455. It was agreed that the marshal of a prison was in the position of a bailee, and was liable as a bailee to the party on whose process the prisoner had been committed. In this case, the plaintiff sued the marshal of the King’s Bench prison for damages on the escape of a prisoner. The defence was that a multitude of the King’s enemies8 broke the prison and allowed the prisoners to escape. The argument which is reported shows one point clearly—that the bailee is not liable for the act of God or of the King’s foreign enemies. Apart from that everything is obscure; the debate is fragmentarily reported, the Year Book gives no decision, and the record shows that none was reached, although the case was several times adjourned. The Marshal’s Case, therefore, contains few dicta, and no judgment, and consequently is historically worthless. The one dictum of interest was a converse form of the liability-over theory. As Danby put it, the bailee was liable because he had a right of action against a thief or trespasser, and therefore he was liable for everything except act of God or the King’s enemies, in both of which cases he obviously had no action and therefore no liability.

The stream of dicta continues during the reign of Henry VII and through the sixteenth century until Southcote’s Case in 1601. As Dr Fletcher remarks,1 “it is significant that before that case there is no actual decision holding an ordinary bailee liable for loss, such as theft, occasioned without any fault or negligence on his part”. There are several reports,2 which is fortunate, for Coke’s seems to have been somewhat embroidered. It seems that the only authority relied on was the Marshal’s Case, which the court apparently regarded as having been decided for the plaintiff. The facts were simple. To detinue, the defendant pleaded that the goods had been stolen. The plaintiff replied that the thief was in fact the defendant’s servant, but no stress seems to have been placed on that aspect of the case, and in fact the replication alleging it was held by the court to be “idle and vain”. Judgment was given on the plea, and for the plaintiff. Absolute liability was at last recognised in unequivocal terms by the court of King’s Bench, and at a moment (as we have seen) when liability in other directions was being increased.3

The classifications of bailments attempted by Glanvill and Bracton did not commend themselves to the common law courts, and so for a long time we had but one rule applicable to all bailments. One apparent exception—servants and factors, who were excluded from the category of bailees—was due to a procedural accident, for in the action of account those who were accountable were not liable if the goods entrusted to them were stolen without their default.4

As a result of the rule in Southcote’s Case, prudent bailees made express stipulations limiting their liability, as Coke in his note appended to the case recommended them. This in itself compelled some rough classification of bailments such as was familiar to the learned from Bracton, and to all from Doctor and Student,5 whose author went even to the Summa Rosella for neat examples. This ferment of new ideas and new practices soon began to unsettle the law of Southcote’s Case; the replacement of detinue by assumpsit, moreover, threw emphasis on negligence (and later on contract). Consequently, in spite of the apparent finality of Southcote’s Case, Lord Holt had the opportunity in the case of Coggs v. Bernard6 of treating the entire question as open, and of mapping out the whole field of bailment in the light of Bracton’s learning, which was thus tardily received into the common law. His historical investigation showed that there was no authority for the decision in Southcote’s Case, and for its single rigid rule of absolute liability he substituted several rules requiring standards of care suitable to the different sorts of bailment.

It having been now made clear that there was no absolute liability of bailee to bailor, the suggestion which was frequently made, especially in the seventeenth century, that the bailee’s right to sue was based on that liability over, presented difficulties. That doctrine was still adhered to in 1892, but in 1902 the Court of Appeal held that the ultimate historical basis was the bailee’s possession, as Holmes had long ago demonstrated, and abandoned the alternative which had tempted lawyers for over six hundred years.1

COMMON CALLINGS

It is characteristic of our mediaeval law that although it did not classify bailments, it did classify bailees, and imposed special liabilities upon people who had a special status by reason of their occupation. Carriers, innkeepers and farriers are well-known examples. The legal explanation of their onerous liability has exercised many minds, and one of the greatest of modern common lawyers urged that it was merely a survival of the absolute liability which once lay upon all bailees.2 Simple and attractive, this theory has nevertheless been criticised by several scholars, notably Professor Beale.3 One branch of this argument we have already examined, with the results that we gravely doubt whether absolute liability was a part of our earliest law, that we are fairly sure that it did not prevail in the fourteenth and fifteenth centuries, and that its first absolutely clear appearance is in 1601.

Now the special liability of those engaged in common callings begins to appear at a time when our evidence is clearest that the bailee’s liability was only for fraud and negligence.4 We have already mentioned the action of assumpsit which lay against one who was entrusted with a chattel to do work on it, and whose faulty workmanship resulted in loss or damage.5 This action was available against all bailees, whether professionally or only casually engaged in work of that kind. As we have seen, it was based on the assumpsit—the express undertaking to employ proper skill and care and to obtain a particular result. Gradually a modification in the form of the writ indicated a somewhat different attitude. Instead of counting on an assumpsit, the plaintiff counts on “the custom of the realm” which he chooses as the basis of his action. The defendant’s undertaking (or the absence of an undertaking) is therefore immaterial, and it is to the “custom of the realm” that we must look for his liability. A very early case1 was against an innkeeper, thus:

It will be noticed that it is a writ of trespass, but “he had a writ on all the matter according to his case”. In short, it comes at the moment when case is being distinguished from trespass. The discussion as to whether capias should issue shows the anomalous use of the words “guilt” and “tort” at this moment. It will also be noticed that the count alleges negligence in the form of “default of keeping”. In time it becomes clear that the allegation of negligence means less than it would seem. The early distinction is clearly that one in a common calling is liable without an assumpsit. Later there was the question of the extent of his liability. In the case of the innkeeper it was early established that his liability exceeded that of the contemporary bailee, but the similar case of the common carrier was not settled until much later. It may be doubted whether transport by land was a regular trade in the middle ages. Surviving family names indicate the commonest trades of the middle ages, but although we have numerous families of Bakers, Taylors and the like, we seem to have no Carriers.1 The Carter was a manorial tenant, and the Porter probably had an even narrower range of activity. As for carriage by sea, merchants still generally travelled with their cargo and supervised the handling of it.

The first mention of the common carrier as being in a peculiar legal position seems to be in Doctor and Student, where his liability is equated with that of other tradesmen who are liable for negligence.2 In the seventeenth century the cases show that his liability is stricter, and that he must answer for theft even if he has not been negligent.3 The influence of Southcote’s Case may well be suspected here. In admiralty, the carrier was not liable for theft except by the crew,4 but the common law was capturing admiralty jurisdiction and soon treated sea carriers as common carriers subject to the custom of the realm.5

It was in Coggs v. Bernard that the carrier’s liability received fullest and most reasoned treatment. The negligence alleged in the count was now clearly otiose and had lost its original meaning; the limits set by Lord Holt are the mercantile exceptions “act of God and the King’s enemies”. In Holt’s day these exceptions were construed liberally, and seem to have meant “inevitable accident”. Nearly a century later, a serious change was made in the interpretation of the ancient, but unfortunate phrase “act of God”, by Lord Mansfield. In Forward v. Pittard6 he treated the words literally (as he conceived it), confined them to a few rare meteorological phenomena, and held a carrier liable for what was certainly an inevitable accident. More than that, he used a striking phrase which has ever since been quoted as marking this, the high-water mark, of carrier’s liability: “a carrier is in the nature of an insurer”.

CHAPTER 5

DEFAMATION

There are few chapters in our legal history which illustrate so many different aspects of historical development as does the history of defamation. Germanic elements, Roman elements, the rise and fall of courts, constitutional conflicts, mechanised printing, and later still mechanised distribution of printed matter, have all played their part in producing the body of law which historical accident has divided into the two categories of libel and slander.

SLANDER IN ANGLO-SAXON LAW

In common with most of the Germanic systems, Anglo-Saxon law was particularly concerned with insulting words addressed by one person to another. This was an offence which it punished with severity, sometimes with the excision of the tongue.1Bot and wite were due for certain terms of abuse before the Conquest, and long after the Conquest local courts frequently entertained cases of insult; such jurisdiction was naturally left to the local courts, for they alone could secure amends before the same community that had witnessed the affront. Such amends were a fine, and sometimes a humiliating confession. Thus at Preston, in England, as well as in Normandy, the offender must hold his nose and call himself a liar.2

SLANDER IN CHURCH COURTS

The Church exercised criminal jurisdiction over many matters which modern law has relinquished to the forum internum. A great deal of scandalous gossip about the private life of one’s neighbours, and a good many obscene and abusive expressions, were therefore in a special category, for they might have the effect of putting a person upon his trial before an ecclesiastical court.1 The Church no doubt regarded defamation of this character as dangerous, mainly because it led inevitably to the abuse of her criminal procedure.2 Indeed, the very word “defamation” is a technical term in church law, signifying that evil reputation which is sufficiently notorious to put a man on his trial. Mere rumour is not sufficient.3 The diffamatus is thus a person whose reputation is so bad that it serves as an accusation; but if as a result of the trial he is acquitted, then clearly his ill-fame was unfounded, and those who spread the calumny have themselves committed a crime: “furthermore, we excommunicate all those who for lucre, hate, favour, or any other cause maliciously impute a crime whereby anyone is defamed among good and grave persons in such wise that he has been put to his purgation at least, or otherwise aggrieved”4 —thus Stephen Langton enacted in 1222 at the council of Oxford, and we have already seen traces of the application by the Church of this principle to members of a grand jury whose indictments were not followed by conviction.5

SLANDER IN LOCAL COURTS

Gradually it becomes apparent that local courts are giving remedy for words which are not merely insults addressed to the plaintiff, but rather statements to his prejudice addressed to other persons. The remedy also takes the form of a civil action for damages rather than that of a prosecution for a petty misdemeanour.6 Thus in the manorial court of King’s Ripton, a plaintiff alleged that the defendant uttered defamatory words about him to a third party, and also sent a defamatory letter concerning him to another, with the result that he suffered general damage of 20s. and special damage of 30s. in respect of a lease which was not renewed.7 Still more interesting is a case in 1333 where the county court of Bedford tried an action in which the plaintiff alleged that the defendant called him a false and faithless fellow, whereby he was prevented from raising a loan which was being negotiated.1

SLANDER IN THE KING’S COURT

For serious matters, the church courts were the most practicable jurisdiction.2 The King’s courts were prepared to admit this—up to a point. In 1285 the writ called Circumspecte Agatis (which soon was reputed a statute) confirmed the principle that the punishment of defamation as a sin (i.e. by the Church’s criminal procedure) was not subject to prohibition from the temporal courts; an exception was made, however, if “money is demanded” (i.e. in the civil proceedings for damages), and in that case prohibition presumably would lie.3

Ten years later a lively dispute in the King’s Court in Ireland which (against all the rules of pleading) finally developed into an appeal of treason was called to England and the process quashed because it had begun as a complaint of defamation, “and in this realm it is not the practice to plead pleas of defamation in the King’s Court”.4 This statement in fact needs qualification. No doubt it is true that the King’s Court would not follow the example of local courts, and when A. and B. have exchanged abuse, settle the damages due for each epithet, and determine the balance on account which remained to be paid.5 But the King, like other lords, could not stand by while someone was saying that “there is no justice in the lord’s court”,6 nor could he tolerate similar statements about his principal officers. In 1275 we therefore find the beginning of a line of statutes creating the offence of scandalum magnatum, the slander of magnates.7

THE SLANDER OF MAGNATES: SCANDALUM MAGNATUM

The course of a statutory remedy or offence may sometimes be quite unexpected. Thus scandalum magnatum begins with a statute of 1275 which enacted that one who publishes false news or scandal tending to produce discord between the King and his people or the magnates shall be kept in prison until he produces in court the originator of the tale.1 The statute was therefore essentially political in its nature, and succeeding legislation retained this characteristic. In 1378 the hundred-year-old statute was re-enacted, the word “magnates” being glossed as peers, prelates, justices and various named officials.2 The moment was one of restless intrigue, much of it centring round John of Gaunt, and three years later came the Peasants’ Revolt (1381), in the course of which (it is said) a demand was made for the repeal of the statute.3 This would suggest that the statute was not a dead letter; it was in fact re-enacted shortly afterwards, in 1388,4 with a very important additional clause that offenders may be punished “by the advice of the council”.

The statutes, therefore, are still political in scope, and criminal in nature. There is very little evidence of the working of these statutes during the middle ages, but cases begin to appear in the common law courts under Elizabeth. This is perhaps connected with the fact that the statutes on scandalum magnatum were once more re-enacted5 in 1554 and again6 in 1559, but with additional clauses on “seditious words”; justices of the peace were given jurisdiction, and the punishment was loss of ears for words, and of the right hand for writings. Towards the middle of the sixteenth century scandalum magnatum came under the influence of the doctrine that if a statute prescribes a punishment for acts which cause harm to others, then the injured party can have a civil action for damages in respect of breaches of the statute, even though the statute makes no provision for a civil remedy. It was the civil side of scandalum magnatum which the common law courts developed, and in doing so they established several harsh rules. Thus, words which were too vague and general to support an action for slander at common law would support an action on the statute; consequently vague criticisms or expressions of dislike or disrespect, although they did not make any definite imputation, were actionable if spoken of a “magnate”. Moreover, the defendant could not justify by pleading that the words were true, in spite of the fact that the statute only penalises “false news and horrible lies”. The young Mr Coke, a few months after his call, did indeed hold a brief—his first in the King’s Bench—for a neighbour in which he succeeded in getting the court to allow a sort of explanation to be put in, tending to show that the words were susceptible of another meaning,1 but the position of defendants was very little strengthened by the concession.

The common law courts were therefore slow to apply the statutes relating to scandalum magnatum, and when they did do so they were most interested in the civil action based upon it.2 The criminal aspect of the matter, as the statute of 1388 makes clear, was pre-eminently the province of the council, and it is unlikely that the justices of the peace would be allowed much scope for the independent exercise of their statutory powers under the act of 1559. The throne of Elizabeth was too unsteady, and the political situation much too dangerous for the council to resign the trial of political offences into the hand of the country justices. The council, therefore, and more particularly the Star Chamber, employed themselves in dealing with the slander of peers and seditious words and writings. It is well known that the Star Chamber made frequent use of the cruel punishments of mutilation for these offences, but it should be remembered that there was some statutory sanction for them. If this fact is often forgotten, it is because the Star Chamber itself was loth to rely upon legislation. This policy was particularly evident under James I and Charles I, when on several occasions an exercise of the prerogative which was quite defensible on strictly legal grounds was in fact defended on the much more debatable grounds of “absolute power”. Bate’s Case is a well-known example;3 another is the case De Libellis Famosis,4 which Coke prosecuted as Attorney-General and subsequently reported. It was clearly within the definition of scandalum magnatum, yet this offence is not expressly mentioned; the court also referred to the possibility of mutilation, but avoided mentioning the statutes of 1554 and 1559. Instead, the Star Chamber laid down some general propositions on libel, private and public, which were evidently based on civilian learning. Rather than rely on statute, the court laid it down that “libelling and calumniation is an offence against the law of God”, and sought their legal basis in Exodus and Leviticus. Roman law had distinguished between the defamation which could be remedied by a civil action, and the libelius famosus which it visited with extraordinary punishment. The Star Chamber apparently used this latter conception to extend, far beyond the bounds of the statutes, our native scandalum magnatum.

THE BEGINNINGS OF LIBEL

Coke himself is credited with the rapid increase of libel cases in the Star Chamber while he was Attorney-General,1 and it is clear that he was deeply interested in both branches of defamation.2

Looking back from the year 1605 we can see that the law has not yet advanced very far. The distinction between libel and slander has not yet settled at the place where it now rests, and it is hardly clear where it will ultimately lie. At this moment, libel is obviously a crime, and, as we shall see a little later, slander was obviously a tort. The crime was punished principally in the Star Chamber; the tort was actionable mainly in the courts of common law. For the origins of libel we have to go to the obscure mediaeval offence of scandalum magnatum which had definitely political origins. The events of the Barons’ Wars left a sufficient crop of rumours and scandals (of which we have a surviving example3 ) to make the first statute of 1275 desirable. The feverish years of Richard II, with their mischievous tales of financial corruption, called for the re-enactment and extension of the offence and its association with the council—which is perhaps the reason why the ordinary sources for legal history tell us so little of scandalum magnatum during the middle ages. The troubles of the Reformation made it necessary for Mary to reaffirm the old legislation with the significant addition of a clause dealing with seditious words. Elizabeth, immediately on her accession, re-enacted Mary’s statute, but later in her reign there took place a rapid development of a curious sort: the common law courts gave a civil action for damages on scandalum magnatum, but the Star Chamber concentrated mainly on the crime, preserved the spirit of the statutes (although abandoning the letter), and borrowed the name, and some of the principles, of Roman law, thus creating the crime of libel, which it henceforward will develop in a logical fashion.

THE SOURCES OF THE LAW OF LIBEL

The sources from which libel sprang are therefore very diverse. On the one hand we have the ancient Germanic insistence upon personal prestige, which gives us the punishment of insults in local courts, and which, in the crime of scandalum magnatum, left a very definite mark in the fact that words derogatory or disrespectful were actionable (or criminal) if spoken of a peer, although they were not otherwise defamatory. This irresistibly reminds us of the fact that there was once a tendency for ordinary persons to treat almost any tort as a personal affront: the abbot of Bury will complain in the King’s Court that the bishop of Ely infringed his liberty “so that the abbot would not have the shame which the bishop did him for £100, nor the damage for 100 marks”,1 and in local courts such allegations of shame are very common.2

The ecclesiastical element is discernible in the early law of libel, but its influence was greatest (as we shall see) in the law of slander. The Star Chamber pleadings in print show that as early as 1493 that court entertained complaints of defamation of private persons,3 and it is curious to note how constantly defendants plead that the plaintiff’s bill is “seditious and slanderous”;4 malicious prosecutions and complaints before the prerogative courts were very frequently alleged as an argument against the jurisdiction which they exercised, and it may be that these courts were led to take notice of defamation of private persons in consequence of their suspicions that their procedure was particularly liable to be misused. As we have seen, malicious prosecution and defamation were closely connected in the church courts.

The greatest element in the formation of libel law, however, was political. Down to 1605 the main thread is the obscure history of scandalum magnatum. The statutory changes in this crime were apt to occur at moments when treason also was being extended, and the statutes of Mary and Elizabeth treated the crimes of “public libel” (scandalum magnatum), “private libel” and sedition as being substantially the same, or at least closely related.

The Roman element appeared at a critical moment. Libel having become primarily a political offence, it immediately became involved in the early Stuart mysticism of the Crown, and for centuries there had been a temptation to turn to Roman law when the arcana of government were under discussion. Naturally it was in the Star Chamber that the experimental work took place, but the eagerness of the common law courts to share in it is worthy of notice. In 1606 Coke asserted that libel could be prosecuted on indictment as well as in the Star Chamber, and already the common lawyers had extracted from the statute a civil remedy for the slander of nobles.

THE LAW OF LIBEL, 1605-1641

The generation between De Libellis Famosis and the abolition of the Star Chamber was the period during which the foundations of the modern law were laid down. The old distinction between public and private libels, even more than the distinction drawn in the statutes, helped to separate seditious from other libels. The vague authority of the law of God is gradually replaced by the alternative theory that libels are punishable because they disturb the State (if directed against magnates and magistrates), or because they provoke a breach of the peace (if directed against private individuals). This was by no means a fictitious or merely technical justification; the great vogue of the fashion of duelling at this moment seems to have given cause for great concern to the government. Already, too, it was settled that truth was not a defence. This was a break with Roman authority, and also with the construction which would seem required by the English statutes; the excuse given for the rule is that a grievance should be redressed by law, and not by the party himself using force, or circulating extra-judicial accusations. As this period progresses, there are signs of the modifications of this rule. Hudson (writing before 1635) states that spoken words (even against a magnate) can be justified by showing their truth, but written words are punishable in respect of the very fact that they were written.1 Here we seem to see the influence of certain ordinances against writings and printed books which we shall mention later. The theory seems to regard writing as so deliberate an act that writing defamatory matter was criminal; words, on the other hand, were felt to be more spontaneous and irresponsible, and so justification could be pleaded. The rule as stated by Hudson is, of course, chiefly noteworthy as being an early sign of the different treatment of spoken and written defamation.

We are not yet at the point when libel and slander were distinguished along modern lines. Words still could be treated as libels,2 and writings were actionable at common law as slander.3 The distinction as yet is primarily one of courts and procedure. Action on the case for slander was clear and definite; it was in the Star Chamber that the newer and vaguer body of law was developed under the heads of scandalum magnatum, libel and seditious libel, which in the end coalesced into the law of libel. Hudson’s distinction is certainly one indication that the rules of libel apply particularly to written defamation, and it may be that the distinction is itself a reflection of the fact that slander at common law had a different rule which in practice was generally (although not always) concerned with spoken words. Hudson’s distinction may therefore be the result of common law example influencing the Star Chamber.

One other point calls for notice. The Star Chamber was not confined altogether to its criminal jurisdiction, and in cases of libel the court sometimes gave damages to the injured party as well as imposing a fine on the offender.

ACTION ON THE CASE FOR WORDS

So far, we have traced those elements which contributed to the formation of a law of libel. It is now time to examine the other line of development which culminated in slander.

At the beginning of this chapter we gave some examples from local courts. They are of two distinct orders. In some of the cases the plaintiff is complaining of words which he regards as affronts and insults; in others, the plaintiff asserts that he has suffered in loss of money rather than loss of pride. Hence we find that defamatory statements which result in the breaking-off of business negotiations could be made the subject of an action for damages in the manorial or the county court. When the common law courts began to entertain actions for slander, they made provision for both types, but only slowly did they devise special rules for each.

The early cases are all of them interesting from different points of view. Thus, the first reported case1 on defamation in the Year Books arose because one Lucy called Seton, J., a justice of the common pleas, who was entering the exchequer for a council, “traitor, felon and robber”. Seton proceeded against her by bill demanding £1000 damages. A jury of attorneys found her guilty but reduced the damages to 100 marks. The court, however, reserved the question whether the damages should be arrested. Several cases late in the fifteenth century allege that the defendant defamed the plaintiff by calling him his villein. In 1462, for example, a plaintiff counted that the defendant “contriving to prejudice the plaintiff’s name and fame and to get his goods and lands, published and affirmed that he was the defendant’s villein” and lay in wait to catch him, whereby the plaintiff was prevented from going about his business.2 It seems to have been agreed by all that the action would not have been good unless the plaintiff said that he had been impeded in his business. Whether this means that the defamation is only actionable if special damage is pleaded, or that the defamation is not itself actionable unless accompanied by another tort, was left conveniently obscure.

Later in the reign the matter was raised again in a case which lasted several years. In 1475 a plaintiff3 used exactly the same sort of count as we saw in 1462. The defendant had difficulty in framing a plea,4 but eventually issue was joined on the plaintiff’s status, and a jury found that he was free. Judgment for damages therefore followed. Two years later the case came up to the King’s Bench on a writ of error.1 After long debate, Billing, C.J., and Needham, J., both agreed that “there are divers cases in our law where one may have damnum sine injuria; thus the defamation by calling a man thief or traitor is a damage to him in our law, but no tort”. Even so, the court reserved its judgment, “for as much as this is the first time this matter has been argued”. Nothing further is reported. The general trend of the argument in the King’s Bench seems to be that the defamation may aggravate a trespass, but is not a cause of action in itself; in this particular case, the principal trespass alleged consisted merely of threats, preparation and intention. Even admitting that the plaintiff was consequently unwilling to go out of doors, there was great doubt whether an action lay.2

Meanwhile, the common law courts looked with jealous eyes upon the jurisdiction of the church courts over defamation. Prohibitions were issued freely in the reign of Edward IV, and in one case3 we have the interesting remark that “if a man has robbed me, and I afterwards tell it in the hearing of other people, and he then would sue me [for defamation] in court christian, I shall have a prohibition, for I might have had an appeal”. This seems to be the first indication that the King’s Court will prohibit defamation suits in church courts where the imputation was a crime cognisable in common law courts. If once this position was established, then it would soon become necessary for the common law courts to give remedy for those defamations which they forbade the church to deal with. The development therefore follows the line that (a) an imputation of a crime cognisable in the common law courts ought not to be treated by the church as defamatory, for the church might thereby impede the right of prosecuting at common law;4 it was soon afterwards observed (b) that even in cases which did not involve defamation a defendant might try to justify a trespass, for example, by alleging matter of a spiritual nature,5 and cases of this sort gave a great deal of trouble, but their ultimate effect was to make it clear (for a time at least) that a court could not usefully meddle with matters if it had no jurisdiction to try those issues which must inevitably be raised; it was therefore admitted (c) that an imputation of purely spiritual crimes was clearly outside the jurisdiction of the royal courts, and was not subject to prohibition.

The stages by which the common law finally overcame these difficulties are no longer ascertainable, but a case of 1497 contains an emphatic dictum1 that “defamation is a purely spiritual offence which can only be punished there”, although by 1535 it seems assumed that if the imputation is one of an offence triable at common law, then the common law courts will treat it as an actionable defamation.2 From that date onwards, slander has a continuous history in the common law courts, and little more than a century later it was possible to write a little book on the subject.3

It will be noticed that the first type of slander to be actionable in the common law courts was the sort which imputed a common law crime (as distinguished from an ecclesiastical crime). The royal courts were probably forced to assume this jurisdiction because they had already prevented the church from exercising it. At the same time, they were well aware that this type of slander was commonly associated with acts which constituted a trespass to the person—indeed, it was almost common form when counting on an assault and battery to add allegations of insult too. Hence slanders of this type retained as a relic of their early association with trespass the rule that the damages were at large, and this in spite of the fact that actions on the case were normally actions for special damages. As the law became more closely classified, such slanders were said to be actionable per se.

The list of slanders actionable per se was steadily lengthened during the seventeenth century, sometimes for reasons of policy frankly stated, and sometimes as a result of argumentation of an artificial kind. An immense chapter was added when imputations against holders of offices and members of professions and trades were treated as actionable per se; the number of cases brought by justices of the peace and clergymen would almost suggest that the innovation was due to the fact that they needed the same protection as scandalum magnatum afforded to the highest ranks of the church and the law.

SPIRITUAL SLANDER AND SPECIAL DAMAGE

As we have seen, a slander may be regarded either as an insult, or as a cause of pecuniary damage. Both aspects were known in the local courts during the middle ages, and as we have just seen, the former type was recognised in the royal courts in the sixteenth century and onwards. The latter type seems first to appear in a case1 of 1593. Here words were used which the court chose to regard as not imputing any offence cognisable in the lay courts.2 Nevertheless, the plaintiff recovered her special damage, viz. the loss of a marriage which was prevented as a result of the scandalous statements. Originally it was felt necessary to defend this innovation against the church. It was still the theory that general jurisdiction over defamation belonged to the church (subject to prohibition in certain cases). The new rule annexed the whole of the church’s remaining jurisdiction if the plaintiff proved special damage; as the lay courts put it, defamation may be a “spiritual” crime, but the damage it causes is temporal.

The old dilemma between spiritual and temporal crimes which used to decide whether the action should be brought in a church court or in a lay court, henceforward will decide in many cases whether special damage need or need not be pleaded before the lay court. The results were far from satisfactory.

THE LAW OF SLANDER DOWN TO 1641

Having already surveyed the progress made by the law of libel down to the date of the abolition of the Court of Star Chamber, it now remains to ascertain the content of the law of slander at the same date.

The continued existence of the ecclesiastical courts on the one hand, and of the Star Chamber on the other, was sufficient reason for the failure of the common law to develop the criminal side of defamation which was more adequately dealt with elsewhere. They therefore concentrated upon the action for damages, and had already distinguished the two familiar categories of the modern law. Slanders actionable per se were originally imputations of temporal crimes, but by the close of this period reflections on fitness for office, skill in trade or profession, and imputations of certain diseases were added to the list.3 These exceptions from the general nature of actions on the case show a clear understanding of the problem, and leave no doubt that the common law had the will and the skill to create a saisfactory law of defamation as long as it had a clear field before it. The fact that it did not complete the scheme is due to the difficulties created by the ecclesiastical jurisdiction. There is every reason to believe that those difficulties were real at this moment; the church courts were still powerful, and the Reformation and the royal supremacy had surprisingly little effect on the relation of church and state judicatures. For a time there must have been great force in the argument that it was useless to entertain an action where a “spiritual” offence was imputed, unless the court had the means of trying the truth of the imputation, which would most commonly be put in issue by the defence.

Real as this difficulty was, the common law courts were ready to circumvent it. They had by this time resolved to entertain actions where the imputation was one of merely spiritual offences,1 if special damage was proved, and were apparently ready to deal in their own way with an issue on a plea of justification. The formal reason for the distinction between the two classes of slander therefore became fictitious rather than real. The distinction unfortunately persisted, and we may well ask why the common law, which was making such energetic advances in the law of slander, should have stopped short at this point.

The answer most probably lies in the fact that the common law courts were dismayed at the mass of slander cases which came before it. This almost certainly was a new phenomenon; lawyers do not generally complain of too much business, and as a rule we have seen courts competing keenly for business. They realised, however, that there was some sort of social problem involved in defamation. The Star Chamber seems to have felt that severity was the proper remedy; the common law preferred to discourage such litigation, hoping, perhaps, that the effervescence of the Shakespearean age would soon subside.2 Now the requirement of special damage was an admirable means of excluding a large class of cases which might plausibly be regarded as frivolous, and so the retention, and indeed the increased emphasis on this distinction, may well be attributed to the policy of discouraging actions for defamation.

They even went further, and deliberately debased the quality of the law in order to stem the demand. In this period, and in the eighteenth century also, much ingenuity was spent in arguing that words be taken in mitiori sensu, and should not be construed as defamatory unless no other meaning could be read into them. Great pains were necessary in pleading to escape this rule. Thus, in one well-known case, it was held not actionable to say that “Sir Thomas Holt struck his cook on the head with a cleaver and cleaved his head; the one part lay on one shoulder and another part on the other”, for it does not appear that the cook was dead, and so the imputation may be only of a trespass; as the court observed, a little ambiguously, “slander ought to be direct”.3 So too if a married woman says: “A. stole my turkeys”, the words are not actionable, for a married woman could have no property in chattels;4 a few years earlier, however, this rather fine point had been rejected.5

The law regarding publication was already receiving attention, although it had not yet reached a satisfactory position. Publication to a third party was clearly necessary, for in no other way could damage result; but a curious doctrine—perhaps imitated from the statute De Scandalis Magnatum—was sanctioned by the dicta in the Earl of Northampton Case1 that one can justify a slander if it is merely a repetition of what someone else said. Thus if A. says that B. said something defamatory of C., then A. could justify by proving that B. did in fact use those words.

Somewhat in a class by itself was slander of title. This consisted in false statements by a third party to an intending purchaser of land throwing doubt upon the vendor’s title, in consequence of which the negotiations for the sale are broken off. Examples occur from 1585 onwards, and one of the earliest cases2 had already made it clear that the action would not lie where the third person himself pretended, rightly or wrongly, to be entitled.

The state of the law of slander at this period is quickly seen from an examination of any old abridgment, when it will be clear that a vast mass of case law was accumulating at such a pace that lawyers had to compile dictionaries, as it were, of abusive and obscene expressions (including slang) in order to ascertain how particular language had been treated in previous cases. It will also be apparent that many highly damaging expressions were held to be not defamatory at all, or only with special damage, while others, seemingly less serious, fell under the ban. As Sir William Holdsworth remarked,3 perhaps the worst kind of case law is that which grows up around the interpretation of words, deeds, wills—and we may add, statutes.

THE RESULTS OF THE FALL OF THE STAR CHAMBER

With the abolition of the Star Chamber as from August 1, 1641, a new situation was created. For twenty years confusion was inevitable. Cromwell’s Council of State had to continue the more questionable practices of the Star Chamber, and at the Restoration it was clear that much useful work done by the Star Chamber would have to be continued by constitutional means. It was therefore tacitly assumed that the Court of King’s Bench succeeded to as much of the Star Chamber’s jurisdiction as was consistent with current constitutional thought. Consequently the Star Chamber’s law of libel was henceforth to be administered by the same court as had developed the common law of slander; inevitably the two bodies of law were bound to influence each other, and tended to become more coherently combined into something approaching a systematic law of defamation.

As we have seen, the law of slander operated very capriciously, and it is natural that more enlightened judges should try to amend it, or, failing that, to use their new jurisdiction in “libel” to mitigate its defects. Holt, Hale and Twisden tried to establish a rational rule that “words should stand on their own feet” and be deemed to have the meaning which bystanders would naturally give them, but were unsuccessful.1 Partial relief came from the fact that the law of libel was not encumbered with the mitior sensus rule, and was also free from the requirement of special damage. It therefore only remained to find some way which would bring cases out of the category of common law slander into the category of libel. As early as 1670 Hale allowed an action on words which were too vague to be a common law slander, because in this case the words were written.2 He took the view that many defamatory words spoken in heat could be safely ignored, but if they were written, then the obvious presence of malice would make them actionable, and actionable without special damage. The law of libel was thus used to supplement the law of slander. But as in so many other cases, the law was ready to admit a novelty, but reluctant to abolish an anachronism. The newer and more rational law of libel was welcomed gladly in cases of written defamation, but the mitior sensus rule and the rules about words actionable per se, and words actionable on special damage, remained in force if the defamation was by speech only. The distinction between spoken and written defamation therefore became vital, and has proved to be permanent.

The Star Chamber generally treated libel as a crime, although occasionally the award of damages shows that it might be considered also as a tort. But it is clear that the Star Chamber did not take any pains to distinguish the criminal from the tortious aspect of defamation, for there was no particular need for it. In the common law courts, however, the line between crime and tort was fairly clear, and highly important. Hence the Star Chamber rule that truth is no defence had to be reconsidered when libel came into the common law courts. They naturally retained their own rule about justification when dealing with libel as a tort (thus keeping it parallel with slander), and followed the Star Chamber rule for criminal libels.

The Star Chamber had little law on privilege as a defence, although there is some indication that it recognised statements made in the course of judicial proceedings as being to some extent privileged. The common law began to recognise privilege3 as early as 1569, and by 1606 held that the privilege could be lost if malice was present.4 These beginnings, however, did not develop to any great extent until the time of Lord Mansfield.

The law of slander has undergone very little substantial change in England since the close of the seventeenth century. The distinction between slanders actionable per se and those actionable only for special damage has undergone very little change. One exceptionally hard case, however, has been remedied by the legislature. The imputation of unchastity in a woman was not generally an imputation of a temporal crime, and so was not actionable per se. A few local jurisdictions, notably London, claimed a custom of carting “whores”. The city courts, therefore, treated the use of this expression as actionable per se, and after some hesitation extended the rule to a few other terms of similar import, but it is doubtful whether the common law courts would recognise the custom.1 Not until 1891 did the Slander of Women Act make imputations of unchastity actionable per se.2 In America, many states have enlarged the class of slanders actionable per se, and some states have gone so far as to abolish the requirement of special damage.

LIBEL AND THE PRESS

The invention of printing was not at first put to the ephemeral although dangerous use of political controversy, but as soon as the reduction of costs permitted this new development, governments throughout Europe had to deal with the problem of the press.

A long line of proclamations and statutes dealt with the new menace. According to one enactment, printing might constitute a statutory treason,3 and succeeding statutes settled a policy of treating printing as an overt action of treason.4 Still more numerous were the proclamations which regulated the book trade. As early as 1538 a proclamation required a licence from the Privy Council or a bishop before any English book could be printed,5 and for a century and a half there is a steady stream of proclamations directed against unlicensed printing, and heretical and seditious literature. The system of licensing plays was regulated by proclamation6 in 1661, although it was in fact a century old by this time, and many statutes from 1543 onwards7 punished profane interludes and plays. Statutory in its origin, the control of the stage was finally appropriated as part of the prerogative after the Restoration. A proclamation of 1668 tried to prevent the hawking of newspapers in the streets,8 and in 1688 the peddling of books was forbidden,9 after a vain attempt to license the pedlars.1 Meanwhile the legitimate book trade, like other trades in the middle ages, was put under the regulation of a city company, the stationers,2 while enforcement lay with the Privy Council, the Star Chamber, and (for theological matters) the High Commission, who took the view that all printing, however innocent, was a crime unless the work had been previously licensed. Conversely, the government would sometimes give monopoly rights of printing works which it considered meritorious or useful, and in this way the beginnings of copyright appear.

Amid such a vast mass of regulation, there was little need for the law of libel, as far as the press was concerned. The abolition of the Star Chamber and the Court of High Commission, however, left a void which the common law was later called upon to fill. The fall of these courts, moreover, removed the notion that press offences were peculiarly matters of the royal prerogative, and so legislation became increasingly important. Now as long as the Star Chamber and High Commission lasted, legislation on the press had been almost entirely by proclamation.3 The events of 1641, therefore, created the utmost confusion, and the stationers’ company put in a powerful memorial to the victorious Parliament showing that public safety depended on the continued control of the press, that the economic position of printers, publishers and authors had come to depend on the existence of copyright, and that the practical working of copyright depended on the company, which in effect kept a register of copyrights. They further argued that copyrights were property, that they ought to be as assignable as other forms of property, and that their destruction was unthinkable.4

The Parliaments of the interregnum, therefore, maintained the system and set up boards of licensers. At the Restoration the system was continued intermittently by statute until 1692, when the current act came to an end. A pamphlet controversy ensued, the act was renewed until 1694, when it was finally allowed to expire.

Once again a large mass of press law came to a sudden end. After a prolonged controversy, the Copyright Act5 of 1709 retrieved the results of nearly two centuries of effort to establish literary property, while the common law courts had to rely on the law of treason, sedition and libel to carry out whatever control of the press might be needed.

It was no longer possible to say that printing was criminal merely because it was unauthorised, and so some positive ingredients of press offences had to be sought. Holt thought that “it is very necessary for all governments that the people should have a good opinion of it”1 and from this it seemed to follow that any publication which reflected upon the Government was criminal. The same idea was applied to libels against private persons which brought them into hatred, ridicule or contempt. The Star Chamber, moreover, had permitted much strong language by plaintiffs against defendants, of which “maliciously” in the description of publication was characteristic. As long as libels were normally the outcome of reckless sedition and factiousness the term was appropriate, but under changed conditions it caused much trouble later on.

LIBEL AND JURY TRIAL

The law of libel had little contact with juries in its early days, and when that contact finally occurred, there was much controversy as to the position of the jury. The earliest cases seem to run on the principle that the jury should find the facts, and that the court should determine whether the matter published constituted a libel. A remarkable exception was the trial of the Seven Bishops, which, as several writers have observed, was altogether so anomalous that no argument, legal or historical, can be based on it.2 In the eighteenth century the absence of a licensing system thrust the whole burden of surveillance over the press upon the courts, and trials for seditious libel grew steadily more frequent. The nature of malice and the question of intent were much discussed, and there arose an opinion that the jury were entitled to give a general verdict of guilty or not guilty according to their own opinion whether the writing constituted a libel. It required all Erskine’s eloquence to make this look plausible in the face of the mass of authority which was against him; indeed, the basis of his view was not legal, but political, and his famous argument in the Dean of St. Asaph’s Case3 was delivered more in the hope of stimulating Parliament to change the law, than of convincing Mansfield that the law was in his favour. He failed in the latter, but succeeded in the former object, and in 1792 Fox’s Libel Act4 was passed, in spite of the unanimous opinion given by the judges at the demand of the House of Lords.5 In form declaratory, it was in substance a momentous change in the law of libel. Until 1792 the strict legal theory has been accurately summed up in these words: “a seditious libel means written censure upon any public man whatever for any conduct whatever, or upon any law or institution whatever”.6 The crime consisted in the publication of matter of a particular sort, and not in the publisher’s intention. The obscurity of a proviso robbed the act for a time of some of its effect,1 but inevitably there followed the result that juries would not regard the expression of reasonable political dissent as being criminal; criminality therefore shifted from the nature of the words to the intention of the writer. It is a curious reflection that the unnecessarily picturesque language of indictments, even before the act, loaded the defendant with abuse which was technically superfluous, although it had the effect of seeming to put the defendant’s intention in issue. Thus the Dean of St. Asaph was indicted as “being a person of wicked and turbulent disposition, and maliciously designing and intending to excite and diffuse among the subjects of this realm discontents, jealousies and suspicions of our lord the King and his Government, and disaffection and disloyalty . . . and to raise very dangerous seditions and tumults”—with much more irrelevant matter as to the defendant’s intent.2

Before the act, criticism, because it was criticism, rendered those who published it guilty of libel. After the act the application of this rule of law was left to the jury, and they quite naturally would not regard as criminal expressions whose offensiveness consisted merely in being distasteful to the authorities. It took many years, however, before a new definition of seditious libel was reached. This was probably due to the fact that the revolutionary wars soon began, and for some time juries found themselves on the side of the government rather than of its critics: they certainly felt, too, that expressions might become dangerous at moments of intense political excitement although in normal circumstances they would do no harm. The likelihood that the publication would produce tumult or disorder was, therefore, frequently considered as the principal factor in deciding whether a publication was criminal or not.

LIBEL AND NEWSPAPERS

Seditious libel became rarer after the Reform Act of 1832 and the cessation of the war had relieved some, at least, of the tension in political affairs. The rise of newspapers, however, created special problems in connection with libels on private persons.

In the course of the eighteenth century it was gradually being settled that although truth was not an absolute defence in libel, yet it could be proved in order to reduce damages or mitigate punishment.3 Lord Campbell’s Act4 introduced another mitigating circumstance, namely that a prompt and suitable apology had been published, while in civil cases a newspaper owner might further show that the libel was inserted without malice and without negligence. In criminal cases the act made truth a defence (thus reversing an age-old doctrine) if it could be shown that publication was for the public benefit. In 1881 elaborate arrangements were made for the registration of newspapers with the object of enabling the public to ascertain whom to sue,1 and in 1888 the legislature dealt with the common difficulty when a newspaper published a report of a public meeting in the course of which defamatory matter was spoken and reported. In such cases the act conferred a qualified privilege, which may be lost if there was malice, or if the report was unfair or inaccurate.2

PART 3

REAL PROPERTY

SUMMARY

• page
• Real Property - - - - - - -
• chapter 1.Feudalism - - - - - - - -
• chapter 2.Feudalism in England - - - - -
• chapter 3.Inheritance and Alienability - - - -
• chapter 4.Tenures and Incidents - - - - -
• chapter 5.The Rise of the Entail - - - - -
• chapter 6.The Common Law Estates down to 1540 - -
• chapter 7.Uses and the Statute - - - - -
• chapter 8.The Later Law of Real Property - - -
• chapter 9.The Mortgage - - - - - - -
• chapter 10.Conveyances - - - - - - -

REAL PROPERTY

Real property law has been the battle-ground in most of the great struggles in our history. One of the bitterest conflicts between Church and State arose out of Henry II’s determination that patronage was “lay fee”, that is to say, real property amenable to the jurisdiction of the royal courts. Even earlier, the great social revolution which created feudalism, created thereby the foundations of the law of real property, and when the equally great revolution, late in the middle ages, replaced feudalism by the beginnings of modern society, we find corresponding changes in the law of land. Public law, too, owes much to the principles first worked out in connection with land. The barons won a notable victory against King John when they established the inviolability of the freeholder’s land, and the law of freehold served the cause of freedom centuries later.

It is in terms of real property law that such social factors as the rise, and still stranger decline, of serfdom must be expressed, while the emergence of a mercantile community had important results which even went so far (as we have already seen) as the creation of peculiar mercantile estates in land. The long and obscure story of settlements and disentailing devices reflects not only social problems and the difficulty of expressing the family itself in terms of real property law, but also illustrates the growth of land as a commodity with a market value, and shows that land (especially in the eighteenth century) was now the object of intensive exploitation which required the sinking of considerable capital sums—and often this could only be achieved by selling or charging settled land. Corresponding difficulties existed even on the purely physical side, and so there came the enclosure movement which rapidly changed the face of the countryside. An economic history of the law of real property has not yet been written, and this is not the place to attempt so difficult a task; nevertheless, some reference to economic and social factors must be made in the pages that follow, even if they fail to receive all the weight to which they would be entitled in a fuller discussion.

CHAPTER 1

FEUDALISM

It is universally admitted that the great historical feature of our law of real property is its feudal character, and that in order to understand the reasons which brought about a good many doctrines of real property law it is necessary to regard the matter from the feudal point of view. Something, therefore, must be said as to the origin and characteristics of feudalism.1

If we had to sum up the social characteristics of the present age in one word, that word would probably be “capitalism”. If, on the other hand, we wish to describe the early middle ages in a similar way, we shall have to say that they were feudal. “Feudalism”, in fact, is merely a vague and general word describing the social structure of Western Europe from the tenth century onwards. It is beyond doubt that the word “feudalism” is just as vague and occasionally inaccurate as is the word “capitalism”. Society at the present day contains a number of different characteristics, some of them being inconsistent with a complete capitalism. When we speak of the present age as capitalistic it is perfectly easy to make all the obvious exceptions which are necessary in order to make the statement approximately true. There is no difficulty in doing this because we are perfectly familiar with the conditions of our own age. When we come to mediaeval times, however, the same problem arises in a more difficult form. At no time were the middle ages completely and consistently feudal, any more than our own age is thoroughly capitalistic. The difficulty, of course, is to trace the exceptions to the more general feudalism in view of our unfamiliarity with mediaeval conditions. It must be constantly remembered, therefore, that “feudalism” is a vague word of modern origin which was completely unknown in the ages to which we apply it, and that it is nothing more than a rough generalisation upon the character of mediaeval society. It must likewise be remembered that mediaeval society varied considerably in different years and in different places, and that it is very difficult to find a state which continued for an appreciable length of time under strictly feudal conditions.

FEUDALISM: LORD AND MAN

There are a few characteristics which remain fairly constant through the feudal age, and which may be regarded as typically feudal. In the first place a prominent feature of it is the relationship of the lord and man. In its personal aspect this was felt to be a solemn and sacred bond; it was accompanied by an impressive ceremony called homage, and once that ceremony was performed it was hardly possible to dissolve the relationship. The obligations of mutual aid and support which grew out of it may perhaps owe their sacred character to the fact that they were so absolutely necessary to the preservation of society at the time when the institution arose. With a small and scattered populace, organisation became difficult, especially with the absence of all the modern mechanical devices which have made the power of the State paramount. Where a modern nation in a week or two can mobilise an army of millions of conscripts, the feudal age had to rely upon the relationship of homage to secure the attendance of its military forces. Society depended to a very great degree upon the fulfilment of the obligations arising out of homage, and therefore surrounded the ceremony with every available religious and social sanction. Even then, under some circumstances, a vassal could dissolve the relationship binding him to his lord if he gave proper notice in a form which was technically called “defiance”. The feudal relation of lord and man was therefore on its practical side decidedly weak; it was only while the religious and social sanctity attaching to homage endured that a lord could have any reasonable dependence upon the armed assistance of his vassals. Where so much hung upon the good faith of undertenants it is only natural that the power of the State should be very weak.

FEUDALISM AND LAND

The relationship of lord and man was most usually accompanied by a peculiarity in the law of land. In the days when feudalism was at its height, the vassal held his land of the lord. Originally the vassal’s interest was not large. He might forfeit his land for any great breach of the homage-relationship such as was described by the shameful word “felony”; in any case his interest was only for life, and whether the lord regranted the land after the tenant’s death to any of his descendants or kindred was a matter which rested in the lord’s discretion. It will therefore be seen that feudalism implied land holding rather than land owning, save in the case of those few great lords and princes who had no superior, and therefore owned their lands, both those they retained and those which they granted out, by absolute right.

FEUDALISM AS A MILITARY SYSTEM

A third characteristic of feudalism was the fact that to the combination of these two relationships of lord and man, landlord and tenant, was added a system of military organisation. The vassal who held land of his lord was bound by his tenure to provide a certain amount of military assistance, and for this purpose the land was organised into units, each one of which was charged with the provision of a certain number of knights armed and mounted and attended by the requisite number of subsidiary arms in squires and sergeants. This system of military service lasted as long as the knight himself continued to be the basis of military organisation. As time went on, the knight, who at first had been an extremely mobile unit, gradually became more cumbersome. His growing social importance necessitated measures for his protection, and these took the form of heavy armament both for the horse and his rider. This reduced his mobility, and when in the end the long bow was invented the knight ceased to be of practical importance in warfare. Nevertheless, the organisation of the land into knight’s fees and the exaction of military service still survived, together with many other elements of feudalism. Consequently we have in the later middle ages the perpetuation for legal and fiscal purposes of a feudalism which had long since ceased to represent current conditions. In England the fiscal side of knight-service was in fairly frequent operation until it was abolished in 1660, four hundred years after it had ceased to be the working foundation of the military system. Other aspects of feudalism, such as dependent tenure, have never been abolished in England, and are presumed to exist still in some jurisdictions even in America.

Feudalism arose largely out of military necessity and was a measure to cope with a grave military situation—the invasion of Europe by the Norse. Consequently in all fields of life the military expert was predominant, and for a time even overshadowed his great mediaeval rival, the religious expert. Between the two of them, the military and the clergy, there was little room for anything else. So grave was the crisis that populations willingly (and wisely) accepted the domination of the knights and the clergy as the only means of saving Europe and its culture from barbarian invaders, and both of them did their duty. But the social consequences of this were serious and showed how high a price had to be paid for such precarious security as feudalism could afford. Towns and city life were hard put to it to find a place in the feudal system, while the peasantry had no alternative but to accept serfdom.

FEUDALISM AS A CONSTITUTION

Finally, all these elements so combined that they served the place of public law and a constitution. The defence of Europe had to be carried out throughout the length of its coast line at very widely scattered points; there were no railways and no telegraphs. It would therefore have been impossible for a government in Paris, for example, to defend France from attacks which might take place at any point upon the Channel, the Atlantic or the Mediterranean. It was therefore necessary to go to extreme lengths of decentralisation, and so we find another element of feudalism which consists in allowing each lord to assume governmental powers over his tenants. Whatever military defence is undertaken must be carried out by local forces organised and led by local leaders, and consequently it is necessary that those leaders should exercise powers of government within their locality. The tenant, therefore, owes to his lord fidelity, military service and counsel (which is expressed as an obligation to attend his lord whenever summoned, whether it be for services in the field or at the council table), and is subject to his lord’s jurisdiction. And so the dogma will arise that every lord can hold a court for his tenants, compel their presence in it, and do justice to them in matters arising within the fee.

It will therefore be seen that the feudal age denied a good many things which in our own day are taken for granted. Feudalism implies the absence of anything corresponding to the State; each lord has jurisdiction over his tenants, and they in turn over their undertenants, and allegiance is owed to the lord to whom homage has been done. So, too, property in land as we know it to-day is inconsistent with thoroughly feudal conditions; while even the waging of war was not a national concern but was left to be the occupation of those whose tenure obliged them to undertake it.

All these characteristics of feudalism which we have described in general terms are subject to infinite variation in every quarter of Europe, and although we, at a distance of nearly a thousand years, can survey them all together as aspects of one social structure which we call feudalism, yet it must be remembered that to contemporaries it may very well have been the diversity rather than the unity which seemed most striking. The word “feudalism”, once again, is merely a modern generalisation about mediaeval society.

CONTINENTAL ORIGINS OF FEUDALISM

A few indications may be given concerning the origins of feudalism, especially on the continent, for English conditions were apt to reproduce, and even to imitate, society abroad. Although some of the main lines of development which finally produced feudalism have now become fairly established, there still remains a great deal of controversy upon innumerable points, and upon the relative influence which different institutions had in the development of the final product. Feudalism, in fact, is not only the sum-total of a number of different institutions existing at the same time, all of which contributed to promote the same end, namely, the government and defence of the land, but is also the product of many different lines of development, some of them coming from widely separated places, which have converged and finally given rise to the state of society called feudalism.

THE COMITATUS

There is, for example, the comitatus, of which we first hear in Caesar and in Tacitus, both of whom describe the Germanic tribes as having a social custom whereby a great chief would surround himself with a band of chosen warriors and enter into a close personal bond with them. They formed a fraternity for military adventure and seem to have lived upon the spoils of war. The comitatus steadily increased in importance, and when finally many of the barbarians peacefully settled within the Roman Empire, they found there a Roman institution of somewhat similar character whereby a general or an Emperior would engage a band of soldiers (often barbarians) for his personal service, such soldiers being called bucellarii; it seems that the general provided a military outfit for each of the men, which reverted to him after their death. In the history of the fifth and sixth centuries we find a great deal about the doings of such bands of warriors. The points of contact with later feudalism seem to be the performance of a ceremonial oath of fidelity, and the obligation, upon the man’s death, to give or return to his lord a varying amount of military equipment. It is fairly clear that a similar institution existed in England, where we read of thegns and gesiths. With the gradual settlement of society both the chief and his train became more fixed; the chief became something like a provincial governor and his followers then settled down with him and became his household and official staff. In France there was such a class of court officials called sejones, and in England, especially under the Danish kings, we find a group of “huscarls” who not only fought around King Harold as his bodyguard, but could also be sent around the country as administrative officials to collect taxes. Later still these officials tended to leave the court and settled in the country, supporting themselves upon grants of land from the King, who, however, still obliged them to serve him upon demand.

THE PATROCINIUM

Another line of development which finally mingled with the former was that of patronage—and here we have not a Germanic, but a Roman, institution.1 Its general outline somewhat resembled the comitatus, except that it never had the marked military character of the Germanic institution. Patronage had a long history under the Republic and later under the Empire. As early as the year 122 it had become in some cases hereditary, but this, of course, was merely a matter of custom; patronage was no part of Roman law and was not an element of the political constitution, although it was a most powerful social institution. Many patrons had hundreds of clients, and here again we find the word “faith” closely connected with the relationship. Quite frequently a whole town would put itself in the faith of one person, such clients being described as commending themselves to their patron, the significance of which seems to have been that the client delivered himself over to the patron relying upon the patron’s faith.2 There were several ranks among clients and their principal obligation seems to have been to give service and counsel to their chief—in plainer words, they acted very much like a political “machine” as the expression is understood in America. The patron in turn defended his clients in litigation, and we may easily imagine that the support of a powerful patron was a great advantage.

In the Theodosian code (438) we find an attempt to prevent clients commending their lands as well as themselves; but it is equally clear that this attempt was unsuccessful and that nothing could prevent the spread of the practice of patrons getting control over the land as well as the persons of their clients. It would seem that this development was prompted by the rigours of the taxation system. The one sphere of government in which Rome was inefficient was that of taxation, and this defect contributed very largely to the distintegration of Roman society. The taxation fell heaviest on the smaller propertied class and their inability to support the burden eventually depressed that class into the condition of dependent tenants. The practice of commending land, as well as oneself, to a patron was an important step in this direction. At first it was merely a device whereby the patron assumed responsibility towards the State for taxes due, in return spreading the burden of taxation more evenly for the client. We also find patronage transferred to France, where it is clear that the French patronage is a direct descendant from the Roman. In France it sometimes took the name of a “trust”.3 By this time the Church had acquired extremely wide property in land, and bishops and abbots were among the most powerful people in the country, and consequently we find a good deal of commendation to great ecclesiastics.

THE PRECARIA

An important part in this development was played by a legal institution called the precarium, which we must now consider. The precarium has a very long history in Rome, where it was closely associated with patronage, although for a long time the law took no notice of it save to attempt to abolish it. Roman lawyers had made certain categories into which property interests could be divided; there were ownership, possession, and usufruct. But the precarium could not be placed under any of these heads. Our first legal definition of it is by Ulpian at the beginning of the third century, who says that “a precarium is granted to a petitioner in answer to his prayers, for his use and for as long as the grantor pleases”.1 It is the prayer or petition which is the characteristic of the precarium. The recipient gets the land as an outcome of his urgent petition. The characteristics of the precarium were, therefore, that it conveyed only the enjoyment of the property. The arrangement was terminated by the death of either party, the grantor (rogatus) or grantee (rogans). More than that, it was technically an act of charity and could therefore be revoked at any moment. Its legal position was anomalous; in one respect it was superior to the lease, for it conferred possession, but in others it was inferior, since it was not based upon contract. Gradually the praetor protected the precarium against third parties, although, of course, not against the rogatus. This arrangement was frequently used by embarrassed debtors, who would surrender their lands to their creditor and receive them back as a precarium, for in this way the debtor was assured of his immediate future while the creditor in the end received a good deal more than the original debt.

The combination of patronage and the system of precaria was inevitable, and the two together played a large part in the establishment of the latifundia or immense landed estates worked finally by slave labour, if at all. The precarium continued in use with increasing influence; late in the fifth century we find it described by Salvianus, who observes that it is revocable at will, that it confers a tenancy and not ownership, that the tenant owes gratitude to the donor, being bound to him in good faith, and that the breach of this faith will make him ingratissimus and infidelissimus—two of the most serious reproaches which could be made.

In the sixth century and onwards it is clear that the Church is a lavish grantor of precaria, and so the precarium passes to France and mingles with the general stream of influences which were finally to create feudal society. At the same time a number of changes take place. The precarium may be for life, or even for a number of generations; on the other hand, it may be merely for five years, although renewable on paying a very moderate rent, and this latter was generally called a precaria instead of a precarium.1 Its origin seems to lie in a different quarter from the true precarium.2

GRANTS BY THE CROWN

This brings us to the deliberate attempt made by the French monarchs to remodel these institutions. The sixth and seventh centuries are occupied in French history by the Merovingian dynasty, which made a great attempt to establish a national government under almost impossible conditions. Their main difficulty was that of finance, for the Roman system of taxation was now unworkable and the Crown domain was fast becoming exhausted by the number of grants which the Crown had to make to reward its faithful servants. The solution which the Merovingians found was only partially successful. They seem to have rewarded their public servants by grants of land which in form were unqualified, but in practice were subject to vague conditions. The succession of the donee’s heirs was a matter of favour rather than right; the donee could not alienate, and the grant was revoked if the donee incurred the grave displeasure of the King. The grant might also be conditional upon continued service, as well as a reward for past services.

THE CAROLINGIAN POLICY

This policy was not drastic enough to rescue the Merovingian kings from their financial difficulties, and their increasing powerlessness finally prepared the way for a new royal house, the Carolingians, which sprang from their own Mayors of the Palace. Under these vigorous statesmen the problem was attacked anew and at its centre, the Church. At first it was proposed to confiscate ecclesiastical lands outright and grant them to royal nominees; or as an alternative wealthy monasteries might be compelled to support a certain number of soldiers, while we occasionally find that some lay official will be provided for by appointing him abbot of a monastery. These unseemly3 measures in the end gave way to a compromise reached by Pepin the Short in 743, according to which the Church granted lands to royal nominees to be held as precariae, owing services to the Crown and a very moderate rent to the Church.

There were other forces, too, which were making the Church the overlord of land. A great deal of its wealth came not from the great nobles but from the much smaller landowners who hoped to atone for their crimes and win spiritual favours by surrendering to the Church free land and receiving it back by precarious tenure. It will be noticed that by this time the precaria, instead of being sought, is rather offered, and so we get an institution whose name is really a contradiction in terms—the precaria oblata. Churches would frequently have scattered estates, some of them quite remote from the bulk of the Church’s interests, and in order to secure a revenue from these outlying lands the precaria was used once again as a means of letting them to tenants who would work them and pay a moderate rent. All these different types of precariae, together with the various forms of royal grant, had one element in common—the good will of the grantor; it is not surprising, therefore, that in time they are classified together, whatever their origin, under the name “benefices”. The word “benefice” has in fact been traced back to the particular sort of “benefit” whereby a precaria was granted for life, and gratuitously.1

MILITARY SERVICE

To these developments was soon to be added the factor of military service. It would seem that before the middle of the eighth century military service had become an obligation of those precarious tenures which had been instituted in response to the King’s request. Charles the Great at the beginning of the ninth century had established the rule that all were liable to military service and not merely those who held of the Crown in chief, and consequently he had to make arrangements whereby the poorer men could join together in meeting the expenses of one of their number. By the end of the Carolingian period military service was becoming systematised, and early in the eleventh century the knight’s fee appeared as a definite institution in Normandy. Indeed, the division of land into districts, each with an allotted quota of men and material, is a simple and obvious device; we find, for example, in 1679 that an act in Virginia required each district to provide one man armed and mounted for service in the Indian wars.2

JURISDICTION

We have now to consider the connection between land holding and jurisdiction. The factors which made for this development were to be found in both German and Roman institutions. Under Germanic custom every freeman had jurisdiction over his household, and this jurisdiction frequently took the form of holding him responsible for certain police measures. At the same time there was a tendency for large landed estates to be organised as separate concerns by their owners with little or no reference to the ordinary public jurisdiction; a striking example of this is the persistence of the ancient demesne of the Crown in England, which for some centuries held a position outside of the common law. On the Roman side there were even stronger tendencies in this direction. In the fifth and sixth centuries we find immunities granted to landowners, sometimes including an exemption from the visits of imperial justices, while at the same time the frequent grants of the profit of jurisdiction naturally led to the exercise of that jurisdiction by the grantee in an endeavour to make the most of his profits.

THE FEUDAL COURT

In Germany it seems clear that there were two different types of feudal court, each of which had its special history. Of these one was based directly upon the relationship between lord and vassal, while the other seems to have been originally a communal court which later fell under the control of some neighbouring landowner. It has recently been suggested1 that the rise of feudal jurisdiction in France followed rather different lines, and that these two types of feudal court are not at first distinguished. The question therefore arises as to whether the origin of French feudal jurisdiction must be sought in the relationship of lord and vassal or in the appropriation of once public courts by private owners. There is reason to believe that French feudal jurisdiction did in fact derive from the old public courts, and in some cases it has been possible to trace the stages by which the transition was made. The Frankish equivalent for the county court was the mallus, in which, as in our own communal courts, judgment was given by suitors (often called échevins) who very frequently were obliged to fulfil this office because they were the holders of particular pieces of land. The office of these échevins, therefore, became hereditary in many cases. It has been shown, however, that the mallus at times begins to consider cases which are really feudal in character while simultaneously the échevins become rarer and finally disappear, for their duties must have been very burdensome and their attendance at court difficult to enforce. The count, on the other hand, had his band of vassals who were bound to attend him on demand, and so it is only natural that when the count discovered that it was difficult to secure échevins he should use his feudal connections and compel his vassals to take their place. In this way an old public court will become a private feudal jurisdiction.

CHAPTER 2

FEUDALISM IN ENGLAND

These, then, were the general features of feudal development on the continent, subject, it will be understood, to an infinite variety in detail as one passes from district to district. Life was as varied then as now, perhaps even more so, and every local territory pursued its own history and followed its own destiny in accordance with conditions which in many cases must have been local and peculiar, although in the end the result was apt to be roughly analogous to that which had been reached by many other communities in different parts of Europe. In raising the question how far all this history of European feudalism applies to England there are many difficulties. Our sources seem somewhat less informative than those on the continent, and although the general outlines of feudal development in England can be traced, much of the detail must be left to conjecture. A good deal can be ascribed to conscious imitation, for English kings were naturally tempted to look for their model to the continent, where the new type of organisation was undoubtedly more advanced.

ANGLO-SAXON FEUDALISM

In general terms it may be confidently stated that the Anglo-Saxon period had already developed before the Norman Conquest the principal features of feudalism, although the means by which this development took place are not always apparent.1 On the eve of the Conquest we find a good deal of dependent land tenure which was subject to rents and services, and even to military service as well. The Anglo-Saxon bookland may in its earlier days have been a grant of full ownership, but in the later period it resembles more closely the continental benefice in spite of the fact that its history was somewhat different. The Anglo-Saxon sources also tell us about “laen land”, which seems half-way between the benefice and a lease for three lives. Private and personal jurisdiction played a prominent part in the police system; lordless men were compelled to find a lord. At the same time immunities of varying extent were lavished upon the Church and later upon laymen, and by the end of the period it seems to be assumed that landowning involves some elements of lordship. The old hundred court not infrequently fell into private hands and it is to be presumed (at least in law) that this was in consequence of a royal grant. The origins of the greater jurisdictions can in many cases be traced, but the great mystery in Anglo-Saxon institutions is the development of the small private franchise. Upon this we have very little light at all.1

THE RESULTS OF THE CONQUEST

The effect of the Norman Conquest in England2 was to introduce a body of administrators who were familiar with the more highly organised type of feudal society existing on the continent, and the result of their presence must have been to give a definite form to institutions which in England were thus far somewhat vague. From this point of view Domesday Book must be regarded as an attempt by those administrators to express English conditions in the technical terminology of continental feudalism. It may be said, perhaps, that although the Norman Conquest did not introduce feudalism into England, yet it may very well have largely contributed to the development of a feudal system in England, for there can be no doubt that, as far as the law of land is concerned, England became the most thoroughly and consistently feudal of all the European states. In particular, it has recently been shown that William the Conqueror exercised a degree of control over subinfeudation which would certainly not have been any longer possible on the continent, and the Salisbury oath, already mentioned, may be taken as a further illustration.3 In assessing the Norman contribution to English feudalism the unique opportunity of a complete conquest must be allowed to account for many things; it permitted much more rapid development, the importation of a technical terminology, and the more precise definition of relationships. The Norman introduction of the knight’s fee is a well-known example. But the general outlines of feudal society with its seignories, services and franchises cannot have been so very novel to eleventh-century England.

BOOKLAND

When we come to examine the Anglo-Saxon law of land we find three terms in use, “bookland”, “folkland” and “laen land”. Of these bookland is by far the most frequently mentioned in the sources, and necessarily so, for bookland is peculiar in being held by a written document.1 Many documents constituting bookland are to be found in the large collections of Anglo-Saxon charters which still survive. Even in the form of the document we can see continental and papal influence; the wording of the charters is frequently florid and full of religious and moral commonplaces, which seems to show that these documents were not yet in ordinary everyday use; it is upon exceptional and solemn occasions that a charter has to be drawn up, and the grantee (who normally seems to have been the draftsman) lavished his literary skill upon a charter which was to be the symbol of exceptional privileges. During most of the Anglo-Saxon age the grantees of these charters are almost always churches, and it is therefore to be expected that continental influences should play their part. In spite of their length it is not always clear exactly what an Anglo-Saxon charter purports to convey. It will say, with a great deal of precise Roman terminology, that it conveys the ownership of land, but this very term is not free from ambiguity. In many cases it is clear that what passes under the charter is not land but rather rights and privileges over land which is, in fact, occupied by others. Such rights consist of tributes or farms payable to the lord; then, too, there are various immunities which will exempt the grantee from nearly all public burdens (especially a heavy liability to purveyance)—and it seems that these rights over freemen were numerous and profitable; to them must be added forest and hunting rights, together with the profits of jurisdiction—and as Anglo-Saxon law exacted money payments for all sorts of faults, trivial or grave, the profits of jurisdiction must have been considerable. This does not mean that property in land (as distinguished from jurisdiction over other people’s land) could not be conveyed by charter; no doubt it was, but the significant feature is that the same form serves for both purposes. This feature long survived, and even in the classical common law the same form of words will pass a piece of land, or a manor, which is not entirely land, or an honour, which is not land at all but merely feudal jurisdiction over land.

When we come to the later bookland we find that it is no longer peculiarly ecclesiastical. Laymen seem pleased to obtain it on account of certain legal advantages, notably devisability, which seems to have been a characteristic which the Church at first valued highly, since bookland could be left by will, and so one bishop was able to provide for his successor, for as yet prelates did not have perpetual succession. Another advantage which undoubtedly contributed to its popularity was the fact that litigation concerning bookland took place before the king and the witan; the folk courts of the hundred and the shire had no jurisdiction over it. In addition to this, we can see in the procedure of such cases that the holder by book or the claimant by book, was in a very privileged position.1 Then, as for a thousand years to come, no oath could be given against a charter—just as no wager of law lay against a deed. Finally, bookland, besides being devisable, was also alienable (unless, as sometimes happened, the grantor set up a sort of entail in the book), and so was free from the family restrictions which lay upon ordinary land.

FOLKLAND

A word must be said about folkland. The word only occurs three times in the whole of Anglo-Saxon legal literature, but nevertheless a vast edifice of supposition and conjecture has been built upon it. It has been alleged that folkland was the public property of the State, and so the Anglo-Saxon nation has been credited with vast possessions in its own right, completely distinct from the property of the kings. This theory was demolished by Sir Paul Vinogradoff, who established that the meaning of folkland is simply land which is held according to customary law by folk right, which therefore constitutes its great contrast to bookland.2 As Maitland has said:

LAEN LAND

As for laen land, we have here perhaps the closest English analogy to the continental precaria. We even find some curiously close parallels between the position of the Church in England and its position on the continent; thus, we find the Church being called upon by the English kings to grant laen land to royal nominees.4 One of the great difficulties in studying this laen land is the confusion which often exists between the laen (which strictly should be nothing more than a loan) and an absolute gift; “the loan is a gift for a time”.1 Then, again, although laen land is sometimes constituted by written charter yet it is perfectly clear that a good many grants must have been made without charter. In a few cases where we find the incidents of laen land set out the similarities with later feudalism are most striking. Thus we find that the tenants are bound to ride upon the lord’s errands, transport his goods, pay rent, and perhaps fight. Then, too, laen land is within limits inheritable. The limit seems to have been for three lives,2 each of the two inheritors paying relief. Under normal circumstances the three generations would cover a period of about eighty years, but it is not at all clear how the Church proposed to secure its reversion after so long a period. Indeed, it is known that the Church of Worcester had a good deal of trouble in this matter, and there is certainly a very strong tendency for such land to become perpetually inheritable, although subject to relief. We even find in the year 983 an indication that the widow of a tenant of laen land might be under pressure to marry one of the lord’s subjects, and in the days of Edward the Confessor this has grown into the right of granting an heiress and her lands to the nominee of the lord.3 If laen land were at all common in England it would seem that we had in it the most remarkable link between English and continental feudalism; but unfortunately the chances of time have only left us documents in any considerable quantity from one church, the Cathedral of Worcester, and it is uncertain how far they represent conditions generally throughout the country, and how much they owe to the originality of the great Bishop Oswald, who ruled the see towards the close of the tenth century.

CHAPTER 3

INHERITANCE AND ALIENABILITY

Numerous attempts have been made to discover the origin of property in land, but unfortunately they have in many cases been prompted by political or economic prepossessions, with the result that the discussions upon this subject are by no means always good examples of scientific research. The age-long instinct of the human race which would imagine an ideal state of perfection in some remote age of the past has been very influential in directing men’s studies to the early history of property.

THE MARK THEORY

Early in the nineteenth century a school of German historians, of whom von Maurer was one of the greatest, discovered something like an earthly paradise in the condition of the Germanic tribes in the days of Caesar. They were even prepared to assert that as late as the seventh century the Germanic peoples practised communism in land, and that the idea of private property in land did not prevail among them until they had been corrupted by the influence of Roman law. The ancient Germanic village community from this point of view consisted of a highly socialistic state, very small, but very compact, which held the title to all the land in the community, allowing individuals only a right of user. This hypothesis is known as the mark system.1 In 1887 a brilliant and searching criticism of this theory was made by one of the greatest of modern historians, Fustel de Coulanges, who demonstrated the falseness of this position. For some strange reason there has been great reluctance to accept the results of Fustel; by an unfortunate fate his disinterested scholarship became entangled both with party politics in France, and with national historical tradition in Germany, with the result that it is only at the present moment that his work is beginning to receive the attention which it deserves.1 The results, however, are beginning to be silently adopted even in Germany, where historians have long resisted his influence.

AGRARIAN ORIGINS IN ENGLAND

The older English historians, notably Stubbs, accepted the mark system in its entirety until Maitland demonstrated in 1897 that it was inconsistent with the English documents. The results he reached are similar to those of Fustel de Coulanges although he differed from him on points of detail. Into the complicated controversy surrounding the village community we cannot enter.2 The most we will say is that the English sources show us individual ownership which as time goes on steadily becomes more intense. There was, however, a great deal of co-operation between neighbouring villagers, and then as now they would combine their resources in order to secure some particularly costly piece of agricultural equipment—the team of oxen which drew the heavy plough, for example—to arrange the rotation of crops and fallow, and other matters where united action was an advantage. This does not mean, of course, that there never was any communism in land at some remote period in England; but it does mean that we have no evidence of such a condition, and that as far as history is concerned the sources indicate individual ownership. The organisation of the village community in prehistoric times is an investigation which cannot be handled by the methods of the historian, and the theories which have been suggested on the subject must be taken subject to the reservations necessarily applicable to speculations in prehistory.

FAMILY OWNERSHIP

There is some historical reason for believing that in early times land was owned by families rather than by individuals, but the antiquity of this arrangement, its origins and its significance, have been much disputed; indeed, it has been suggested by Ficker and Maitland that this apparent family ownership is in fact only the product of the working of various rules of individual inheritance. This may very well be, for a similar process can be observed in other periods of legal history. The results produced by a strict settlement in the eighteenth century, for example, might easily produce the impression upon an historian of a thousand years in the future, who had no access to the deeds, that land was held by the family, and yet a history of real property law would show clearly that such a settlement was in fact the outcome of an ingenious arrangement of very individualistic rules of property and inheritance. Then, again, good reasons have recently been shown for believing that another body of rules, in themselves individualistic, combined to produce in France the system of community property between husband and wife.1 These considerations will serve as a warning that there is no absolute necessity in the nature of things why property should first have been ascribed either to the community or the family before it became individual. Generalisations of this sort cannot be used as aids to research; they are in fact useless for all purposes, until independent research has established their truth.

HERITABILITY OF MILITARY LAND

In tracing the history of the heritability of land we are faced by two problems. The first is comparatively easy; the practice, and later the law, relating to the descent of great military fiefs, are fairly clear. A number of documents have survived relating to these matters, for they were of great political importance. But, as we have seen, the vast properties which were granted as benefices to nobles and rulers consisted only in part of land for use and occupation; the major portion of these immense holdings certainly consisted of superiorities and fiscal rights superimposed upon the humbler orders of society who occupied and worked the land according to customs which in all probability were considerably older. Moreover, vast as they were, these holdings consisted almost always in an accumulation of scattered units, and the difference between a great landed magnate and a small one was simply the difference in the number of these units held by each. Whatever law was developed for the succession of great estates must therefore necessarily apply to small ones too, for the great estate was but a congeries of small units such as any minor landowner enjoyed. The result was of great importance. Socially, it meant that there was not a special law relating to nobles and great landowners, and a different one for the rest of the free landed classes. Legally, it meant that the developments of the law which took place primarily with reference to great tenants in chief, came to be applied to all free tenancies.

It is therefore the law relating to fiefs which we must consider. By the time of Bracton it is settled law that the word “fee” connotes inheritability and indeed the maximum of legal ownership. At the time of the Conquest this was certainly not the case. We have already seen that the feudal benefice on the continent assured little beyond a life tenure in its early days, and so it is not surprising to find the same state of affairs in England when the Conqueror repeated history in his grants of fiefs to his followers, and they in turn subinfeudated.1 More often, English charters immediately after the Conquest seem careful to avoid saying whether the donee is to take an estate for life, or whether his heir is to have any rights.2 Indeed, at this very moment in France itself (which was generally in the front rank of feudal development) the question of the quantum of a feudal tenant’s interest was uncertain. There is abundant English evidence after the Conquest of lords refusing to regrant on any terms to a deceased tenant’s heir.3

We have already mentioned the fact that the heir of a military tenant who wished to obtain a regrant of his ancestor’s lands had to treat with the feudal lord, who might or might not decide to admit the heir. The decisive argument was generally a sum of money, and it is possible to trace the gradual changes of attitude towards this payment. At first it is clearly no more than a payment to persuade the lord to make a grant of a benefice. Later it came to be an arbitrary due payable when an heir succeeded his ancestor, i.e. the succession of the heir has become normal, although the “relief” may be so heavy that it was equivalent to “buying back” the fief; hence a tenant might hesitate whether he would pay, or forgo the lands. In 1100 the charter of Henry I contained this clause:

By 1100 it therefore appears that the hereditary principle was admitted by the king in favour of his tenants in chief, and by them in favour of their sub-tenants. Having gone that far, it must rapidly have spread all through the feudal network.

HERITABILITY OF NON-MILITARY LAND

The second problem, and one of much greater difficulty, is the question of what law governed the descent of land in the middle and lower classes. These people were of no great political importance; their pedigrees are almost always lost. The succession of owners of the more modest estates is difficult to establish and the records of their litigation only begin at dates much later than the critical period which we should like to examine. Only occasionally do we find surviving collections of deeds which throw some light upon the law under which they held their land. This is particularly true of the Anglo-Saxon age.

We have, of course, a good deal of evidence (although it is by no means easy to interpret) relating to bookland, but it is obvious that bookland was a luxury for the wealthy; much of it was held by churches and monasteries and so the question of inheritance does not arise. There is good ground for believing, however, that bookland was alienable and devisable. It would seem from a passage in the Laws of Alfred that it was possible to insert in the charter constituting bookland limitations upon its descent, and that those limitations would be upheld in law.1 In this way Anglo-Saxon society of the ninth century acquired a device very closely resembling the entail of the late thirteenth century. Judging from surviving sources, however, no very great use was made of these powers. It is when we come to folkland that we reach the difficult problem of how land descended by common custom among the mass of the middle-class population, and here it is extremely difficult to reach a conclusion.

THE RELATION OF HERITABILITY TO ALIENABILITY

It may be helpful to consider the problem of inheritance in connection with that of alienation. Land was certainly not yet a commodity of commerce. The buying and selling of land on a large scale can hardly have existed. The population was very small and there was enough land to meet its requirements many times over, and it would seem that the land worked by a family in those days, as now, was worked by the labour of every member of the family. One of the striking features of peasant life is that every member of the family works, from the oldest to the youngest. The death of the head of the family can hardly have made very much difference beyond the substitution of a new head to control the general working of the estate; the other members of the family must surely have continued their old tasks. Under such circumstances there was little room for inquiry as to the exact canon of descent, as to where precisely the legal title was, or as to the exact nature of the interests enjoyed by junior or collateral members of the family. Under the new head as under the old, the whole family was supported by the whole of the land, living most probably together at one table. While such conditions lasted, even quite a vague custom would have been sufficient to regulate the family patrimony. Questions as to ownership and restraints upon alienation and the nature of heritable rights would begin to arise in only a few situations. The most important of these, no doubt, was created when one member of the family attempted to alienate a substantial portion of the property to a church. It is in this situation that family rights are brought to the fore on the continent, and we find the Church taking every possible precaution in order to secure its title. How far these precautions were absolutely necessary and how far they were merely politic, it is impossible to say. In any case, it is clear that on the continent an alienation to a church was accompanied by a confirmation by several members of the family who were deemed to have an interest in the land. This does not mean that the land was owned by all the family and that all must join in a conveyance. It seems rather that the Church felt it necessary or prudent to obtain the ratification of those who had expectations in the land. We find, for example, that when a gift was made to a church the donor would be required by ecclesiastical discipline to obtain the consent of his kinsmen, if necessary, by paying them a substantial sum of money. In England we find presumptive heirs joining in a conveyance in the eleventh and twelfth centuries but how much older this requirement is can hardly be stated—evidence discussed by Sir Paul Vinogradoff from the tenth century leaves us in doubt whether such consent was absolutely necessary.1

FAMILY RESTRAINTS IN GLANVILL

After the Norman Conquest, by means unknown, it became the regular form in conveyances to mention the consent of expectant heirs, while when we come to Glanvill we find this statement:2

Glanvill continues to give several more pages to the same effect. It would seem that he is anxious to frame general and reasonable rules, but that English law had not yet reached the concrete and definite provisions such as are to be found in various continental systems. Glanvill is unable to tell us plainly that a man can alienate one-third or one-half of his patrimony or his conquest; such rules existed on the continent and Glanvill would surely have told us if there were similar rules in England; but all he says is that a man must be “reasonable”, that he must not disinherit his heirs, and that he can only alienate “a certain part”. Glanvill also distinguished between patrimony and conquest, but this soon dropped out of English law.1 It would almost seem that the vague rules which Glanvill mentions were only insecurely established, for not only were they indefinite on the vital question of how much land could be alienated, but also, when we come to Bracton two generations later, we find no trace of them left.

Still, there can be no doubt that Glanvill is good evidence of a feeling that alienation ought to be restricted and that expectant heirs should not be disappointed. Starting from this fact we may say that the situation was probably something like this. Under ordinary circumstances, just after the Conquest, land was equally divided among all the sons, and it was considered improper—Glanvill would say illegal as well—for a father to alienate during his lifetime more than a reasonable portion of his patrimony, and particularly reprehensible if he advanced one son to the disadvantage of another.2 The policy of the rule seems to be to maintain absolute equality among all the sons, and Glanvill even asserts that the rule was pushed to such an extremity that a man could advance a bastard son (who, not being in the family, is not limited as to the amount which he can take) although he cannot show the same favour to a legitimate son. In short, the restrictions upon alienation have as one of their principal objects the maintenance of equality among the legitimate sons.

PRIMOGENITURE

We now come to the development of another rule which was to cause considerable difficulty, the rule of primogeniture. Under this system the whole inheritance descends entire to the eldest son, his younger brothers receiving nothing.

This form of descent first appears in military fiefs, where there was obvious justification for the policy of keeping the fief entire. It was long an opinion that primogeniture was introduced into England at the Norman Conquest, but Maitland felt uncertain whether primogeniture in Normandy had in fact proceeded any further than in England, and therefore concluded that we could not blame the Normans for “our amazing law of inheritance”. It would seem that in the eleventh century there were two tendencies in Normandy struggling for supremacy, the first being primogeniture and the maintenance intact of the whole patrimony, and the second being an attempt to compromise between this and equal partition through the device of parage, whereby each brother had his share but held it feudally of the eldest, who represented the whole inheritance. It has been suggested that—

It may well be that Norman example played a considerable part in imposing primogeniture upon English military fiefs.

Although in England and Normandy primogeniture grew up as a matter of custom, that was not the case everywhere. It was imposed upon Brittany in 1185 by an assize of Count Geoffrey,2 and upon the town of Leicester by its lord, Simon de Montfort, at the request of the inhabitants who preferred it to their custom of borough-English (ultimogeniture).3

PRIMOGENITURE AND FREE ALIENATION

It will be evident that, with the spread of primogeniture to land which was originally partible, some modification will have to be introduced into the rule, which Glanvill mentions, restraining alienation. Glanvill tells us that a father has no right to alienate his land unreasonably, or in any way which would benefit one son more than another. But could these restrictions be maintained after the advent of primogeniture? Would it be reasonable to maintain the restrictions upon alienation whose original object was to maintain equality among the sons, now that recent changes have abolished that equality and the whole inheritance goes to the eldest? The force of these objections seems to have been felt, and the rise of primogeniture inevitably brought with it freedom of alienation. Henceforward the eldest son will inherit the whole of the father’s property existing at his decease, but during his lifetime the father can make any provision which he sees fit for the younger sons without requiring the consent of his heir. These great changes occurred just about the year 1200, but how they were carried out is a mystery. It may perhaps have been a few decisions of the King’s Court which sufficed to enforce the new rule—or rather to turn the balance definitely in favour of one of the two competing systems of succession. Perhaps freedom of alienation was partly achieved through the doctrine of warranty. It began to be the custom for an alienor to bind himself and his heirs to warrant the alienee against all men. An obvious result of this obligation is that no person who is bound to warrant can claim the land; he is barred by his warranty. As soon as the rule is established that a man’s heir is his eldest son, then that eldest son will inherit the burden of warranty and be barred by it. In this way a deed with warranty will be sufficient to bar whatever claim the grantor’s eldest son might have. In 1225 the King’s Court refused its help to an heir who had been completely disinherited1 and left, it would seem, with the burden of military service but with no land to support it.

SOME ILLUSTRATIVE CASES

Lest the passage quoted above from Glanvill should seem too vague, it will be prudent to look at some cases on the early plea rolls, which date from shortly after Glanvill’s day.

Thus we find the distinction between conquest and heritage clearly made in a case of 1200 in which Robert Fitz Nigel demanded a house and land against his brother Richard Battle.2 Robert claims as “eldest brother to whom that land ought by law to descend”. The demandant is setting up the rule of primogeniture, but the tenant takes a more conservative position. True, he relies upon a gift by their common father to him, the younger son, but he does not state the full rule of freedom of alienation; he is content to rest on the older principle—“Richard comes and says that their father . . . of his conquest gave him that land during his lifetime”. So far, then, Richard only claims freedom of alienation in respect of conquests, but his case was in fact even stronger, for he adds that in the court of the chief lord of the fee Richard did homage to his eldest brother, the demandant. Here, then, we have the situation which was soon to develop into the rule that warranty will operate as a bar, for the fact that Richard did homage to Robert will soon be regarded as bringing into their relationship the obligation of warranty. That moment has not yet come (or rather, Richard has not yet heard of the new development) for instead of confidently pleading the homage as a bar, he concludes by praying the grand assize to recognise “whether he has more right to hold that land of Robert, by the gift of their father, and by the consent of Robert, than Robert has to hold it in demesne”. The case neatly illustrates the points which we have mentioned.

PRIMOGENITURE BECOMES GENERAL

Besides appearing in the highest classes of society among the nobles and military tenants, impartible succession also appears among the villeins. The economic basis of this practice is clearly the endeavour to maintain the villein’s holding intact and therefore sufficient to sustain the whole of his family and to meet the heavy burden which it owes to the lord. The rest of the freeholders in England continued what is assumed to be their former practice of equal partition among sons. For a time this was the general rule in all free non-military tenures (which are compendiously referred to as socage). It was inevitable, however, that the steady pressure of the royal courts should tend to eliminate exceptions and peculiarities, and as time goes on primogeniture gradually spreads to socage as well. The exceptions were the boroughs, which held to their custom of burgage, the county of Kent, which retained its ancient practices under the name of gavelkind, and numerous small landowners in villages where partibility persisted as a custom.1

TENURE AND ALIENABILITY

So far we have only discussed freedom of alienation from the point of view of the family. Fresh problems were created by the systematisation of feudal tenures, services and incidents, and the result was the imposition of a new type of restraint upon alienation in the interests of the lord of the fee. The history of their rise and abolition will form part of the next chapter, when tenures and incidents will be discussed.

CHAPTER 4

TENURES AND INCIDENTS

As feudalism progressed, attempts were made to introduce some sort of order into the immense variety which had so far prevailed, and so a large number of different characteristics which owed their rise to local or peculiar circumstances were finally classified, with the result that there were established a few categories which covered the greater number of tenures.

KNIGHT SERVICE

Knight service was clearly the principal feudal tenure, and its history in England, according to Maitland, falls into three periods.1 In the first, from the Conquest in 1066 to about the year 1166, it was a living institution. The tenant did military service in the King’s host accompanied by the number of knights required by his tenure. In theory he was only bound to serve forty days and never outside of the kingdom. Great lords were usually assessed in multiples of five or ten knights, since ten knights formed a military unit called a constabularia; the lord in turn secured himself the services of the requisite number of knights by subinfeudating to other tenants who assumed the burden.

Military service of a sort had been attached to land even under the Anglo-Saxon régime, but it was of a different character, and designed to fit in with a different style of warfare. The Conqueror was one of the greatest military experts of the day, and he insisted on highly trained knights who were adept in the latest developments of military science. When St Anselm sent his old-fashioned “drengs” in answer to a feudal levy, William II threatened him with the judgment of the King’s Court.1 Heavy assessments of knight service were therefore made against the tenants in chief, but it is clear that they bore no relation to pre-Conquest dues, and that they were in no sense proportional to the size or value of the tenant’s lands.2 Political and personal considerations seem to have been uppermost.

The tenant in chief could take whatever measures he saw fit for providing himself with the requisite number of knights. Some simply kept the necessary number of knights in their household, like other domestic servants;3 an alternative was to settle them on pieces of land, which they would thus hold as a knight’s fee from the grantor.4 And, of course, a combination of the two was possible. The obligations of the tenants in chief to the Crown were fixed by the Conqueror in or very near the year 1070,5 but almost a century later it was found that by no means all the service due had been assured by subinfeudating knights.6

SCUTAGE

The first known occurrence of the word is in 1100,7 and for a while it only seems to have applied to the knight service owed by the great ecclesiastical fiefs.8 Later in the century it became an important question affecting all sorts of tenants, and in 1159 and again in 1166 we find prominent mention of scutage; this introduces the second stage in the history of knight service. The knight is becoming less important and professional mercenaries (as King John discovered) are more effective in the field. And so the lord paid to the king a sum of money instead of bringing his knights with him; this payment was called scutage, and the lord, of course, was allowed to recover the sum from those of his undertenants who otherwise would have been liable to serve in person.

At the same time, it is clear that some tenants, instead of paying scutage at the normal rate, made a composition with the Crown which cost them even more than the scutage; why this should be is still a debatable question.1 That the system was breaking down there can be no doubt. Even the Crown realised that the increased cost of equipping knights made the burden impossible for many tenants, and so only exacted a fraction of their due service. On the other hand, scutage having become a fixed rate, steadily declined in value. It is not surprising, therefore, that many tenants preferred to send for personal service the reduced number of knights which the Crown was now willing to take instead of the heavy assessments fixed in 1070. Hence in the reign of Henry III there is a marked increase in the number of tenants who actually sent knights.2 Under Edward I it became a purely fiscal device.3

THE DECLINE OF KNIGHT SERVICE

The third stage is marked by the decline of scutage in or about 1266, and from this date for four hundred years (1266-1660) knight service remained as only a troublesome but lucrative anachronism. It was a very heavy burden upon certain of the landowners, and when it was finally abolished at the Restoration the landed interest succeeded in shifting it on to the nation at large by giving to the Crown instead of its feudal dues an excise on beer—an example of “the self-interest which so unhappily predominated even in representative assemblies”, as Hallam indignantly expressed it.

HOMAGE

The incidents of knight service were numerous and important. In the first place there was homage, an ancient and very solemn ceremony which established a strong and intimate relationship between lord and tenant.

In the Leges Henrici we find the highest expression of homage. The tenant is to be faithful to his lord even under trying circumstances; if the lord seizes the tenant’s land or deserts his tenant in mortal peril he ought to lose his lordship,1 but the tenant must be longsuffering and must support the lord’s ill-treatment for thirty days in war time, and for a year and a day in time of peace;2 the lord must warrant and defend his man, while if the man kills his lord he is guilty of blasphemy against the Holy Ghost, and will be skinned alive, so it seems. Later still, Glanvill will observe that difficult situations may arise when a tenant has done homage to two lords and those two lords declare war upon each other. Homage was abolished in 1660,3 but the simple oath of fealty which accompanied it is still in existence. In the thirteenth century clerks, narrators, champions, serjeants and others took oaths of fealty to their lords (i.e. employers), but it was necessary to make it clear that such an oath of fealty did not bind the employee to do suit of court.4

RELIEF

Another incident of knight service is relief, which was originally the price paid in order to secure a regrant of one’s ancestor’s land in times when the hereditary principle was hardly established in military tenures. At first it was arbitrary, but a series of charters and statutes regulated it in proportion to the number of knight’s fiefs.5 If the tenant held of the King in chief, the King had prerogative rights and had the primer seisin of all the tenant’s lands, not only those held of the Crown but also those held of other lords—and it is in these intenser forms of feudal right claimed by the Crown that we first find the word “prerogative”.

WARDSHIP

Wardship means two things, wardship of the land, and wardship of the body; for the lord has the custody of the tenant’s land until the tenant comes of age, and retains the profits, subject to a liability to educate the ward in a manner befitting his station, and this wardship of the land may be separated from wardship of the body. It was, in fact, a very important example of what was later called a “chattel real”.

It is tempting to conjecture that its origin lies in the time when hereditary succession in military fiefs was subject to the discretion of the lord, who might as a favour act as, or appoint, a guardian, until the heir came of age, instead of granting the fief to a stranger. Thus, the ancient custumal of Normandy defends the institution on the grounds that homage is a more sacred bond than merely blood relationship:

Its early history is not, in fact, so simple as that. In the days of high feudalism, the charter of Henry I (1100) shows that “the widow or other kinsman . . . shall be guardian of the land and of the children” of a deceased baron, “and I order that my barons conduct themselves similarly towards the sons or daughters or widows of their men”.2 We first hear of the general principle of the lord’s right of wardship in 1176.3

MARRIAGE

Even in the tenth century, we find Bishop Oswald of Worcester taking an interest in the re-marriage of the widows of his tenants, and in the Confessor’s day, apparently, another bishop of Worcester gave the daughter of his tenant and her land to one of his knights.4 By 1100 the King requires his barons to consult him (without fee) when marrying their daughters; if the baron is dead, the King may marry his daughters and dispose of their lands.5 The same rule is stated under Henry II.6 A vast extension of this practice took place soon after Glanvill’s day (c. 1188-1189), for in 1193 we find the King selling the marriage of male heirs.7 So marriages were added to wardships and terms of years in the category of “chattels real”. Since this particular example was an interest in young people who might elope, and were often “ravished” (i.e. kidnapped), the attempts of the law to deal with the problem produced some interesting results.

AIDS

Then, too, the tenant in knight service owed aid to his lord. The emergencies under which a lord could call for aid were at first numerous; it might be to pay his debts,1 to stock his land, to help him pay a fine to the King. But in the end aids are only due (unless by voluntary consent) to ransom the lord’s person, to knight his eldest son, and to marry his eldest daughter. Scutage, aids and similar payments were passed on from tenant to sub-tenant, until ultimately even the agricultural tenant was brought under contribution.2 The long struggle for the principle that taxation must be by consent was finally fought out in connection with the parliamentary taxation of personal property, but all the same it has a very early counterpart in the struggle to make aids limited in extent and occasion, unless freely voted by the consent of the tenants.

ESCHEAT AND FORFEITURE

Finally, we come to the incidents of escheat and forfeiture. Escheat is due to the lord of the fee on the death of a tenant without an heir, or upon his committing felony. It is important to note that escheat is not necessarily to the Crown; even in very recent times, if a mesne lordship be proved, an escheat might go to the lord and not to the Crown.3 The value of escheat to lords has depended a great deal upon the meaning of the word “felony”. In early times the felonies were few, but among them was the important one of deliberately refusing to do the services due to one’s lord; this being a felony, escheat followed upon conviction and the lord resumed the land. Soon, however, cesser of services ceased to be a felony, and the lord in many cases had no remedy against a tenant who wilfully withheld services until the Statute of Gloucester (1278). Moreover, in cases of felony the Crown established its right to year, day and waste, holding the land for a year and a day and wasting it before it went to the lord as an escheat. In the case of treason the whole of the traitor’s lands, of whomsoever they were held, were forfeited to the Crown and the lord got nothing unless the Crown granted the escheated land away; in that case the mesne tenancies revived.4

SERJEANTY

Another species of tenure is described as serjeanty and may be either grand or petty; in the former case it will resemble knight service. It is of little historical importance, although several serjeanties still survive in connection with coronation services.5

SOCAGE

We now come to the tenure of socage, which really consists of a great variety of tenancies whose only common factor is that they are not servile nor military; sometimes homage may be due but not scutage, wardship1 or marriage. The services are sometimes purely nominal, being the result of gifts to younger members of the family or to servants, or of a sale effected by subinfeudation. Sometimes we find a moderate rent, especially where a church is the lord; sometimes labour services are due, some of them so numerous and heavy that it is not easily distinguishable from villeinage. It is clear that socage is gradually becoming more free and of higher social status, until in the end it becomes the one free non-military tenure, for the statute abolishing chivalry in 1660 converted it into free and common socage. As we have already mentioned, the rule of primogeniture was soon applied to socage land.

The guardian in socage was a near relative, and he was accountable to the heir for all the profits (less the heir’s expenses); he might indeed sell the heir’s marriage, but the price had to be accounted for to the heir.2 Nevertheless, lords sometimes tried to assert a right of guardianship even over socage tenants, but generally failed in the end.3

BURGAGE

Tenure in burgage was peculiar to towns, although it varied considerably from place to place. A study of burgage will soon make it clear that a borough in the middle ages was still an agricultural unit, being in fact a village or a manor which has acquired a certain measure of self-government. Burgage tenure was not subject to aids, marriage or homage and only rarely to relief. Wardship, however, had been developed in the course of a different history from that of military tenures, and usually pertained to the kinsmen of the ward or to town officials. Frequently land was devisable by local custom, and if a tenant wished to alienate, his relatives often had the right to the first option (retrait lignager) while a second option may go to the lord (retrait féodal).4 Boroughs were liable to a form of taxation called tallage and to a variety of money rents.

Of tenure in free alms, or frankalmoign, it is only necessary to say that it was for the most part peculiar to the Church and that it owed feudal services unless it were of that sort which is called “free, pure and perpetual”, in which case it only owed spiritual services.1

VILLEINAGE

Finally, a word must be said about villeinage, for we shall not obtain a true picture of the common law in the middle ages if we neglect the large mass of population which was excluded from many of its benefits. As we have already remarked, in the early thirteenth century the common law was hesitating whether to take cognisance of unfree land. It soon decided not to, and we have already mentioned the results which this had upon the villein’s legal position. It was not until the close of the fifteenth century that courts of equity and prerogative were prepared to give protection, cautiously and timidly, to villeins, principally in cases where intervention could be justified as sustaining a manorial custom, and not until the sixteenth century can we be sure that the common law would follow this example, while it remained for Coke at the beginning of the seventeenth century to establish the villein’s rights on the common law itself, under the name of copyhold. As for his personal status, Bracton assures us that a serf is free against all men except his lord, against whom the only protection he receives is that of life and limb. The law was never consistent in dealing with the villein’s personal property; in theory all a villein’s chattels were deemed to belong to his lord, but in practice we find the villein doing business, being fined, and paying taxes exactly like other men. His unfree status was hereditary, but a villein who ran away and was de facto free was spoken of as being “seised of his liberty”, and this seisin might become the basis of a reasonably good title to freedom, subject only to the condition that he keep away from the manor to which he belonged, for if ever he returned to his “villein nest” the lord can seize him and put him in irons to prevent him leaving the manor again (as many of them must have discovered).

TENURE AND ALIENABILITY

Moreover, it must be remembered that the existence of tenure of any sort added another complication to the question of freedom of alienation. We have already mentioned this subject from the aspect of the family, and now it must be considered from the point of view of feudal law. Alienation may be effected in two ways. The grantor may substitute the grantee in his own place in the feudal pyramid; or else he may subinfeudate by creating a new tenure between himself as lord and the grantee as tenant. By the time the feudal formula had been applied to all land, it became clear that either of these two methods of alienation might work hardship to the grantor’s lord. In the case of substitution the incoming tenant might be poor, dishonest, or unfriendly, and in either case the lord might find it more difficult to exact his services. In the case of subinfeudation the situation is different. Although the grantor may have disposed of the whole of his holding to the grantee, yet the feudal relationship between the grantor and his lord still continues, the only change being that the grantor, instead of being tenant of the land in demesne, is now only tenant in service, and instead of an estate in possession in land he has an incorporeal hereditament. Whatever services he owes to his lord are still due, and the lord can exact them by distraining any tenant who holds the land—in the present case, the grantee, the law allowing the grantee a remedy over against the grantor who must “acquit” or reimburse him. In the case we have put, the lord’s principal loss through his tenant’s subinfeudation is in respect of wardships, relief, marriage and escheat.

Let us call the lord A. and his tenant B. and suppose that B. holds of A. by substantial services, and that the tenement is large and productive of a good revenue. As long as this relationship lasts the lord A. derives a regular income from the services and has the expectation of important profits at irregular intervals. Upon B.’s death he may have the wardship and marriage of his heir, and if the heir is young the profits will be considerable; if the heir is already of age he can expect a substantial relief; if there is no heir at all, B.’s tenement will escheat, and the lord will therefore enjoy a very considerable windfall; so, too, if the tenant commits felony. Let us now suppose that B. sells his land. He receives a large sum of money from the purchaser, which, of course, is quite beyond the lord’s reach. B. then enfeoffs C., the purchaser, to hold of him by the nominal service of a rose at midsummer. As a result of this arrangement B. only retains a seignory of which the nominal service is the symbol. We have now to consider how this arrangement will affect A. The regular services due from B. to A. are still secure, but the occasional profits of A.’s lordship are seriously impaired. Relief which is based upon the value of the tenement will no longer be considerable, for B.’s tenement produces nothing but a rose at midsummer. The wardship and the marriage of B.’s heir are likewise worthless, for the tenement is actually of negative value and under the most favourable circumstances the guardian could only collect a few roses in the course of a minority of twenty-one years; if B. commits felony the lord’s escheat once again will only consist of the nominal services which B. reserved. It is clear that we have here a very difficult situation, which, moreover, must have very frequently arisen. The lord’s position is even worse when B. alienates to a church, for then the seignory which B. reserved would merely be a lordship over a corporation which never dies, never marries, and never commits felony.

FEUDAL RESTRAINTS ON ALIENATION

In Normandy this difficulty was met by the regular requirement of a confirmation of any tenant’s alienation by his lord and by all superior lords up to the duke himself; this enabled a lord to safeguard his interests.1 In England, however, this fairly simple requirement was not much developed, and for a long time there was doubt as to the extent to which a feudal lord could restrain alienation by his tenants. Glanvill makes no mention whatever of any feudal restrictions, which may be interpreted as meaning only that the King’s Court will not enforce them; there was a very remarkable case in 1203, however, when a plaintiff summoned his tenant to the King’s Court to show why he had sold his tenement to the plaintiff’s overlord (thus destroying the effectiveness of the plaintiff’s seignory). Unfortunately no result is enrolled.2 It is quite probable that such restrictions existed in some form and that they were enforceable through the lord’s feudal court. In the third Great Charter (1217) we find that a complaint by the barons evoked the following provision (c. 39):

This is the first express limitation of a feudal character upon alienation in English legal history. When we come to Bracton he assures us that the arrangements we have just described may very well work to the financial loss of the lord, but nevertheless he has suffered no injury which can be remedied at law; if Bracton is reduced to this paradox we may be sure that it is because under contemporary law the lord was completely helpless in such a case, and that the provision in the Great Charter was nothing more than the expression of an unenforceable principle.

It was not until 1290 that the Statute Quia Emptores afforded a solution.3 By this statute subinfeudation was absolutely forbidden in the case of fee simple;4 alienation was henceforth to be by substitution with an equitable apportionment of the services. The statute expressly stated that alienation was to be free,5 and consequently the Crown had everything to gain through the enactment of the statute. No new tenures could be created, although in the inevitable course of events many old tenures became extinct, escheated to the lord above, or were forfeited to the Crown. The Crown was therefore gradually becoming less separated by intermediate tenures from the tenant in demesne. The reasons for the statute are clearly set out in the preamble, and there are no grounds for believing that the King had a deep-laid or far-seeing motive;1 on the contrary, it is expressly stated that the statute was made “at the prayer of the magnates”. Nor could its operation increase the amount of land subject to the special burdens of tenure in chief. Indeed, the great charter contained elaborate provisions to prevent that happening in any case,2 and the common law developed rules to protect mesne tenancies against the Crown as far as possible.3

MORTMAIN

During the reign of Henry III the grant of land to churches was becoming very frequent; more than that, tenants practised collusion with churches in order to defeat feudal services. The Great Charter of 1217 contains the first direct provision against this practice also:

Here we have the serious sanction of forfeiture provided, and yet it was ineffectual to prevent these practices. At the very moment when Bracton was writing, the barons in their petition of 1258 gave as one of their grievances “that religious persons ought not to enter the fees of earls and barons and others against their will, whereby they lose forever wardships, marriages, reliefs and escheats”. As long as the barons were in the ascendancy they were able to secure legislation in this direction by c. 14 of the Provisions of Westminster (1259). At the final settlement after the Barons’ War embodied in the Statute of Marlborough this provision, however, was omitted—perhaps we may see here an effect of Henry III’s conspicuous favour to the Church which characterised the whole of his reign. It was under his son and successor, Edward I, that the problem was finally settled by the Statute of Mortmain (1279) which re-enacted in broader terms the provision of the Great Charter of 1217, again imposing forfeiture to the lord as a penalty for unauthorised alienations in mortmain.5 The most remarkable feature of this statute, however, is one which does not appear in the text. There is no provision in the statute for licences to alienate in mortmain; nevertheless, immediately after the statute was passed, such licences were lavishly granted by the Crown. It will be observed that the Crown dispensed from the statute and received fines for doing so without any statutory authority, and even in cases where the loss occasioned by the alienation fell not upon the Crown but upon a mesne lord.

TENANTS IN CHIEF

Tenants in chief of the Crown, on the other hand, were being subjected to increasing restrictions. Before they could alienate they had to satisfy the Crown that it would suffer no less thereby, and from 1256 onwards1 we find an increasing number of restrictions upon tenants in chief; which were soon set forth in an unofficial tract called Prerogativa Regis, which later ages sometimes mistook for a statute.2 As for the freedom of alienation granted by the Statute Quia Emptores, it was held that this could not be construed as restraining the Crown in the absence of express words to that effect.

In this and the preceding chapters we have therefore traced the development of the freedom of alienation (except into mortmain), and the removal of the somewhat vague restrictions based on ideas of family interest and the interests of the feudal lord. Even the Statute of Mortmain was easily dispensed with, and we may therefore assume that by the close of the thirteenth century land was freely alienable by all except tenants in chief of the Crown.

THE ALIENABILITY OF SEIGNORIES

There remains to consider the point where the alienation is not that of a tenement held in demesne but of one held in service. How far can a lord alienate his seignory and compel his tenant to accept the new lord? It would seem that in general he can do so, the sole difficulty arising where the bond of homage exists between the old lord and the tenant. In such a case the tenant is entitled to object if the incoming lord is his mortal enemy or too poor to be able to sustain the burden of warranty which is such a valuable outcome of homage. Consequently we find that the King’s Court will compel a tenant to attourn all services to a new lord save only homage, and as to this it seems to have hesitated.1

THE EFFECTS OF TENURE

Occasionally attempts have been made to estimate the effects of tenure upon English law, but it is curious that the subject has been so little explored.2 A comparison between English and continental law in this respect should be fruitful, for on the continent the feudal lawyers admitted that tenure divided the ownership of the land between the lord and the tenant.3 English law refused to admit this proposition. Instead of regarding lord and tenant as dividing between them the ownership of one thing, it looked upon each of them as a complete owner of two different things, the tenant being the owner of the land in demesne and the lord being owner of a seignory, which, although incorporeal, was treated in every way as property. One result, therefore, of the doctrine of tenure as it was developed in England, was not to divide ownership between lord and tenant but to add the lord’s seignory to the growing list of incorporeal hereditaments which mediaeval law was particularly fond of handling on exactly the same lines as real property.

The Statute Quia Emptores did much to create a great gulf between the fee simple and the lesser estates; a fee simple could not be subinfeudated, but the lesser estates were expressly removed from the operation of the statute. Tenure continues to be created, therefore, by means of sub-infeudation in a case of life estates and estates tail;4 particular tenants all hold feudally of the reversioner or the remainderman in fee. It is important to remember that English law treated these two types of tenure in different ways. The tenant of a fee simple by virtue of a subinfeudation (which must have dated from a time earlier than 1290) was regarded as an unrestricted owner and the interest of his lord was no limitation upon his own; the tenant held the land and the lord held the seignory, both of them in complete ownership.

When we come to the tenure of estates less than a fee, we find a very different scheme of things. The tenants in this case are consistently treated in the mediaeval cases as something less than owners, and it soon becomes the theory that the total of the interests of all the tenants, together with that of their lord (the reversioner or remainderman in fee), constitutes the ownership of the land in question. Moreover, since reversions (and sometimes remainders) in fee were seignories, the law could treat them as vested estates, and not merely as expectations. We therefore find that in the case of the entail, ownership is very successfully divided between the parties, while in the case of the fee simple, lord and tenant both have the fullest interest recognised by the law, the one in the land and the other in the seignory. This division of ownership in the case of the entail is certainly the origin of the common law system of estates and has therefore played an enormously important part in shaping the law of real property, but there is no reason to believe that this division of ownership is the result of tenure; if tenure involved divided dominium, then we ought to find ownership divided between a lord and his tenant in fee simple, but, as we have seen, this is not the case. It is less easy to see how the existence of horizontal hereditaments can be regarded as a result of tenure, as has been suggested by Mr Hogg.1

Direct results of tenure are hardly to be expected, therefore; as the system was worked out by the courts the seignory was regarded as an incorporeal hereditament which was “real property” in the person who held it. There was the curious rule that one cannot be both lord and heir, but the immense complications it engendered could be fairly well avoided by refraining from taking homage, and (later) by making a gift in tail instead of in fee; after Quia Emptores the rule could not be extended.2

The indirect results were more serious. The burden of the feudal incidents bore so heavily on tenants that the history of real property law is largely concerned with attempts to evade them. On the one hand lay the possibility of separating the enjoyment of land from the legal title to it—hence the long history of the use. On the other lay various devices to ensure that he who was really the heir should take not as heir but as purchaser, so avoiding the relief; this gave us the contingent remainder and the Rule in Shelley’s Case. In short, the persistence of a system which had long ceased to correspond with the real social structure of the country, although it continued to be an important source of revenue to large numbers of landowners as well as to the Crown, inevitably drove tenants to devise evasions, with the result that the law was warped beyond endurance.

WARDSHIP AND THE FAMILY

The complete feudalisation of the common law is well illustrated by the law of wardship. Henry I in 1100 had indeed recognised the right of the widow or relatives to have the wardship of the land and children of a deceased tenant.1 Very soon, however, feudal interests prevailed over family ties. The orphaned infant was treated as an adjunct to his lands: if he had lands held of several lords, the wardship of his body went to the lord of the oldest tenure, the lands being in the wardship of their respective lords.2 The feudal guardian, however, was in no sense a Roman curator and there is nothing in the common law corresponding to that institution. A guardian did not represent an infant in court or out of court, and his concurrence added nothing to the validity of an infant’s acts. Infants litigated freely and needed no formal intervention of guardians or even of “best friends”.3 For feudal heirs the courts were sufficient protection, with their rules on the demurrer of the parole (suspending most important actions during minority), and the writ of entry dum fuit infra aetatem (emabling him to recall gifts made during infancy). It was the infant burgess who really needed legal help, but the common law was not concerned with him, for the city of London and other jurisdictions were accustomed to manage infants’ businesses and watch their investments—matters in which local knowledge and constant attention were essential.

Even family solidarity made little resistance to the feudal conception of wardship. The feudal lord regularly took an infant from his mother (we often see her buying him back), but a lord cannot take an infant from his father.4 The father’s right to his own heir is protected by law, and by an action which is typically feudal.5 Indeed, not infrequently a father will “sell” his own heir,6 and as late as 1558 a statute against abducting children from their parents will only apply to heirs or heiresses.7 Such other rights as parents may acquire over children not their heirs seem to be based on the singular fiction that they are “servants” within the scope of the old labour law.

CHAPTER 5

THE RISE OF THE ENTAIL

As we have seen,1 it was possible under Anglo-Saxon law to impose limitations upon bookland which resemble the entail rather closely. There is no evidence, however, that this practice survived much later than the Conquest, or that it was used to any considerable degree even in Anglo-Saxon times. We have also remarked that one of the most frequent occasions for alienating land was the establishment of a younger branch of the family, and particularly the endowment of a daughter. It is in this latter that the origin of the entail must be sought.

THE MARITAGIUM

The maritagium or “marriage” was a post-Conquest institution which in the course of time took fairly definite form as the result of many years of custom.2 The terms and incidents of a maritagium were perfectly well known and in many cases were not embodied in any written document. We do find a few examples, however, of deeds from the twelfth century which show us the principal characteristics of the gift in free marriage, and confirm Glanvill’s words. In the twelfth century the gift in maritagium seems regularly to declare that the donor gives the lands in question together with his daughter to the donee in frank marriage—it is worth noting that the earliest forms are gifts to the husband alone and not to the wife nor the two jointly.3 From Glanvill we learn the conditions attaching to such a gift. He tells us4 that if the marriage is “free”, the feudal services will not be due (for it is clear that he contemplates the establishment of frank marriage by means of subinfeudation). Feudal services, however, will revive at the moment the third heir enters. The descent of frank marriage seems already in Glanvill’s day to have followed the same canon as the thirteenth century would have expressed in the formula “to A. and B. and the heirs of their bodies”. As soon as the third heir enters feudal services revive—and clearly the presumption is that by this time (three generations average one hundred years) the new family will become established and perfectly capable of performing feudal services.

THE EFFECT OF HOMAGE ON MARITAGIUM

Glanvill also tells us that the third heir is the first one who shall do homage (whether the marriage is free or not) which henceforth shall be due from all his heirs. The reason for this is that while homage has not been done there will always be the possibility of the land reverting to the donor upon the extinction of the donee’s line. When, however, homage has been taken upon the entry of the third heir the lord becomes bound to warrant and his reversion is therefore destroyed.1 The evidence all goes to show that these feudal technicalities were imposed upon an older institution2 whose characteristics apparently were heritability by a limited class of heirs, failing which there would be a reversion to the donor unless three heirs in succession had entered; in the latter case the gift became unrestricted and the reversion was destroyed. Glanvill does not say so, but it would rather seem that until the third heir had entered the maritagium could not be alienated;3 it is only by supposing some such rule as this that the provisions concerning feudal service and the reversion take a consistent shape. Glanvill furthermore assures us that until homage has been taken the tenants are in a particularly weak position, since the donor and his heirs are not yet bound to warrant. This seems to be a difficulty created by applying feudal rules to an institution which was really more ancient. In order to circumvent it the constitution of a maritagium was accompanied by a pledge of faith binding the donor and his heirs to maintain the arrangement. Now the pledge of faith was a purely ecclesiastical affair—a ceremony whereby the promisor put into pledge or pawn his hopes of future salvation as security for the performance of his obligations. Over such matters the Church courts had competence, and so litigation concerning a maritagium which involved the relationship between the donor and the donee could take place in ecclesiastical as well as in royal courts. It may be remarked that here as at many other points the Church exercised a powerful influence in insuring the stability of the family by securing an adequate economic foundation for each new family. As we shall see later on, the Church also used its influence to secure proper dower rights for the sustenance of widows. Finally, Glanvill informs us that “when a man has received lands with his wife in marriage” they shall revert to the donor after the death of the wife unless issue has been born alive; it is not necessary that it should have survived. This rule bears an obvious resemblance to the more general rule of “curtesy”, but for our purpose its importance lies in the fact that until the birth of issue the husband’s estate is very slender; it would be quite easy for a husband to get the impression that as far as he was concerned the gift only became a really valuable one upon the birth of issue. From this it would be a very short step to the theory that such a gift was really conditional upon the birth of issue—and this idea was to play an important part in the future.

EVOLUTION OF THE ENTAIL

In the period between Glanvill and Bracton we get an increase in the use of written documents and considerable variety in their forms. Instead of conveying an interest which is described simply as a maritagium, donors set out in detail the principal points of the arrangement. We therefore find gifts to the man alone, or to the woman alone, or to both of them jointly, and the descent limited to the heirs or to the heirs of the body of either or both, according to the fancy of the donor. It is during the same period, moreover, that we find the appearance of some other forms of gifts which we believe must be regarded as derived, or imitated, from the maritagium. The maritagium was the first institution (other than life estates) in which a reversion was saved, and it may very well be that donors would wish to devise some other means whereby a reversion could be saved, which could be used in other circumstances than those under which the maritagium was normally constituted. This is the explanation for the rise and early history of the entail. The most striking feature of the maritagium was the reversion to the donor upon the failure of the descendants of those whom he wished to benefit,1 and the entail was an attempt to extend this characteristic to gifts which were not to be confined within the traditional bounds of the maritagium, and, indeed, which might be entirely unconnected with any marriage.

CONDITIONAL FEES

Numerous difficulties arose. The only body of rules then in existence had been developed in connection with the maritagium. They were admirably devised for the purpose of governing property given to a new household in the expectation that it would become a permanent family, but when they were applied to these other situations they worked confusion and mischief. In the midst of this confusion Bracton was writing, and it must be said that he did nothing to make it clearer. He begins by stating an excellent principle; all the limitations expressed in the gift (which taken together he calls the modus) must govern the gift, “for the modus will override common law because a modus and a covenant restrain the law”.1 If this principle had been observed, then the newer forms of gifts which we have described would have presented little difficulty. A gift to A. and the heirs of his body would have been construed along simple and fairly obvious lines. But Bracton immediately vitiates his principle by introducing implied conditions, and consequently the modus will not prevail in actual practice, for the law will presume a number of implied conditions which the donor did not express and probably did not contemplate.

There is no doubt that in this passage Bracton has had in mind certain portions of Roman law on the matter of conditional gifts. It would be unfair, however, to accuse Bracton, personally, of using his Roman learning in a place where it did not belong. If Bracton treated these gifts as conditional it is because he had some grounds for doing so in contemporary opinion, and there is no evidence that Bracton was the originator of the doctrine.2 We have already suggested that such an opinion might easily arise in connection with the maritagium, for the husband’s estate under this arrangement depended to a very large degree upon the birth of issue, and he might very naturally have regarded it as being conditional upon that event. So, too, the donor might likewise have imagined that his gift was in a sense conditional, for it is natural that he should intend the gift to be the foundation of a new family, and if that family did not become established, then the gift should revert to the donor. To him, also, the maritagium may therefore have looked very much like a gift conditional upon the birth of issue. Then, too, it must be remembered that in practice the donor may often have remained in possession, so that the donees did not get seisin until later. This was convenient, no doubt, but risky;3 but once again, donors might easily get the impression that a maritagium was not a complete gift unless the donees founded a family. In view of all this Bracton not unnaturally looked to his Roman books for light upon the treatment of conditional gifts, for in Bracton’s day the English law was evidently very unsettled; the traditional maritagium was undergoing numerous variations and donors were devising all sorts of fancy limitations, while many gifts containing limitations of this sort could hardly be described as maritagia at all.

BRACTON ON CONDITIONAL FEES

Bracton begins his discussion by the somewhat fruitless classification of practically every sort of gift which is not in fee simple as a conditional gift, throwing together in one category the maritagium, gifts to religious houses, to bastards, gifts for life, for years and fee farm.1 This, of course, is not very helpful. He then proceeds to say that the modus will control the line of descent and exclude heirs of any class except those named in the modus, while upon the failure of the prescribed class of heirs there will be a reversion to the donor, which if it is not expressed in the deed will be based upon an implied condition—which is Bracton’s way of saying in Roman terms that as a matter of custom there always has been a reversion in such cases, and that it is part of the legal institution of the maritagium and need not be set forth specially in the deed. He then proceeds to develop this curious theory: a gift to A. and the heirs of his body by a particular wife (an example of a maritagium) gives to A. a life estate only until the birth of an heir; upon that event the life estate swells to a fee simple; if the heir predeceases the donee that fee simple will shrink to a life estate. On the other hand, a gift to “A. and his heirs if he have heirs of his body”, once it has become a fee simple upon the birth of an heir,2 will never shrink to a life estate again on the failure of that heir; the reason for this, it seems, lies in the fact that the former gift must be construed as a maritagium whose aim is to endow an enduring family, while the second is expressly conditional. Consequently, the eventual failure of issue in the case of a maritagium reduces the donee’s estate to a life interest, thereby assuring the reversion after the death of the wife and of the husband (who will be entitled to a sort of curtesy even although the issue has failed).

MARITAGIA BECOME ALIENABLE

Bracton’s most striking remarks are on the subject of the alienability of the maritagium. The donee has only a life estate until issue is born; but then—

It certainly seems that Bracton here lets technical rules defeat the modus whose power he so highly praised on this very page, for he uses the rule that “heirs” is a word of limitation to enable the donee to alienate so as to disinherit the heirs. This clearly defeats the intention of the donor and flouts the modus. Bracton’s Romanism is not to blame, for it is clear that his learned language is merely expressing the state of contemporary English law.2 At the moment he was writing, the insurgent barons had drawn up a list of grievances (called the Petition of the Barons, 1258), c. 27, in which we have this complaint:

From this it will be seen that the barons’ protest was against the rule which allows the donee (who by this time was often the woman as well as the man) to alienate in spite of the failure of issue. Their suggestion of a writ of entry clearly refers to the writ of entry at common law whereby a reversioner could recover land against the alienee of a tenant for life. The barons had to wait nearly a generation before they got a remedy.

THE STATUTE DE DONIS

The Statute De Donis, which is the first chapter of the Statute of Westminster II (1285), examines the whole situation and enacts:

The preamble mentions the three cases of a gift (a) to husband and wife and the heirs of their bodies, with a reversion expressly reserved, (b) in “free marriage” (which will be construed in law as containing by implication analogous provisions), and (c) a gift in the form merely of “to X. and the heirs of his body”. It states the mischief of the existing rules to be that on the birth of issue the donees can alienate and so (a) disinherit their issue and (b) destroy the reversion, and (c) when there has been issue which has failed, the donee can defeat the reversion. For remedy, the statute enacts the general rule that the form of the gift is to be observed so that a donee cannot prevent the tenement either descending to his issue if such there be, or reverting to the donor, if there be no issue. As the machinery for its application, the statute gives the forms for a writ of formedon in the descender (“because in a new case, a new remedy must be provided”): it remarks that formedon in the reverter is already sufficiently common. It neither mentions nor implies any remedy for remaindermen.2

THE DURATION OF AN ENTAIL

An examination of the use of the word “issue” in the statute will show that its meaning was not an indefinitely long line of descendants of the prescribed class, but only the first generation; this is clear, for the statute speaks of “issue or the heir of such issue”.3 It therefore follows that the statute only assures the inheritance to the issue of the donee, that is to say, his heir in the first generation. The statute imposes no restraint upon an alienation by the issue. This point was raised in 1311 when the famous Chief Justice Bereford admitted that this was the literal meaning of the statute, “but”, he said—

According to another reporter Bereford’s words were these:

From this passage we can clearly see the state of affairs in 1311. The Statute De Donis had been in operation for a quarter of a century and it is not surprising to find that so distinguished a lawyer as Herle (who afterwards became Chief Justice of the Common Pleas) should venture the opinion that there were now two forms of gift less than a fee simple, the maritagium and the fee tail. It is just as significant, however, that Bereford indicates the historical relationship between the two. So strong does he feel that connection to be that he applies to the estate tail (which by now is beginning to be regarded as the creation of the Statute De Donis) a characteristic which was once peculiar to the maritagium. Back in Glanvill’s day a gift in free marriage remained free until the third heir had entered, and this in the canonical way of counting was the fourth degree.2 Bereford applies and extends this rule; the fee tail like the maritagium is to retain its peculiar characteristics until the third heir (or the fourth degree) enters. (As we have already observed, Glanvill does not tell us expressly that the maritagium in his day was inalienable,3 but we may well believe that until the end of the twelfth century it was rarely, if ever, disposed of.) True, the statute did not say this, but Bereford had a ready explanation. Chief Justice Hengham who drew the statute had done it carelessly; as he worded it the entail only lasted two degrees, but his intention was to make it last for four. This information Bereford, no doubt, derived from tradition, and there was no rule at that time to prevent him from setting aside the clear words of a statute when he had private information that the draftsman really meant something else. It is curious to observe that one of the greatest pillars of real property law had been erected so carelessly.

Bereford’s exposition of the statute, like many others of his striking contributions to the law, was not followed, and in the middle of the fourteenth century it was still an open question how long an entail was inalienable—the real test of Bereford’s doctrine could not, of course, be made for some time, for four degrees would normally last nearly a century. Indeed, in 1344 it was not certain that an entail would last even as long as four degrees—a very long discussion on this point was inconclusive.1 As to what happened after the fourth degree we have no indication until the year 1410 when we are told2 that “after the fourth degree frank marriage becomes formedon”—in other words, it is already the doctrine that an entail will endure as long as there are heirs of the prescribed class, and this doctrine is now transferred to the maritagium so that the maritagium now becomes of indefinite duration.

THE NATURE OF THE HEIR’S INTEREST

In discussing Bracton, we have seen that his difficulty was due to the application to entails of the doctrine that the word “heirs” is a word of limitation and not of purchase. This doctrine left no basis for the expectation of the heir in tail until the Statute De Donis gave him a legal estate and a form of action for its protection. This statutory reform, however, made it difficult to retain Bracton’s dogma; as things stood after the statute a gift to A. and the heirs of his body gave to the heir an interest which was protected by the writ of formedon in the descender; how, then, could it be said that the heir takes nothing by purchase? An examination of the attempts to resolve this difficulty would yield interesting results which we can only briefly indicate here.3 Shortly after the statute a case of formedon in the descender arose in which the demandant was under age.4 On principle the infant heir of an ancestor who died seised could sue at once for his inheritance, but as the ancestor had alienated this rule did not apply. The demandant therefore turned to the rule that an infant can sue as to his own purchase, and argued thus:

This ingenious point was open to much criticism; the demandant had counted upon his descent, not upon his purchase, and Howard pursued the theory until it became an absurdity:

Bewildered by these arguments the court took refuge in the fact that the demandant was nearly twenty-one, anyhow, and so he might as well be allowed to sue. The question of the heir’s interest continued to arise, however, and the proposition which Howard had regarded as absurd was soon put forward in all seriousness. The machinery of aid-prayer worked in this way: when a tenant for life was defendant in an action where the title to the fee simple was in dispute, he was unable to proceed alone. The proper thing for him to do was to “pray aid of the reversioner in whom the fee resides” in order that the reversioner could come and defend his own title. It sometimes happened, however, that there was collusion between the plaintiff and the tenant for life, in consequence of which the tenant for life omitted to pray aid of the reversioner and instead defaulted or “pleaded faintly” so as to allow the plaintiff to recover by judgment. In order to prevent the reversioner losing his rights through the dishonesty of his tenant for life in refusing to pray aid of him, a number of rules were evolved, many of them statutory,2 which allowed the reversioner to intervene and “pray to be received to defend his right”. Thus in 1307 Agnes, widow of Thomas Picot, was the surviving donee in tail, and upon her default in a real action her son and heir prayed receipt on the ground that his mother had only a freehold. His prayer for receipt was granted.3 In 1308 Bereford, J., recognised that the issue (“in whom the fee and right repose”) might have to be joined with the tenant in frank marriage for some purposes,4 and about 1311 we have a case on these facts: tenements were given in frank marriage, and the husband (who had survived his wife) attempted to alienate them fraudulently by having his alienee bring an action against him which he suffered to go by default. The heir intervened and prayed to be received, and his prayer was granted.5

Two of these cases, it will be noticed, involve what was later called a “tenant in tail after possibility of issue extinct” and clearly this situation directed attention to the peculiarities of such an estate.1 The doctrine we are concerned with was not to be confined, however, to the receipt of an heir in tail on the default of a tenant in tail after possibility, for in 1314 we get a formal theory of the entail announced by Serjeant Toudeby in these words: “In the case where tenements are granted in fee tail and the grantee has issue, the fee is severed from the freehold, and the fee is in the issue while the freehold only is in the father.”2 This time the court rejected the theory that the fee was in the issue. If this remarkable theory had prevailed long enough to combine with the development of the idea that an entail endured indefinitely as long as there were heirs, the law would have reached a very different result, for a tenant in tail in possession would always be a life tenant only, while his heir apparent held a fee—the books do not venture to say, however, that this would be a fee simple. By the middle of the fourteenth century this doctrine is extinct. Perhaps it was felt that if even the issue in tail had a fee, it would be difficult to describe what the reversioner had.3 As late as Richard II, we occasionally find hints of uncertainty, even among the learned. Thus in 1387 Holt, J., suggested that if land is given to A. and the heirs of his body, it will descend to such heirs born after the gift, and not to issue already in existence when the gift was made. The serjeants ventured to dissent from this view.4 From the middle of the fourteenth century onwards we can clearly see the growth of the dogmas which are to be fixed in the middle of the fifteenth century in the great treatise of Littleton where we find the classical doctrine, and can appreciate the length of time which separates it from the desperate attempt of Bracton to maintain that the maritagium and similar so-called conditional gifts were no more than fees simple subject to a peculiar line of descent or to a condition as to the birth of issue. Attempts to identify the fee tail and the fee simple had failed, whether they be Bracton’s attempt to place the fee in the donee or Toudeby’s attempt to place it in the issue, and the inevitable conclusion was at last reached that an entail in fact divides the fee among different people. The use of the word “tail” curiously illustrates this. Coke and all the old books are correct when they say that it is derived from the French verb tailler which means “to carve”. But this word “carve” has two senses. In the first place it may mean to give a particular shape to a thing as an artist does to marble; illustrations of this sense are common. Thus, when counsel indulged in some wishful thinking about law, Bereford, C.J., remarked, “Vous taillez la leiauxicom vous le volez”—“You fashion the law as you like it”.1 This was the original meaning of the fee tail, for the descent of the fee was limited—taillé—to preordained lines. But in the view of Coke, tailler takes the second sense of the word “carve”, for to him a fee tail consists of a fee which is cut up and partitioned among the various parties to the entail;2 in Coke’s thought to carve an entail was analogous to carving a joint—a certain amount is cut off and a certain amount is left; adding them together we have exactly one fee simple.

CHAPTER 6

THE COMMON LAW ESTATES DOWN TO 1540

In the preceding chapters we have seen that a fee simple was inheritable by primogeniture since about 1200; that it was alienable without the consent of presumptive heirs since about the same date; and that nearly a century later it became freely alienable without the lord’s consent as a result of the Statute Quia Emptores of 1290. The first two of these advances had already been made by the time of Bracton, and from his day, too, we have a large number of surviving charters which attest the frequency with which land was transferred.1

THE FEE SIMPLE

Bracton has some interesting observations upon the nature of a fee simple, and one of the most remarkable things about them is the fact that he approaches the subject from the point of view of current conveyancing forms. This is somewhat unfortunate, for those forms grew up as a matter of convention and were not settled by men who were particularly concerned in defining the nature of a fee simple, their main care being only to use a form of words which had a conventional meaning; whether that form, literally interpreted, would have expressed the exact nature of the operation involved was of less importance. The thing that mattered was to use a form of words which had a recognised legal effect. However, when Bracton discusses the nature of a fee simple he does so by means of a commentary upon the conventional charter of feoffment.1 In his day a fee simple could be granted by a deed which said that the donor gave and granted and by his charter confirmed to the donee and his heirs the land in question, to have and to hold by specified services either of the lord of the fee or of the donor, and that the donor bound himself and his heirs to warrant the donee and his heirs against all men. Bracton’s discussion centres around the word “heirs”. A gift to A. and his heirs was the conventional form for conveying the maximum legal interest, a fee simple, and Bracton first of all has to explain that in spite of the words such a charter conveys the whole estate to A. and nothing at all to his heirs; as we should say to-day, “heirs” is a word of limitation, but not of purchase. As the discussion proceeds more difficulties appear. A gift to A. and his heirs gives the full estate to A. and nothing to his heirs, but neither does it give anything to the assigns of A. If the donee A. alienates over, can this alienee claim the benefit of the warranty which the donor bound himself to give only to A. and his heirs? Bracton thinks not, and apparently this opinion was widespread, for we find about this time numerous charters in favour of the donee, his heirs and assigns, evidently drawn to meet this situation. Under such a charter the donor would be bound to warrant A., his heirs and his alienee. By the time we get to the beginning of the fourteenth century the word “assigns” ceases to be necessary—at least such was Maitland’s opinion, adding that “on the whole we cannot doubt that the use of this term played a large part in the obscure process which destroyed the old rules by which alienation was fettered”.2

REVERSIONS

In Coke’s words “a reversion is where the residue of the estate doth always continue in him that made the particular estate”. Applying to ancient cases the doctrines of his own time, Coke, and following him Challis, set forth the proposition that there could be no reversion after a conditional fee.3 This is completely erroneous. De Donis expressly tells us that there was already a writ to secure reversions, and there are cases on the Plea Rolls to confirm this. The result of the statute was, however, to strengthen the position of the reversioner very considerably by providing that the donee’s alienation should no longer be a bar to such an action, while at the same moment that De Donis was passed, another portion of the Statute of Westminster II clarified the law of receipt in favour of the reversioner (c. 3). Consequently there are two great characteristics of reversions during the middle ages. In the first place, they are not future estates, but present estates of which the reversioner is “seised”—not in demesne, certainly, but in service. Expressed in other terms, a reversion is a seignory over the tenants for life and the tenants in tail, and like other seignories in the middle ages was regarded with a good deal of concreteness. Secondly, there resulted from this attitude that liberal measure of legal protection which was due to “him in whom reside the fee and the right”, as the Year Books constantly put it. Hence the elaboration of the law of aid, receipt and voucher which had the object, and the result, of protecting the reversion against any machinations by the tenants of inferior estates. In the classical common law the reversion was, therefore, indestructible.

REMAINDERS

Estates in remainder were much longer in acquiring a definite legal standing. Here, again, the modern student must beware of the deduction on theoretical grounds by Challis that there could be no remainder after a conditional fee. This deduction is based upon the view that a conditional fee before the Statute De Donis was in fact a fee simple conditional; this is taking Bracton’s dogma too seriously, and Maitland easily showed from surviving documents that about one-half of the conditional fees of which we have record contain remainders limited after them.1 It is, of course, to the maritagium that we must look for our earliest indications. In the year 1220 we find a case involving a maritagium where this defence was pleaded: Geoffrey had two sisters, Beatrice and Matilda, and gave land in maritagium with Beatrice to Reginald fitz Ursy with this covenant, that if the said Beatrice should die without heir of her body, or if her heirs should die without heir of their body, the land should revert (sic) to the said Matilda and her heirs.2 Unfortunately, the decision in this case was made upon a point of pleading and so we do not get a full discussion of this “covenant”. It will be seen, however, that it is a clear example of a gift in maritagium to one sister with remainder in fee to the other. The fact that the word “revert” is used instead of “remain” is of little consequence, for the use of these words was far from settled.3

Bracton tells us that there is a writ for the use of remaindermen (or “substitutes” as he calls them) and that he will give us its form;1 but he does not do so. The frequent occurrence of remainders in thirteenth-century conveyancing seemed very strange when it was noted that no writ of formedon in the remainder was in existence for their protection, until after the statute. The inconclusive debate between Maitland and Challis was settled just fifty years later, when (in 1940) a writ of formedon in the remainder was discovered in a manuscript register of writs which can be dated 1282—a few years, that is to say, before the statute De Donis.2

As we have already noticed, the Statute De Donis itself does not say anything about remainders although it uses the word “remain” in the senses of “descend” and “revert”. The position of the remainderman was always less secure than that of the reversioner, particularly because he was unable to use the writ of right; this grave disability resulted from the fact that a remainderman could not say that he himself, or his ancestors, had ever been seised. Consequently, there were obvious advantages in creating remainders by fine instead of by deed.3 In 1311 a remainderman in fee successfully prayed receipt upon the default of a tenant for life.4 A generation later the point was argued afresh, and the same decision reached, in 1345; in this case a long discussion, no doubt heated, concluded with the oft-quoted words:

In this case it was again held by the court that the remainderman was receivable, but it is significant how vigorously this opinion was contested, considering that it is the simplest possible case in which the question could be raised.5 Indeed, as late as 1472 it was possible to put forward some speculative doubts as to the possibility of even a vested remainder after a fee tail.6

EARLY CONTINGENT REMAINDERS

A still more difficult problem was the contingent remainder.1 The very earliest examples seem to have aroused little comment; for example, a fine (a particularly solemn form of conveyance) was drawn in this form according to a Year Book of 1304:2

In 1309 we get another fine which the Year Book reports thus:3

In both of these cases it must be remembered that the rule in Shelley’s Case had not yet been formulated, and so we have in both cases a feudal difficulty which will weigh heavily upon contingent remainders in the beginning of the fourteenth century: when the remainder in fee is contingent, who is the person to do the feudal services pertaining to a fee simple? Whatever arrangement the tenant may make, it must not destroy the right of the lord to have some certain tenant all the time who will be responsible to him for the feudal services. A very curious case occurred in 1336.5 Lands were granted by fine to Osbern and Florence his wife for life, remainder to Geoffrey his son in tail, remainder to Austin the brother of Geoffrey in tail, remainder to the right heirs of Osbern. In a real action brought against her, Florence made default after default, whereupon one John prayed to be received, as right heir of Osbern. When it was objected that there were still in existence the two remainders in tail to Geoffrey and Austin, prior to his own remainder in fee, John urged that they were void on the ground that at the time the fine was levied neither Geoffrey nor Austin was in existence,6 and that it was only after the fine that Osbern and Florence achieved the requisite two sons to take the names assigned to them in the fine. The court held that the remainders to Geoffrey and Austin were bad but allowed John to be received as right heir of Osbern. It thus appears that although these remainders to named persons not in esse at the time of the gift were bad,1 yet as early as 1336 the court supported a remainder, contingent at first, which had subsequently vested.

Later still in 1388 a party brought detinue to obtain possession of a charter, alleging that he was entitled to the land to which the charter referred. It appeared that one W. gave the land to A. C. in tail, the remainder to the right heirs of A. S.; A. C. enfeoffed one B. with warranty and his executor (after his death without heir) gave W.’s charter to B. as a document of title. A. S. is also dead, and the plaintiff is suing as his right heir. Cherlton, C.J., observed: “You think that although A. S. was alive when the remainder was limited, yet since he was dead when the remainder fell in and had a right heir, that therefore the remainder is good.” The plaintiff was successful.2 The case is therefore consistent with the view which is to be found in other cases from 1336 onwards that if a contingent remainder in the course of circumstances subsequently becomes vested, then it is good enough. These decisions, however, were not reached without a good deal of discussion. In 1410 a determined attack on such a remainder was made, but it was finally held good.3 In 1431 Martin, J., upheld such a remainder, although Paston, J., remarked that it could not be proved by reason, i.e. was not defensible on principle; counsel added that the point had been argued in the moots.4

Littleton does not seem to discuss the question, but he does make it clear that in his opinion there were other sorts of contingent remainder of which he personally did not approve. Thus, in discussing the settlement alleged to have been made by Rickhill, J., in the reign of Richard II, Littleton argues against the validity of the remainders limited in it.5 According to what Littleton had heard, there were successive entails to the judge’s sons, with a proviso that if one of the sons should attempt to break the entail his estate should cease and the land should pass to the one next entitled. Such a proviso, in Littleton’s view, was a condition, and while he agreed that a reversioner could enter for the breach of a condition, a remainderman could not. Whether Littleton’s views represent what a court would have decided either in Littleton’s day or (seventy years earlier) in Rickhill’s day, it is impossible to say; nor is there any satisfactory proof that Rickhill ever made such a settlement. Even the enthusiastic Coke places it no higher than “those things that one hath by credible hearsay” which “are worthy of observation”.1

We may conclude from this evidence that, during most of the fourteenth and fifteenth centuries, the courts were willing to recognise remainders to the right heirs of a living person, in cases where that person died before the remainder fell in. Other types of contingent remainder seem hardly to have arisen in litigation.

It is noteworthy, however, that as early as 1431 it was recognised that there was a difference between grants by deed and devises.2 There were places (particularly boroughs) where land was devisable by local custom, and it was recognised that remainders (and other dispositions) which would be void in a deed might be good in a devise. It is therefore clear that the differences between dispositions by deed and those in a devise are at least a century older than the statutes of wills made by Henry VIII, and that the common law was considering these problems as they were presented by local customs long before those statutes permitted the devise of lands held by common law tenures. It is likewise clear that the peculiarities permitted in a devise do not derive from the freedom associated with the use, but were part of the tradition of local customs.

The difficulties connected with seisin in limiting remainders we have already mentioned. In part they were avoided by the device of giving seisin to the particular tenant, which seisin was held to enure to the benefit of the remainderman. This doctrine, however, had the important corollary that the remainder was dependent upon the life estate, and that the destruction of the life estate would involve the destruction of the remainder too. This doctrine was worked out in connection with vested remainders by Littleton, and was destined to have important results in later law.

THE RULE IN SHELLEY’S CASE

In spite of Bracton’s doctrine, attempts were still made from time to time to use the word “heirs” as a word of purchase. We have seen this in the history of the contingent remainder, while here we may note a series of cases which anticipate by two hundred years the famous rule in Shelley’s Case.3 In the reign of Edward II a few obscure references occur, and in the reign of Edward III we find some clear discussions of the problem involved. Thus in 1350 we find that lands were conveyed by fine to D. for life, remainder to K. for life if she survived D., remainder to the right heirs of D. The question was whether D. by his deed could have permitted K. (who was to succeed him as life tenant) to commit waste. As a mere life tenant he could not, but in the course of the discussion, Willoughby, J., observed that “according to some people, when the fee is limited to the right heirs of a certain person then the fee is in the ancestor”. To this proposition Serjeant Seton agreed, and the court held that the deed ought to be answered, whereupon issue of non est factum was joined.1 Again, in 1366 a case arose upon the following facts:2 land was given to J. for life, remainder in tail to his eldest son, remainder in fee to the right heirs of J. After the death of the life tenant and the extinction of the entail, Richard Sutton, second son of J., entered as the right heir. Thereupon the provost of Beverley distrained Richard for relief which would be due if Richard entered as heir, but not if he entered as purchaser. This discussion took place:

From this it is clear that there is very strong mediaeval precedent for the rule in Shelley’s Case, and that the foundation of it was the hardship to lords if their tenants were allowed to limit remainders to their heirs, and thus make them purchasers.3 This rule, therefore, like many others, once had a perfectly rational basis (while feudalism lasted) in protecting lords against serious loss through conveyances of this kind, which in those days would have seemed almost fraudulent. As with so many other troublesome rules, confusion was increased by the attempts which have been made by the courts to restrict its operation, and especially by the endeavours of Lord Mansfield to lessen its importance.4 As a result, doubt was thrown upon it, and a vast mass of litigation was needed to establish it anew.

DOWER

We now come to dower, whose early history is singularly obscure.1 Ancient forms insist that it is a voluntary gift of a portion of his property made by the husband to the wife. Such seems to have been the law as late as Bracton’s day, although as early as Glanvill it was thought that church and lay law compelled the husband to make the gift. The gift might take place at the time of the marriage, although in some cases on the continent we find dower constituted many years after the marriage. In England the royal courts only recognised dower which was constituted at the church door, that is to say, at the moment of the solemnisation of the marriage; it naturally followed, therefore, that a husband could only grant dower out of land which he actually held at the time of the marriage. Informal or clandestine marriages did not confer legal protection upon dower constituted on such irregular occasions, for the marriage must be “solemnised”—although it would seem there was no need for the nuptial Mass. In this we see very clearly the hand of the Church, which was fighting a hard battle to make marriage a precise, definite and public ceremony, although it is curious to observe that the common law was (for a moment) ready to move faster in this direction than the Church.2 The common law also showed especial distrust of death-bed endowments—as also of death-bed marriages hastily contracted in the hope of legitimising the offspring. In England, the King’s Court refused to recognise dower constituted at any moment save at the marriage ceremony.

This is, generally speaking, the position of dower down to the time of Bracton. Shortly afterwards, very important changes took place whose progress has not been traced in detail. Under the new order dower consists of one-third of the land held by the husband at the time the marriage was made, unless he has specified less. By the time of Edward I dower also attached to land acquired by the husband subsequent to the marriage,3 while an endowment of less than one-third soon ceased to be a bar to a widow’s demand of a full third. On the other hand, an endowment of more than one-third would be reduced by the court at the instance of the heir. In this way dower ceases to be a gift and becomes an estate arising by operation of law. Britton expressed the change very clearly: “Since the usage of dower is become law, a wife is sufficiently endowed although her husband say nothing.”1 If the husband alienated after the marriage the widow could recover one-third—and this is protected by statute2 against the husband’s warranty and against a collusive recovery, although it had long been possible to convey free of dower by fine, if the wife came into court and expressed her assent to it.

The forfeiture or escheat incurred by the husband’s treason or felony (which may be regarded as involuntary alienation) raised interesting problems. At the time of the Conquest at least one local custom held that forfeiture did not always exclude dower.3 By the thirteenth century, however, we find that the felon’s widow loses her dower.4

In England the widow’s interest has always been for her life only, but in some continental customs it was absolute, and so it sometimes played a part in the development of community.

It will be seen that dower is likely to interfere considerably with strict feudal notions; it reduces the resources of the incoming heir by one-third, and if that heir is a minor, it reduces the quantity of land which will be in the lord’s wardship by the same proportion. It is significant that the widow of a military tenant is endowed less liberally than the Kentish free-bencher; boroughs, too, often gave dower of one-half, and villein widows so frequently had the whole tenement in dower that there arose a sort of presumption that if a tenement was subject to dower of the whole, it was a villein tenement.

There were, however, mitigations in the strict rule. Dower obviously could not attach to joint estates (and for centuries this rule was a boon to joint feoffees to uses and to trustees). The relation of dower to entailed estates caused some difficulty for a time, until it was settled that the widow was endowable of an entail if, under the limitations, any issue of hers could have inherited. Thus a widow will have dower of lands which her husband held to himself and the heirs of his body: but a second wife is not endowable of lands held by the husband to himself and his heirs by the first wife.5 The greatest difficulty of all was naturally the risk to purchasers, who after the vendor’s death might have to answer an action of dower by his widow. At a comparatively early date, therefore, it became possible to avoid this situation by taking a conveyance by fine. In order to bar dower effectually, the wife was brought into court and examined, whereupon she could of her own free will resign her dower rights.1

With the close of the middle ages the increasing efficiency of settlements made dower less important and the rule appears in the Statute of Uses that a jointure will bar dower;2 at the same time equity refused dower out of a use, and the eighteenth-century Chancellors would not allow dower out of a trust. Since the Dower Act3 in England, dower ceased to be of practical importance, but that policy has not been adopted universally in America. The later distrust of dower is reflected in the fact that there was a tendency among some of the American colonies to enable a husband to defeat dower simply by deed or will, but later the stricter rule of the common law was received.

CURTESY

Tenancy by the curtesy of England is the husband’s right to hold his wife’s lands for the remainder of his life after her decease, if issue has been born alive,4 although it is not necessary that it should survive. Glanvill5 tells us this curious rule but gives it no special name; Bracton6 calls it “tenancy by the law of England”, while in the earliest Year Book7 it is described as “the curtesy of England”, which, as Maitland8 suggests, may be a name applied to it by appreciative husbands. In Normandy such a right only lasted until remarriage,9 but in England curtesy was for life, and even went so far as to allow a second husband’s curtesy to postpone the entry of an heir by the first husband, and thus to defeat the lord’s wardship.10 There is an old tradition, so far unconfirmed, that curtesy owed its origin, or at least its more striking features, to a royal concession.1 According to more modern views it seems to have developed from a wardship, first over the wife and next over the children.2

A good deal of legislation from Edward I’s reign4 was necessary to prevent the abuse of curtesy rights, and the Year Books contain many cases where husbands attempted to exceed their powers in dealing with their wives’ lands. In equity a husband could have curtesy out of his wife’s separate uses, which, however, she could easily defeat, and modern legislation giving married women control over their separate property reduced curtesy to a minimum, long before it was finally abolished.

THE LIFE ESTATE

The tenant by curtesy owed his estate to the operation of law, and soon the doweress also acquired a legal right independent of her husband’s act. Both of them, moreover, were asserting rights in the land of someone else—the heir. Both of those estates were for life, destined to assure the economic independence of their owners within the framework of the family fortune. Naturally they were regarded as freeholders, as seised of a free tenement, and as protected by the petty assizes. With the new system of primogeniture and free alienation, however, such provision became necessary for others besides widows and widowers, and so we find life estates created by act of the parties, and following in general the same pattern. This development (if our hypothesis is true) is closely paralleled by the development of the entail from the old maritagium.

The implications of the life tenant’s seisin were numerous and important. Its earlier sense included wide discretion in the use, and indeed, the abuse of the tenement. Thus Bracton1 describes an elaborate law of waste by doweresses, but the tenant for life can use the land as his own within reason; indeed, he has a case to show that the court will not take notice of his waste unless it was considerable.2 The guardian in chivalry, like the doweress, is clearly dealing with someone else’s land, and is heavily penalised if he commits waste.3 In Bracton’s day the remedy was still of a discretionary nature. The reversioner obtained from the king a prohibition, and if the tenant still continued to waste, he could be attached for breach of the prohibition. In 1267 there was a statute4 prohibiting waste generally, but the proceedings were still based upon the prohibition (now general instead of individual), until in 1285 summons was made to replace the prohibition; the reason given for abolishing the prohibition was that many people mistakenly thought that waste was not actionable unless it was committed after a prohibition.5

A further result of the life tenant’s seisin was the capacity to deal with the land in ways which were admitted to be wrongful. Out of his seisin he could enfeoff a stranger and create a tortious fee simple,6 nor could the reversioner have any remedy until after the life tenant’s death, when he could bring entry ad communem legem against the alienee. By statute7 in 1278, however, a doweress who acted thus forfeited her dower and the heir recovered immediately by entry in casu proviso, and the warranty of a tenant by curtesy was made less effectual. Alienations in fee by tenants by curtesy and tenants for life did not incur forfeiture until 1310.8 Besides a tortious feoffment, a collusive recovery against a tenant for life would also create a fee simple in the alienee, and a complicated mass of rules, largely statutory, endeavoured to minimise the mischief.9

THE TERM OF YEARS

The term of years has a long and peculiar history. In the early days of the common law the position of the termor was remarkably weak. In the early thirteenth century his only remedy was an action of covenant against the lessor, which was in effect an action for specific performance.10 As against strangers the termor had no protection, and so had to content himself with enforcing an express warranty (if he had one) of quiet possession against his lessor.1 Later, such a covenant will be implied. The disadvantages of a term of years were numerous; if the lessor died leaving an infant heir the term was suspended until the heir came of age, when the term was resumed;2 the lessor’s widow was entitled to one-third of the tenement for life as dower, and so the term had to be lengthened to compensate;3 again, if the lessor alienated he could (for a time) convey free of the term.4

About the year 1235 the great judge Raleigh invented a new form of action called quare ejecit infra terminum which Bracton assures us was meant to protect the termor against all disturbers and to give him the recovery of his term.5 This action would therefore be equivalent to an assize of novel disseisin. Such a remedy, however, was too drastic, and seems almost immediately to have been reduced to an action against those only who claimed under the feoffment from the original lessor.6 Although the lessor’s feoffment would not henceforth defeat a term, there were still other methods available, and until the Statute of Gloucester, c. 11 (1278), it was possible by means of a collusive recovery to convey free of the term; under the statute the termor was now allowed receipt.7 Meanwhile the termor acquired another remedy. This was an action of trespass de ejectione firmae which by the time of Edward II was available against all disturbers, but this time the termor only got damages and not the recovery of his term.

THE ECONOMIC ROLE OF THE TERM

In order to explain this curious history we shall have to examine the function which the term of years performed in the thirteenth-century economic system. The great problem, of course, is why the termor was not protected by the petty assizes. It is certainly not because the term of years was only held by unimportant people: bishops, monasteries and great lords are to be found holding terms of years. Nor can it be said that a term of years was non-feudal, for there was little appreciable difference between a life estate which did fealty only and a term of years which also involved fealty in many cases. Indeed, as a result of the real remedies devised by Raleigh and extended by the Statute of Gloucester, it was clear that the lessee had a tenement,1 and in Raleigh’s own day it was said that he was seised.2 For centuries it remained the law that if the lessor makes a release of the fee to a termor in possession, then the termor is seised of the fee without receiving a livery of seisin—indeed, the common assurance of a Lease and Release is only explicable on the ground that a termor was seised. But the great distinction was that although the termor was seised of a tenement, yet he was not seised of a free tenement, which alone would entitle him to protection by the petty assizes. Why, then, is a term of years not treated as a free tenement? Maitland’s solution ascribed this to the influence of Roman law which would reduce the term of years to an usufruct.

Against this theory must be placed the important criticisms of Joüon des Longrais, who first of all establishes the economic history of the term of years.4 The term of years was used for purposes which were immoral and speculative, largely to avoid the Church’s prohibition of usury. It seems that the principal object of the term of years was to enable money to be lent on the security of land at considerable profit to the lender. A capitalist would give to an embarrassed landowner a sum of money down; in return he took a term of years sufficiently long to enable him to recover the capital, together with his profits, out of the revenues of the land. On the face of it this transaction was merely the sale of a lease in return for a lump sum, and technically it would seem to avoid the objection of usury. The termor, therefore, is not unnaturally placed in popular literature in very bad company among usurers and other scoundrels who prey upon society.1 A termor was no doubt seised in Bracton’s day, but there was every reason for not calling his tenement a free tenement. Joüon des Longrais has shown that the free tenement of which the estates for life, in dower, by curtesy, in tail, or in fee simple are examples, is a very different thing. The free tenement which the petty assizes protected consists of “family property which is up to a point permanent, productive of revenue”. The essence of the free tenement is that it should be the permanent and normal economic basis of the family. Herein lies the importance of giving it full and speedy protection, and for this purpose the petty assizes were invented. Contrasted with the free tenements the estate of the termor is merely a speculative arrangement, calculated to evade the law against usury, made between a grasping money-lender on the one hand, and on the other a man whose difficulties temporarily compel him to part with his patrimony—and it must be remembered that during the middle ages a very wealthy landowner would usually find it difficult to produce a comparatively small sum of money at short notice. There was, therefore, no reason whatever for protecting the termor by those assizes whose object was to fortify the family and its means of subsistence against wrongdoers of another type. Viewed in this light there is ample explanation for the refusal of the common law to allow the termor to use the assizes.

The law could not continue indefinitely to be governed by the social policy of a bygone age, and under Edward I it became necessary to give the lender of money a security in land much more solid than the term of years; of the statutory freeholds by which this was effected we have already spoken.3

THE HUSBANDRY LEASE

The term of years was not exclusively concerned with providing a form of financial security. Already in the late twelfth century land was granted for a term of years, sometimes with the accompanying agricultural stock, to tenants who farmed the land.4 Here, as in a number of other cases, we have to take account of the results of the Black Death and the economic revolution which followed it.1 One of these results was a slow increase in the number of people who took their lands under leases for terms of years, and so during the fourteenth century we find the rise of the husbandry lease as it exists to-day in England. At the same time, other and more effective methods were devised for rendering land a security for debt, and so the termor was no longer associated with the worst aspects of money-lending. For the future the termor will be regularly a freeman whose capital is insufficient to purchase much land, although he is active and enterprising enough to work the land of other owners. At the same time there was a tendency for the quantity of land under cultivation to increase somewhat since a good deal of waste was being reclaimed; such reclaimed land was frequently let out on lease. Small landowners of the yeoman class also seem to have found it often desirable to take an additional quantity of land under lease. The termor is, therefore, in every way deserving of the law’s protection. As early as 1383 it was clearly stated that the unexpired term could not be recovered when an attempt was made to use trespass de ejectione for this purpose.2 In 1454 it was again stated that this was impossible and that damages only were obtainable.3 In 1467 and again in 1481 we find the opinion (although not a decision) that this action might give recovery of the term;4 in 1498 or 1499 we get the first clear decision to that effect.5 The termor was very slow in getting a real action, but in the end he got the most useful and practical of all the real actions. While freeholders had to be content with assizes and writs of entry, the termor could recover his term by the swift and simple action of trespass. So great a convenience was this that freeholders began to try to secure the same advantage. Finally they succeeded by means of the device called the action of ejectment.6 In this way a good deal could be done without resorting to the older forms of action. This development took place during the sixteenth century and the finishing touches to the edifice of fiction were the work of Lord Chief Justice Rolle during the Commonwealth, but already at the beginning of the seventeenth century the action was so commonly used that Coke lamented the fact that the old real actions were becoming very rare. And so by a curious twist of history, the freeholder was glad in the end to avail himself of remedies originally designed for the protection of the humble termor.

CHAPTER 7

USES AND THE STATUTE

English lawyers are apt to believe that the use, and later the trust, are the peculiar inventions of English law. It is perfectly true that they were developed independently and along original lines, but it is interesting to observe that other legal systems have reached something like the same result by a different road. As early as the Salic Law in the fifth century we find the salman, whose position partly resembles that of a trustee and partly that of an executor, but it is in Mohammedan law of the present day that we find a most striking resemblance to the trust in an alien system.

THE HISTORY OF THE WORD “USE”

As for the origins of the English use, several suggestions have been made, and for a long time the favourite was to seek it in some aspect of Roman law, either the usufructus or the fideicommissum. It is now possible to state with some certainty that neither of these two institutions has any practical bearing upon the development of the English use. As Mr Justice Holmes observes, the existence of the salman in the Salic Law is proof enough that Germanic law was capable of developing from its own resources the idea of a feoffee to use.1

The English word “use” in this connection is in fact derived not from the Latin usus but from opus, the phrase being A. tenet ad opus B.—A. holds for the benefit of B. The use first occurs, as might be expected, in connections which are informal and non-technical.2 The Latin phrase ad opus occurs as early as Merovingian times in France and appears in England in the ninth century, where it is used to express the purpose of a gift or the object to which it is to be devoted. The phrase ad opus is to be found on the continent in much the same context as in England.3 In this connection it must be observed that chattels as well as land could be held by one person to the use of another, and that in some cases the beneficiary had a remedy at common law by detinue or debt, and in the case of money by the action of account.4 These, however, were personal actions and we had no analogous actions for land; consequently, in enforcing uses of land the common law did not have the necessary machinery for acting in personam.5 Besides this the common law seems to have adopted the policy of discouraging attempts to separate the enjoyment of land from the legal title, and for this attitude there was some justification; land was the basis of numerous public burdens as well as the source of those varied and valuable feudal incidents which we have had occasion to mention so often. The interposition of feoffees to uses between the beneficiary and his feudal lord would introduce endless complications into the feudal incidents and might, indeed, completely destroy them—and as we have seen on more than one occasion the common law was determined to maintain these incidents to the best of its ability.

EARLY HISTORY OF USES

Nevertheless, circumstances combined to promote the development of the use. The Crusades drew a large number of landowners from their homes to distant parts leaving their affairs in the greatest uncertainty, and we find frequent examples of crusaders and others, before their departure for the Holy Land or some other hazardous journey, conveying their lands to a friend upon various conditions which are sometimes cast in the form of a use.1 So, too, religious houses, following a practice which was common in every type of financial administration, would appropriate regular sources of revenue to specific purposes. When we come to the time of Bracton we find that he regards several of these questions as open to discussion. He even suggests that by means of a “condition” land could be made devisable.2 The problem of the use reappeared in connection with the controversy whether the Franciscan Friars were entitled to hold property by the rule of their order,3 while sokemen and villeins can only convey by surrendering their land to the lord “to the use of” the purchaser. As early as 1279 the papacy decided that it was lawful for friars to be the beneficiaries of property held by others to their use, and in other ways which upon the continent effected a similar result. In 1275 a statute ordained that when a guardian has proved to be fraudulent, the wardship shall be committed to a friend “to hold to the use of” the infant.4

FEOFFMENT AND RE-ENFEOFFMENT

A further element, which has not received sufficient emphasis, is the fact that a landowner could not change his estate without the intervention of strangers. For example, if he wished to make his wife a joint-tenant with himself, the only method available was to convey the land to a feoffee (or, more prudently, to several feoffees), who would then reconvey to the husband and wife jointly. A tenant in fee simple could create an entail for himself and a particular class of heirs and limit remainders only by first of all conveying to feoffees, who would then reconvey on the limitations agreed upon.5 Nor was the estate of these feoffees a mere fiction; the validity of the settlement depended upon their having a real and effective seisin, and if the settlor remained on the land, the settlement could be subsequently upset. He was, therefore, very much at the mercy of his feoffees during the interval between the two transactions.1 Much depended on their good faith, which will explain why clergy were often entrusted with these dangerous powers. It will be seen that the distinction between such feoffees and the feoffee to uses is very fine, and it seems highly probable that the connection between the two is close. The later feoffee to uses may easily have developed from feoffees of this sort when their duty to reconvey was postponed for a long interval, and in later times it would be easy to describe such feoffees as feoffees to uses.2

EARLY LEGISLATIVE INTERVENTION

By the close of the fourteenth century the use of lands must have been somewhat common. In 1377 the lands of fraudulent debtors, held by others for their benefit, are made liable to execution3 —and so begins the long association of the use with fraud. In 1391 a statute declared that uses in favour of corporations fell within the statute of mortmain,4 and in 1398 uses were declared forfeitable for treason.5 So far, the cestui que use had no legal protection—indeed, all these statutes were directed against him; but at length he also appealed to the legislator, and so we find in 1402 the Commons in Parliament praying for a remedy—

Already, however, the Council had begun to intervene in such cases; in 1350 we find the first case concerning a use before the “chancellor, treasurer, and others of the king’s council, being then in the chancery”. From this case it appears that a tax collector, who by virtue of his office was deeply indebted to the Crown, on his death-bed granted his lands, goods and chattels to one Thomas for the purpose of selling them in order to pay his debts to the Crown. Unfortunately the records of the case are extremely incomplete and all we have is a deposition containing these facts. From other sources it would appear that the matter may have got into the Council as the result of an attempt by his widow to compel the feoffee to hand over the balance of the proceeds after the payment of the debts.1

We may therefore conclude that although the cestui que use was often suspected of fraud and collusion, yet it was recognised that there was a legitimate place for the use. The case of 1350 possibly illustrates this; the petition of 1402 clearly argues this point of view, and during the fifteenth century cases become steadily more numerous.

It must be remembered that the earliest evidence, such as the statutes noted above, shows us a situation rather than an institution. As we have already suggested, the situation might be created in different ways and for different objects;2 it is only in the fifteenth century that these situations are for the first time grouped together under the one legal concept of the use.

THE GROWTH OF A STATUTORY POLICY

Time only added to the possibilities of fraud when unscrupulous persons employed the use, and we can trace the gradual development by the legislature of a policy. For example, it was long ago discovered that a wrongful tenant of lands could prevent the rightful owner from bringing his action, or greatly delay him, by conveying the land to feoffees to his own use, and so a statute of 1485 gave a remedy by allowing the writ of formedon to be brought against anyone who was receiving the profits of the land3 —it will be noticed that this statute adopts the momentous principle, already implied in the statutes of Edward III and Richard II, of treating the cestui que use as though he were the legal owner. All uses were not fraudulent, however, and Parliament recognised the fact by trying to remove one grave disadvantage which weighed upon cestuis que use, namely, that they could not convey a legal estate; and so another statute, in 1484, conferred this power upon them.4 This statute, too, treated the cestui que use as a legal owner, and so foreshadowed the policy of Henry VIII in the great Statute of Uses. This time the policy was not so fortunate. The feoffee still had the power to make a legal estate, and the grant of this power to the cestui que use concurrently could only add to the confusion since there were now two persons entitled to convey.

Under the Tudors the stream of legislation gathered speed and boldness. All trusts and uses of chattels to the use of the settlor were declared void1 in 1487; still more significant was an act of 1489 enacting that wardship and relief shall be due from heirs who are cestuis que usent of military lands;2 and in 1504 it was enacted that execution should lie against lands held in use, and that the cestui que use should enjoy all rights and defences in such proceedings as if he had the legal estate.3 Clearly, there was a policy steadily pursued for over a century and a half before the great statute of uses, the main object of which was to treat the cestui que use as having the legal estate. The most significant of all the acts, however, was one which dealt with a personal problem created by Richard III’s accession. As Duke of Gloucester he had several times been enfeoffed to uses by his friends; now that he was King it was evidently anomalous for this situation to continue. A statute therefore enacted “that such lands whereof he was sole seised for the use of others shall vest in the cestui que use”. For the first time Parliament ventured to transfer seisin from one person to another by its mere fiat.4

THE ESTABLISHMENT OF THE USE

By the end of the fifteenth century a fair body of law had been settled which gave a definite form to the use.

The commonest way of creating a use was by conveying the land to a number of joint-tenants; the advantage of this was greater security, since it was less likely that several feoffees would all turn out to be dishonest, while at the same time the rule of survivorship was a great convenience since neither dower nor feudal incidents attached upon the death of a joint-tenant—indeed, in the present day, the only reason for retaining the rule is its usefulness as between trustees. At the same time a joint feoffment eliminated complications due to dower. The uses might be declared at the time of the feoffment by writing or verbally, or it might be agreed that the uses should be those to be declared in the feoffor’s will. The fact that the uses might not be declared fully, or even at all, at the time of the feoffment, gave rise to the rule that a gratuitous feoffment of land of which the feoffor continued in possession presumed a use in favour of the feoffor, and from the reign of Edward IV we find a formal doctrine of “resulting” uses.5 Then, too, a bargain and sale from the reign of Henry VII onwards was taken as implying that the vendor who has received the purchase money, but who still remains in possession, will hold to the use of the purchaser;1 and this rule played a large part in the later development of conveyancing.

It was decided fairly soon that a corporation could not be a feoffee to the use of any other person,2 largely because the sanction which applied to relationships arising out of uses was the personal process of the Court of Chancery, and this was hardly effective against a corporation which had no body which could be coerced and no soul to be damned in consequence of a breach of confidence. It is clear, however, that a corporation could be a cestui que use.3 The interest of the cestui que use at this time strictly followed the corresponding legal estates—a married woman, for example, until the seventeenth century, had no separate use, her interest under a use being exactly the same as it would have been in land at common law, save that neither dower nor curtesy attached to uses.4 It was also a rule at this time that the feoffee must have a fee simple. The reasons for this were in a sense feudal, for it was stated in the form that tenure was so solemn a fact that the law would not allow even an expressed declaration of use to override it.5 Thus if A. enfeoffs B. in fee-tail, B. will hold of A. (for the Statute Quia Emptores does not apply to fees tail); the existence of this tenure between A. and B. is so solemn a matter that the law will prevent A. from imposing upon B. any further use. As the older books put it, A. has enfeoffed B. to hold to the use of B. and any subsequent declaration of use is “repugnant” and void. A little later we shall see the importance of this rule.

The effects of a feoffment to use were to place the legal title in the feoffees, and, consequently, they may, and indeed must, defend that legal title. Moreover, the heirs6 of the feoffees are bound by the use, but not purchasers for value without notice of the use, disseisors, abators, lords taking by escheat, or those who take by a title paramount. The law of forfeiture for treason had to be specially modified in particular cases (e.g. the rebel Earl of Northumberland in 1404) to ensure that the traitor lost lands settled to his use, and to prevent the forfeiture of legal estates held by him to the use of other persons.7

The interest of the cestui que use is best described as being at first just one more of a large variety of titles, weak or defective in varying ways and to various extents. The complication of the common law of real property by the early days of the sixteenth century must have familiarised people with the fact that a good many held by titles which fell short of perfection, and were not so very much the worse for it.

ADVANTAGES OF USES

There were, indeed, numerous countervailing advantages enjoyed by the cestui que use. In the first place he had the valuable privilege of being able to dispose of his land after his death by will, which was impossible in common law except in the case of certain lands (often burgages) which had been subject to the custom of devisability from of old. Then, too, settlements could be drawn with much greater freedom by handling uses than by handling common law estates, which by this time had hardened into an inflexible system. So, too, feoffees could be directed to sell portions of the land to pay the debts of a testator, which was impossible at common law. Then, also, there was the advantage of not having to use technical forms, for so long as the intention of the settlor was clear it was unnecessary to be as precise as in defining common law estates. It was soon discovered, also, that the use could be employed in order to secure the benefits of ownership to unincorporated bodies such as guilds, parishes and so on.1 And so by the beginning of the sixteenth century—

There were, however, on the other hand, some good reasons for interference by the legislature, for in no other way was there much likelihood of removing several abuses attendant upon the development of the use; we have seen already that even in the fourteenth century the use was employed to defraud creditors, on whose behalf Parliament several times intervened.3 At the same time since unincorporated bodies could take as cestuis que use it was possible to place land into mortmain in spite of the statute. Then, also, during the disorders of the fifteenth century lands were frequently given to great lords to the use of the donor, who thereby secured the support of a great magnate in defending the title—thus raising the old problem of maintenance.

USES AND FEUDAL REVENUE

Finally, from the standpoint of national finance and politics, the most important aspect of uses was the impossibility of fitting them into the feudal system. Their effect was usually to defraud the lord of the incidents of wardship, marriage and relief. This was not so serious a matter for the great nobility, for to some extent they could obtain the same advantage by the same means against the Crown. But it will be observed that whoever gains by the arrangement the Crown is sure to lose, and this aspect of the situation was already apparent to Henry VII. In the next reign the matter became still more urgent. The great Reformation Parliament had accomplished a tremendous amount of epoch-making legislation, especially in carrying out the religious settlement. This settlement was viewed without enthusiasm by a large part of the populace, and Parliament itself was none too well disposed towards the Crown. Henry VIII felt that it would be unwise and perhaps unavailing to seek from Parliament a further grant of taxes, and was therefore left to depend upon the hereditary revenues of the Crown. Of these only the feudal incidents seemed capable of any great expansion,1 and here the situation was complicated by the existence of uses. Having just carried out the Reformation settlement and assumed the headship of the Church, it is not surprising that Henry VIII was ready to apply heroic remedies. He contemplated nothing short of a drastic revision of the common law along lines which would suit the interests of the Crown. In 1529 a proposal was drawn up in the form of a draft bill based on a treaty between the Crown and the peerage with this end in view.2 The King and the lords proposed this arrangement: there was to be only one estate in land and that a fee simple, except that peers of the realm were to have the privilege of entailing their lands; uses were only to be valid if registered in the Court of Common Pleas, and elaborate provisions were drafted to ensure the utmost publicity; the lands of peers were to be subject to feudal dues in respect to equitable as well as legal estates; they could also be entailed, devised and settled, but elaborate provisions ensured that none of these devices should defeat the feudal rights of the Crown; and finally, in return for the heavy burden of feudal duties it was proposed that the land of peers of the realm should be inalienable save by royal licence. This bargain, if it could have been carried out, was eminently satisfactory to the King and to the peers, for the latter in return for their liability to inescapable feudal duties acquired the privilege of having their fortunes assured to them by inalienable rights.1

THE KING’S DEFEAT

It has always been a feature of English society that there was no deep line drawn between the peerage and other classes. There were plenty of great landowners as wealthy and as influential as the peers, who were in fact untitled, and it was this large and powerful class which, combined with the common lawyers, defeated the 1529 compromise. The large landowners who did not happen to be peers found themselves deprived by these proposals of the right to entail or to make secret settlements or alienations; all the details of their family arrangements were to be proclaimed in the parish church, confirmed by the parish priest, and sealed by the mayor of the county town. Feudal incidents were to be rigorously exacted from them as from the peers, only the commoners got nothing in return. As for the common lawyers they saw in this arrangement the ruin of their profession; it left them no more interesting topic of study than a fee simple, save in the very few cases of peers, and at this moment there were but fifty peers of the realm. The use still remained and was to be the means of effecting settlements, and the common lawyers secured a provision for registering them in the common pleas instead of in Chancery, but the capture was of little value after the publicity clauses had robbed the use of its chief attraction. A combination of great landowners and common lawyers, therefore, defeated these proposals in the House of Commons and convinced the King that an alliance with the peerage had no chance of success. He therefore had to seek support elsewhere and that support would have to be in the House of Commons.

THE KING’S NEW TACTICS

It seemed clear that the common lawyers might very well turn out to be the key to the situation; in any case whatever settlement was eventually made would depend for its working upon the machinery of the law. And so, first of all, the lawyers had to be reduced to a tractable frame of mind, and to this end Henry VIII received with marked sympathy a petition complaining of the delays of the common law, its expense and its failure to do justice. This gesture gave the common lawyers to understand that the Crown might demand from them some very radical reforms, and once again the profession felt that its existence was at stake. At the same time numerous commissioners were conducting searching examinations into the affairs of the landed gentry, suspecting that the King’s rights were being defeated by the common lawyers’ allies. Various proposals were made in the course of the next few years, and gradually the attack now centred against the use.

THE STATUTE OF USES

Of these various schemes, one finally became the famous Statute of Uses (1536).2 Under this arrangement the King secured his feudal dues, but the price he paid was to the common lawyers instead of to the nobility and Chancery. Indeed, it was the common lawyers who gained most by the Statute of Uses. After a great deal of difficulty and some concessions from the Crown the statute finally passed.

The statute carried to its logical conclusion the policy begun by Richard III, whose statutes had allowed the cestui que use to be treated for certain purposes as though he were the legal owner. Under the Statute of Uses the cestui que use becomes the legal owner for all purposes, and is invested by the statute with the benefits of the mysterious seisin which is the essence of a common law estate. This transformation operated by the statute converting a use into a legal estate is described in the Act itself (s. 10) as “executing the use”. It is clear that professional opinion was ready for this transformation, for even before the statute we find common layers loosely describing the cestui que use as being “seised” of the uses.1 As for the King, he was to receive all his feudal dues unimpaired, for the uses will be executed and feudal incidents will attach to the legal estates created by the statute.

As for the common lawyers, they won a great victory over Chancery; under the statute they not only retained the entail but obtained jurisdiction over all matters arising out of uses, since under the statute they were executed and became common law estates. The landowners had less cause for satisfaction. They retained the entail and the use, but after the statute, uses could no longer be employed as a machinery for the devise of land,2 while at the same time the Statute of Enrolments3 (which was a part of the scheme) enacted that a bargain and sale of freeholds and fees must be by deed enrolled. The bargain and sale was a very popular form of conveyance depending upon the use for its operation, and so the statute in substance compelled publicity of conveyance—until a way was found to evade it by means of the lease and the release. Finally, if we are to consider the nation at large, it was they who paid the heaviest price, for the complicated diplomacy which ensured the passage of the statute depended upon the understanding that there should be no more talk of reforming the common law.

After a long and argumentative preamble—“the sixteenth-century equivalent of a leading article in a government newspaper upon a government measure”4 —the statute proceeds to enact that cestuis que usent shall be seised of legal estates corresponding to the estates they had in use. Then we come to the provision that a jointure shall be a bar to dower.5 It must be remembered that the statute did not propose to abolish uses, for in more than one place it contemplated the creation of uses in the future. Its object was to avoid the inconveniences which were caused by having two forms of ownership, one legal and the other equitable, by declaring that the beneficiary shall have a complete legal estate and that the feoffee to use shall have none at all. This altered the character of the use, but did not destroy it. The statute did not apply to active uses, nor to uses out of chattels real or personal. The great merit of the arrangement was that the greater freedom in conveyancing by means of the use was preserved and made available to common lawyers.

COMPLETION OF THE STATUTORY SETTLEMENT

To the landed gentry the Statute of Uses seemed a calamity, and in the rebellion of 1536, which described itself as the “Pilgrimage of Grace”, we find among numerous other grievances—the dissolution of the monasteries, the religious changes, the divorce question—a demand for the repeal of the Statute of Uses, particularly because it abolished the powers of devise hitherto enjoyed by landowners. Henry VIII was well aware of the seriousness of opposition when it came from so important a class as the country gentry. By this time the enforcement of any government policy (and Henry VIII’s revolutionary policies needed a good deal of enforcement) depended very largely upon the co-operation of the local gentry, who as justices of the peace were responsible for local government. He felt that the time had come for a concession to the landed gentry, and this took the form of the Statute of Wills1 (1540), which conferred complete powers of devise over socage lands, and over two-thirds of land held by knight-service, accompanied by the usual provisions (based on the principle that a devisee was to be deemed as in by inheritance) to safeguard feudal dues. Three years later the statute was amended in numerous points of detail.2 In 1540, following the usual Tudor policy of erecting administrative courts for special business, Henry VIII established the Court of Wards, whose duties were to be the supervision of the King’s feudal revenue especially as it was affected by the Statutes of Uses and Wills.3

CHAPTER 8

THE LATER LAW OF REAL PROPERTY

AFTER THE STATUTE OF USES

Bacon, in a well-known passage, declared that the Statute of Uses was “the most perfectly and exactly conceived and penned of any law in the book . . . the best pondered in all the words and clauses of it of any statute that I find”. Anyone who reads the statute will be led to the same conclusion. An act of wide-sweeping scope, it is worded with care; after the fashion of the time, it contains a clear exposé de motifs in the preamble indicating its general objects; the first section enacts a clear and general rule, based on a tendency long apparent in legislation; this rule is unencumbered with exceptions and provisos, and (unlike previous acts) extends to all uses possible at that time, and executes them for all purposes; succeeding clauses foresee, and provide for, the situations arising under the operation of clause one. No statute before 1536 shows such evident signs of thoughtful care, and such clear and logical arrangement.

The objects of the act were obvious. First, it aimed at combining equitable and legal ownership and abolishing the screen of feoffees to use. In this it succeeded. No use, at this time, could subsist save upon the seisin of feoffees, and the statute successfully executed all uses. Secondly, it aimed at restoring publicity in dealings with land. The Statute of Enrolments1 was passed because it was realised that the use on a bargain and sale in favour of the bargainee who had paid the purchase money would be executed by the statute; to prevent this being employed as a secret conveyance, such bargains and sales were to be enrolled. Other conveyances were at common law and required livery of seisin. It is true that under the statute it was possible for legal estates to spring and shift in various ways but the general aim of publicity was attained, for it was no longer possible for a person in apparent enjoyment of land to escape the legal consequences of ownership by saying that the legal title was elsewhere. Once again, the statute attained its object. Two other aims were also realised, although later legislation decided that they were in fact undesirable. The virtual prevention of the devise of land was in fact an attempt to put the clock back a century or more, and the statute of wills soon recognised that this was impossible. The preservation of the incidents of tenure, achieved by the statute, had over a century of extended life; they, too, were abandoned in 1660.1

THE ATTITUDE OF THE COMMON LAWYERS

The common lawyers had a difficult situation before them, but one rich with possibilities. For something like a century after the statutes of uses and wills they could draw upon several bodies of law, and had the opportunity of welding them into a coherent and reasonable system. It was the great disaster of the sixteenth century that they failed to do so. The long reign of Elizabeth was occupied by a succession of judges who had great gifts of dialectic, and a taste for artificial refinement. The sweeping victory of the profession, as exemplified in the Statute of Uses, put them above the reach of criticism. The flood of new wealth released by the dissolution of the monasteries created a new and prosperous landed class, closely attached to the Crown, which could afford to tolerate a mass of real property law which steadily grew more fantastic. The legal profession became even more deeply entrenched in the House of Commons, and the excitement of religious and political controversy seems to have left no desire to raise the issue of law reform.

The materials available were, first of all, the common law itself. Littleton’s immortal work shows clearly that the mediaeval law of land was comparatively simple, reasonable and capable of expression in concise and orderly form. The one disturbing factor was the feudal incidents and the attempts to escape them. The law of estates was, apart from this, clear and simple. Secondly, there was the law of uses. The creation of uses was perfectly simple in 1536; its chief defect was the possibility of creating a use by words only—a difficulty which reappeared later in connection with trusts, and was easily removed by requiring all declarations of trust relating to land to be in writing.2 There was as yet very little law to decide whether any particular scheme of uses was valid or invalid. Thirdly, there was the institution of the devise. The Statute of Wills required that this should take effect as a legal estate, and at the moment it seems that there was little law to restrain testators in the disposition of their lands as they pleased.3

The common lawyers, therefore, had in their hands a vastly augmented mass of law, much of it comparatively new, and much of it in an amorphous condition. No doubt it was too vague in some places; no doubt, too, the fancy of settlors and testators needed restraint at times; but did the situation demand all the subtleties and complications which the sixteenth and early seventeenth centuries imposed?

LEGAL CONTINGENT REMAINDERS

As we have seen, the common law at the close of the middle ages recognised only one type of contingent remainder as valid.1 The doctrine was often stated in the form that there must be no interruption of seisin, but the real reason at first was the difficulty which ensued in the matter of feudal services, particularly if the contingent remainder is in fee, thereby leaving the lord without a tenant, and an interest without an owner.

To the middle ages, a lord deprived of a tenant seemed the greater difficulty. In the sixteenth century, however, the interest without an owner appeared more remarkable. Fortunately, the middle ages had refused to be troubled by this point,2 and so sixteenth-century lawyers were able to take comfort from the fact that all through history the law had tolerated the gap in ownership between the death of one parson and the appointment of his successor. Relying on this curious circumstance, they ventured to admit the possibility of such a gap between the moment when the grantor parts with his fee, and the moment when the contingent fee is ready to take effect.

Colthirst v. Bejushin (1550)3 is a sign of the changing view. Littleton’s discussion of Rickhill’s settlement4 was cited to the court in support of the traditional view that the death of a living person was the only contingency recognised by the law, but Montague, C.J., brushed it aside and stated that it was now settled law that a remainder may commence upon a condition, provided that the condition was not illegal or “repugnant”; the remainders limited by Rickhill he regarded as bad, not because they were conditions, but because they were “repugnant” conditions.5 The result of this case was, therefore, the recognition of an increasing variety of contingent remainders.

Even if a contingent remainder was valid, however, it might be destroyed in a number of ways. There was a rule, to which the common law courts clung tightly, that a contingent remainder must be supported by a precedent estate of freehold or by a right of entry.1 A contingent remainder to a posthumous son will therefore fail,2 for there is an interval between the death of the father and the birth of the son during which there is no freehold to support the remainder. This common difficulty was often avoided by limiting a freehold to the mother, but was still more satisfactorily removed by statute.3 Similarly, destruction might result from a tortious alienation by the tenant for life, or if he were disseised.4 Furthermore, if the estate of the tenant for life became merged with a subsequent vested estate, the result will be the destruction of any intervening contingent remainder. Such merger might take place owing to conveyance between the parties, or by descent, or by the operation of the rule in Shelley’s Case. During the Commonwealth a device was invented by Sir Orlando Bridgman and Sir Geoffrey Palmer (if tradition is correct) which consisted in limiting a remainder to trustees for the life of the life tenant. If the life tenant were to make a tortious feoffment, there would still be this vested remainder ready to support subsequent contingent remainders. This solution was generally accepted, in spite of theoretical objections.5 Meanwhile, the doctrine of merger created so many difficulties that some of it had to be abandoned. So a distinction was drawn between merger effected by means of conveyances between the parties, and merger resulting from the disposition of estates in the settlement. The latter type was so common in practice that the public had to be relieved of the results which flowed from a strict application of legal doctrine, and so it was held that the merged estates might “open and let in” the intervening contingent remainder.6

From the middle of the sixteenth century, therefore, the tendency was to enlarge the class of contingent remainders which the law would recognise, although still emphasising their destructibility. It has been suggested that there was a conscious policy behind this—the prevention of “perpetuities”. By the close of the middle ages the common law had, in fact, come to the conclusion that an entail could be barred;7 soon it proceeded to the further proposition that all entails ought to be barrable, and that this characteristic was inseparable from entails. Whether this paradox was maintained out of a deliberate policy of furthering freedom of alienation (as is often suggested), or merely out of reluctance to abandon the supposed logical results flowing from a particular combination of technicalities, it is difficult to determine. In any case, the courts seem conscious of the fact that if contingent remainders were allowed to become indestructible, the result would be to impede the alienation of land. In fact, entails could be devised which would be unbarrable for a considerable period.

The rules on the validity and destructibility of contingent remainders were drastic, and modifications had to be made, but the swing-back of the pendulum was assisted by the fact that the problem of perpetuities was now to be attacked from a more reasonable standpoint. With the establishment of a rule against perpetuities1 the danger was removed, and contingent remainders began to be viewed with less suspicion. The use of trustees to preserve them was sanctioned by the courts by the beginning of the eighteenth century,2 and no legislation became necessary until the nineteenth century. The abolition of large masses of technicalities then gave parliament the opportunity of restating the law in simpler and less artificial language.3

USES EXECUTED AND EXECUTORY

Besides the traditional common law, however, the courts now controlled a second system of property law, namely, that which had been transferred to them by the Statute of Uses. Before the statute, considerable latitude was permitted in the limitation of uses; certainly Chancery did not insist upon the observance of the common law rules on the derivation of estates. After the statute, there immediately arose the question as to how far the common law courts would continue this policy now that the uses were executed (or in the future might be executed) by the statute. There was, moreover, a further question. Besides the various cestuis que usent there were the feoffees to uses, and their position since the statute was at first uncertain, and later was expressed in very metaphysical terms. At first sight, this second question would seem settled by the statute: the feoffees have nothing, for the policy of the act was clearly to eliminate them from the situation. This was certainly the case in the simplest possible situation, where A. holds to the use of B. and his heirs. Under the statute A.’s seisin passes wholly to B. More complicated limitations, however, raised a difficulty which the sixteenth-century lawyers felt to be acute. If the feoffee had only a life estate, it was held that any uses limited would cease at his death;4 soon afterwards, in a case of a use for life, followed by a contingent use, a dilemma was discovered. The seisin of the feoffees passed by the statute to the cestui que use for life; was there anything left which could support the contingent use? The court felt that whatever the statute said, if there is a use, then there must be someone who is seised to that use. It therefore followed that the feoffees, although their seisin was already exhausted, still had something which would support the subsequent use. This something Dyer christened with the picturesque name of scintilla juris.1

Before the statute, no doubt, a use did require a feoffee for its creation and for its continuance, but the statute clearly aimed at eliminating the feoffee altogether. There were some lawyers who had a trust in legislation sufficiently strong to accept this drastic change as a mystery to be received in faith; others felt the need of rationalising the seeming miracle, and so attributed this scintilla juris to the feoffee.2 For three hundred years the controversy lasted; Coke against Bacon, Booth against Fearne, Sanders against Sugden, the House of Commons (it seems) against the House of Lords. Not until 1860 was the scintilla at last extinguished after a stubborn legislative struggle.3

It was, however, the prevailing theory, and so for practical purposes the position of the feoffees was material to the question whether any particular contingent use was or was not good. A most important result was the rule that “if the estate of the feoffees, which is the root of the uses, be destroyed by the alienation of the land before the uses have their being, no use can afterwards rise”;4 but, conversely, there were circumstances in which the feoffees could enter in order to preserve contingent uses from destruction by those who had vested estates.5

A further question was whether the derivation of estates by way of use should or should not be bound by common law rules. Before the statute, uses were the most flexible means of effecting settlements, and hardly any restrictions were imposed in Chancery. Thus, even a shifting fee was possible by means of a use. The statute gives no hint of any dissatisfaction with this state of affairs, and so we may conclude that the framers of it were ready to tolerate this liberty in limiting uses, however shocking the results might be to common lawyers. The courts were not so sure, however, and sometimes went so far as to suggest that no limitations by way of use were valid unless they would have been valid in a deed at common law. This would have prevented springing and shifting uses and most types of “contingency”, and is hardly distinguishable from the proposition that the statute abolished uses.6 This extreme doctrine was slowly abandoned, but only in part. A most important relic of it is the rule which became firmly settled that if an executory use (or devise) could be construed as a contingent remainder, then it must be so construed.1 Fear of “perpetuities” probably made for the acceptance of this doctrine, which, of course, resulted in making many types of contingent use as destructible as contingent remainders.

EXECUTORY DEVISES

The Statute of Wills allowed land to be devised, and the devise operated under the statute as a new means of conveying land. This therefore constitutes the third body of property law at the disposal of the common law courts. At the same time, some testators, remembering pre-statute days, preferred the old method of the use, and so we find devises of land to persons who were to hold to various uses; the devisees therefore took under the Statute of Wills, and the beneficiaries took under the Statute of Uses.2 At first there was a feeling among some judges that devises, as well as uses, ought to be subjected to the common law of estates; this movement proceeded no further with devises than it did with uses, and so was checked as soon as it was established that executory devises, like executory uses, which were capable of being construed as contingent remainders, must be so construed.3 This left a remarkable class of executory devises which did not fall under the rule, but they, too, were somewhat precarious until the last years of Elizabeth, when opinion began to change as a result of recent developments both in common law and Chancery.

These novelties were concerned with terms of years. As we have seen, the term of years was always viewed with some suspicion, particularly when it was employed merely as a conveyancing device. It was old doctrine that uses could not be declared on a term—there had to be feoffees seised of a fee. If uses were declared upon a term, they were certainly not executed by the statute, and for a long time they received little sympathy from the Chancellor, on the ground that they constituted a device to evade feudal incidents. It was equally certain in the sixteenth century that a remainder could not be created in a term by deed. Whether it could be so created by devise, however, was a question on which opinion fluctuated. In 1536 it was held that if a term was devised to A. in tail, remainder to B., the remainder was bad.4 In 1542 the view was that such a remainder after a life interest only, was good5 but destructible by the first taker; and to the end of the century cases sometimes assert and at other times repudiate these principles.1 The question was not settled until Manning’s Case2 and Lampet’s Case3 decided that an executory devise in a term after a life interest was not only good, but indestructible, “and although these decisions have been grumbled at, they have never been overruled”.4 The common law attitude was the old dogma that a term of years, however long, was of less consideration than an estate for life, but Lord Nottingham many years later claimed that Chancery had helped the common lawyers to reach “the true reason of the thing” instead of “the vulgar reason of the books” by allowing the remainderman to compel the devisee for life to give security in Chancery not to destroy the remainder, and that the change of view of the law courts was largely due to their desire not to send litigants to Chancery.5

By the end of the sixteenth century, therefore, executory devises of terms in remainder after a life interest were in substance indestructible as Chancery would take measures to preserve them: shortly afterwards, the common law itself adopted this changed view in Manning’s Case. Why then should destructibility continue to attach to executory devises of freeholds? The logic of the situation was certainly felt, and the common law courts began to retreat cautiously from their extreme position. Already in 1600 (even before Manning’s Case) they held in a case of an executory devise of a freehold in the form “to A. in fee, but if A. fails to pay certain annuities, then to B.,” that the executory devise to B. was indestructible if it was to an ascertained person.6 This decision helped a great deal in the frequent cases where the enjoyment of land was made conditional on paying annuities to junior members of the family. Twenty years later a slightly different type of conditional limitation was sanctioned. In Pells v. Brown7 a fee was devised to A. and his heirs, but if A. died without issue in the lifetime of B., then to B. It was held that B. is not barred by a recovery suffered by A. As an eminent writer has said, it is difficult to over-estimate the influence of this decision on the subsequent history of conveyancing.8

THE RULE AGAINST PERPETUITIES

By this time, therefore, executory interests in freeholds or in terms were indestructible unless they could be construed as contingent remainders, or were limited after an entailed interest.1 This result represented a considerable change from the doctrine prevalent in the early days of Elizabeth, and it has been very plausibly suggested that competition from Chancery had much to do with the change: Pells v. Brown certainly came at a moment—1620—when the common law had most to fear from the rival system. But Chancery and the common law courts were in consequence both faced by the problem of perpetuities, and so combined their forces in devising a solution, for it must be remembered that chancellors frequently consulted the common law judges in difficult cases.

The word perpetuity was for a long time vaguely used: it first becomes precise when it is used to designate attempts to produce an unbarrable entail, of which Rickhill’s settlement is an early example.2 A bill against “perpetuities” which passed its first reading in the Lords on 19 January, 1598, was directed against uses arising in one person when another person attempts to alienate.3 The term was then extended to analogous situations where the employment of contingent remainders, springing and shifting uses, and executory devises resulted in making the fee inalienable for a considerable length of time. An early instance of the word is in Chudleigh’s Case,4 but the problem itself may be regarded in one sense as very much older, and indeed as being a continuation of the history of freedom of alienation which we have treated in earlier pages. Old rules thus came to be justified on newer grounds. Thus the rule in Shelley’s Case was devised in mediaeval times for a feudal purpose,5 but its continuance was assured because it rendered the creation of perpetuities more difficult. The rule in Purefoy v. Rogers,6 whatever its technical justification, likewise owed its survival to similar considerations.

The first attempts to prevent perpetuities took the form of the complicated rules which we have briefly described. It was hoped that rules limiting the creation and derivation of interests, coupled with rules permitting their destruction, would make undesirable settlements impossible. They probably did; but at the cost of upsetting many others which were perfectly harmless and even convenient. The ponderous machinery was, therefore, reversed and soon gathered alarming speed in the opposite direction. An acute dilemma presented itself between the two dangers of permitting perpetuities and upsetting reasonable arrangements, and slowly it was being realised that the sort of rules then being developed would inevitably cut both ways. The first gleam of light appears in an argument by Davenport (later C.B.) when Child v. Baylie1 came into the Exchequer chamber. He argued that since in this case the contingency must be determined in the lifetime of a living person, then there could be no fear of a perpetuity. The argument was unsuccessful, but slowly attention began to fasten on the life in being, helped at first by the settlement of the rule that an executory devise of a term after an entailed interest was bad, although it would be good after a life interest.2

A line of hesitating decisions culminated in the Duke of Norfolk’s Case3 in which Lord Nottingham laid the foundations of the rule against perpetuities, not so much by defining its content, as by settling the lines upon which it was subsequently to develop. In that case, the Earl of Arundel had conveyed a long term in trust for B., his second son in tail male; but if his eldest son, A., should die without male issue in B.’s lifetime, or if the title should descend to B., then in trust for the third son, C. In fact, A. died without issue during B.’s lifetime, and the validity of the executory trust for C. was the principal point of the case.4 Lord Nottingham, the Chancellor, called into consultation Pemberton, C.J., K.B., North, C.J., C.P., and Montagu, C.B. All three heads of the common law courts advised against the settlement, but Nottingham was not bound to accept their view, and decreed in its favour. On Nottingham’s death, his old friend North succeeded him on the woolsack,5 and in view of his dissent, it is not surprising that a bill of review was brought before him whereupon he reversed Nottingham’s decree. A further appeal to the House of Lords resulted in another reversal and the restoration of Nottingham’s decree (1685). In the course of his decision, Nottingham went fully into the history of the subject, and poured scorn on the mass of artificialities with which the common lawyers had encumbered it. The suggestion that the settlement could be better effected by means of a trust on a new term to C. instead of a new trust on the original term drew from him the famous words:6

Such language must have been profoundly shocking to the common lawyers, and the House of Lords no doubt relished the opportunity of restoring Nottingham’s decree. The basis of his decision was that since the trust to C. must arise, if at all, within the lifetime of a person then in being it could in no wise be properly called a perpetuity. It was true that B. had a fee-tail, but it was likewise true that his interest was determinable on one or the other of two events which could only happen in his lifetime. For two centuries the rule has continued to develop on that broad and reasonable basis, although Nottingham himself refused to be enticed into the discussion of hypothetical difficulties; to the question where would he stop in such cases he retorted:1

Inconveniences have arisen, and the growing rule received its due measure of complexities and difficulties, but it is thanks to Lord Nottingham’s courage and perception that the rule has as its basis a reasonable and simple proposition, instead of the artificial complications which the common law courts had been devising in order to meet the problem.

Such is the history, in brief outline, of the three systems of real property law controlled by the common law courts in the sixteenth and seventeenth centuries—the common law itself, uses executed under the Statute of Uses, and devises of freeholds and of terms under the Statute of Wills. Obviously they were faced with a bewildering situation, but it is difficult to show that they did anything to clarify it. All three systems raised the problem of perpetuities, but the common lawyers seemed to lack the courage, if not the penetration, to state a general solution. The rule was first adumbrated in Chancery, and to Chancery we must now turn for the fourth system of real property law in force during our period—the trust.

THE RISE OF THE TRUST

The Statute of Uses deals with the situation where A. is seised to the “use, confidence or trust” of B. It is clear that the statute operates wherever that situation exists, irrespective of the terms in which it is expressed, neither use, confidence nor trust being technical terms. Indeed, even a use implied in law (as on a bargain and sale) is equally within the statute, although none of these words is employed, and indeed no words at all. Nevertheless, a convention soon arose of confining the word “use” to those relationships which fell within the statute, and of describing those outside of it as “trusts”. The word “trust” had a more general meaning, however, and this vaguer sense has had great influence in the establishment of the modern trust; this broader sense seems to apply to any case where one person was under a moral duty to deal with property for another’s benefit. We have already mentioned the fact that feoffees to uses could re-enter in order to preserve certain executory uses. In Brent’s Case1 Dyer and Manwood state this fact, and give as the reason that the feoffees “were the persons put in trust by the feoffor”. The uses involved in that case were, of course, executed by the statute, but there still remained a “trust”—a duty to take certain steps in order to further the intentions of the settlor.

The origin of the modern passive trust seems to lie in the regular enforcement by Chancery of a duty to convey arising in a few situations of common occurrence; as time goes on it becomes evident that the duty will be enforced with such mechanical regularity that there is no need to pursue the remedy, and the person entitled came to be treated as though he had already received a conveyance. It was in fact a repetition of a process which had already taken place much earlier in the history of the use. It is well known that a purchaser of land who had paid the price could compel the vendor to convey by a suit in Chancery. This rule became so well established that it could be expressed in the now familiar form that a vendor who has been paid, but who remains in seisin of the land, is seised to the use of the purchaser. The purchaser’s right to be put into seisin thus became a “use”—something very like a property right—and after the statute, became a true legal title. The same process was repeated in the history of the trust. There were circumstances, often involving fraud or mistake, in which Chancery would compel a conveyance to the party who in conscience was entitled; this right to have a conveyance, we suspect, gradually acquired the character of a trust.

THE USE UPON A USE

Unfortunately there is very little material available in print from which to construct a history of equity, more especially for the critical reign of Elizabeth. Such scraps as have survived are therefore apt to stand out in undue prominence. This is certainly true of the famous “use upon a use”. The common belief that this was originally, as well as ultimately, a device to evade the Statute of Uses and to create a purely passive trust in spite of the statute, seems unlikely. The origin of the situation, we suspect, was a misunderstanding of the effect of the Statute of Uses upon a bargain and sale, which by now had become so common a conveyance that the true mechanism of it was sometimes forgotten by careless attorneys, with the result that even before the statute we find cases, such as arose in 1532, where it was stated2 that land cannot be given to the use of A. where the rent is reserved to B. and that one cannot bargain and sell to A. for valuable consideration moving from A. to the use of B. Both the first and the second of these propositions turn upon the rule (already discussed)3 that uses must be clear, and not conflicting with other uses or with other duties. Thus, uses cannot be declared upon terms or fees tail, for they would be repugnant to the duty owed to the reversioners; and in the second proposition, the use expressed is void, for it is repugnant to the implied use raised by the consideration. Such was the law even before the statute.1 After the statute, some people seem to have thought that the implied use having been executed by the statute, a bargain and sale was henceforth merely a device for transferring legal seisin from vendor to purchaser, and that it was therefore equivalent, for these purposes, to a feoffment. Attempts were therefore made to bargain and sell to A. to the use of B. hoping that the use to B. would be executed by the statute, just as it would have been if there had been a feoffment of A. to the use of B.2

TYRREL’S CASE

That seems to have been the situation in Tyrrel’s Case.3 Jane Tyrre bargained and sold her lands to George her son and his heirs for ever, in consideration of £400 paid by him to have and to hold to him and his heirs for ever, to the use of Jane for life with divers limitations over. An attempt to support the limitation of uses by reference to the Statute of Enrolments seems to indicate that some people were under the impression that bargains and sales were now equivalent (for these purposes) to a feoffment. The whole bench of the Common Pleas (sitting in the Court of Wards) held that the Statute of Enrolments did nothing to change the nature of a bargain and sale, and that the uses limited were void. The reason for their invalidity is clearly stated to be the same as that expressed in the case before the statute—the bargain for money implies one use, and the limitation of a further is “merely contrary”. Several cases contain the same decision.

This was the view not only of the common law courts, but of Chancery as well; A. bargained and sold to B. to the use of A.—Chancery just as firmly declined to help A.4 Again, A. enfeoffed his sons to the use of himself for life, and after to the use of the sons and their heirs for the performance of his last will. Here also the uses to the last will are repugnant to the use in fee to the sons.5 These decisions were no doubt harsh, defeating the manifest intentions of the parties, who had to suffer for the unskilfulness of their advisers. Those old rules about repugnant uses were clearly working mischief when applied to deeds drawn by unlearned attorneys. Could the old rules be abandoned in view of this tendency to mistake them? Clearly we need not ask such a question of the common lawyers. Even Chancery was stubborn, until in the last years of Elizabeth and during the reign of James I, the idea of enforcing trusts of various sorts began to expand. Here there seemed a way out of the difficulty. Not that the Chancery was tempted to restore the passive use—there was no thought of that, but at least it might be possible to compel the parties to carry out the intention of the settlors, which had only failed through imperfect draftsmanship. Particularly, favour was now being shown to charitable trusts and trusts to convey. The former were favoured no doubt on grounds of public policy; the latter could be regarded as active trusts and so not within the Statute of Uses. To give effect to them the trustee had actually to convey and Chancery would compel him to do so. In Sir Moyle Finch’s Case1 it is implied that a bargain and sale of lands by A. to B. on trust for the payment of A.’s debts might be enforceable in equity. A trust for the payment of debts was regarded as a charitable trust, and although technically a bargain and sale was not the correct form of conveyance in such a case, yet Chancery seemed ready to overlook the use upon a use, and to compel the bargainee to carry out the trust.

SAMBACH v. DALSTON

Chancery was therefore prepared to tolerate a charitable trust limited upon a use in spite of the technical repugnancy. A generation later Sambach v. Dalston2 seems to have revived the old difficulty of a bargain and sale by A. to B. to the use of C. Tyrrel’s Case had held that since B. had a use, the further use to C. was void. By 1634 the influence of Chancery’s care for charitable trusts and trusts to convey is now evident. It is felt to be unconscionable for B. to retain land which he well knows was meant for C. and it was doubtless on these grounds that Chancery decreed that B. must convey to C. The decision was not an attempt to settle the nature of C.’s interest, and it said nothing of trusts; its sole concern was to order B. to convey to C. who, he knew perfectly well, was the intended beneficiary.

It must not be imagined that this case created the modern trust. Active trusts have a continuous history from modern times back to the middle ages, for they were not affected by the Statute of Uses. The passive trust, on the other hand, makes no appearance in Sambach v. Dalston, nor for some years afterwards. That case merely decided that a bargain and sale by A. to B. to the use of C. should no longer have the curious effect of giving all to B. and nothing to C.; in other words, that B., having the legal title of land which ought to be C.’s, can be compelled to convey it to C. This is a long way from the trust of modern times in which B. retains legal ownership and C. has equitable ownership. Although this case did not create the modern passive trust, however, it did provide a curious, but convenient, way of creating it when later on passive trusts were recognised. The practice of deliberately limiting a use upon a use in order to create a trust seems to have been established early in the eighteenth century; it is referred to as something of a novelty as late as 1715.1

The line of development from Tyrrel’s Case to Sambach v. Dalston is, therefore, only a minor factor in the history of the trust. More significant elements in that history seem to be the development of Chancery’s policy to compel conveyance by legal owners who were put under an express trust to convey (such as the trust which appears in Sir Moyle Finch’s Case and was voluntarily carried out by the trustees making a conveyance), and secondly, by compelling legal owners to convey to those who in conscience were better entitled. It has often been remarked that the right in equity to receive a conveyance only needs a slight change of emphasis to become equitable ownership, thus growing imperceptibly into a passive trust.

Trusts of personal chattels were undoubtedly recognised in Chancery as they had been for a century and more. Terms of years presented a difficult problem. Chancery finally took steps to preserve executory interests in terms, at least in those normal cases where a testator was making limitations in a term which was already in existence; the creation of terms merely as a conveyancing device was a different matter, and for some time Chancery refused to give any assistance, especially where they concerned lands held in chief of the Crown. With the abolition of knight-service in 1660 this objection was removed, and so Chancery was free to consider terms as capable of supporting trusts, as well as of being limited in remainder.

CHAPTER 9

THE MORTGAGE

EARLY FORMS OF GAGE

The development of the mortgage is an interesting example of the interplay between legal doctrine and conveyancing custom. The gage, which is the root idea of the transaction, is really a relic of the days when credit was not yet in existence.1 It has been conjectured that in its oldest form the gage (in Latin vadium, and in modern English pledge2 ) was payment, subject only to the option of the purchaser to substitute at a later time payment in a different kind. Under this arrangement the handing over of the gage settled the debt; the creditor could not demand the substitution of a different kind of payment, and the debtor had no way of recovering any excess value in the gage over the price which he could substitute later. According to this hypothesis, the primitive gage was capable of development in two directions: first, the gage may become a slight object whose transfer is treated as a binding form in a contract for future payment; or, the transaction may take its modern aspect of security only for the future payment of the principal debt. Procedure, judicial and extra-judicial, probably assisted this transformation. The royal courts soon make a practice of taking gages of litigants and security for their obedience, and the long history of the law of distress is really concerned with the compulsory taking of gages.3

Here we are particularly concerned with the gage of land, which appears in England as early as Domesday Book. A century later Glanvill describes it,4 first of all stating that if the king’s court is to take notice of a gage it is essential that the gagee be in possession; otherwise, he says, the same land might be engaged to successive creditors, creating a situation much too complicated for royal justice to unravel.1 The gagee may hold in several different ways. For example, the land may be given for a term of years with a covenant that at the end of the term the debt must be paid; on default the gagee will be entitled to hold the property henceforth as his own. Or, on the other hand, the gift may be for a term of years without containing a covenant releasing the title to the creditor on default; in such a case it will apparently be necessary to obtain the judgment of the court before the creditor’s title becomes complete. Another possibility was a charter accompanied by an indenture which imposed conditions upon its effectiveness.2 As we have seen, the gagee is always in possession and receiving the profits of the land. If those profits are applied to the reduction of the debt, Glanvill tells us the transaction is just and lawful; if, however, the profits do not reduce the debt but are taken by the gagee, then the proceeding is usurious, dishonest and sinful, and is therefore called mortuum vadium, a mortgage.3 The mortgage is, nevertheless, legal as far as the king’s court is concerned, but if the mortgagee dies, his property will be forfeit, like that of other usurers.

This type of gage as described by Glanvill finally fell into disuse. Its obvious disadvantages were that the debtor was always out of possession; that although the gagee was in possession yet he was not protected by the petty assizes, and so if he were ejected he had no means of recovering his security; and worse still, the debtor himself might eject the gagee and thereby reduce him to the position of an unsecured creditor.4

THE GAGE IN BRACTON’S DAY

When we come to Bracton we see attempts to fit the gage into the scheme of estates. Gages may therefore be effected by selling a term of years for a sum down; the advantage of this is that there is no debt at all, and, therefore, no usury, and no gage, while the termor is now protected against the lessor.5 An alternative arrangement was a true gage for a term of years with the condition that if the debt is not paid at the end the lessee shall hold over in fee. This shifting fee for a time raised no technical difficulties.6 It is obvious that several forms were used, and sometimes in combination. Thus the Year Book of 1314 tells of a lease for five years “by way of mortgage” whereof indentures were made, but accompanied by a deed of feoffment in fee simple with warranty in common form. Bereford, C.J., compelled the tenant (who relied on the feoffment) to answer to the indenture.1 The very next case was one of a mortgage by feoffment, with a covenant in a separate deed for the defeasance of the feoffment and the “reversion” of the land.2 One early case even allowed a charter of feoffment to be governed by a parol condition.3

Britton makes the significant remark that there is no equity of redemption although some people think there ought to be.4 Furthermore, a common law judge in 1314 used these remarkable words: “When a man pledges tenements his intention is not to grant an estate of inheritance, but to secure the payment of the money which he borrowed promptly, and to get back the tenements when he had paid the money.”5 If the common law had kept to this doctrine it would have anticipated by several centuries the achievements of Chancery; very soon, however, the common law courts lost the equitable spirit which distinguished them in the reign of Edward II, and construed the terms of a mortgage strictly according to the letter.

JEWISH MORTGAGES

While the Jews were in England matters were in a much more satisfactory state. They had their own law and customs and the Crown maintained a special court (a division of the Exchequer) for their enforcement. Among these customs was the possibility of a gage in which the gagee was not bound to take possession; gages to Jews were, however, subject to a system of registration established by Richard I.

From the fourteenth century onwards we therefore find the common law courts construing mortgages strictly—so strictly, that for practical purposes other and more convenient devices had to be invented under statutory authority, such as the elegit and obligations under the statutes of merchants and staples.2 The great advantage of these forms was that they were statutory, enacted with a careful explanation of their real nature as securities, and with an express repeal of such common law principles as would have impeded their operation. The old common law mortgages, on the other hand, suffered from the incurable defect that they employed formulas which contradicted the true nature of the operation—they spoke of feoffments in fee, and leases for years, when the transaction was really neither—and such forms inevitably attracted several doctrines of seisin and the derivation of estates, which tended to defeat their purpose.

LITTLETON ON MORTGAGES

The fifteenth-century type of mortgage is described by Littleton, who incidentally gives a novel reason for the word:

He goes on to state that the feoffee may take for years, for life or in tail, instead of in fee; that if no date is limited, that then the redemption can only be made by the feoffor, and that his heir cannot redeem; if a date is fixed, however, and the feoffor die before it, then his heir can redeem on the day. He states in rather less confident tones his view that if the feoffee die within the term, tender should be made to his executors although his heir will have the land; if the feoffor die, his executors should render.4

The general scheme is therefore a feoffment in fee, with a provision for re-entry upon a condition subsequent. Such an arrangement in the early fourteenth century was certainly invalid;1 attempts to express the situation in terms of reversions or remainders after a fee simple, or in defeasance of a fee simple, were no more satisfactory,2 and so Littleton had no alternative but to classify it as an “estate upon condition”. The courts certainly had a long-standing distrust of such devices. Littleton assumes that in his day the forms he gives were valid, but the scanty annotations suggest that there was little authority for his statement, and it may be conjectured that the common law mortgage was not much used; it is clear, on the other hand, that the statutory forms of security were popular, and very widely employed.

THE CLASSICAL COMMON LAW MORTGAGE

There is great obscurity over the history of mortgages in the fifteenth and sixteenth centuries. At what date it became usual to effect them by the newer device of a feoffment with a covenant for re-conveyance (instead of a condition of defeasance or of re-entry) it seems impossible to say.3 The law of conditions, defeasance and entry was certainly growing steadily more unsatisfactory, and this may account for the preference for a covenant to re-convey which would be actionable by a writ of covenant. Perhaps the greatest factor of the change was the growing strength of equity, which concurrently with common law would compel re-conveyance on payment (which many creditors were loth to do), and was already drawing the whole transaction, and not merely certain aspects of it, within its jurisdiction. The covenant, however, would be enforced by the common law courts strictly as it stood. In this respect it closely resembled the widely used bond for £10 defeasible on payment of £5 on a certain date. In both cases it was the mission of Chancery to give relief against penalties which were enforceable at law.4 In the present state of knowledge, it seems that the classical form of mortgage was actually established subsequent to equity’s entry into the field, and with a definite recognition that mortgages were to come before Chancery rather than the common law courts.5

A further obscure point is the slow change in practice by which the mortgagor was allowed to remain in possession. This is certainly postmediaeval, and, indeed, as late as the middle of the seventeenth century it seems that mortgagors generally gave up possession to the mortgagee.1 It is significant that some curious forms of mortgage, devised by the eminent conveyancer, Sir Orlando Bridgman, were effected by giving the mortgagee a long term of years (to which conditions and provisos were more easily attached than to fees), and that among the provisos was a clause permitting the mortgagor to retain possession.2

In the sixteenth century Chancery began to give relief against penalties and it may be that it was partly on this basis that Chancery also intervened in mortgage transactions at the close of the sixteenth century, and developed its doctrine of the equity of redemption. Another factor, possibly of equal importance, may well have been Chancery’s insistence that man, who ought in conscience to convey land to another, could be compelled to do so. This principle, applied to one type of situation, made possible the development of the later trust;3 applied to the mortgage, it made possible the equity of redemption. It is, however, from the close of the seventeenth century, when Sir Orlando Bridgman was Lord Keeper, and after him Lord Nottingham, that equity began to elaborate a considerable body of law,4 some of which modified the common law mortgage, while the rest applied to types of mortgages which were peculiar to equity, such as second and subsequent mortgages, and the remarkable equitable mortgage effected by merely depositing title deeds—which was clearly contrary to the words and the policy of the Statute of Frauds.5 Conveyancers themselves made the valuable addition (which the legislature subsequently developed) of the power of sale which has made the modern mortgage so effective an instrument, originally prompted, it seems, by a desire to avoid the slow and costly foreclosure proceedings in Chancery.

STATUTES MERCHANT, STATUTES STAPLE, ELEGIT

The fact that the mortgage was not a very satisfactory institution is shown by the continued use of the mediaeval statutes merchant and staple. There was much legislation6 and both merchants and landowners made much use of them. By means of a “statute” a debtor could voluntarily make his land a security for debt. If judgment was given against him, the judgment creditor could reach his land by the writ of elegit. A creditor in possession by either method had a “freehold” and (by statute) was protected by the assize of novel disseisin. Thus a great breach was made in the ancient principle that the sacred freehold was not liable to creditors—but at the expense of much complication in the law of land.

CHAPTER 10

CONVEYANCES

ANGLO-SAXON CHARTERS

The Anglo-Saxon form of conveyance was at first extremely elaborate and was imitated from continental models.1 Whether, like them, it acted as a conveyance, that is to say, transferred the complete title without the requirement of any further ceremonies, it is very difficult to say.2 Of the transfer of folkland it is even less possible to speak with confidence, since in the ordinary course of events it seems to have been effected without charter or written document. Such traces as we have seem to indicate a ceremonial transfer accompanied by great publicity, sometimes in the county court and more frequently in the hundred court. At the same time we find the appearance of festermen, whose function is particularly obscure.3 If we may venture a guess, it would be that they partly represent the borh or surety whose presence so frequently rendered an Anglo-Saxon contract a three-cornered affair.

Towards the end of the Anglo-Saxon period the elaborate charter is replaced by a simpler form which modern historians call a “writ-charter”. This is derived from the administrative writ and was originally merely a letter of instructions sent by the king to some official. This brief and convenient form was soon used for all sorts of purposes. From this single ancestor are derived the charter and letters patent which are the form of a good many grants of property and privileges, including the Great Charter; so, also, the letters close which were the great administrative instrument in the middle ages; likewise the original writs on which the forms of action were based; and so, too, the conventional forms of conveyance used by private persons.

POST-NORMAN CHARTERS

When we come to the Anglo-Norman age we find that already the law had made a great decision. It is clearly recognised that a deed does not operate as a conveyance, but is simply evidence. With the decline of the Anglo-Saxon charter, according to one view,1 we therefore reach the end of a brief period during which a document was capable of transferring rights, and a return to the more ancient native practice which insisted upon an actual delivery of chattels or livery of seisin of land. We have already remarked, however, that the existence of this momentary aberration has not yet been clearly established.2 In any case, the importance of the deed is much reduced, and in the Anglo-Norman age there can be no doubt that a great deal of land was transferred without deed. The essence of the transaction was a complete and public change of the occupancy of the land in question; even the symbolic transfers of the previous age are no longer effective (if, indeed, they ever were); instead, we find the purchaser entering upon the land and expelling from it the previous owner and his family, his servants, beasts and chattels, all of which is done in the most public way. The deed is at first a sort of memorandum in the form of a writ-charter recounting the transaction in the past tense. The document usually begins in the name of the vendor in such words as these, in the thirteenth and later centuries:

—and here the boundaries are set out with some particularity. Then comes the following clause:

At this point (called the habendum) the nature of the donee’s interest is stated, and if the gift is in fee-tail the limitations will be specified. In deeds executed after the Statute Quia Emptores the tenendum will have to be in the form “to hold to C. D., his heirs and assigns, of the chief lord of the fee by the services rightfully and customarily due”, and if the grantor reserves any rights (such as rent on a lease) a clause beginning reddendo will specify them. We then come to the very important clause of warranty in this form:

This warranty clause1 was a great protection to the purchaser, for if his title was subsequently attacked he could call upon his warrantor to come into court and defend it, and, if he lost, the warrantor was bound to recompense him with land of equal value in the same county; at the same time the warranty acted as a bar to any claim by the donor and those whom he bound. As we have already said, at the beginning of the thirteenth century the clause of warranty served to bar the claims of heirs who might otherwise try to recall their ancestor’s gift.2 The clause of warranty was followed by a clause announcing that the deed was sealed, in forms that varied considerably; it is not infrequent to find even something like this:

In the fourteenth century the charter frequently omits to mention the seal, although it remained the law that no deed was valid without a seal. Before the reign of Edward I it is unusual to find the deed dated, but from the fourteenth century onwards the sealing and witness clauses are replaced by a dating clause announcing the time and place. In the fifteenth century livery of seisin degenerates into a ceremony, and frequently the vendor and purchaser made attorneys to give and receive livery of seisin; a memorandum of the due performance of this was endorsed upon the deed. We do not commonly find signatures on deeds before the sixteenth century, and they did not become generally necessary until the Statute of Frauds. Sometimes as a greater security the deed was written in duplicate (particularly if it were a lease containing elaborate covenants) upon the same piece of parchment, and the two deeds were then separated by an indented cut passing through the word chyrographum. Such a deed was called an indenture or a “writing indented”, although it is only later that we find the appearance of the modern form beginning, “This indenture made at such a date witnesses that . . .” At first the form of an indenture was merely a precaution,4 but soon this precaution was felt to be so valuable that the indenture acquired a special position in law by creating an estoppel, and as being equally the deed of all the parties.

VARIETIES OF DEEDS

This general framework could be used for a variety of transactions besides the gift or grant. Thus a release could be used where the donee was already in possession, and the owner released his rights; under such circumstances livery of seisin was unnecessary. The release was commonly used when a lessor released the fee to his lessee, or a disseisee conveyed his rights to the disseisor. The converse of a release is the surrender whereby a tenant for life or years surrenders his interest to the reversioner. The charter must be carefully distinguished from the feoffment; the former is a document, the latter a ceremony which alone gives validity to the transaction, for it includes the formal livery of seisin. Gradually a distinction is drawn between the feoffment of land where livery of seisin was obviously possible, and in fact, sufficient without a charter (until the Statute of Frauds), and the grant of reversions, advowsons, rents and other incorporeal things which (in later theory) only “lie in grant and not in livery”. As soon as it is established that livery cannot be made of such things, then a deed will be necessary to pass them.

A second type of deed used the machinery of the law courts. We have already mentioned that in Anglo-Saxon times transfers of lands were frequently made in court, and in the early Norman period we find numerous attempts to obtain some sort of official record of a transaction. In consideration of a fee a private deed might be enrolled upon the pipe rolls, while soon after it became a frequent practice to enrol private deeds on the back of the close roll. This practice had a curious history, for in the course of time the official documents upon the close rolls gradually became fewer while the private deeds enrolled upon the back became more numerous, with the result that the modern close rolls (they extend in unbroken series from 1204 to 1903) consist entirely of deeds enrolled and contain no official business whatever.

FINAL CONCORDS: RECOVERIES

Another attempt in the same direction took the form of litigation which was brought into court solely for the purpose of being compromised upon terms which the court approved and recorded.1 This became so frequent2 that a new procedure was set up on the fifteenth of July, 1195, and this was observed until 1833. The immediate cause seems to have been a complaint by Jews that their bonds were abstracted from the chests in which the royal officials ought to have kept them. To remedy this the tripartite indenture was devised, one part only being put in the chest, the others being held by the parties. That was in 1194; the system apparently worked so well that it was adopted for the preservation of final concords in the next year.

The compromise was called a fine or final concord, and the essential parts of it are the praecipe or original writ commencing the action, the licence to compromise, the note or memorandum of the terms,1 and the final document in which those terms were solemnly set forth.2 This document was in fact a tripartite indenture, three copies being written on the same sheet of parchment, one for each party and one at the bottom for preservation in the royal archives. This was called the foot of the fine. There is an almost unbroken series of these feet of fines in the Record Office constituting an extraordinary mine of information for local history and for the history of real property law. As times goes on, the procedure by fine becomes complicated and a number of different sorts of fines are invented, each with its peculiar properties. The effect of a fine was much more powerful than that of a deed. To begin with, its authenticity is usually beyond dispute. It is very rare indeed that parties succeeded in corrupting government clerks to tamper with a foot of the fine, and even then discovery was inevitable.3

In the middle ages it was commonly used to convey reversions and remainders, because there was a rapid process (by writs of per quae servicia and quid juris clamat) for compelling particular tenants to state what interest they claimed or to attorn, and as a means for a married woman to convey her land so absolutely as to bar actions of cui in vita and sur sui in vita; for this purpose she was brought into court and examined by the judges in order to be sure that she freely consented to the conveyance.4 Land could also be conveyed free of dower by fine if the wife joined with her husband in levying it. An additional advantage was that litigation to enforce the fine later on could be conducted expeditiously by a writ of scire facias instead of a costly and expensive real action.5 The fine is therefore the highest and the most solemn form of conveyance known in the middle ages. In its early days, after a short period of limitation a fine operated as a bar to all the world. The period was at first twelve months, and the only exceptions were in favour of minors, lunatics, prisoners and people beyond the seas. A fine, like other judicial proceedings, could be set aside by a writ of error and, in general, was not effective unless the conusee took seisin under it1 —herein resembling the charter, which was useless unless the grantee was given livery of seisin. The statutory changes which were made were chiefly important as affecting the efficacy of the fine as a disentailing device, and of this we shall speak later.2

Collusive recoveries were also used in a variety of forms during the middle ages, but in almost every case they seem to be tainted with fraud. It can hardly be said that a recovery becomes a common assurance and a strictly legitimate proceeding until the sixteenth century. In the middle ages it was used to convey land free of a term, to bar dower, by a husband to alienate his wife’s land and to defeat her heirs, and to alienate into mortmain. A stream of legislation checks first one and then another of these practices.

All the forms which we have so far considered were typically mediaeval in the sense that they were not operative in themselves, but depended upon an actual change of seisin. A charter was accompanied by livery of seisin effected by the parties themselves or their attorneys; fines and recoveries were both incomplete until seisin had been given to the conusee or the recoveror by the sheriff under a writ from the court.

BARGAIN AND SALE

In the fifteenth century Chancery held that a vendor of land who had received the purchase price, but who remained in seisin of the land, was seised thenceforward to the use of the purchaser. Already, it would seem, sixteenth-century purchasers had such confidence in this rule that they were content with this equitable title, especially since it was a secret one. The Statue of Uses, however, executed this implied use and made it a legal estate, and the Statute of Enrolments was immediately passed to prevent legal estates being conveyed with the same secrecy. The act only applied to bargains and sales for an estate of freehold or inheritance, but upon them it imposed the condition that the bargain must be “in writing indented,1 sealed, and enrolled” within six months. The statute contains words which seem to imply that no use shall arise on the bargain if it is not enrolled. The object apparently was to prevent Chancery finding equitable estates arising from bargains which did not comply with the act. If so, the act was successful; but the words had also the effect of obscuring the nature of a bargain and sale, for some people were led to believe that the act had somehow abolished the implied use altogether, and so were tempted to limit further uses on a bargain and sale. As we have seen,2 confusion lasted for a long time, until finally the profession came to the conclusion that a bargain and sale was a dangerous instrument if it was used to effect settlements.3

LEASE AND RELEASE

The Statute of Enrolments did not affect bargains for a term, and so these were left to the combined operation of the Chancery rule and the Statute of Uses; the bargainor is therefore seised to the use of the termor, and the termor acquires the legal term under the statute, without having to enter. Hence it was possible to convey secretly by using two deeds—a bargain and sale for a term, followed by a release of the fee to the termor. Neither had to be enrolled, and neither needed actual entry for its completion. This ingenious device is ascribed to Sir Francis Moore, and was sanctioned4 by the courts in 1621. By the end of the century, in spite of some doubts, it was in general use, for besides its secrecy it had the additional advantage over the bargain and sale enrolled, that uses could be limited in the deed of release.

WILLS

Since the Statute of Wills these documents must be considered as conveyances, and until a century ago they were treated on strictly conveyancing lines. For example, a will would only pass such lands as the testator was seised of both at the time of making the will and at the time of his death, which perpetuates the situation existing before the Statute of Uses when land was devised by conveying it to feoffees to the uses of the feoffor’s will. The rule is therefore older than the statute of 1540, although certainly consistent with it; Coke delighted to attribute the rule to the words of the act which authorise a testator to devise such land as he “has”.5 Henry VIII’s statutes made no requirements as to the form of a will save that it be in writing, and it was not until the Statute of Frauds that this and a good many other matters were required to be expressed in writing, signed, and in the case of wills witnessed. The Statute of Frauds also required written documents for the creation of trusts of land, and for the assignment of all sorts of trusts, and therefore contributed a great deal towards the treatment of these equitable interests as though they were property. A mass of very unsatisfactory law, mainly the work of the seventeenth and eighteenth centuries, was swept away by the Wills Act, 1837.1

DISENTAILING DEVICES: WARRANTIES

We have already seen2 that when a tenant in fee simple alienated, binding himself and his heirs to warrant the alienee and his heirs, the warranty operated as a bar which peremptorily excluded the donor and his heirs from any claim to the land in question. This principle probably played a part in establishing the alienability of fees simple, free from family restraints.

It now remains to consider the effect of warranties created by those who were not tenants in fee simple. The problem first became acute when doweresses and tenants by the curtesy resorted to tortions feoffments coupled with warranties. When there was issue of the marriage it would normally happen that the issue would be heir to both parents; hence as heir to his father’s warranty he would be barred from claiming lands to which he was entitled as his mother’s heir, and as heir to his mother’s warranty (created while she was doweress) he would be barred from claiming lands which were his paternal inheritance.3 Such practices struck at the root of the common law scheme of family relationships, and in 1278 the legislature intervened. The Statute of Gloucester, c. 3, enacted that an heir, who has inherited nothing from his father, shall not be barred from demanding lands inherited from his mother, although the father had alienated them with warranty. If he has inherited from his father, but not enough (assetz) to fulfil the warranty completely, then he is barred to the extent that “assets” had descended to him. The statute only deals with warranties created by tenants by curtesy.4

What of warranties by a tenant in tail? A simple feoffment (without warranty) by a tenant in tail will give a fee simple to the alienee, but will not bar actions by the heir in tail, remaindermen or reversioners; DeDonis itself provides that even a fine by the donee in tail will not bar his issue or the reversioner. Experiments were therefore made with the deed with warranty and some very curious results followed, for the Statute De Donis made no provision for this case. The simplest case was when a father, being a tenant in tail, alienated with warranty and the warranty descended together with the entail to his heir. This warranty, it would seem, barred the heir from his recovery, and so in this way an entail might be effectively barred as against the heirs in tail: of course it did not affect remainders or reversions. This did not last very long, for the Statute of Gloucester, c. 3 (which, as we have seen, expressly applied only to warranties created by tenants by curtesy) was extended by judicial interpretation to warranties created by tenants in tail, in a case of 1306.1 The result was that if the issue in tail had inherited from his ancestor “assets by descent”2 he was barred to the extent of those assets, otherwise not. Consequently from 1306 onwards it is a growing opinion that a deed with warranty might not be a bar if there were no assets by descent.

By the time of Littleton, an attempt had been made to generalise these rules and to classify warranties. Some were described as lineal warranties because the burden of the warranty and the title both descended by the same line; but this was not always the case, for a warranty might be collateral, and it was held that collateral warranties were always a bar.3 Normally, a warranty was created by one who was seised of the land, and was about to enfeoff an alienee. Soon, however, it was admitted that anyone could bind himself and his heirs to warranty, whether he had any interest in the land or not.4 This afforded opportunities for a good deal of ingenuity. It was not always easy to use collateral warranties, for it needed the co-operation of other members of the family and also depended upon relatives dying in the proper order, conditions which were not always available. When they were, a collateral warranty was a very effective bar to the issue in tail:

Sometimes even remainders could be barred. Thus suppose that the eldest of several sons is a tenant in tail, with successive remainders to his brothers in tail. If the eldest discontinue with warranty and die without issue, then the second son will be heir to the warranty; the remainder, however, is his by purchase and not by inheritance from his elder brother. The warranty is therefore collateral to him, and he is barred.1 Protests were made in Parliament against the collateral warranty rule2 during the reign of Edward III, but it was not until the reign of Queen Anne that the bar by collateral warranty was abolished; curiously enough the statute did not abolish the bar by lineal warranty with assets descended.3 The effect of both of these warranties upon remainders and reversions was very much dependent upon circumstances and in order to bar these estates more effective devices had to be invented.4

DISENTAILING BY FINE

Among these was the fine. By De Donis a fine was no bar to the issue in tail.5 Fines of fees simple, however, were a bar to all the world after a year and a day. In 1361 this old principle was completely reversed by statute,6 and for over a century fines ceased to be a bar to any claimants except the parties themselves. This, however, introduced so much uncertainty and permitted the assertion of so many remote and dormant titles that Richard III by a statute which was re-enacted by Henry VII7 (who usually got the credit for Richard III’s reforms) enacted that a fine should be a bar after certain proclamations and the lapse of five years, while remaindermen and reversioners were to be barred by a fine with proclamations unless they claimed within five years of the time when their estates accrued. Once again the fine becomes “a piece of firm ground in the midst of shifting quicksands”.8 A case, and later a statute,9 made it clear that a fine with proclamations was a complete bar to the issue in tail since they are deemed to be privy to it. A fine, consequently, after the statute will bar the issue, but not remainders or reversions save in the unlikely case where they let their rights go by default.

THE COMMON RECOVERY

The problem of barring remainders and reversions was finally settled by means of the recovery. Of the earlier history of recoveries we have already spoken; in the fifteenth century a number of forms were tried with the evident object of barring entails,1 but it seems always assumed that the recovery could be “falsified” if fraud or collusion were proved.

In Littleton’s day their effect was restricted. Thus if a tenant in tail suffered a recovery (without voucher, and therefore not a “common” recovery), and the recoveror was duly put in seisin by the court, it would nevertheless be possible to destroy its effects, for if the erstwhile tenant in tail disseised the recoveror, died seised, and his issue inherited, then the issue is remitted to the entail.2 It was perfectly clear that a recovery by a tenant for life could have little effect; remaindermen and the reversioner after him could intervene, and even if they did not, they might treat his suffering a recovery as a forfeiture; at the most, failing any entry on their part, it seems that remainders and reversions were only thereby discontinued, and not barred.3

A statute of Henry VIII cleared up this situation by making the recovery absolutely void unless it was made with the consent of the remainderman or reversioner.4 It seems, however, that the statute was evaded by tenants for life alienating to a stranger who then suffered a recovery in which he vouched the tenant for life, “to the great prejudice” of those in remainder or reversion: hence an act of Elizabeth5 avoided all recoveries by a tenant for life, including those where the tenant for life came in as vouchee, unless the consent of the remainderman or reversioner appeared on the record. Clearly, then, the statute preserves the situation (long since established) of a recovery by a tenant for life who vouches the remainderman or the reversioner in fee.

A tenant for life in possession is therefore powerless unless the tenant in tail will join him. So we must now consider the powers of a tenant in tail in possession. If he suffered a collusive recovery (not a “common” recovery) the reversioner could intervene immediately,6 or could recover by action of formedon when his estate fell in. There was therefore little to be done by any mechanism whereby the tenant in tail actually lost the land. Eventually this difficulty was met by a very ingenious device whereby the tenant in tail could part with the land without suffering any technical loss. On being impleaded, he vouched to warranty a stranger, a man of straw, who then defaulted. The recoveror had judgment against the tenant in tail (and so got the land), but the tenant in tail had judgment against the “common vouchee” (who in later times was the crier of the court) for recompense in land to the value of that which had been lost. The success of this device depended on the rule that subsequent remaindermen and the reversioner have still their rights and remedies, but that they are available only against the land which the tenant in tail received as recompense—and as the common vouchee carefully refrained from landownership, there was never any possibility of recompense being actually enforced. The right to it subsisted, however, and so remaindermen and reversioners suffered loss but no injury. And, of course, the device could not have worked unless the courts were determined to close their ears to the obvious charge that the whole proceeding was a barefaced fraud. As we have seen, the courts had long tolerated the creation of collateral warranties by deed by persons who had no interest in the land, and it was but a step further to allow the voucher to warranty of persons who likewise had no real interest in the proceedings, and who had no means of fulfilling the heavy obligations which they undertook.

In its classical form, the common recovery was suffered, not by the tenant in tail, but by a “tenant to the precipe” to whom an estate had been made, either by bargain and sale or by fine, for the express purpose of suffering the recovery. The precipe or original writ issues against this person, who vouches the tenant in tail to warranty: the tenant in tail then vouches the common vouchee, who enters into the warranty and then defaults. The recoveror then has judgment against the tenant, the tenant has judgment to the value against the tenant in tail, and he against the common vouchee. The proceedings were always surrounded with a certain amount of mystery, and the precise reason for their effectiveness was not always clearly apprehended. The author of the Touchstone1 could think of nothing better than that communis error facit jus; one of his annotators convicts Hale of misunderstanding the nature of a recovery;2 another speculator thought that the entail would continue (by a fiction) for ever and ever in the recoveror, his heirs and assigns, and consequently remainders and reversions would never fall in;3 Willes, C.J., thought it best not to inquire.4

If the theory of the recovery is obscure, its history is even more so. Under the common law system, everything ought to have a history, and so a singularly obscure case came to be conventionally regarded as the historical foundation for common recoveries. This was Taltarum’s Case,5 1472. Within the succeeding century there can be no doubt that the common recovery rapidly became a regular part of the law, and of the law of entails—it thus became part of the nature of an entail that it could be barred.

STATUTORY DEVICES

Out of the depths of the eighteenth century, whose tortuous learning on this subject is assembled in Cruise on Fines and Recoveries (1783-1786), comes the prophetic voice of Blackstone.1 Having first given a very lucid exposition of these devices, Blackstone proceeds to call for the abolition of “such awkward shifts, such subtle refinements, and such strange reasoning”. He examines several possible methods. The repeal of De Donis might cause trouble by reviving the conditional fee; it might be enacted that every tenant in tail of full age should be deemed to be tenant in fee simple absolute (but this might seem hard on reversioners); or better still, a tenant in tail might be empowered to bar the entail by a solemn deed enrolled, “which is . . . warranted by the usage of our American colonies”. To have suggested the abolition of fines and recoveries in 1766 was an achievement; to have cited American example for it in the years of the Stamp Act is surely notable, too; nor should Blackstone’s remarks on vested interests be overlooked. Fines and recoveries brought handsome revenues by way of fees to numbers of court officials, and there is no doubt that this circumstance made reform difficult. Blackstone was ready to suggest a higher necessity, at least in a protasis:

In fact, Blackstone lived in the early stages of an historical movement which he discerned and appreciated. He remarks that for a century and a half bankrupt tenants in tail had been empowered to bar their entails by deed enrolled, so that their commissioners in bankruptcy could sell them.2 Moreover, Elizabeth’s statute of charitable uses3 was construed as “supplying all defects of conveyances” so that a tenant in tail could devise, and even settle, entailed land to charitable uses, without fine or recovery.4 Already, then, some cases needed no fine and recovery, but merely a deed. Blackstone’s suggestion was carried out by the Fines and Recoveries Act, 1833, which enabled a tenant in tail who is of full age, with the consent of the tenant for life, to bar the entail by his deed enrolled.

In the common form of settlements, however, a considerable period might elapse before there was a tenant in tail of full age, and during this period the tenant for life could not deal with the land to any great extent. In the middle of the eighteenth century it became a common, though costly, practice to secure a private act of Parliament to disentail in such cases; the close of the century saw the great outburst of canal construction, to be followed soon by railway and dock undertakings, and in the acts authorising the compulsory purchase of land for these purposes, tenants for life of settled land were given powers to sell without having recourse to separate private estate acts. As such enterprises became more frequent, these powers were made permanently available by various acts, but were still confined to sales to certain types of public undertakings, until the Settled Land Act, 1882, placed them at the disposal of tenants for life generally, transferring the limitations of the settlement to the proceeds of the sale.

PART 4

CONTRACT

SUMMARY

• Contract - - - - - - - -
• chapter 1.Origins - - - - - - - -
• chapter 2.The Fourteenth Century - - - - -
• chapter 3.Assumpsit to Slade’s Case - - - - -
• chapter 4.Contract after Slade’s Case - - - -
• chapter 5.Law Merchant and Admiralty - - - -

CONTRACT

It is remarkable that, in spite of the numerous foreign influences which were at work in the field of contract, the common law was so little affected by them. The Church very early took a strong view of the sanctity of contractual relationships, insisting that in conscience the obligation of a contract was completely independent of writings, forms and ceremonies, and tried as far as she could to translate this moral theory into terms of law. Then, too, there were the mercantile courts which were endeavouring to enforce the practice of the best merchants and to express that practice in terms acceptable to either or both of the two conflicting schools of legal experts whose approbation was necessary—the civilians and the canonists. In England all these influences were at work. Glanvill knew just enough of the Roman classification of contracts to be able to describe—and then misapply—it, while Bracton endeavoured to express common law in Romanesque language. In the later middle ages ecclesiastical Chancellors in England were acting on canonical ideas—and yet in spite of all this the English law of contract is neither Roman nor canonical. If we are to seek the reasons for this we shall have to examine a good deal of procedural detail. The various forms of action had come into existence, and had taken definite shape, long before English law regarded the field of contract as a whole. By the time these foreign influences became strong the common law had already developed an inflexible system of procedure which did not easily permit the introduction of new ideas. In consequence, the common law courts were left to develop a law of contract as best they could out of the stubborn materials of the forms of action, and so, after many years of uncertainty and long conflicts with the technical and procedural difficulties which by that time were inherent in the common law system, we finally arrived at a systematic law of contract about three centuries later than the rest of the world. This Part will therefore be devoted to a brief summary of the lines along which the common law of contract developed.

CHAPTER 1

ORIGINS

In the Anglo-Saxon period a law of contract would have been a luxury. The enforcement of public order and the elementary protection of life and property were as much as the Anglo-Saxon states could undertake with any hope of success. We therefore find that the Anglo-Saxon law regarded contract as somewhat exceptional and only undertook to enforce it under particular circumstances.

CONTRACT IN ANGLO-SAXON LAW

In order to conclude a contract Anglo-Saxon law required numerous external acts, and several of these survived for many centuries. First of all there was the wed, which after the Norman Conquest was called a gage, and consisted of a valuable object which was delivered by the promisor either to the promisee himself or to a third party as security for carrying out the contract. Then, too, there was the borh, who after the Norman Conquest was called a “pledge”, and consisted of personal sureties. It must always be remembered that during the middle ages the word “pledge” means a person and not a thing. In the course of time the valuable gage is frequently replaced by a trifling object of slight value or even by a small sum of money; the gage consequently becomes merely a symbol instead of a valuable security, and the contract is then said to be formal. The Statute of Frauds and later legislation sanctioned the continuance of this type of contract concluded by earnest money.

The occasions upon which it became necessary to contract during the Anglo-Saxon age were mainly of two types. In the first place the solemn ceremonies by which a betrothal was effected were essentially contractual, for the betrothal was in effect a contract for a sale. The Anglo-Saxon marriage on its civil side (which was independent of the Church’s sacramental views) still consisted of the sale by the woman’s kinsfolk of the jurisdiction or guardianship over her (which they called mund) to the prospective husband.1 Even after this ceased to be a strictly commercial transaction, betrothal and marriage ceremonies retained a good many survivals of the older order—Maitland has described the marriage forms of the Church of England as “a remarkable cabinet of legal antiquities”, and the Episcopal Church of America has also retained most of them.1 The betrothal was effected by the delivery of a wed and thus became a “wedding”, that is to say, the conclusion of a contract for a future marriage.

The other great situation in which contract played a part was the conclusion of a treaty subsequent to a homicide. The Anglo-Saxon texts tell us with great particularity the procedure to be followed in order to exact the payment of wer by the slayer to the kinsmen of the victim.2 The sum involved was considerable, and then, as throughout the middle ages, it was difficult to liquidate a large debt in cash at short notice. It therefore became necessary to allow the slayer credit and this was done by assembling every contractual engine known to the law. Spokesmen were appointed, and they negotiated until it seemed prudent to allow the parties to come face to face. Then the treaty was made, the slayer promising to pay and the kinsmen of the slain calling off the feud; until finally the transaction was completed by giving wed and finding borh.

Buying and selling there undoubtedly was, but sale seems always to have been an executed contract, and the Anglo-Saxon law of sale is really little more than a set of police regulations to prevent dealings in stolen goods.3 It is a matter of conjecture whether there was a law of debt; there were, however, a few rules on the vendor’s warranty of title4 and quality5 of goods sold.

A possible third occasion when the Anglo-Saxons made executory contracts was the remarkable procedure to secure the presence of a defendant before the courts; in Anglo-Saxon law this was effected by means which were clearly contractual.6

THE THREE-PARTY CONTRACT

Gradually other matters came to be treated in the same manner and with the same machinery, that is to say, the valuable security of wed and the surety of borh. This borh becomes, in effect, a third party to the proceedings and in many cases the Anglo-Saxon contract is clearly a three-party arrangement.7 Thus we find a party contracting by wed and borh to appear in court, which in those days was regarded in much the same light as a modern submission to arbitration. As Sir William Holdsworth observes:

As we have said, the wed in many cases became a form, very often consisting of a rod or stick which was handed over, or held, as a symbol of the transaction.2 Another form, the hand grasp, seems to have been originally Roman3 and may have been brought to England from the continent by the Church; in the marriage ceremony, for example, both forms are employed (the hand grasp and the gift of a ring), while the ceremony of homage is likewise done by a peculiar form of hand grasp. Typically mercantile forms were earnest money, and a drink.4

PLEDGE OF FAITH

Under the influence of the Church another form appears, the pledge of faith. It is perhaps hardly accurate to regard this as a form, for the object involved was intensely real to the mediaeval mind. The wed in this case was the promisor’s hope of salvation, and it was characteristic of mediaeval thought that this could be treated as a material object, and handed over to a third person as security for a debt or for the performance of a promise. Owing to its sacred character the faith was usually pledged to an ecclesiastic—in important cases to a bishop—but examples are to be found where this holy thing was committed to the strong hands of the sheriff. Later still, less solemn objects could be pledged, such as the promisor’s “honour” or his “word”. The Church always maintained that when faith was pledged she had jurisdiction over all the circumstances of the case, including the contract itself as well as the pledge. If this claim had been established England might very soon have received the canon law of contract, but Henry II, and later Edward I, firmly held out against it; by the Constitutions of Clarendon1 the Church’s jurisdiction over the contract was denied, although the Crown did not object to the Church punishing breach of faith by spiritual censures as a sin. In other words, the Church was permitted to treat breach of faith as a crime, but was forbidden to give a civil remedy.2

CONTRACTS UNDER SEAL

We have said nothing of written contracts in Anglo-Saxon law, and indeed it seems that they were not in general use. When they do appear after the Conquest the contract under seal is treated as a form of the most solemn and binding kind.3 It has even been suggested that there may be a connection between the delivery by the promisor of a sealed document to the promisee, and the older method of delivering a wed. This may be, but still there can be no doubt that the written contract (which after the Conquest, and throughout the year-book period, was called an “obligation”) was mainly of continental origin.

GLANVILL ON DEBT

When we come to Glanvill, we find that the common law of contract is still slight and that the King’s court is not anxious to enlarge it. There was now an action of debt about which he gives a fair amount of seemingly settled law. A new procedure appears, moreover, which will long remain important. This consisted in bringing an action of debt in the King’s court which the defendant declined to contest. Judgment was therefore entered for the plaintiff, who thus acquired the advantage of the royal machinery in enforcing judgment. There can be no doubt that many of these actions were collusive, one might almost say fictitious, and brought for the sole purpose of giving the creditor the benefit of a debt of record.4 This becomes common soon after Glanvill’s day. Glanvill enumerates various sorts of contracts in Roman terms, and correctly defines them, but later on he does not hold himself bound by these definitions.5 He expressly warns us that the King’s court cannot be troubled with “private conventions”. He leaves us a clear impression that the writ of debt is as far as the curia regis will go in the direction of a law of contract.1 In Glanvill’s time, and later, it is clear that the writ of debt is rather a costly luxury; it is certainly framed upon an expensive model, for it is a praecipe quod reddat like the writ of right and demands a sum of money of which the defendant deforces2 the creditor; the King may also demand a handsome commission3 for he is still apt to think rather of the business side of debt-collecting than of his duty to administer public justice, and for a time the action of debt, like other praecipe actions, might perhaps lead to trial by battle.4

BRACTON ON COVENANT

When we come to Bracton we find that he mentions an action which was unknown to Glanvill, namely, the action of covenant. By Bracton’s day it was quite certain that the King’s court had decided not to enforce those contracts which were concluded merely by such forms as the delivery of sticks and other trifling objects; the only form which the King’s courts recognised henceforward being the deed under seal and the recognisance of record. Whereas Glanvill would exclude all “private covenants” from the King’s court, Bracton, on the other hand, assures us that they are justiciable there, provided that they comply with this rule. Bracton has a good many Romanesque generalisations on the matter of contract, but it is clear, at least in this case, that his statements of substantive law accurately represent the practice of the King’s courts, which insisted that to be actionable a contract should be either real, that is to say, money or chattels must have passed, or formal, and here Bracton identifies the deed under seal with the stipulatio. A curious survival from Anglo-Saxon times, however, was the rule that the contract of suretyship, though made verbally (like the Anglo-Saxon borh), was yet enforceable; on the other hand, contracts effected by pledge of faith could not be enforced in the King’s court, nor would the Crown allow them to be enforced in the Church courts—at least in theory. “Although these courts, in spite of royal prohibitions, long continue to exercise much jurisdiction of this kind, it is clear that according to the common law as laid down in the royal courts the real and the formal principles were fast coming to be the only two recognised. . . . Bracton practically admits that there is no such thing as a consensual contract in English law.”5

CHAPTER 2

THE FOURTEENTH CENTURY

In this chapter we shall describe the forms of action which might be used in contractual matters from the days of Bracton until the general use of the action of assumpsit, which only becomes common at the beginning of the fifteenth century.

THE ACTION OF DEBT

The oldest and most important was the action of debt1 which lay for formal contracts (“obligations”) under seal if they specified a sum certain, and for a number of real contracts, that is to say, contracts where a res has passed between the parties. Debt could thus be used to recover the price of goods sold and delivered, to recover money lent, and to recover the rent on a lease even although the lease was not written.2 It could also be used for certain special purposes such as the recovery of statutory penalties and for the enforcement of obligations arising out of suretyship. On the other hand there were grave defects attaching to the action of debt. The most notable of these was the form of trial by wager of law;3 early in the fifteenth century, petitioners would go to Chancery alleging that their debtor either intends to or actually has waged his law in defence of the debt, and Chancery openly treated this as amounting to the absence of remedy at common law.4 Then, too, as the middle ages proceeded the method of pleading in the action of debt became remarkably complicated, and, as we shall see, the law of contract was influenced considerably by various procedural devices which were designed to avoid having to bring an action of debt. It will be noticed that in all the real contracts which are actionable by debt the defendant has received something—money, goods, a lease—from the plaintiff; in the language of the fifteenth century, there has been a quid pro quo, which is in fact a generalisation from those real contracts which were actionable by a writ of debt.

COVENANT

Of the general nature of covenant in royal and local courts we have already spoken.1 By the close of Edward I’s reign it becomes a rule that covenant cannot be used in cases where debt would lie,2 and also that it is best to support an action of covenant by a writing of some sort, and very soon this becomes a strict requirement for an enforceable covenant to be under seal.3 From this it has been conjectured that the covenant under seal changed its character; originally merely “a promise well-proved”, as Holmes neatly expressed it, we now find that it has become a promise “of a distinct nature for which a distinct form of action was provided”.4 In the middle of the sixteenth century it begins to be said that a “seal imports a consideration”. This was merely a loose way of saying that just as a simple contract was enforceable because there was consideration, so a contract under seal was enforceable in debt or covenant because there was a seal—because it was made in a binding form. The expression must not be allowed to obscure the fact that sealed contracts did not need a consideration, and were enforceable solely on the ground that they were formal. Nor was there any presumption of consideration, for sealed contracts were enforceable centuries before the doctrine of consideration came into existence.

It was more convenient, however, to sue on a debt than a covenant in the royal courts in the fourteenth century, and hence there arose a very common device of a bond under seal in a sum of money with a “defeasance” endorsed upon it saying that the bond shall be null and void upon the performance of certain acts. This was a practical method, for the courts by now refused to allow wager of law against a deed, and so we find manuscript collections containing a great variety of “defeasances”. For those who were prepared to risk a judgment on the bond if they failed to fulfil the contract (there was no relief against penalties in either law or equity in this century), and whose affairs were considerable enough to warrant so formal a deed, the bond and defeasance provided many possibilities.

ACCOUNT

In some of its aspects the action of account has a bearing upon our subject, but during the fourteenth century its scope was very limited. In its origin it lay between lord and bailiff and was based upon a personal relationship. In view of this the procedure upon the writ of account was made exceptionally stringent—for example, a lord could appoint auditors, and if they found the account unsatisfactory they could commit the bailiff to the King’s prison without any trial whatever.1 Soon we find that account could also be used between partners, but here again the basis of the action is a particular relationship. If one were not the lord of a bailiff (or receiver), nor a partner, the action of account was little good. Its fate was finally settled when it was held that one could not contract to become liable to an action of account; the action only applied to certain relationships.2 This very factor, however, afforded an opportunity for development in cases which could not be brought within the sphere of contract. If A. gives money to B. for the benefit of C., there was no contract between B. and C. Since 1367, however, it was held that B. was accountable to C.3 From this significant beginning important developments in the field of quasi-contract took place in the late sixteenth century.

CONTRACT IN THE FOURTEENTH CENTURY

We therefore see that in the fourteenth century the only contracts which are actionable are those which Bracton had enumerated—those in fact which were enforceable by an action of debt, either because they are formal and supported by a deed under seal, or real, in which case the fact that the defendant has received a substantial thing will establish his liability. Some explanation is obviously needed for the extreme poverty and narrowness of the field of contract in our mediaeval common law. Westminster Hall had no monopoly as yet of English legal thought, and such records as the Littleport rolls4 show clearly that in towns and villages there were petty tribunals which gave remedies in cases which would have met a non possumus in the common pleas. There is no need to suppose that country stewards and bailiffs had analysed the conception of a contract; they had, however, developed a reasonable mass of settled practice in such cases, and the real cause for the backwardness of the common law is perhaps the fact that theorising began before practice had accumulated a sufficiently large mass of data.

As for mercantile affairs, there was special custom to govern them. Edward I by his charter to the merchants1 expressly saved to them their old custom of making binding contracts by more simple forms, such as earnest money, instead of by deed under seal, and such mercantile contracts were actionable in the local commercial courts. It may be said with some fairness that the existence on the one hand of mercantile jurisdictions, and on the other of the spiritual courts which could bring moral pressure to bear, together with the remedies available locally, afford some explanation for the common law courts declining to expend their law of contract. Debt, account and covenant covered the cases which usually arose in a jurisdiction which consisted so far of landlords; where extension was needed for the protection of this particular class a parliament of landlords was ready to give it—the statutory process on the action of account is an extreme example. For the rest, the common law apparently felt that it could abstain with a clear conscience, knowing that the matter was already in the expert hands of the Church and the merchants, and that the bond with defeasance was flexible enough to serve for a large variety of executory contracts, as its very frequent use abundantly proves. It is only in the fifteenth century that the common law was compelled to face the problem of the simple contract, and this will form the subject of the next chapter.

CHAPTER 3

ASSUMPSIT TO SLADE’S CASE

The King’s court was not very fond of contract, but it showed some interest in tort, and it is in the action of trespass that the quickest progress was made. In a number of cases it is possible to regard a particular situation from either point of view, and it was the treatment of such cases which served to introduce the idea of contract into actions of trespass.

We have already traced briefly the development of the action of trespass on the case,1 and we have seen that, in spite of some talk about an “undertaking”, the famous Humber Ferry Case was, procedurally at least, a bill of trespass. After all, the defendant had, in effect, drowned the plaintiff’s mare.2

A different line of approach is seen when the breach of a promise is treated as a “deceit” of the promisee—as a tort, in other words. Hence we find the allegation that the defendant “undertook” to do something as the necessary preliminary to the deception of the plaintiff when the undertaking was not fulfilled. Soon this situation is reconciled with the existing scheme of forms of action, by allowing trespass on the case to be brought for deceit caused by failure to perform an undertaking.

THE BEGINNINGS OF ASSUMPSIT

This was a long step, and it was not taken all at once. An important halt was made half-way. The first stage, in fact, was concerned with a special group of cases where the resulting loss was the damage or destruction of chattels. Such cases were the first to be admitted, for it was possible to construe them as quasi-trespasses (as we have seen, Baukwell, J., argued that the Humber Ferry Case, in spite of the assumpsit, was substantially a case of trespass). Again, in 1369, Waldon v. Marshall3 is brought on a writ (not a bill) which mentions an assumpsit to cure a horse, and “negligent” treatment of it so that it died. Both bench and bar seem to have thought that the writ said contra pacem as if it were purely trespass; in time it occurred to someone to read the writ, whereupon it was found that contra pacem was not alleged, and so we have an example of trespass on the case. As in most of these cases, the defence urged that the matter was contractual, and that the plaintiff’s remedy was in covenant:

This debate makes it clear that all parties recognised that the situation was fundamentally contractual, and that it was being forced into the form of tort simply because the action of covenant could only be brought upon a deed under seal. In this particular instance the contrast with trespass is well made, and the case is left, procedurally at least, as a case of negligent damage to a chattel. But it must not be imagined that this is the story of the slow dawn of the idea of contract in the minds of common lawyers. They knew quite well what a covenant was, but they deliberately resorted to this juggling with trespass because they felt unable to sustain an action of covenant without a deed.

THE MEANING OF ASSUMPSIT

Why then should it need an allegation and a proof of assumpsit to support an action in tort? Ames1 has suggested with great plausibility that the insistence upon an express assumpsit is derived from the mediaeval notion of liability. If I voluntarily hand over my horse to the care of a horse-doctor, he treats the animal at my invitation and therefore at my risk. If, however, he undertakes to cure it, and I on the faith of that undertaking allow him to treat the horse, then the risk falls upon him and I have suffered a wrong if my horse is the worse for his treatment.2 When this is understood it will be seen that the assumpsit is not treated as basing the action upon contract, but as one of the elements leading up to damage to the plaintiff’s person or property; the defendant undertook to do something, and did it so badly that the plaintiff, who had relied upon the undertaking, suffered damage at the hands of the defendant.

In the course of the fifteenth century assumpsit becomes quite common but the theory of it remains the same, as may be seen from the remarks of Newton (who shortly afterwards became Chief Justice) in 1436:

It is clear from this passage that although strict theory is being maintained, it is very difficult to keep contract out of the picture. The assumpsit can hardly be described by any other word unless that word be “covenant”. One of the earliest cases (1388) already shows a strong tendency in this direction, and the declaration even asserts that the assumpsit was “in return for a sum of money paid”.2 As theory hardened, the question of consideration was seen to be irrelevant;3 nevertheless, the ambiguity of the word “assumpsit” was ineradicable—and fortunately so, for it helped us through a very difficult stage in the history of contract.

ASSUMPSIT FOR NON-FEASANCE

Thus far we have been concerned with damage to the person or to chattels, which was treated as akin to trespass.4 The assumpsit, although it suggested covenant, was primarily meant to fix a tortious liability on the defendant. If, however, the defendant failed to act at all, then the idea of trespass or quasi-trespass was no longer helpful. Non-feasance, therefore, raised a different problem.

At the beginning of the fifteenth century we find assumpsit brought on certain cases of non-feasance—and for a time unsuccessfully. As the fifteenth century proceeds, however, it becomes more clear that a remedy for non-feasance is desirable.

The question was first raised in connection with building contracts. Thus Watton v. Brinth5 was brought on an assumpsit to build a house within a certain time. The suggestion was made that if the work had been begun but not finished, then the action might lie for “negligence”, but there was no discussion of this;1 the action was dismissed because the matter was covenant, and no deed was shown. Several similar cases met the same fate. In 1424 an inconclusive discussion2 ranged over several points. It was suggested that the non-performance of a promise to roof a house would be actionable if the interior of the house was damaged by rain, on the analogy of trespass; an obscure allusion to the price paid to the contractor produced a comment based on the action of deceit—an omen whose significance will soon be appreciated. In 1436 arose the case from which we have already printed an extract.3 It concerned a sale of land, the defendant having promised to secure certain releases to the plaintiff purchaser. It was argued that misfeasance and non-feasance were not necessarily distinct, “for it all depends from the covenant”. No franker statement that contract is the root of the matter could be desired; but these expressions do not go so far as actually to give judgment in favour of the plaintiff.4

ASSUMPSIT COUPLED WITH DECEIT

These cases show the impossibility of bringing cases of non-feasance under the old type of assumpsit—the defendant had done nothing which could by any stretch of logic be construed as a trespass to the plaintiff’s person or goods. A new principle was needed, and it was finally found in the notion that the breach of an undertaking constitutes a deceit.5

The earlier instances seem to indicate that this action was often begun by bill, because it was primarily designed for use against officers of a court, or against persons already within its jurisdiction. There was also an original writ for deceit, which, like the bill, was concerned with the abuse of legal procedure, and could be brought by the Crown if the injured party did not do so, for its nature was essentially penal.6 The writ is as old as 1201,7 and a bill of deceit for what was in substance a breach of contract8 was proffered in 1293, while a writ of deceit, on facts which were seemingly contractual,9 occurs in 1311. By the fifteenth century it had been classified as trespass on the case for deceit, and considerably extended in scope. Late in the fourteenth century it entered upon a useful career by enforcing express warranties of the quality of goods sold. Such warranties, to be actionable, had to be made in words which showed that the seller meant to undertake a legal obligation: mere “selling talk”, even assertions, were not sufficient, without the word “warrant” or something equally technical and precise.1

There is an obvious similarity between the express warranty and the express assumpsit. If an express warranty could be coupled with a deceit in order to found an action, might not the breach of an express assumpsit be laid as a deceit, and so become actionable?

This provided the eventual solution of the problem of non-feasance. In 1428 we find this idea carried out.2 The plaintiff brought “a writ on his case in the nature of a writ of deceit”, and counted that he had agreed to marry the defendant’s daughter, and the defendant agreed to enfeoff the pair of certain land. The defendant later married his daughter to someone else. The answer was short and significant: he had not shown that the defendant had received a quid pro quo, and so there was no bargain. Already the contractual element was clearly recognised. The next example is Somerton’s Case.3 The plaintiff had retained the defendant (for a fee) as his legal adviser in connection with his proposed purchaser or lease of a manor. The defendant undertook (assumpsit) these duties, but “falsely and in deceit of the plaintiff” he revealed the plaintiff’s counsel, allied himself with a stranger and negotiated a lease to that stranger. There were long discussions on pleading points, and the usual argument that the matter was one of covenant provoked the reply that matters of covenant may be transformed by subsequent events into deceits. Attempts to plead to the action were abandoned, and the parties eventually pleaded to an issue.

In Somerton’s Case, therefore, we are very near to a remedy for non-feasance. The peculiar facts, however, seem to have left their mark for some years in the distinction between such a case and a pure case of non-feasance. In Somerton’s Case the defendant not only failed to perform his undertaking, but had done something which “disabled” him from ever performing it, for he had arranged a lease to another. Doige’s Case,4 shortly afterwards, was a bill of deceit in the King’s Bench, but it raised the same questions. The plaintiff paid Doige £100 for some land. Instead of enfeoffing the plaintiff, Doige enfeoffed someone else. Doige demurred to the bill and the case was argued in the Exchequer Chamber. To some it seemed important that Doige had “disabled” himself from ever performing the undertaking; to others this seemed immaterial. The general question whether the only remedy would be a writ of covenant was argued at length, but the roll, of course, only contains the formal pleadings. They consist of a declaration and a plea that the remedy should have been covenant, and not deceit. Judgment was enrolled for the plaintiff.1

These two lengthy arguments seem to have created a hopeful impression, if nothing more, and a generation later we find the action clearly upheld. In 1476 “deceit on the case” was successfully brought against a defendant who had received the purchase price of some land, and had enfeoffed another.2 In 1487 the strength of the “disablement” idea was shown when it was held that the action could not be brought unless it was counted and proved that the defendant enfeoffed another,3 but in 1504 this old distinction is abandoned, and we have a broad general statement of the nature of the remedy for non-feasance:

This result was not achieved merely through the enterprise of the common lawyers; on the contrary, it is clear that for some time the chancellors had been giving relief, certainly from the reign of Henry V onwards, to purchasers who had paid their money and had not got their land or goods. Indeed, they were even enforcing purely consensual contracts for the sale of land.5

The cases just discussed show deceits of an aggravated sort: the plaintiff has parted with money, and that money is in the defendant’s pocket. Cases might easily arise, however, where the plaintiff’s loss did not in fact enrich the defendant. Here, as in other instances, Chancery may have shown the way. As early as 1378 it heard a petition from a disappointed purchaser whose loss consisted in travelling and legal expenses connected with a sale of land which the defendant refused to complete.1 The common law over a century later slowly reached the same position. In 1520 a plaintiff succeeded on a declaration that he sold goods to A. in reliance upon B.’s (the defendant’s) assurance that he would be duly paid. The defendant derived no benefit from the arrangement, nor did he profit by the breach of it, but the plaintiff suffered loss through the deceit.2 Shortly afterwards, St Germain3 regarded it as settled that “if he to whom the promise is made have a charge by reason of the promise . . . he shall have an action . . . though he that made the promise had no worldly profit by it”.

MUTUAL PROMISES

That seems to have helped forward the next development, which lay in the solution of the problem created by mutual promises. As we have already seen, the mediaeval English law of sale rested where Glanvill left it: the sale was effected by delivery.4 If the price was paid, the buyer could bring detinue for the goods; if the goods were delivered, the seller could bring debt for the price. If neither party had performed, neither could have an action. This rule was not relaxed until the close of the middle ages, as a result of a process beginning, it seems,5 in 1442, although the first steps in that direction had been taken a century earlier. Its implication was not at first recognised. It was certainly not regarded as showing the enforceability of mutual promises, still less was there any discussion of consent. When an explanation was needed, recourse was had to a theory that each party “granted” (not promised) to the other—a theory derived from what the fifteenth-century lawyers took to be the true nature of the action of detinue.6

At the close of the middle ages, when the problem of mutual promises was being attacked, this peculiarity of the law of sale was constantly cited, and there can be no doubt that the basis of assumpsit was gradually shifted; at first the emphasis was on the final result of the parties’ acts—the deception of the plaintiff, but as time goes on attention is fixed upon the beginning of their story—the assumpsit, and concurrently the habit grows of discussing these matters in terms of promises rather than deceits, of contract rather than tort. When this stage is reached, it becomes necessary to decide the effect of an exchange of promises. In 1558 we find the famous words “every contract executory is an assumpsit in itself”, which suggest that the mediaeval “contract” (of which sale and loan are typical) is now being interpreted as an exchange of promises.1 In 1589 the process is complete and the result clear: “a promise against a promise will maintain an action upon the case”.2

INDEBITATUS ASSUMPSIT

The idea of deceit was carried a step further. If a defendant is indebted to a creditor, the latter has an action of debt, not because the one has promised to pay the other, but because the parties are in a relationship which has been covered by the action of debt ever since the twelfth century at least, and certainly before there was any theory of contract. But suppose that a promisor, being already in a situation which renders him liable to an action of debt, subsequently expressly undertakes to pay the debt by a certain date. In this situation it was possible to say that besides being liable in debt, the promisor by his undertaking had now rendered himself liable to an action of assumpsit if he did not fulfil that undertaking, for he has deceived the plaintiff. Consequently we find a new variety of assumpsit appearing in the middle of the sixteenth century called indebitatus assumpsit, in which the plaintiff declares that the defendant, being already indebted (indebitatus), undertook (assumpsit) to pay a particular sum.3 The earliest example seems to be in 1542, and a few years afterwards we find the statement (apparently a comment or generalisation by Sir Robert Brooke) that “where a man is indebted to me and promises to pay before Michaelmas, I can have an action of debt on the contract or an action on the case [assumpsit] on the promise; for on the promise no action of debt will lie”.4 In all the early cases the distinction between debt and indebitatus assumpsit is strictly maintained. The subsequent assumpsit must be alleged, and, if traversed, must be proved.5

At this point there enters a factor of much importance in the legal history of the sixteenth and seventeenth centuries—the competition between the courts for jurisdiction. Assumpsit, being a form of trespass, could be brought either in the King’s Bench or Common Pleas: debt, on the other hand, could only be brought in the Common Pleas. The King’s Bench could therefore not resist the temptation to use indebitatus assumpsit as an equivalent to debt. This was easily done by holding that where a debt existed, a subsequent assumpsit would be presumed in law, and need not be proved as a fact.1 This device captured much business (for litigants in King’s Bench were glad to employ barristers instead of the costly serjeants, and appreciated the swifter process, and the absence of compurgation), but at the expense of confounding legal theory. The Common Pleas carefully distinguished “contract” (situations in which debt would lie without a specialty)2 from assumpsit or “promise” (which was actionable as a deceit). The justices of the Common Pleas had a chance of checking this audacious manœuvre, however, for under Elizabeth’s statute error lay from King’s Bench as a court of first instance to the Exchequer Chamber, and that Chamber contained all the Common Pleas judges and the barons of the Exchequer, but none of the King’s Bench justices.3 The Exchequer Chamber therefore promptly reversed such cases when they were brought up from the King’s Bench. This unseemly situation lasted for almost a generation, until the question was finally referred to that other assembly, also called the Exchequer Chamber, consisting of all the judges of all three courts assembled for discussion, in Slade’s Case (1602).

SLADE’S CASE, 1602

The whole matter was thoroughly examined in this memorable case.4 The facts were the simplest possible. The plaintiff’s bill of Middlesex declared that the defendant, Humphrey Morley, “in consideration that the said John [Slade], . . . at the special instance and request of the said Humphrey Morley had bargained and sold5 unto the said Humphrey . . . all the ears of wheat and corn which then did grow upon the said close called Rack Park . . ., did assume, and then and there faithfully promised” to pay a sum of money at a future fixed date. Upon the general issue, the jury found the bargain and sale, but said that there was no subsequent assumpsit. The objections raised in the course of the ensuing argument were: (a) since an action of debt lay on the facts, that therefore case (i.e. indebitatus assumpsit) could not lie; and (b) that this new form of action deprives the defendant of his right to wage his law.

The King’s Bench, realising the scandal caused by the difference between their rule and that in the Common Pleas, adjourned the case into the Exchequer Chamber of all the judges of England (not the chamber set up by Elizabeth), and then to the conference at Serjeants’ Inn, where Coke, Attorney-General, argued for the plaintiff and Bacon for the defendant. It was finally resolved that indebitatus assumpsit was an alternative to debt, at the plaintiff’s choice; that by assumpsit the plaintiff should recover not only damages but the original debt; that recovery in assumpsit should be a bar to an action of debt; that in the case of instalment debts, assumpsit can be brought on the first default, but debt only after all the days of payment have passed; and (most important of all) that a subsequent assumpsit need not be proved, but will be presumed:

CHAPTER 4

CONTRACT AFTER SLADE’S CASE

THE RESULTS OF SLADE’S CASE

It is not surprising that the results of this momentous decision appeared more and more important as the years passed. From a strict point of view, it was merely the settlement of a pleading point upon which two courts had differed. To settle the matter that an assumpsit need not be proved, however, was in effect to make indebitatus assumpsit equivalent to debt; already, then, the larger matter of the relations between the forms of action was involved, and this in itself was sufficient to alarm conservative minds. Two generations later we still find the learned Vaughan, C.J., lamenting that Slade’s Case was “a false gloss” designed to substitute assumpsit for debt.1 So it was; on principle, the decision is indefensible, for it obliterates the distinction between debt and deceit, between contract and tort. It therefore introduced much confusion into the scheme of forms of action. In doing this, it infringed the procedural rights of defendants in a way which seemed almost as alarming. Defendants might henceforth find themselves charged with debts merely because a jury thought that such debts existed, and could no longer relieve themselves by compurgatory oaths. Here there was a real problem. There was little law of evidence; lawyers had as yet but short experience of the delicate art of jury trials in such matters; written memoranda of simple contracts were not often to be had; parties were not competent witnesses; there was a deep feeling that the old procedure, of which wager of law was a part, was a sort of constitutional right of Englishmen;2 executors, particularly, feared that they would be charged with piles of alleged debts of which they knew, and could know, nothing.3 Indeed, one vital factor in the popularity of indebitatus assumpsit was the fact that a creditor who had a right against a testator’s executors in debt, might nevertheless have no effectual remedy; this was due to the rule that executors could not wage their law in the name of their testator, and consequently were not answerable.1 This common situation was neatly met by indebitatus assumpsit, for the executors were undoubtedly “indebted”, and by presuming an assumpsit, they could be made to pay. A large proportion of the early examples of this form was therefore brought against executors.

Many people had reason to feel that they had lost a valuable safeguard. Chancery, indeed, affected to scorn wager of law; but Chancery did at least put the defendant on his oath and hear (or read) what he had to say, but in a court of common law the defendant’s mouth was closed. Misgivings were therefore well founded, and the Statute of Frauds2 was a direct result of the difficulties in matter of proof caused by Slade’s Case.

More profound and less obvious results were also to flow from this decision. Forms were unchanged, it is true, and declarations will continue to allege the subsequent assumpsit, and that the defendant, “his assumption and promise aforesaid little regarding, but endeavouring and intending subtilly and craftily to deceive and defraud” the plaintiff, refused to pay, but it is now clear that the deceit element has been eliminated, and the contractual element, long latent as we have seen, became the sole basis of the action, which now rested on the “mutual executory agreement of both parties”. The stages in this progress are clear. At first assumpsit is brought upon explicit undertakings, and indebitatus assumpsit likewise lay upon a subsequent promise which was as necessary as the express words of warranty of quality in a sale of chattels. The second stage is marked by Slade’s Case, where the action is based on the original contract instead of upon the subsequent assumpsit. A third stage was almost bound to follow, and in the course of the succeeding generations there is a strong movement to hasten the process. If the subsequent assumpsit could become a legal presumption where there had been in fact a pre-existing contract, could not the contract itself be sometimes presumed? If an assumpsit could be implied, might not a contract be implied? This step was quickly taken, and in 1610 an innkeeper recovered the value of goods and services rendered to a guest who had not agreed upon a price.3 Soon a large variety of implied contracts, and eventually of quasi-contracts, were remedied by indebitatus assumpsit. This development over a wide and hitherto untouched field was only rendered possible by the bold decision in Slade’s Case.

CONSIDERATION

From the reign of Henry VIII onwards,1 the declaration in indebitatus assumpsit took the form which we have briefly summarised from Slade’s Case. This consists of a preamble introduced by the words “in consideration that . . .” and setting out the precedent indebtedness which the defendant subsequently undertook to discharge. The matters set out in it could therefore be shortly referred to as “the considerations”.2 This statement of facts in the consideration clause was necessary, because without it the defendant’s promise would be only a “nude pact”—a continental expression3 which became current in England, meaning a bare promise which would not support an action. On the continent, in jurisdictions (and particularly in class-rooms) where contract could be treated as a whole, a good deal of theorising took the picturesque form of deciding what “vestments” were sufficient for a pact to appear with propriety in a court of law. The canonists, on the other hand, held it sufficient if there was a reasonable and lawful “cause” for making the promise, and our Chancery in the fifteenth century was inclined to agree with them.4

The English common lawyers, however, hardly felt the need for either theory. Their formulary system was too rigid to take in the whole field, and the only contracts which were furnished with appropriate forms of action were of such a simple nature that speculation was unnecessary. It is true that down to the end of the fourteenth century, as long as we had several contractual actions such as debt, covenant, account and special assumpsit (to which must be added in the fifteenth century the peculiar treatment of contract in equity), there was a possibility that each one of these actions would develop a body of contract law peculiar to itself. If this had happened we should have had four or five different types of contract, every one of which would be governed by its own peculiar law. Events so happened that this did not occur; as we read in Doctor and Student:

This happy result was due to several causes. In the first place the different courts were, in fact, on intimate terms. It did not matter so much that they were usually terms of rivalry, for even then they kept close watch upon developments in other institutions, and competed in providing the best remedy. Then, again, since development took the form of modifying the different forms of action, it was inevitable that there should be a good deal of overlapping, and consequently the boundaries between forms of action became obscure. Hence it was all the more easy to emphasise substance above form. Finally, one of those forms of action supplanted all the rest for practical purposes, and from the seventeenth century onwards the law relating to assumpsit is the law of contract, and, historically speaking, that consideration which makes a contract enforceable was principally the conditions which were necessary to maintain an action of assumpsit. This was indeed the situation by 1602, but St Germain was certainly rather optimistic in stating the law in such general terms in 1530.

It was the unification of the law of contract under the single head of assumpsit which first created the desire for a general theory. The immediate origins of consideration must be carefully distinguished from the ultimate sources from which it was drawn. The only doctrine of contract which common lawyers were accustomed to state in foreign terms was the rule that a “nude pact” would not support an action. A bare assumpsit, therefore, could not be actionable (from the time when assumpsit was regarded as a contractual factor and not merely as a circumstance forming part of a tort). To make it actionable it was necessary to show the circumstances which were the “consideration” which moved the party to promise. Then came Slade’s Case. The assumpsit thenceforward is presumed. The defendant is now charged upon an obligation which the law fixes upon him as a result of the matter shown in the “consideration” clause, irrespective of whether he subsequently acknowledged the obligation. The “consideration” clause in the count will therefore become much more important, for its consequences are more serious. It is no longer merely a matter of showing enough grounds to make a deliberate promise actionable, but must for the future set forth the very basis of the defendant’s liability, even in cases where he made no promise whatever.

THE SOURCES OF CONSIDERATION

Slade’s Case, therefore, compelled a more careful scrutiny for the future of the matters alleged in the consideration clause, and so we find a narrowing of grounds of action in some cases, although great extension in others. It was not immediately possible to state a general rule of consideration in one sentence, but some elements were already settled and served as the nucleus of the new doctrine.

Of these sources, the original nature of the action of assumpsit was one. From it was derived the emphasis upon the loss caused to the promisee by the promisor’s failure to perform. In its origin this was the basis of the plaintiff’s case, which was founded upon the “deceit” which he suffered at the hands of the defendant; it appears in modern theory as “detriment to the promisee”. Another source was the action of debt. Here some confusion was introduced, for the action of debt was primarily concerned with older forms of contract whose nature was settled long before any theory of contract was attempted. However, since assumpsit took over the field of debt, it became desirable to bring the debt-situations within the general scheme of contract, and to express them in terms of consideration. Debt on a loan, and debt for rent on a lease, and debt for the price of goods delivered were all exmples of real contracts which the common lawyers described by the home-made expression of quid pro quo. In such cases a declaration in assumpsit will therefore set out this quid pro quo as the consideration for the defendant’s promise. Historically there are thus two branches of the theory of consideration, one of which is native to the action of assumpsit, and the other an importation from the action of debt. With the development of the consensual sale, and later still the recognition of other consensual contracts, a further modification became necessary, for in such cases one promise had to be laid as the consideration for a counter-promise. Still another element which had finally to be fitted in was provided by the deed under seal. This ancient example of the formal contract stood completely outside of the newer family of contracts, for its force depended entirely upon the delivery of a suitably inscribed piece of parchment and wax. The much more modern tag that “a seal imports consideration” is merely another way of saying that deeds under seal had no place in the common law scheme of consideration.

The foregoing paragraph represents the state of doctrine in the seventeenth and early eighteenth centuries. It is hardly a coherent whole, but all the same it served as an enumeration of those considerations which were approved, and which were sufficient for the ordinary run of cases. As it became more and more evident that assumpsit could extend over an ever wider field, and as an ever-increasing variety of transactions came before the courts, it naturally followed that attempts were made to create out of these fragments a general theory which could be applied to all new cases.

OUTSIDE INFLUENCES

Late in the fifteenth century it would seem that Chancery had been developing a law of contract on completely independent lines, and that the ecclesiastical Chancellors tried to apply the canon law doctrine of cause.1 By means of a long and curious history the causa of Roman law assumed a completely different aspect in the thought of the canonists.1 In their view cause might consist in any definite object which the promisor at the time proposed to attain; if his promise was deliberately made with some definite aim in view there was sufficient cause to sustain an action. The end in view need not necessarily be of a business character; peace, charity and moral obligation were all sufficient cause to make a promise actionable.

It has been suggested that there may have been a certain amount of influence by Chancery upon the common law courts during those last years of the fifteenth century and the beginning of the sixteenth when the chancellors and the common law judges are so frequently found conferring together. But this possibility must not be over-estimated, especially in the formation of the doctrine of consideration. It is certainly true that Chancery during that period gave remedies for breach of contract which were not for the moment available in the common law. It may perhaps be true that the Chancery’s theory of contract was some form of causa. Feeling the effects of this competition, the common law courts undoubtedly set to work to devise equivalent remedies in some cases, but this is no proof that they borrowed any legal dogmas from Chancery. Indeed, it would have been almost impossible to graft a theory of causa upon the common law until Slade’s Case had changed the express assumpsit into a legal obligation imposed by the law itself upon parties to executory contracts. Only then was the field sufficiently free from procedural technicalities for contract to be regarded as a whole. Now this great act of self-liberation took place at the moment when relations between the common lawyers and Chancery were at their worst. The philosophical idea of conscience, and the political idea of prerogative upon which Chancery took its stand, were alike anathema to the common lawyers. There was ample explanation, therefore, for the fact that common lawyers were eager to afford rival remedies to those of Chancery, but equally stubborn in evolving those remedies from their own common law heritage, without borrowing Chancery’s theories.

It was not until the eighteenth century that a serious search for a general theory of contract was undertaken. Thus, Blackstone2 felt the need of a broad view of contract, and found it in a writer who is little known to modern common lawyers, Giovanni Vincenzo Gravina (1664-1718), an Italian professor of civil and canon law, who promptly sent him to the Digest. Even so, Blackstone’s treatment of contract does not quite fill one chapter, and even that chapter is hidden away in a volume devoted to property, conveyancing, administration and the like. Moreover, at the very moment when Blackstone was writing, Robert Joseph Pothier1 (1699-1772) was publishing in rapid succession his monumental series of works on contract, which were eagerly studied by thoughtful lawyers in England.

LORD MANSFIELD ON CONTRACT

Among these was Mansfield, who was able to refer, in support of foreign theories, to some practices of Chancery, as well as to certain mercantile practices and to natural law, which indeed was often latent in English legal thinking.2

The new point of view regarded moral obligation as the primary factor which made promises actionable, while the mass of common law rules concerning consideration were to be treated as merely affording evidence. The process begins even before his day with indebitatus assumpsit brought on a preceding debt where that debt for one reason or another, although actually incurred, was not enforceable. For example, in 1697 a defendant who promised to pay debts incurred during his minority was held bound in assumpsit;3 so, too, one who promised to pay debts barred by the Statute of Limitation.4 Lord Mansfield carried this idea still further when he applied it to a promise by a discharged bankrupt, declaring that in conscience a discharge from bankruptcy does not relieve the debtor of his debts, and that a promise to fulfil this moral obligation is actionable.5 He made his most drastic innovation, however, when he expressed the view that consideration was, and historically always had been, in the nature of a rule of evidence; hence lack of consideration was merely a lack of evidence. Now the Statute of Frauds had met this problem by its requirement of a written memorandum; therefore, he argued, the writing required by the statute took the place of the older requirement of consideration.6

The difficulties of proof were certainly a factor in the history of contract before the statute, but as we have seen, there were many complexities and divagations in that history which Mansfield brushed aside—and it was precisely these which had produced the doctrine of consideration. Mansfield’s historical equipment, though respectable, was not entirely adequate; in his day the detailed history of contract was still unexplored. But his attitude towards history was sound. If (as he could believe in the contemporary state of learning) consideration was historically a set of restrictions due to the difficulty of proving contracts in olden days, and if those difficulties had now been removed by the Statute of Frauds and by more methodical business methods, was it reasonable that those restrictions should continue to fetter the law of contract? If the actual state of the law was unsatisfactory judged by contemporary moral sentiment, was it a defence to say that there were remote ages when it did conform to a situation which has now ceased to exist? Mansfield would use history itself to liberate law from its historical fetters, and we can imagine him reading with delight the words of Maitland, referring to another branch of law:

Although the extreme doctrine of Pillans v. Van Mierop was overruled by the House of Lords some years later2 in 1778, it was still possible to hold (and indeed such was the prevailing opinion) that the requirements of consideration were fulfilled if there existed a moral obligation. This point of view prevailed during the rest of the eighteenth century3 and was not abandoned until just a hundred years ago.4 Among the influences which made for this last change of policy was the stricter observance of the Statute of Frauds, which defeated Lord Mansfield’s attempt to make any informal writing enforceable, even although it did not comply with the statute;5 and then, too, the real history of consideration began to be studied, with the result that it was discovered that there was no historical basis for Lord Mansfield’s view. A learned note inserted in a law report of 1802 argued that “moral consideration” could not be reconciled with old cases, and was widely cited thereafter.1 Finally, the Hilary Rules of 1834 abolished the general issue in assumpsit and therefore compelled plaintiffs to plead specially all those matters which they considered necessary to their action. Consideration, therefore, as a result of these Rules tended to become what it had been originally, namely, all those requirements which were necessary in seventeenth-century special pleading.2 This accelerated a revival of black-letter learning which was already taking place, and consequently the development of consideration has been brought back to common law principles, save in those cases where the influence of equity in Chancery (or the imitation of equitable doctrines by the common law courts) has introduced rules which still remain and which refuse to fit in with any general theory of consideration.3

The result has been a body of doctrine which, “roughly stated, seems plain and sensible; the court will hold people to their bargains but will not enforce gratuitous promises unless they are made in solemn form”. But it is inevitable that situations should arise at times in which the doctrine of consideration produces unsatisfactory results, and there is a good deal of criticism in consequence. Holdsworth suggests that “there is good sense in Lord Mansfield’s view that consideration should be treated not as the sole test as to the validity of a simple contract, but simply as a piece of evidence which proved its conclusion”.4 The very changes which the doctrine of consideration has undergone are a warning that there is nothing in it more peculiarly fundamental than in many other legal doctrines, and that a theory which has changed so much in the past may very well change once again in the future.

Since this chapter was first written, it has become possible to carry the matter a stage further. The whole question of consideration (especially as raised in the cases of Dunlop Pneumatic Tyre Co., Ltd. v. Selfridge & Co., Ltd.,6Pillans v. Van Mierop, and Rann v. Hughes) was referred by Lord Sankey to the committee on law reform presided over by Lord Wright. To a historian this small group of judges and lawyers is strangely reminiscent of the little group of experts which must have gathered round the great Chancellor Burnell in the far-off days of Edward I when Parliament’s first care was the strengthening and reform of the law. The report1 which they have made is almost Edwardian in its recommendations of fundamental changes in several portions of the law of contract.

CHAPTER 5

LAW MERCHANT AND ADMIRALTY

We have several times mentioned the law merchant, particularly in connection with the history of contract, and so a brief account of its origin and progress must be included here, in spite of the great difficulty of dealing with an international subject with many bewildering ramifications. Its history is the subject of much learned controversy, and the literature in English, and for its history in England, is very scanty.1

SOURCES OF MARITIME AND MERCANTILE LAW

It is natural that the sources of European mercantile law should be found in the lands adjoining the Mediterranean Sea. From very early times there was much sea-borne commerce there, and business practices were based upon very old traditions. Two or three centuries before Christ there was a body of law known as the Lex Rhodia2 which grew up in the great maritime centre in the island of Rhodes. The Roman law also contained a great deal of commercial matter which may have been originally evolved by the mercantile community. When the Corpus Juris of Justinian became out of date, the eastern Emperors, Basil I (867-886) and Leo VI (886-912), published the Basilica near the end of the ninth century, which contained a collection of maritime rules, while a new collection had probably already become current under the name of the Rhodian Sea Law.1

The decline of the empires, east and west, defeated these efforts to compile collections of wide applicability, and so commercial law during the middle ages became mainly a matter of local customs. From the eleventh century onwards, therefore, the sources will consist of the custumals of numerous commercial and maritime towns, and diversity inevitably increased as the law became localised. In some cases we have collections of decisions—for customary law is very prone to seek its sources in decisions as well as in texts. At the same time, local legislation adds to the bulk of each local stock and to the diversity of the whole. Thus we find ordinances at Trani purporting to come2 from the year 1063; Amalfi claims to have published its laws as early as 954, and a manuscript claims 1010 as their date; Pisa had a constitutum between 1156 and 1160, and in the thirteenth century such mercantile local custumals become increasingly common. Three of them were particularly famous and influential. Of these, the Consulato del Mare dates from about 1340 and was compiled, unofficially it seems, from the custom of Barcelona. The Rolls of Oléron are based on decisions of the merchant court of the little island of Oléron. They seem to date from the twelfth century, but now exist in the form of several later redactions. For some time Oléron (being part of Guienne) was under the English crown, and this, together with the fact that the great wine trade from Bordeaux to England passed close by, may explain why the laws of Oléron enjoyed special prestige in this country, and were copied into the Black Book of the Admiralty,3 the Oak Book of Southampton4 and the Little Red Book of Bristol.5 Much later, and remoter, was the third great code, that of Wisby, which was current in parts of the Baltic. Even Wisby, however, came under the influence of the laws of Oléron through the channel of a Flemish version.6

The above are mainly maritime laws; the mobility of sea-borne trade easily accounts for the spread of particular customs along shipping routes. The custom of merchants on land seems to have been more varied. Every town tended to develop a more or less comprehensive body of merchant custom,7 and hundreds of these custumals are still extant. Divergences in detail are very numerous, but even here attempts were made to secure some sort of uniformity.

There was a movement from local law towards a cosmopolitan law, and this process was not completed until after the close of the middle ages. The factor which promoted the change was, of course, the international character of commerce, which necessarily brought merchants of different countries into contact with one another in the great fairs and seaports. Then, too, the smallness and weakness of many of the states had given rise to the formation of guilds of merchants who acquired considerable privileges. These privileges naturally grew in extent as commerce increased and spread over a wide area. Unification was further assisted by the dominant position in Mediterranean trade acquired by certain Italian cities, and consequently the spread of their particular customs. Many towns actually organised research in comparative legislation, and entrusted to officials called emendatori or siatutarii the task of examining the laws and customs of other communities and recommending the adoption of those features which seemed to them desirable. There was, therefore, a deliberate attempt to promote uniform legislation. We have already noticed the tendency in England for towns to acquire the customs of some great city such as London. The Church, too, was exerting a growing influence upon mercantile practice. Particularly in the law of contract the Church asserted the principle of keeping faith—a principle which must lie at the root of commercial life.1 And finally, there came the great Reception of Roman law which provided a scientific apparatus for the development of mercantile law, which, however, remained in substance deeply tinged with canonist doctrine.

THE ENGLISH SOURCES

The specifically English sources during the middle ages are of the sort already described. The borough charters and custumals are the most accessible, and to them may be added the volumes of black, white, red and other books which contained the memoranda of many city jurisdictions. London had several such volumes,2 and the officers of the Crown themselves kept a “black book of the admiralty”.3 In some cases it is possible to add actual records of mercantile jurisdictions, such as London possesses in abundance;4 we have already mentioned some surviving rolls of fair and market courts.5

The systematic treatment of law merchant in formal text-books does not appear in England until after the middle ages, and even then it was merchants rather than lawyers who undertook the task. We had several writers of eminence on international law, and Professor Welwod of St Andrews published an Abridgement of All the Sea Lawes in 1613, but academic writers were chiefly interested in the polemics over admiralty, the freedom of the seas and the Church courts in which they were professionally interested. A notary, John Marius, gave some Advice concerning Bils of Exchange in 1651, but the merchant Gerard Malynes wrote the first general English treatise on commercial law, Consuetudo, vel Lex Mercatoria, in 1622. The law is put in the midst of all the other matters which interested merchants—weights and measures, geodesy, theory of numbers, economics—and although he was not a lawyer, he had a wide and accurate knowledge of the principal civilian works on his subject. In the eighteenth century the principal work was Beawes’ Lex Mercatoria Rediviva, which appeared in 1758 and had a successful career until about 1789, when a flood of new works in the modern style finally separated commercial law from the practice and theory of trade.

COMMERCIAL JURISDICTIONS

The institutions which administered commercial and maritime law were the civic authorities in numerous continental towns, who frequently had the title of consuls. They appear in Milan as early as 1154 and seem first to have been the officials of a gild merchant, although their importance soon made it necessary for the cities to associate themselves with the work. Markets and fairs had their own machinery for applying commercial law; most famous of them are the courts of piepowder, which were specially concerned with wandering merchants who travelled from market to market. The word seems to have been at first a nickname referring to the “dusty feet” of its clients, but was later accepted as the official style of the court. The English courts of piepowder closely resembled similar courts on the continent,1 but just as the royal Admiralty superseded the local maritime courts, so a system of royal courts was set up by statute at various times in the fourteenth century which competed seriously with the local mercantile courts. These were called courts of the staple.2

MARITIME JURISDICTIONS

For a long time the administration of maritime as well as commercial law rested in the hands of local jurisdictions. Seaport towns had their own maritime courts sitting on the seashore from tide to tide, but the only ones which survived in active working in England into modern times was the jurisdiction of the group of five towns called the Cinque Ports, which is the oldest existing maritime jurisdiction in England.3 The other local maritime courts in the end were largely superseded by a newer and more centralised jurisdiction, the courts of Admiralty, held in the name of the Lord High Admiral who was appointed by the Crown.

The office of admiral1 resembled those of the chancellor, steward, constable and marshal in that it gradually developed a judicial side. At times there were several admirals, each with duties confined to particular seas, but eventually it became the practice to appoint a single admiral with powers varying according to his commission. The earliest distinct reference to a court of Admiralty in England is in 1357, and in 1361 we have the first known record of such a case2 which was heard before Sir Robert Herle, “admiral of all the fleets”. The case is interesting, for the defendant having pleaded several defences, the plaintiffs demurred; but the court overruled them, “since this court, which is the office of the admiral, will not be so strictly ruled as the other courts of the realm which are ruled by the common law of the land, but is ruled by equity and marine law, whereby every man will be received to tell his facts . . . and to say the best he can” for his defence.

In 1301 we find English and foreign merchants endeavouring to use the court of the steward and marshal for commercial causes, both because of its speed, and also because it took cognisance of contracts made out of the realm; their prayer for its further recognition failed: non potest fieri quia contra magnam cartam.3

In the meanwhile, however, it was the council which had most influence. All through the middle ages the council had made itself the protector of foreign merchants for the obvious reason that dealings with them frequently raised matters of international politics. The council developed this position, and in the later sixteenth century acquired a considerable commercial jurisdiction both original and also of a supervisory character over other courts, such as Admiralty, sometimes exercising it in the Star Chamber. Civilians were regularly called in to assist the council, for the commercial and maritime matters in the Digest were taken as forming part of the custom of merchants, while common law judges upon occasion would be consulted too. This jurisdiction of the council in the later sixteenth century was matched by that of the Star Chamber in the earlier part of the century and for obvious reasons.

The court of Admiralty has left us regular records from the year 1524, and it is clear that in the Tudor period it exercised a steady and direct influence upon both commercial and maritime law. Its procedure, however, was of the slower civilian type, and not that of the continental jurisdictions which operated under the decretal Saepe.4 Nevertheless, the English court of Admiralty acquired a familiarity with negotiable instruments, insurance, charter-parties, bills of lading and other commercial business of which the common law as yet knew nothing. The other prerogative courts were less important in this connection, although the accident that most of the judges of the court of Requests were also Admiralty lawyers temporarily gave the court of Requests a certain amount of Admiralty jurisdiction by delegation from the Council. Chancery was principally concerned with partnership (for it had facilities for investigating accounts) and bankruptcy.

STATUTORY JURISDICTIONS

In the middle ages opinion was not altogether satisfied with Admiralty. In 1390 and 1391 statutes used strong language in criticism of it and restricted its powers;1 in 1450 and 1453 portions of its work were transferred to Chancery;2 not until the Tudors did Admiralty, like the navy itself, come into its own. From Henry VIII’s reign onwards the admiral’s commission empowered him to hear matters of shipping contracts, and of contracts to be performed beyond the seas, or made beyond the seas, the statutes notwithstanding.3 A remarkable act of 1536 inaugurated the new policy of strengthening Admiralty by confirming its jurisdiction over crime committed on the seas, and permitting trial by jury; the reason given is that the civil law of proof by confession or witnesses is practically impossible under the circumstances without torture, for witnesses are unobtainable.4 Shortly afterwards, another statute confirmed and enlarged its civil jurisdiction.5 There was also a tendency, however, to place a few mercantile matters under the jurisdiction of a special statutory court; thus the recorder of London, two civilians, two common lawyers and eight merchants were set up as a summary court for insurance matters6 in 1601.

ATTACKS BY THE COMMON LAWYERS

As soon as mercantile and maritime jurisdiction seemed desirable, the common lawyers began to covet it. The local courts felt the attack first. Fair courts were being hampered both by statute and by decision even in the fifteenth century;7 in the sixteenth, the local maritime courts waged a losing fight with Admiralty,1 and in the late sixteenth century Admiralty itself came into conflict with the courts of common law.

At the close of the fifteenth and the beginning of the sixteenth centuries we had in England a Reception of the Italian mercantile law; and yet, a century later, in the first years of the seventeenth century, Coke asserted that “the law merchant is part of the law of this realm”.2 This Reception was effected largely through the prerogative courts. Italian influence had always been strong in English finance, and when the revival of Roman law spread over Europe in the sixteenth century the Mediterranean mercantile customs, together with their civilian and canonist aspects, accompanied it. This Reception was general in northern Europe, and it was obviously prudent that England should follow suit, if, as the Tudors always maintained, England was to develop its pace in European trade. The prerogative courts, therefore, contained a strong element of foreign-taught civilians, whose activities were never welcomed by practitioners of the native system. The common law judges were frequently present at conferences, and this may have tempted the common lawyers to try to acquire this jurisdiction for themselves; when Coke came to the bench he deliberately set himself to cripple the court of Admiralty and to capture mercantile law for the common lawyers. Prohibitions were constantly issued to the Admiralty and other mercantile courts, while by a daring fiction which begins to appear frequently in the sixteenth century the common law courts assumed jurisdiction over acts which took place abroad, by the simple device of describing the place as being “in the parish of St Mary-le-Bow in the ward of Cheap”. This allegation was not traversable. In this way the common law began to capture the field of mercantile affairs, but for a long time it regarded itself as administering a strange and foreign law. It viewed the matter from the standpoint of custom; it was prepared to apply mercantile custom when that custom had been proved. Each case, therefore, had to allege the existence of a mercantile custom and then establish it by a jury of merchants.3

Admiralty did not submit without a struggle. They secured a conference with the common law judges in which the position was defined and a few concessions made to Admiralty,4 in 1575. When Coke came to the bench in 1606 he denied that the agreement was ever ratified, and renewed the conflict with much bitterness. It was, of course, the mercantile community which suffered through the attachments, contempts, prohibitions, writs of corpus cum causa and the rest; whichever court he sued in the other was powerful enough to frustrate him and prevent its rival from doing justice; and the common law courts were clearly incapable of doing anything in a large proportion of mercantile cases.1 Ambassadors protested, and finally another conference and another settlement (also in favour of the Admiralty) was effected in 1632. Like that of 1575 it was not observed, and the conflict continued through the Commonwealth, was renewed at the Restoration, and dragged on until the nineteenth century reconstituted Admiralty jurisdiction.

Meanwhile, the claim of the common law courts to rival some at least of the law of the Admiralty was being made good. What was merely a claim when Coke made it, became something more in the hands of Holt a century later, for by the close of the seventeenth century the constant repetition of finding mercantile custom in each case that arose was seen to be unnecessary, and the courts began to take notice of some of the more notable mercantile customs without requiring proof of them, and this policy was finally adopted as a general practice by Lord Mansfield.2 In this way the common law set out to rediscover principles of commercial law which were known to the Admiralty judges several generations earlier, and to fit them into its framework of historical forms—which fortunately was a little more flexible in the eighteenth than in the seventeenth century.

THE CONTENT OF EARLY LAW MERCHANT

We must now consider the law which these local mercantile authorities administered. They exercised a very wide power of regulation—and the middle ages thoroughly believed in the public regulation of every sort of activity. The only restrictions imposed upon them were the law of the city authorities which must not be contravened, a general requirement of reasonableness, and a restriction to purely mercantile matters.

Besides developing law and applying discipline to members of the estate of merchants, there were also matters of a diplomatic character which the consuls undertook. Treaties and commercial conventions with other communities were frequently negotiated, while down to the fourteenth century they were frequently engaged in reprisals. This meant that if a merchant was unable to obtain justice against a foreigner in the foreigner’s court, then his own government would authorise him to recoup himself out of the property of any merchant of the foreign jurisdiction in question whom he could find. The foreigner was then left to take the matter up with his own government if he could. This system was, of course, extremely inconvenient. Nevertheless it was widespread; even in England we find different cities taking reprisals against one another, justifying it on the custom of merchants.3 By the fourteenth century reprisals became much more rare.

If we turn to the development of mercantile law in England, we find that by the end of the fifteenth century the English mercantile courts had developed a few principles, and from the occasional records which survive we can see how they worked in practice. The courts of the fairs in England show us numerous actions upon contracts of sale which had been concluded by the typically mercantile form of the payment of earnest money or God’s penny.1 Warranties of quality were enforced if express (as at common law);2 and warranties of title were not yet presumed. The defence of innocent purchase for value in an open market was certainly good against a criminal charge of theft, but it was only at the close of the fifteenth century that it gave a good title to the purchaser against the original owner; this rule was virtually reached by 1473 and was settled a century later.3Caveat emptor had already become a policy of the law.4 We also find that impeding a sale gave rise to an action in tort; some simple cases on partnership appear; brokers figure prominently both as binding their principals in contract and also as suing for their fees and commission—and in this last connection lawyers are on the same footing. And finally the merchant courts imposed a heavier liability both in contract and in tort than did the common law upon masters in respect of their servants’ acts.

BONDS AND PROMISES TO PAY

A few brief words may now be said upon the content of this Italian law merchant which the English courts received, and first as to bills of exchange. All through the middle ages attempts were being made to make debts assignable and if possible payable to anyone who was the bearer of a document.5 The principle was widespread; in the year 771 a monk gave to a church, “or the bearer of this document”, the right of avenging his death and collecting the wer if he were murdered; in 1036 a man left by his will the guardianship of his wife to two relatives “or to whoever shall bear this writing”. In mercantile affairs this device became a common feature of sealed promises to pay. They were first drawn in favour of a named payee “or his attorney”, and in such cases a formal deed of attorney would be necessary to entitle anyone except the payee to sue upon the instrument. Documents of this type were common in the thirteenth and fourteenth centuries, for in fact they were simply the bond under seal which figures in countless actions of debt. Debtors were careful not to pay even an attorney except in return for the original bond, for payment was no defence if the creditor still held the sacred document.1 It therefore naturally followed that a debtor was safe in paying anyone who returned him his deed. Later still, therefore, the mere production of the document was accepted as sufficient authority entitling the bearer to sue, at first in the name of the payee, and later in his own name. In the fifteenth century the validity of written promises to pay made out in this form was questioned, save in the single instance where the bearer was the properly constituted attorney of the payee. We therefore find the appearance of a new, brief and unsealed “bill”, written and signed by the debtor, payable to the creditor or bearer. This was a substitute for the bond under seal, and for centuries had no standing in the common law.

BILLS OF EXCHANGE

The future lay rather in the development of “exchange” than in the promise to pay or the “writing obligatory”.3 “Exchange” was at first the simple process of changing coins of one currency against those of another, but there soon grew up an organisation of international bankers having agents or correspondents in the principal commercial centres, and these firms, instead of actually delivering coins of one type in exchange for coins of another, would write a letter of exchange to their correspondents, effecting the transfer purely on paper. With an international organisation they quickly realised that the transfer of money between various countries could be effected by merely transferring balances, setting off a credit balance in one country against a debit balance in another. A merchant who wished to remit money abroad would therefore address himself most usually to one of these bankers. The remitter A. therefore secures from his banker B. (in exchange for money paid to him) a bill drawn in foreign currency by B. upon C., payable to D. B. and C. are very often partners or agents of the same international bank. Under the ordinary form this arrangement would be embodied in a formal deed. Already in the fourteenth century, however, the formal deed began to be replaced by the informal letter of advice which accompanied it; it is this letter of advice which eventually grew into the modern bill of exchange.1

So far we have a document which enables A. to effect a payment to D. in a foreign country without transporting money, but this document is payable to D. only, and is in no sense transferable. Late in the sixteenth century the habit grew up in Italy of drawing bills of exchange in favour of a payee or order, whereupon the payee would endorse the bill with an order to pay X. as agent of the payee. This was one step further in the development of transferability, but X. was still unable to transfer further. The payee’s order was X., and not any other person whom X. might name.

In the middle of the seventeenth century it became established that one endorsee can endorse over, and so bills become assignable by successive endorsement; but the theory still prevailed that an endorsee was agent of the payee. However, the fact that the endorsement and delivery served instead of a power of attorney, and gave the endorsee the right to sue, made it look as though the endorsee sued in his own name—and so the lawyers compromised by calling him an agent although in respect of his own property (procurator in rem suam).

At the same time—in the middle of the seventeenth century—lawyers began to make certain presumptions in connection with bills of exchange, notably that an acceptance was for value. Having once begun to make presumptions it was easy to carry the process further; a further presumption was made that the bill was in good order (omnia rite acta), and this presumption could not be rebutted so long as the holder took in good faith, the result being that a bona fide holder for value was protected against prior irregularities. By this time the wave of academic enthusiasm for the letter of classical Roman law had spent its force, and the bill of exchange became finally established in substantially its modern form, and with the modern characteristic of negotiability.2

BILLS OF EXCHANGE IN ENGLAND

The history of bills of exchange in English law is the history first of the reception of Italian practice among English merchants in the fifteenth and sixteenth centuries. As Professor Postan suggests, there is no need to assume that England was deeply touched by the juridical controversies which Brunner1 stressed. The reception of the bill of exchange in English mercantile practice is easiest explained by more practical considerations. The bill was par excellence a device for international exchange, and that was the service which Italian international banks were rendering to the English wool trade. Hence the early familiarity of the bill of exchange. The progress of this reception can be traced by noting the changes which appear upon comparing the treatise of Marius (1651) with that of Malynes which appeared in 1622. In the interval between these two works it is clear that great developments took place in English mercantile practice, which now follows closely the stages of continental development. In England, as on the continent, we see the sixteenth-century writing obligatory drawn to bearer—and it was often the custom to draw it in blank, leaving the payee’s name to be inserted later. This was superseded in the middle of the century2 by the true bill of exchange, and upon this we have a fair amount of information in the records of the court of Admiralty, which concerned itself with these documents. Malynes shows us the old four-party bill which we have described, which was not yet payable to order or bearer. Marius shows us the three-party bill in its modern form which was transferable, and also available for internal as well as in foreign trade—for there had long been doubts whether a bill of exchange could be used in domestic commerce.

By the middle of the sixteenth century, therefore, English merchants were accustomed to the use of the continental bill of exchange3 as it then existed, and if litigation arose there was the court of Admiralty in which to sue. From time to time, however, attempts were made to sue at common law upon bills of exchange, using the action of assumpsit. The books of entries of the second half of the sixteenth century contain pleadings for this purpose, and in 1602 we find the first reported case of assumpsit being brought on a bill.4 The early forms show that there was some difficulty in pleading a bill of exchange in terms of the common law. Matters were soon greatly simplified by merely stating the facts of acceptance, endorsement and so on, and then resting the case upon the custom of merchants. In this way there was no need to express in terms known to the common law the rights and liabilities of all parties to a bill. This practice becomes general from 1612 onwards.5 The next step logically followed; once the common law courts were familiar with the nature of a bill of exchange, it was no longer necessary to plead specially the custom of merchants. This great change was largely due to Lord Holt. During the period when he sat as Chief Justice of the King’s Bench we find that the negotiability of bills of exchange was recognised at common law. His decisions laid it down that a bill drawn to order could be transferred by endorsement, that the title of a bona fide holder was not invalidated by defects in the title of his transferor, and that consideration will be presumed.

PROMISSORY NOTES

In the seventeenth century merchants did not draw a very sharp distinction between bills of exchange and the old informal and unsealed writing obligatory,1 which now became simplified in form as a promissory note. In mercantile practice they negotiated notes in the same way as bills, but, as we have seen, the “writing” was a very old form, and therefore associated in men’s minds with very old law, and the common lawyers, like the civilians, had technical reasons for holding that promises to pay were not transferable save to attorneys. Lord Holt refused to recognise the promissory note as being on the same footing as a bill of exchange in the famous case of Buller v. Crips.2 Holt’s view was that these promissory notes were a novelty invented by the goldsmiths, whose practice was to accept money from their customers on deposit, giving in return a promissory note which they thought was negotiable.3 The goldsmiths were doing, in a less convenient way, what a modern bank does in accepting a customer’s money, only to-day, instead of always issuing notes, the bank undertakes to honour its customer’s cheques. In so far as promissory notes were used in this operation Holt maintained that they represented an attempt by Lombard Street to dictate law to Westminster Hall. There was also a good deal of technical force in Holt’s argument that the same result could be obtained through a bill, and that while the bill of exchange had a proper place in the common law, the promissory note had not. He therefore refused to allow an endorsee to sue on a promissory note. Nevertheless mercantile opinion in favour of notes was so strong that a statute was passed expressly making them negotiable.4

At this point we reach the beginning rather than the end of the story. Future development lay in the direction of elaborating the idea of negotiability and applying it to a great variety of documents, some of them of very recent origin. Although a number of negotiable instruments have arisen in modern times, yet the really fundamental idea of negotiability was established in the seventeenth century, and the greatness of that achievement can only be appreciated with reference to the vast modern developments which it made possible.

Space forbids more than mention of the many other contributions which the custom of merchants made. Insurance has a long and interesting history,1 at first maritime and then general; so, too, has the law of partnership,2 of which many varieties were known during the middle ages, enabling large international banks and financial houses to conduct their operations, while in the seventeenth century the partnership or company is expanded into the trading corporation.3 The law of agency is especially interesting for its mingling of common law, ecclesiastical ideas on the management of monasteries, and mercantile practice.4

PART 5

EQUITY

SUMMARY

• Equity - - - - - - - -
• chapter 1.The Early History of Equity - - - -
• chapter 2.The Formative Period - - - - -
• chapter 3.The Work of the Chancellors - - - -

EQUITY

Equity is often spoken of as a supplement or an appendix to the common law; a mediaeval lawyer would perhaps have caught our meaning better if we were to say that it is a sort of gloss written by later hands around an ancient and venerable text. Law books were particularly apt to accumulate such glosses (Coke’s gloss on Littleton is the latest English example). In a sense, the gloss and the text are a unity, an expanded version of the original, and the two must be read together. This does not mean, however, that there may not be conflict and contradiction between text and gloss; still less does it mean that there will be a logical and systematic distribution of material between the text and the gloss. It is commonly observed, however, that the gloss tends to grow in importance. It may corrupt the text at points; it will often be clearer, representing a later state of learning with new facts, and more elaborate thought. It often happened in the end that the gloss was of more practical importance than the original.

The simile we have just suggested is more than a mere figure of speech, for it is in fact a deduction from the mediaeval habits of study. Reverence for authority made it necessary to preserve ancient texts, such as the Corpus Juris, but the practical demands of daily life made it equally necessary to have the gloss which alone made the system workable. This reconciliation between two divergent instincts seems to lie at the root of the scheme of law and equity as it existed, say, in the reign of Henry VII, when the relations between them were fairly friendly. But there were seeds of dissension. When the text is the sacred book of one profession and the gloss the work of another, the unity of the two may be in peril. This happened when canonists wrote a gloss, so to speak (and a distinctly “equitable” one), on the texts of the civilians; and to some extent it happened, too, when chancellors glossed the common law.

Neither theory nor practice required the administration of law and equity to be assigned to different institutions; in practice, courts of law could administer equity whenever the need arose. Thus Beaumanoir1 at the end of his book discusses some situations when law should be tempered with equity. In England (but not in Scotland) equity became the special concern of the chancery which administered equity, while the historical courts continued to administer law.2 Institutional history has therefore had a confusing effect upon the result. More especially, the accidents of history made equity a fragmentary thing. First one point, then another, was developed, but at no time was it the theory or the fact that equity would supplement the law at all places where it was unsatisfactory; consequently it has never been possible to erect a general theory of equity. In the last resort, we are always reduced to a more or less disguised enumeration of the historical heads of equity jurisdiction.

Finally, just as we have spoken of the common law as the custom and practice of the common law courts, so we might, with equal truth, describe equity as the custom of the Chancery. The decisive test for the existence or not of an equitable rule or remedy is to be found in a search of the records and decisions of the court of Chancery and its modern successors. There are indeed a number of maxims which have almost attained the dignity of principles; but deduction alone will not reveal the content of our system of equity. The only authoritative source is the custom of the court, and that must be gathered from an examination of the cases.

CHAPTER 1

THE EARLY HISTORY OF EQUITY

THE RISE OF COURTS OF EQUITY

Of the institutional aspects of equity we have already spoken. Thus we have seen fourteenth-century parliaments occasionally dispensing remedies which later were typical of equity;1 the council, moreover, was so flooded with petitions of every sort that it was there that these new practices inevitably became settled, and, as the council was finally overwhelmed, the task was shifted to the chancellor, who had ampler resources in the way of office staff.2 The need for a supplement to common law procedure was very evident in the fourteenth century,3 and even its doctrine was not above criticism. We have remarked upon the abandonment by the common law judges of their ancient powers of discretion,4 and the feeling among contemporaries that the old institutions were no longer entirely adequate—even the seignorial courts felt the same difficulty, and met it in the same way by erecting councils (often of civilians and canonists) which became courts of equity.5 A long struggle in Parliament failed to check this development either at Westminster or in many seignorial jurisdictions, and in the end the situation was accepted.6 Equity was henceforth tolerated and even strengthened by statute, and the movement continued with increasing vigour. Late in the fifteenth century there was a search for a theory and there was some talk of “absolute power”, “conscience” and “natural law”.7 A century later the spread of equity is still evident: municipal courts of equity begin to appear, such as the Mayor’s court in London1 and the court of equity in the cinque ports,2 while a similar process in the great feudal liberties produced the court of chancery in the palatinate of Durham,3 a court of chancery in Lancashire, and the court of Duchy Chamber which sat in London or Westminster.4 Indeed, it is already clear that one royal court of equity is not enough. So we find such institutions as the court of requests,5 and subsidiary councils with equitable powers for the marches and the north.6 Moreover, this intense activity in the courts of equity affected the common law itself. It was the competition of equity which stimulated the growth of a common law of contract;7 in 1566 a disappointed litigant declared that Catlin, C.J., had made the Queen’s Bench a court of conscience (and was indicted for it);8 that same bench was now beginning to develop such writs as mandamus9 (which might well have become equitable), and in the next century it inherited a wide jurisdiction from the Star Chamber, which was, in a sense, criminal equity.10

Until later in the middle ages it was not yet apparent to contemporaries that there were, or could be, two different and sometimes conflicting systems in England, one of them common law and the other equity. They were, however, well aware of conflicting courts, and on numerous occasions complaints were heard that the chancellor, the council, the steward, the constable, the admiral and other authorities had exceeded their jurisdiction. Moreover, it seems that the council and chancellor were at first concerned principally with the de facto failings of the common law, rather than with its doctrinal shortcomings. It was the over-mighty subject who broke through the net of procedure and controlled juries through his local influence who first taxed the powers of the council. As late as 1618 a decree of Lord Bacon was thwarted by a force of two hundred armed men.11 A later stage is marked when the council and the chancellor apply different rules from those prevailing in the common law courts, and herein lies the principal theme in the history of equity.

We have already noticed the fragmentary character of equity, and in fact its history is even more fragmentary. This is partly due to the fact that the rules were a product of the institution, and so partook of the external accidents which often mould the history of institutions. History would have been very different if the idea of equity had been the cause, instead of the result, of the chancellor’s powers.

EQUITABLE FEATURES IN THE COMMON LAW

In fact, many rules which have since become distinctive of chancery make their first appearance in the common law courts. The application of these principles does not, therefore, imply anything in itself alien to the spirit of the common law, for the common law courts had themselves exercised these powers.

This has been admirably demonstrated by Professor Hazeltine, who observes numerous points upon which equity was anticipated by the common law courts.1 There was a moment when it seemed likely that uses in land might be enforced by the action of covenant2 and uses in chattels by account and detinue.3 In Henry II’s reign we find something like an equity of redemption recognised by the King’s Court, which had vanished, however, by the reign of Edward I.4 Then, too, in a famous case5 Chief Justice Bereford proposed to give relief against a penalty as late as 1309: “What equity would it be to award you the debt when the document is tendered and when you cannot show that you have been damaged by the detention?” he asked. And again: “Moreover this is not properly a debt but a penalty; and with what equity (look you) can you demand this penalty?” And so Bereford told the plaintiff that if he wanted judgment he would have to wait seven years for it. It is true that this case is almost unique, and that Bereford was a judge of remarkable originality and courage;6 but it is still apparent that there is nothing inconsistent with the common law in the idea of limiting recovery of penalties to the measure of damages actually sustained, if such there were. Indeed, in 1307 the court of exchequer (in which Bereford was in fact present) reduced a statute merchant on the ground that it was “only security”.7 Twice in one roll we find the defence that the maker of a charter was “deceived” in doing so;1 the King’s court will not allow the requirements of a form of action to be used as part of a fraud;2 it will order the cancellation of a deed;3 it will not entertain matters which have been unreasonably delayed;4 the court of exchequer would give to a litigant copies of documents he needed which were in the hands of his adversary.5

When we come to the question of specific performance it is important to observe that some of the oldest common law actions were of this character.6 The action of covenant will give specific restitution to a lessee whose lessor has broken the agreement; so, too, covenants to convey land, the provisions of final concords, the obligations of warranty, and obligations to perform or to acquit “foreign service” (a matter of great complication in feudal law) were enforceable at common law by actions which went much further than giving damages, for they concluded with judgments that the defendant was to perform the obligations to which he had been proved liable.7 Once again, then, it is clear that there is no very great reason in the nature of things why common law should confine itself to an action for damages—save that in all these matters the great difficulty of the common law lay in the ancient rule which only allowed it to enforce its judgments by distress, and not by imprisonment on the ground of contempt of court.

Then, too, there were occasions upon which the common law would issue what is really an injunction under the name of a writ of prohibition restraining a party from committing waste in a variety of circumstances;8 upon breach of his prohibition the party is attached to show cause; even in the seventeenth century this aspect of the common law was highly praised by Coke,9 who says of prohibitions of waste, “this was the remedy that the law appointed before the waste done by the tenant in dower, tenant by the curtesy or the guardian, to prevent the same, and this was an excellent law—and this remedy may be used in this day”. The famous Luffield register (c. 1282) contains a writ De Minis which is partly a grant of the king’s peace, and partly an injunction against attacks which had been threatened against him.10 Then in 1308 we find an interesting case where a lord secured a judgment forbidding his tenants from selling their goods elsewhere than in his market;1 and similar judgments could be given on questions arising out of suit of mill, whereby tenants could be compelled to grind at the lord’s mill. As Maitland has remarked, “if this is not an injunction, and a perpetual injunction, we hardly know what to call it”. Professor Hazeltine has observed:

Closely connected with the writs of prohibition were the writs quia timet, which, like the Chancery bills of the same name, aim at preventing a wrong which is threatened before it occurs.3 So also, in the exchequer in 1284, a Christian could plead (and prove by a jury) against a Jew, that he had paid a debt but had lost the acquittance.4

From all this it is clear that many of those features which were later characteristic of equity were once a part to a greater or less degree of the earlier common law. There was, therefore, no fundamental inconsistency between equity and common law: the one was not alien to the other. Professor Hazeltine summarises these results as follows:

That “equity inherent in royal justice” is frequently mentioned, not only by mediaeval political scientists but also in the course of practical affairs. Thus a statute6 asserts that “the king, who is sovereign lord, shall do right unto all such as will complain”—in spite of procedural and feudal complications, and plea rolls assert the same duty of an overriding equity in the king.1

Indeed, even in the middle of the fourteenth century the common lawyers still occasionally appealed to “conscience”—not merely to those more liberal practical features which we have just described, but to equity in the abstract, apart from any question of its having been embodied in one of their own established rules or procedures.2

THE STRICTER SCHOOL OF LEGAL THOUGHT

It is here that the problem was raised most clearly, and it is here that we can see the fatal hesitation of the common lawyers. They were of two minds. If we cite these references to conscience and equity in the abstract which some of them made, we must also cite other expressions in the opposite sense. The lawyers had a maxim that they would tolerate a “mischief” (a failure of substantial justice in a particular case) rather than an “inconvenience” (a breach of legal principle). To a bishop who brought an unconscionable action, Bereford, C.J., declared “it is a dishonest thing for an honourable man to demand what his predecessor released”; but the bishop’s claim nevertheless succeeded. “Once in the name of good faith he urged the defendant’s counsel to admit a fact that had not been proved. Back came the retort: ‘You must not allow conscience to prevent your doing law.’ ”3 Our common lawyers in fact were beginning to feel the attraction of the “legal mind”,4 the delight of pushing a principle as far as it will go and even further, and were enthusiastic over their first lessons in the rigor juris. This was no doubt the first step in legal wisdom (though certainly not the last); the real question which they had to face was how the future of the law should be developed. Was it to be a system of strict rule, mainly procedural, or was there to be a broader principle of conscience, reason, natural justice, equity? Plainly there were two points of view on this matter in the reign of Edward II, but it must have been fairly evident by the middle of the century that the stricter party had won. The law no doubt grew in content, but its growth was within a framework of technical doctrine and procedure instead of being the outcome of a broad principle of general equity; “logic yields to life, protesting all the while that it is only becoming more logical”.5

EQUITY SEPARATES FROM LAW

The triumph of the stricter school of legal thought was in part the cause, and in part the effect, of the institutional changes which we have already mentioned.1 As a result of those changes the common law courts lost much of their discretion and explicitly abandoned any thought of tempering law with equity, but on the other hand they gained in independence of the Crown.

It must be remembered that just as there were several courts of common law, so there were several bodies capable of administering law modified with discretion or equity. The exchequer may have done so, and the council certainly did. The decline of discretion in the common law courts, therefore, had the effect of throwing increased emphasis upon the discretion which had always been exercised in the council, and so we reached the position, so full of possible dangers, in which justice was partitioned between two bodies, neither of which could completely deal with a matter. Council and Chancery no longer could manage the complicated machinery of writs and pleadings and process; common law courts no longer exercised discretion. This profound schism in the administration of justice had the most momentous effects. Adjudication, like most other questions of human conduct, depends upon a nice balance between law and equity, rule and exception, tradition and innovation. Each of these different principles became exaggerated when it became the badge of an institution, with the result that law and equity instead of being complementary, became rivals in a political upheaval.

THE CONTINUITY OF EQUITY

Such was the general outline of the process. There has been some controversy about one aspect of it, however. The suggestion (which has been made in very guarded language by Professor Hazeltine2 ) that the chancellors drew some ideas, at least, from the pre-existing practices of the common law courts, has been disputed. Sir William Holdsworth has maintained that the chancellor’s equity was “a new, a distinct, and an independent development”.3 In discussing this contention, Professor Adams4 has remarked upon the different appearance of history when viewed from the different standpoints of institutions and of legal doctrine. He is surely right in urging that, in one sense at least, equity is inseparable from the duty of the king to do justice and his power to exercise discretion, and that this duty and power is at least as old as the conquest. The characteristic of our classical equity is the idea of conscience; but are we entitled to say that this idea was so novel that it resulted in a complete break with the past? It is hardly likely. Such scanty material as we have, seems to show that in the early period of chancery the use of “conscience” was no more definite than it had been in the common law courts. Conscience as a juristic theory (such as St Germain propounded) is apparently a late-fifteenth-century growth; and consequently the gulf between the chancery and common law traditions was not a deliberate breach with the past, but rather the slow drifting apart of two institutions.

CHANCERY BILLS AND BILLS IN EYRE

There has been the further suggestion that the justices in eyre exercised an equitable jurisdiction when they heard bills in eyre, and that here also we have a common law origin for equity.1

The greatest difficulty here is to find evidence of the justices in eyre overstepping the bounds of the common law. A good many bills in eyre have survived,2 and so far as we can judge, they neither ask for nor receive any remedy which was not available in the common law. It is moreover clear that the jurisdiction of the justices in eyre was on a par with that of the Common Pleas, and, if anything, inferior to that of the King’s Bench; there is no possibility, therefore, of them using extraordinary powers.3

Nor must the word “bill” receive too much emphasis. Any brief document or memoranda was a bill, and the word seems to imply brevity as its principal characteristic. We have already spoken of bills in the King’s Bench and other courts,4 and bills in eyre seem to have been essentially of the same nature, that is to say, brief written statements initiating proceedings which otherwise would begin with the formal and costly original writ.5 The bill in eyre has an especially interesting history because the reforming barons in the middle of the thirteenth century encouraged the public to make complaints (querelae) to the justices wherever they felt there had been oppression by local officers or magnates.6 The complaint, as a procedure, is very old, as we have seen,7 and a particular class of complaints formed the nucleus of the action of trespass; but this development did not exhaust the possibilities of the querela and the complaints in eyre often covered matter which formal procedure would have expressed as a demand (e.g. debt, detinue). It is difficult to say whether the complaints heard by Hugh le Bigod were oral or written, but during the reigns of Edward I and his two successors we have written complaints still surviving, and it is clear that these were sometimes very informal documents, ill-spelt and ill-drafted, although occasionally there is one which was undoubtedly drawn by a lawyer in the strict form of a common law declaration.

It is true that the eyre expires (and bills in eyre with it) at the crucial moment in the fourteenth century when the common law courts relinquished their discretionary powers, and when the first signs of the chancellor’s jurisdiction appear. But we cannot conclude that the chancellor’s equity came from the eyre; first, because it is very doubtful whether the eyre really administered equity of any sort; and secondly, because the origin of the chancery bill must surely lie close at hand in those thousands of petitions or “bills” which, in the normal course of administration, passed through the hands of the council and the chancellor rather than in the practice of justices in the country, who by now were commissioned only rarely and at long intervals.1

THE SUB POENA AND COUNCIL PROCESS

Just as the bill or petition was originally a prayer for administrative intervention,2 so the next step in the process, the sub poena, was also drawn from administrative origins. This threat of a penalty had been used by the government to stimulate the activity of officials3 as early as 1232; even the common law courts occasionally used a sub poena clause; in 1302 Justice Berrewyk ordered a party to bring an infant before the court “under the pain of one hundred pounds”.4 In the middle of the fourteenth century the Council produced an effective writ by adding the clause of sub poena to the somewhat older writ of certis de causis, which was in effect a simple summons to appear before the Council “for certain reasons”. Quibusdam certis de causis is at least as old as 1346,5 and closely resembles the summons sent to a peer on the calling of a parliament.6 The great objection which common lawyers made to writs in this form was their failure to mention the cause of the summons. It was a principle of the common law that a party should not be brought into court without due notice of the matters which he would have to answer,1 and there is no doubt that the sub poena gave no such warning. Protests in parliament became frequent.2 On the other hand, it must be remembered that in most cases the party must have known the real reason for his summons, for litigation as a rule is preceded by private negotiations, and in any case, having appeared, he was given ample time to prepare his defence. The best justification, however, for the Chancery’s practice, must no doubt be sought in the fact that the common law was a warning example of the mischief which might result if a plaintiff were compelled to state in detail his cause of action in the originating writ, with the almost inevitable consequence that he was unable to make any change once the writ was issued. It was, no doubt, the deliberate policy of the Chancery to avoid this situation, and this policy is constantly adhered to, as witness the freedom with which Chancery pleadings could be amended.

THE FIRST PHASE OF EQUITY

So far, the early history of equity has followed very much the same lines as the history of the common law three hundred years earlier. The common law gradually made a place for itself, although the country was already well provided with an ancient system of law courts; its intervention was at first political and administrative, being designed to safeguard the feudal supremacy of the Crown and even to exploit that situation; its process, the original writ, was of administrative origin, and in its oldest form, the praecipe quod reddat, undoubtedly encroached upon the sphere of already existing institutions. And so it was with equity. It imposed itself in spite of the existence of a well-ordered common law system: the basis of its intervention was at first the enforcement problem of the later fourteenth and fifteenth centuries, the preservation of order and the defence of the weak against the strong, together with the correction of the real or supposed defects of the common law; its process by bill and sub poena was not in its origin judicial, but part of the administrative machinery of the Council; and there was no doubt that the common lawyers had grounds for regarding equity as encroaching upon their province.

CHAPTER 2

THE FORMATIVE PERIOD

THE IDEA OF EQUITY

During the middle ages we do not hear very much of “equity”, although chancery and council are constantly mentioned. It can hardly be said that the modern idea of equity appears at all commonly in the sources until the sixteenth century, when we find a formal theory in Doctor and Student upon the relation of equity to law.1 It remains to be seen whether the legal theory expressed in that remarkable treatise was not in large part the origin of the English idea of equity, rather than a mere historical description of already existing thought.2 In the fifteenth century, when the chancellors were regularly ecclesiastics, it may well have been that they wielded the royal prerogative through the machinery of the council in accordance with canonical ideas. This does not necessarily mean that the chancellors were deeply learned in the technicalities of canon law; it may very well mean, however, that they acted in the spirit of the canon law, which, as we have seen, was impatient of pedantry and inclined to place substance before form. In any case, the ecclesiastical chancellors were certainly not common lawyers, and it must have been a perfectly natural instinct, then as now, for a bishop, when faced by a conflict between law and morals, to decide upon lines of morality rather than technical law. As a chancellor (Cardinal Morton) said in 1489: “every law should be in accordance with the law of God; and I know well that an executor who fraudulently misapplies the goods and does not make restitution will be damned in Hell, and to remedy this is in accordance with conscience, as I understand it”.1 By this time—the middle of the fifteenth century—the chancellors clearly pass beyond the stage of purely administrative and political intervention, and begin to meddle with highly technical matters of legal doctrine. As they were not lawyers, they naturally summoned the common law judges into conference and called upon them to explain the state of the law on a given point. In return, the judges got the views of an intelligent non-lawyer, and doubtless discovered that outsiders do not regard “technical reasons” as an excuse for reaching obviously wrong results. The judges had to admit in several cases that their rules actually favoured iniquity at the expense of the righteous, and themselves advised the chancellor to give equitable relief.2

This voluntary acceptance of equity by the judges was all the more easy in the fifteenth century when, under the Yorkist kings, the increased power of the Crown was largely accepted by the nation voluntarily as a sort of dictatorship which alone could be effective in restoring law and order. It was perhaps this attitude which made possible Catesby’s remark in 1464 that “the law of Chancery is the common law of the land”.3 It will be seen that we are in the presence of a transition between an earlier type of jurisdiction which was more administrative than judicial, and based merely upon the elementary duty of governments to maintain order through administrative forms, and the more developed jurisdiction of classical equity based on the idea of conscience. The transition from one to the other, which is especially noticeable in the early and obscure years of Henry VII’s reign, was doubtless facilitated by the old canonist idea of good faith which easily became transformed into conscience and thence into a formal system of legal philosophy.

EQUITY AND LAW MERCHANT

There is another factor in this transition which deserves particular attention—the circumstance that the council and the chancellor received a good deal of mercantile business. This had to be despatched with an eye to treaty obligations, and according to law merchant. Now that law was regarded at this time as being “equitable” in the sense that neither forms of transactions nor technicalities of law should prevent substantial justice being done according to conscience. Our chancellors may have heard more about conscience and equity from mercantile litigants than they did from lectures on canon law (if indeed any of them had ever received formal instruction in that system).

We have already noticed that mercantile influences were so strong in London that the city courts administered equity as well as law.4 If our common law courts had acquired mercantile jurisdiction in the middle ages, they too might have been driven to the same result; it is certainly significant that when Lord Mansfield finally achieved a reception of mercantile law, he had to import some equity with it. It has recently been suggested that the American colonists were more partial to borough law than to common law,1 and if that is so, then it is clear why so many of their common law courts administered equity concurrently with the traditional system.2

THE BEGINNING OF FRICTION

In the fifteenth century the chancellors therefore made every endeavour to conciliate the common law courts, and we frequently find them consulting with common law judges. The same attitude persisted into the sixteenth century. Wolsey’s exercise of his judicial powers aroused some antagonism, but his successor was of different temper, and we find that Sir Thomas More, when he heard complaints against the Chancery, entertained the judges at dinner:

It is very unfortunate that Roper, a lawyer, should have treated the incident so succinctly, for we would gladly know more of the reasons why the common lawyers refused at this opportune moment to receive some equitable principles into their system. It seems that the judges in some way took shelter behind the jury, but this is certainly not the whole story, nor even the principal reason, probably, for their obduracy. However that may be, in this incident the contrast between law and equity is dramatically expressed; when the chancellor invited the judges to reform the common law by introducing into it the element of discretion and conscience, all the judges could do was to reply with a non possumus. More made it clear that in his view the jurisdiction of Chancery was a moral necessity based upon the duty of government to give not merely law but justice to its subjects. Although, no doubt, a character of More’s idealism found this a sufficient justification for equity, the more practical minded could adduce additional reasons from the political situation. The undercurrent of grave discontent which never ceased from the Peasants’ Revolt in 1381 down to the Pilgrimage of Grace in 1536 had a good deal of its origin in the inefficiency of legal enforcement and the inadequacy of the law itself,1 so that, although an idealist such as More was ready to make conscience the philosophic basis of equity, it was at the same time, no doubt, possible for the statesmen to regard it from the ancient standpoint of the Crown as the fountain of justice, which was compelled to act in this way in consequence of the stubbornness of the common law courts. In Henry VIII’s reign laymen begin to appear again as chancellors and they become the constant rule from Elizabeth’s accession.2 It is more significant that these chancellors were in many cases not merely laymen but also common lawyers, such as Thomas More (1529-1532), Nicholas Bacon (1558-1579) and Thomas Bromley (1579-1587). It is to this fact that we owe, no doubt, the cordial relations which existed during Elizabeth’s reign between common law and equity.

It is in the seventeenth century that we find a conflict forced between them owing to the identification of the Chancery with the other prerogative courts and with a theory of royal absolutism.3 The falseness of this issue is clearly shown in the fact that even the Commonwealth found it necessary to retain the Court of Chancery and to increase its efficiency by procedural reforms.

THE CONDITION OF TUDOR EQUITY

In the fifteenth and early sixteenth centuries we therefore find the development of the rules of equity determined, for the most part, by the procedural or substantive defects of the common law system—its slowness, its expense, its inefficiency, its technicality, its abuse by the mighty, its antiquated methods of proof (for it refused to allow parties or any interested persons to testify, and stubbornly maintained wager of law), its suspicions of volunteer witnesses, and its inability to compel one party to an action to discover evidence useful to his adversary. Among the defects of the common law which were most frequently supplied in Chancery was its inability at this date to give specific relief in actions on contract and tort, and so we find in Chancery bills to secure specific chattels, to compel a conveyance in accordance with a contract of sale, to obtain the cancellation of deeds, and for injunctions against a variety of wrongful acts, especially waste.1 The Chancery’s powers of examining parties and witnesses and of joining all interested persons enabled it to act efficiently in matters of accounting and the administration of assets. Then the complete refusal of the common law courts to consider cases of uses and trusts left a very wide field exclusively to equity. The common law relating to fraud, mistake, accident and forgery was extremely meagre, while in Chancery alone could relief be obtained against penalties.2 In the matter of contract the common law in the fifteenth century consisted largely of the uncertain results of a tangle of procedure, but Chancery was inclined to view the matter from a somewhat different angle and had already developed the additional remedy in certain cases of decreeing specific performance. Chancery jurisdiction, therefore, was based upon the defects of the common law, and even a chancery lawyer such as Lord Bacon at the end of the sixteenth century could look upon the popularity of Chancery as a bad sign;3 the more people resorted to equity, the more obvious it was that law was defective. Some of these defects in the common law were remedied in the course of the sixteenth century, Westminster Hall quietly adopting rules which had originated in Chancery. But this improvement in common law was accompanied by a certain degree of degeneration in equity. Chancery procedure became slower, more technical and more expensive, and ceased to be available to the poor. Some of this, no doubt, was due to a defect which equity never cured—the theory that Chancery was a one-man court, which soon came to mean that a single Chancellor was unable to keep up with the business of the court.4 Not until 1813 do we find the appointment of a Vice-Chancellor.

THE EXTENT OF STUART EQUITY

James I having established equity’s right to exist unhampered by the attacks of the common lawyers, the question henceforward takes the more useful form of ascertaining the proper boundaries between the two jurisdictions.1 The growth of a disposition for common law and equity to settle their respective spheres amicably, produced the natural result that equity should begin to introduce some order into the very miscellaneous mass of rules which it had developed. Bacon himself seems to have effected a great deal, and it is clear from his decisions that he made a practice of co-operating with the courts of law, took notice of precedents in his own court, and achieved some degree of consistency.2 In the later seventeenth century the Restoration chancellors were less inclined to exercise the vague and formless equity which had prevailed a century before; the movement in favour of defining the external limits of equity as against the common law naturally inclined equity lawyers to define the content of equity by expressing its principles in clear and precise form. Consequently equity becomes at last a system, although even here the fact that equity began by supplementing the casual deficiencies of the common law left its mark, and for a long time equity looked less like a single system than several systems upon unrelated topics.

The greatest subject of equity jurisdiction is, of course, the trust and its predecessor, the use. Of these we have already spoken in discussing real property. As for mortgages, equity had begun to intervene at the very beginning of the seventeenth century, apparently on the ground of relieving against a penalty or preventing usury. Already in 1612 we find the equity of redemption3 and a tendency to view the transaction as being designed to give security for a debt instead of construing the legal documents strictly according to their tenor. At the same time Chancery was prepared to decree foreclosure in suitable circumstances. By the end of the seventeenth century this new conception of the mortgage had become established, and a long line of cases begins, some defending it against attempts to “clog the equity”, and others settling the rights of successive mortgagees—a complication which now became possible under the new view of the mortgage. We already find early seventeenth-century cases on consolidation and tacking—subjects whose elaboration was the special mission of the eighteenth-century Chancellors. The Restoration chancellors also developed the family settlement, particularly in the direction of securing the married woman’s property to her separate use, and in enforcing separation agreements and separate maintenance. The court also exercised a wide jurisdiction over infants, which it based upon the royal prerogative and the duty of the Crown as “parens patriae”; in point of fact, however, Chancery was really carrying on the principles of the common law (which gave wide protection to infants), and the practice of the Court of Wards which had been erected by Henry VIII for the control of feudal wardships.

Equity supervision over matters of account1 by this time had grown to a considerable mercantile jurisdiction, including bankruptcy, partnership, the chartering and ownership of ships, and the relations between merchants and factors, principals and sureties, although the commercial community was not entirely satisfied, owing to the delays of Chancery procedure which were already beginning to arouse comment. Much of this power was doubtless exercised by the Chancery as successor to the mediaeval Council. In the administration of estates Chancery captured a good deal of ecclesiastical jurisdiction, and basing itself upon the rules already laid down by the common law courts it developed a very valuable body of law, which, however, was complicated in form as a result of its dual origin. Specific relief continued to be developed and the equitable treatment of contract was less dominated by the Statute of Frauds than that of the common law courts, the principle of part performance being used effectively.

When we come to the close of the seventeenth century, we see the extension of equitable relief against accident, mistake and fraud to include cases of undue influence—a matter which frequently could not be raised at common law. In the law of evidence equity maintained its advantage in having longer experience of handling oral testimony, which it treated with great freedom. We find some cases, for example, in which parole evidence was admitted to prove that the author of a document meant something different from what he had expressed, this step being justified on the ground that it was not admitted as evidence to a jury, but only as evidence to the court, “being to inform the conscience of the court who cannot be biased or prejudiced by it”.