Front Page Titles (by Subject) II.: the law of equal liberty. - The Collected Papers of Frederic William Maitland, vol. 1
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II.: the law of equal liberty. - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 1 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 1.
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the law of equal liberty.
In the last number of Mind I ventured to question whether the law of equal liberty which Mr Spencer now some thirty years ago set forth in his Social Statics can in any guise or form find place in that “ideal code of conduct formulating the behaviour of the completely-adapted man in the completely-evolved society1 ,” to determine the contents of which is the task of Absolute Ethics. It remains to consider this law as a rule prescribing the behaviour of men who are not yet perfect, for “when, formulating normal conduct in an ideal society, we have reached a science of absolute ethics, we have simultaneously reached a science which, when used to interpret the phenomena of real societies in their transitional states, full of the miseries due to non-adaptation (which we may call pathological states), enables us to form approximately true conclusions respecting the natures of the abnormalities, and the causes which tend most in the direction of the normal2 .” Now in Social Statics the law in question, the “First Principle,” was thus stated—”Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man3 .” Mr Spencer did not regard this as a complete statement of the whole duty of imperfect man. A man is bound to obey this law and in obeying it he is just; but he ought also to be positively beneficent, negatively beneficent and prudent. The field of positive beneficence grows ever narrower; still in some cases a man ought to sacrifice himself in doing good to others. He ought again to be negatively beneficent, for “various ways exist in which the faculties may be exercised to the aggrieving of other persons without the law of equal freedom being overstepped. A man may behave unamiably, may use harsh language, or annoy by disgusting habits; and whoso thus offends the normal feelings of his fellows, manifestly diminishes happiness1 .” This he ought not to do, for in the last resort happiness is the chief good. Again there are the self-regarding virtues; one ought to be sober and so forth. But these “supplementary restrictions,” imposed by negative beneficence and by prudence, “are of quite inferior authority to the original law. Instead of being, like it, capable of strictly scientific development, they (under existing circumstances) can be unfolded only into superior forms of expediency.”
These “supplementary limitations involve the term happiness, and as happiness is for the present capable only of a generic and not of a specific definition, they do not admit of scientific development. Though abstractedly correct limitations, and limitations which the ideal man will strictly observe, they cannot be reduced to concrete forms until the ideal man exists2 .” . . . “Indeed we may almost say that the first law is the sole law; for we find that of the several conditions to greatest happiness it is the only one at present capable of a systematic development; and we further find that conformity to it ensures ultimate conformity to the others3 .”
Almost supreme in ethics, it is absolutely supreme in politics. In other words, though the exercise I make of the liberty which this law allows me is not morally indifferent, still it cannot be right for any man, prince, potentate or parliament to restrict my freedom within any narrower bounds. Whether we be sovereigns, or whether we be subjects, we must leave every man free to do all that he wills provided that he infringes not the equal liberty of any other man.
Mr Spencer apparently still holds by this law. It is true that in the Data of Ethics he nowhere states it in such plain terms as those cited above. However he tells us that the maintenance of equitable relations between men (and “equitable” means “equal”) is “the condition to the attainment of greatest happiness in all societies; however much the greatest happiness attainable may differ in nature, or amount, or both,” and that “this pre-requisite to social equilibrium,” “this universal requirement,” was what he had in view when he chose for his first work the title Social Statics1 . He has also, at least as lately as 1868, told us that he “adheres to the leading principles set forth” in that book, though not “prepared to abide by all the detailed applications of them,” and further that “the deductions included in Part II.” (the Part which contains that deduction of proprietary rights which forms the main subject of this paper) “may be taken as representing in great measure those which the author would still draw; but had he now to express them he would express some of them differently2 .” We have reason therefore for believing that Mr Spencer adheres to the “First Principle” (which must be among the leading principles) of Social Statics, and that he is still ready to deduce from it proprietary rights in somewhat the same fashion in which he set about that task in his earliest work. Nor is this all, for in his very last work, the Political Institutions, he recurs to the distinction which he took in 1850 between property in land and property in other things, with the result of finding a new justification for one of the most marked peculiarities of the treatment which property received in Social Statics. It seems therefore fair to infer that the doctrine here to be criticised is in the main Mr Spencer’s present doctrine; but in any case the fact that it once was his is a sufficient claim to respectful attention, though, should the law of equal liberty disappear from any Deuteronomy that may yet be forthcoming, this would certainly remove a difficulty from the way of some who would much rather agree than disagree with Mr Spencer.
Now some of the applications which in Social Statics were made of this first principle were, so far as I am aware, quite new, and certainly they were very striking. But the principle itself was not new, for it had been stated and adopted by no less a person than Kant. It seems to me probable, if such a guess may be allowed, that in 1850 Mr Spencer was not aware of this, for on the several occasions on which he has argued that his law is a precise expression of that idea of Justice or Equity which is more or less clearly apprehended by others, he has cited authorities very much less to the point than Kant’s political or juristic writings. The dogma of equal liberty is not at all an unnatural outcome of a theory of Natural Law, or (as, to prevent all ambiguity, we may say) of Natural Right. From of old it stood written that all men are by nature free, and that all men are by nature equal, and when it had at length become plain that men clamouring for natural liberty and natural equality were not to be put off with stories about an original contract, to say that all men ought to be equally free must have seemed an obvious mode of reconciling the possibly conflicting claims of these two ideals of Natural Right. It may well be, therefore, that some exponent of Jus Naturæ, some natural lawyer, had already hit on Mr Spencer’s first principle before it was stated by Kant. At any rate, however, it was stated by Kant, and that very plainly. Already in an essay published in 1793 we find this passage:—
“Ein Jeder darf seine Glückseligkeit auf dem Wege suchen welcher ihm selbst gut dünkt, wenn er nur der Freiheit Anderer, einem ähnlichen Zwecke nachzustreben, die mit der Freiheit von Jedermann nach einem möglichen allgemeinen Gesetze zusammen bestehen kann (d. i. diesem Rechte des Andern), nicht Abbruch thut1 .”
Kant contrasts this principle of freedom with the utilitarian doctrine that a ruler should directly aim at making his subjects happy, and this latter, much in Mr Spencer’s manner, he pronounces despotic. Then in the Rechtslehre this rule of equal liberty stands forth as the general principle of all law (Recht).
“Das Recht ist also der Inbegriff der Bedingungen, unter denen die Willkühr des Einen mit der Willkühr des Anderen nach einem allgemeinen Gesetze der Freiheit zusammen vereinigt werden kann.”
“Eine jede Handlung ist recht, die oder nach deren Maxime die Freiheit der Willkühr eines Jeden mit Jedermanns Freiheit nach einem allgemeinen Gesetze zusammen bestehen kann2 .” . . .
“Das angeborne Recht ist nur ein einziges. Freiheit (Unabhän-gigkeit von eines Anderen nöthigender Willkühr) sofern sie mit jedes Anderen Freiheit nach einem allgemeinen Gesetze zusammen bestehen kann, ist dieses einzige, ursprüngliche, jedem Menschen kraft seiner Menschheit zustehende Recht3 .”
Had the Rechtslehre fallen into Mr Spencer’s hands ere he wrote Social Statics, he might have had the satisfaction of appealing to a high philosophical authority in support of his first principle, but had he watched Kant’s struggles to get out of this formula a coherent system of Natural Right, his satisfaction would probably have been alloyed with some misgivings as to the hopefulness of an undertaking which cost his great predecessor many a curious contortion. Cole-ridge knew well this law of equal liberty. In The Friend1 he says that all the different systems of political justice, all the theories of the rightful origin of government are reducible in the end to three classes, correspondent to the three different points of view in which the human being itself may be contemplated. That being may be regarded as an animal, and we fall into Hobbism; or as endowed with understanding, and utilitarianism follows; or as rational, and we must have politics of the pure reason, or “metapolitics.” Coleridge professing himself an advocate of the second system (he was utilitarian in politics though not in ethics), gives a sketch of the metapolitical system, and in doing so expressly identifies it with the French revolutionary philosophy; but as it seems to me, the theory which he states in order to refute is really an eclectic mosaic of theories part English, part French, part German. But whether or no this sketch fairly represents the opinions which had been held by any one theorist, Coleridge in the following passage not indistinctly foreshadows the main doctrine of Social Statics.
“Justice, austere, unrelenting justice is everywhere holden up as the one thing needful; and the only duty of the citizen, in fulfilling which he obeys all the laws, is not to encroach on another’s sphere of action. The greatest possible happiness of a people is not, according to this system, the object of a governor; but to preserve the freedom of all, by coercing within the requisite bounds the freedom of each. Whatever a government does more than this, comes of evil: and its best employment is the repeal of laws and regulations, not the establishment of them. Each man is the best judge of his own happiness, and to himself must it therefore be entrusted. Remove all the interferences of positive statutes, all monopoly, all bounties, all prohibitions, and all encouragements of importation and exportation, of particular growth and particular manufactures; let the revenues of the state be taken at once from the produce of the soil; and all things will find their level, all irregularities will correct each other, and an indestructible cycle of harmonious motions take place in the moral equally as in the natural world. The business of the governor is to watch incessantly, that the state shall remain composed of individuals, acting as individuals, by which alone the freedom of all can be secured1 .”
Now Coleridge, certainly not biased against the claims of pure reason, rejected the law of equal liberty because, as he thought, it must condemn property. “It is impossible,” he says, “to deduce the right of property from pure reason2 .” To this he appends a characteristic foot-note, “I mean practically and with the inequalities inseparable from the actual existence of property. Abstractedly, the right to property is deducible from the free agency of man. If to act freely be a right, a sphere of action must be so too.” We may doubt whether a kind of property, the esse of which is abstrahi, can be of much value to its owner, but probably Coleridge has his eye on Kant and means that between proprietary rights and the law of equal liberty there is no formal, though there is of necessity a practical contradiction. Kant, as it seems to me, had evaded rather than solved the problem by introducing alongside of his “Allgemeines Princip des Rechts,” a “Rechtliches Postulat der praktischen Vernunft.” Every external object of desire must, he argues, be capable of appropriation. In order that it may be used, it must be appropriated, and it would be absurd to say that anything useful cannot rightfully be used. The easy reply is that doubtless this is so, that a political theory which condemns to eternal uselessness things that are useful condemns itself as worse than useless; but this does not prove that an admission of this postulate of practical reason is not an infringement of the inborn right of every man to have equal liberty with each of his neighbours. Kant, as I understand him, thought it enough to say that there is no formal contradiction between his postulate and his principle. Certainly there is none, for neither formal logic nor any principles which Kant could discover à priori can prove that we are not living in a world wherein it is possible for each of us to satisfy his every wish and yet leave unappropriated as many objects of desire as his fellows can possibly want. Such will perhaps be our condition when we are fully-adapted men in a fully-evolved society, but we happen to know substantially, if not formally, that such is not our present condition and that were it our condition the idea of property, of exclusive right, would be absurd. Who, asks Coleridge, ever thought of property in heaven, property among angels and glorified spirits, beings of pure reason? And why, asks Hume1 , raise landmarks between my neighbour’s field and mine when my heart has made no division between our interests, but shares all his joys and sorrows with the same force and vivacity as if originally my own? Property means that the world being what it is and men being what they are, every man cannot have all that he wants.
The real problem which has to be faced by any scheme of Natural Jurisprudence which rejects arguments based on mere expediency, is just the old problem which Locke set before him, though the terms in which it has to be stated may be new. God made all men free and equal and gave the earth to them in common; it is required to find a justification for exclusive proprietary rights. It is required to find a justification; the conclusion to which the theorist must come is a foregone conclusion, for, as Locke pointed out in memorable words, proprietary rights there must be if the human race is to exist. Carry our socialism never so far, we must end with appropriation, and appropriation by individuals. When did the acorns become the property of the natural man—“when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up1 ?” At latest they must be his when they are fairly in his stomach. Mr Spencer knew well how to use this argument against “M. Proudhon and his party,” and of course there is a plain absurdity in saying that no appropriation can be just. It does not follow, however, that the law of equal liberty is not committed to this absurdity and merely refrains from declaring that property is theft because the use of a word like theft, which commonly imports some blame, might seem to imply that property is at least possibly rightful.
We may now consider how Mr Spencer, in 1850, sought to avoid this ugly and impotent conclusion. Most certainly he meant to avoid it; every man would so mean, but he more than others, for his practical teaching in politics requires that proprietary rights shall be built on a foundation so sure that they can resist the attacks of any occasional exceptional expediency. He begins, as I venture to think, very logically by making large, but not too large, concessions to the anarchist.
“Given a race of beings having like claims to pursue the objects of their desires—given a world adapted to the gratification of those desires—a world into which such beings are similarly born, and it unavoidably follows that they have equal rights to the use of this world. For if each of them has freedom to do all that he wills, provided he infringes not the equal freedom of any other, then each of them is free to use the earth for the satisfaction of his wants, provided he allows all others the same liberty. And, conversely, it is manifest that no one, or part of them, may use the earth in such a way as to prevent the rest from similarly using it; seeing that to do this is to assume greater freedom than the rest and consequently to break the law. Equity, therefore, does not permit property in land1 .”
This we must allow to be very sound argument, very much more logical than anything in the Rechtslehre. By world, however, Mr Spencer must mean the material universe, and when the world of the first sentence becomes the earth of the second, and the land of the fourth, we think that he is but drawing by way of example a particular conclusion from general premises. So with property, this word in our ears connotes some large and permanent right, for we are not accustomed to say that the man in the street is proprietor of the spot upon which he is standing. What “Equity” really does not permit is the exclusive possession by one man of any particle of matter which any other men wish to possess, or the exclusive, though but temporary, occupation of any part of space that any other men wish to occupy. There follows a reductio ad absurdum of any contrary opinion. “If one portion of the earth’s surface may justly become the possession of an individual, and may be held by him for his sole use and benefit, as a thing to which he has an exclusive right, then other portions of the earth’s surface may be so held, and eventually the whole of the earth’s surface may be so held.” This truth of course holds good of other things besides the earth’s surface. If one atom may be owned, all atoms may be owned. “Observe now the dilemma to which this leads. Supposing the entire habitable globe to be so enclosed, it follows that if the landowners have a valid right to its surface, all who are not landowners, have no right at all to its surface. Hence such can exist on the earth by sufferance only. They are all trespassers1 .” Worse is behind if theft be worse than trespass, for should we concede property in one molecule inexorable logic may eventually drive us to concede property in all molecules, and our dilemma will then be theft or suicide.
It is true that Mr Spencer, for some reason or another, spends most of his indignation on property in land. This however does not prevent him from dealing out, in a later passage, impartial though less rhetorical condemnation against such property in movables as now exists. In the meantime he disposes briefly of the existing titles of landowners. It can never be pretended that they are legitimate. “Should any one think so, let him look in the chronicles. Violence, fraud, the prerogative of force, the claims of superior cunning—these are the sources to which those titles may be traced. The original deeds were written with the sword, rather than with the pen: not lawyers, but soldiers, were the conveyancers: blows were the current coin given in payment; and for seals, blood was used in preference to wax. Could valid claims be thus constituted? Hardly.” A title originally bad cannot be made good by transfer. Sale or bequest cannot generate a right. Nor can lapse of time validate the invalid. Clearly the law of equal liberty cannot recognise any particular term of years as sufficient to turn trespass into ownership. Then we are told that “not only have present land-tenures an indefensible origin, but it is impossible to discover any mode in which land can become private property.” The pleas of title by first occupation, by improvement, by, in Locke’s phrase, “mixing one’s labour” with the land, are dispelled in a spirited dialogue between a “cosmopolite” and a backwoodsman who has made unto himself a clearing. “The world is God’s bequest to mankind,” says the former, all men are joint heirs to it; you amongst the number. And because you have taken up your residence on a certain part of it, and have subdued, cultivated, beautified that part—improved it as you say, you are not therefore warranted in appropriating it as entirely private property1 .”
This is equally true of all things other than land. We may subdue, cultivate, beautify, work up into this form or that form, but matter we cannot make, and it belongs to mankind. “The world is God’s bequest to mankind; all men are joint heirs to it”; and if no one has a right to take a bit of it, cultivate it, and call it his own, still less can he have a right to carry a bit bodily away in his hands, his pocket, or his stomach and thus consummate a constructive theft by actual asportation. For this conclusion we must wait until the next chapter: but we get it in good time.
“The reasoning used in the last chapter to prove that no amount of labour, bestowed by an individual upon a part of the earth’s surface, can nullify the title of society to that part, might be similarly employed to show that no one can, by the mere act of appropriating to himself any wild unclaimed animal or fruit, supersede the joint claims of other men to it. It may be quite true that the labour a man expends in catching or gathering, gives him a better right to the thing caught or gathered, than any one other man; but the question at issue is, whether by labour so expended he has made his right to the thing caught or gathered, greater than the rights of all other men put together2 .”
Besides, his right can only be admitted if after the appropriation there is, in Locke’s words, “enough and as good left in common for others.” “A condition like this gives birth to such a host of queries, doubts, and limitations, as practically to neutralise the general proposition entirely,” and out of this inquisition “it seems impossible to liberate the alleged right without such mutilations as to render it in an ethical point of view entirely valueless.”
“Abstractedly,” then, as Coleridge said, there may be a right of property, but practically this is entirely valueless. Property might be rightful in certain conceivable or inconceivable circumstances (circumstances, by the way, that would render the notion of property absurd), but these circumstances are not ours. The landowner and the owner of movables are in the same position, and (though Mr Spencer does not emphasise this conclusion) all existing titles to property of every kind are bad. Indeed in almost all, if not all, cases no title can be made to a movable that does not involve an admission that there may be property in land. Whence the title to an apple, a shilling, a coat? Exchange or gift has not generated it; time has not consecrated it. It is null.
The outlook now seems hopeless, and we are beginning to think that Mr Spencer’s “cosmopolite” was really a chaopolite in disguise. But the law of equal liberty having sufficiently proved its power as an engine of impartial destruction, the time for reconstruction has come, and Mr Spencer has ready for us a scheme which shall give to proprietary rights a legitimate foundation; in theory a very simple scheme, whatever may be the practical difficulties which will impede its accomplishment. He did not recommend what is called “the nationalisation of the land”; that would have helped him but a little way, if any way, towards establishing an equitable system of property. Englishmen can have no better title to England than has Lord A to his deer-forest. We must not exclude Germans or Frenchmen, or the Chinese or the Chinooks from sharing in the rents and profits of our fertile island. The surface of the earth is to be owned by “the public,” “the great corporate body—Society,” “the community,” “mankind at large,” and is to be let out upon leases at the best rent. This done, “all men would be equally landlords; all men would be alike free to become tenants.” Under this system of landtenure all difficulties about property in movables disappear “and the right of property obtains a legitimate foundation1 .”
Does it? This is a serious question; for, however far distant may be the time when mankind at large will “resume” the ownership of the soil, even a theoretical deliverance from our apparently incurable immorality would be of some value. Now suppose that the resumption has taken place. All men are equally landlords, but are all men equally free to become tenants? All men, it is true, are “equally free to bid” for a farm, just as all men are even now equally free to bid for whatever lands or goods are in the market. If all that the law of equal liberty requires in the matter of land-tenure is that every man shall be equally free to bid for land that law is perfectly fulfilled in this country at this moment. But existing titles, it may be said, are bad, and men can not at present purchase an “equitable” title. The answer is that this truly unfortunate state of things will not be improved by the resumption. Mr A will outbid his fellows for a site in the best quarter, for the best farm, the best moor. What will enable him to do so will be his superior wealth, and his wealth will be then as now illgotten. In whatever it may consist, coin or cotton or what not, it will consist of matter subtracted from the common stock of mankind. Sale or bequest can not turn wrong into right, lapse of time will not legalise what was once unlawful, and the long and short of it is that A or his predecessors in title must have robbed mankind and he is to be left in possession of the stolen goods and even suffered to acquire by means thereof a lease of public land. Our original sin of wrongful appropriation is not thus to be purged away.
An equal division of all wealth, which Mr Spencer would strenuously resist, seems at first sight a more hopeful project. Once let there be an equitable distribution of all desirable things, then, it might be thought, we could leave the future to the law of equal liberty. But to a similar proposal (restricted however to an equal division of land) Mr Spencer has given a very noteworthy answer. After urging the difficulty of making a really fair allotment, he asks:—
“Is it proposed that each man, woman, and child, shall have a section? If so, what becomes of all who are to be born next year? And what will be the fate of those whose fathers sell their estates and squander the proceeds. These portionless ones must constitute a class already described as having no right to a resting-place on earth—as living by the sufferance of their fellow-men—as being practically serfs. And the existence of such a class is wholly at variance with the law of equal freedom1 .”
The same, be it observed, will happen after as before the “resumption” of the land. Portionless ones will be born with no more chance of holding land for years than they now have of owning land absolutely. But it is more important to notice that here Mr Spencer throws away the last hope of squaring property with the law of equal liberty. Were it not for the claims of children yet unborn we might harden our hearts and say that this law is not retrospective. Let us sanction existing titles, or let us make some fresh distribution of wealth that seems better than the present, then pass a sponge over the past and abide by our law for the future. But “until it can be proved that God has given one charter of privileges to one generation, and another to the next,” or to adopt other terms, until it can be proved that men hereafter to be born are not men within the meaning of our law, we shall find no answer to Mr Spencer’s question, what is to become of all who are to be born next year? They will come into an appropriated world, appropriated without their consent. Redistribution of wealth on the birth of every child is what our law requires. To find Mr Spencer sanctioning the claims of those “whose fathers sell their estates and squander the proceeds” may surprise us. His usual doctrine is that the sons of the industrially unfit shall not be heirs with the sons of the fit. If the fathers eat sour grapes we must not hinder the salutary process of evolution which sets the children’s teeth on edge. Very possibly this argument about portionless ones may have escaped him unadvisedly in the course of controversy with an imaginary opponent, but it is a sound argument, one sanctioned by the law of equal freedom. If we are to tell the child of penniless parents that he is just as free as the rest of us to acquire property by contract or gift we must make exactly the same remark to Mr Spencer when he denounces “landlordism.”
In short, if we are going to be really serious about our law of equal liberty, and think it capable of a “strictly scientific development,” we must prepare some scheme which will equalise the advantages of all children hereafter to be born. Any such scheme would be ridiculous enough and, what is more, would be condemned by Mr Spencer as worse than ridiculous. There remains but one other course; we may adopt the good old device of a constructive contract to which most of Mr Spencer’s predecessors in the attempt to square property with natural liberty and equality have found themselves sooner or later reduced. But much experience has warned us that if once we take to constructive contracts, we may indeed by the exercise of a little metaphysico-legal legerdemain construct whatever pleases us, but it is easiest and simplest to reconstruct pure Hobbism and then our Law of Nature becomes Quod principi placuit.
We have seen that according to Social Statics the title which any one can now have to movable goods is “in an ethical point of view entirely valueless.” Perhaps on this point Mr Spencer has changed his mind. In Political Institutions he insists on the distinction between property in land and property in other things. The one is still “established by force,” but the other is now “established by contract.” This is presented to us not as guesswork or declamation, but as the sober result of scientific sociology. That this theory is groundless might, in my opinion, be shown even from the evidence which Mr Spencer brings for its support, but a discussion of history would here be quite out of place. We are concerned with what has been only in so far as it determines what ought to be, and all Mr Spencer’s historical generalisations shall therefore be taken as true. We must ask then what inferences he draws from the history of property as to the relations which will exist between men in the ultimate stage of human progress and therefore in that ideal society which it is the business of Absolute Ethics to describe. The answer shall be given in his own words.
“At first sight it seems fairly inferable that the absolute ownership of land by private persons, must be the ultimate state which industrialism brings about. But though industrialism has thus far tended to individualise possession of land, while individualising all other possession, it may be doubted whether the final stage is at present reached. Ownership established by force does not stand on the same footing as ownership established by contract; and though multiplied sales and purchases, treating the two ownerships in the same way, have tacitly assimilated them, the assimilation may eventually be denied. The analogy furnished by assumed rights of possession over human beings, helps us to recognise this possibility. . . . Similarly at a stage more advanced it may be that private ownership of land will disappear. As that primitive freedom of the individual which existed before war established coercive institutions and personal slavery comes to be re-established as militancy declines; so it seems possible that the primitive ownership of land by the community, which, with the development of coercive institutions lapsed in large measure or wholly into private ownership, will be revived as industrialism further develops. The régime of contract, at present so far extended that the right of property in movables is recognised only as having arisen by exchange of services or products under agreements, or by gift from those who had acquired it under such agreements, may be further extended so far that the products of the soil will be recognised as property only by virtue of agreements between individuals as tenants and the community as landowner1 .”
The extreme caution of this prophecy will not escape notice; “it may be doubted,” “may eventually be denied,” “this possibility,” “it may be,” “it seems possible,” these phrases expressive of hesitation and doubt seem to me most appropriate. Certainly “it may be doubted whether the final stage” of property-law “is at present reached,” and for my own part I do not wish to deny that some day the state (possibly mankind at large) may make itself the supreme landlord and let out the land on leases. But the final stage is the ideal stage, and the success of Absolute Ethics depends upon our knowing something, and something precise about the final stage. It is really a matter of some importance to know whether property in land is demanded, or sanctioned, or tolerated, or condemned by the law of equal liberty, and if from Absolute Ethics we get no more than leave to doubt whether such property is rightful, it is to be feared that after all we must fall back on the “moral infidelity” of utilitarianism. Mr Spencer compares the ownership of land to the ownership of slaves, and the comparison is apt for our purpose. As to the latter the law of equal liberty speaks unequivocally; for the right to personal freedom is perhaps the only right, save the right to life, that can be deduced therefrom. Even if we find some difficulty in persuading our law to condemn slavery founded upon contract, there is always open the way of escape to which Kant resorted, that, namely, of saying that the man who sells himself into slavery makes himself a thing, and being a thing can not be bound by his contract. But we must, if possible, prevail on the law to yield us as definite a conclusion about the ownership of land and goods.
We must perforce admit for the sake of argument that property in land was “established by force”—the first deeds shall be written not with the pen but with the sword if Mr Spencer so pleases. Nor will we dispute that property in movables is “established by contract,” but to this phrase we must give some plausible meaning. It is true that in every civilised community the title to chattels is very often a title by contract, a title by sale. The régime of contract, to quote Mr Spencer’s words, is at present so far extended that the right of property in movables is recognised only as having arisen by exchange of services or products under agreements, or by gift from those who had acquired it under such agreements. This is not quite true, for the only title a proprietor has may have arisen from long-continued peaceable possession, and the easy admission that such a title is good is a characteristic mark which distinguishes late from early law. Still Mr Spencer’s proposition is in the main true, but then it is already just equally true of property in land. Purchase, gift, inheritance, undisputed possession, these are the titles to land as well as to goods. As a matter of fact, for the last three or four hundred years illegal force has had just as little to do with the transfer of land in this country as with the transfer of goods, and legal force has had quite as much to do in protecting the owner of chattels as in protecting the landowner. But of course it is not of the title to existing chattels that Mr Spencer speaks, for trace that title but two or three stages back and it is seen to involve a title to land and therefore to be established by force. It must be of property as an institution and of the beginnings of that institution that he speaks, and it must be here that he finds reason for the antithesis of force and contract. Men have agreed that there shall be property in movables, they have not agreed that there shall be property in land. Now we must not seriously impute to Mr Spencer the queer old notion that men did not respect property in movables until, in due form of Natural Law, they had agreed to respect it, but he shall have the advantage of every hypothesis, however extravagant, as to the past. Suppose even that all men met together and made solemn compact that there should be property in movables. Suppose also that this display of ancestral wisdom demands our humblest reverence. All this is not to the point when we are considering the question raised in Social Statics, whether our present or any other distribution of proprietary rights can be sanctioned by that impracticable First Principle. How, we are driven to ask, are you to make good your right to the money in your purse, the wine in your cellar, the cotton in your warehouse? Some one owned a mine, a vineyard, a plantation, and you (to put your case at its best) have bought from him. But his property was established by force, his land was part of the common inheritance. “Would the original claimants be non-suited at the bar of reason because the thing stolen from them had changed hands? Certainly not1 .” Your right is “in an ethical point of view entirely valueless,” and no historical theory can give it any value, unless, indeed, we are to suppose that property in land as well as property in movables is somehow or another “established by contract.” At least this can not be done by any theory that will bear one moment’s consideration. This qualification I add because in his latest work Mr Spencer contrasts private property in “things produced by labour” with private property in “the inhabited area which can not be produced by labour1 .” Of course, however, after his refutation of Locke and the backwoodsman he does not intend to base property on labour. The author of First Principles has not yet to learn that man does not make matter, the author of Social Statics has not yet to learn that mixing our labour with matter does not make that matter ours.
If this reasoning be sound it is hardly worth while to suggest any further difficulties. In these pages, at least, it would be unnecessary to say that should we deduce from our law of equal liberty the rightfulness of something called property, little is thereby accomplished. We want to know very much more than this before we can admit the success of Mr Spencer’s method. We want, for instance, to know something about the extent of testamentary power which this law permits or prescribes, and there is still, outstanding, that old question which Locke put to Sir Robert Filmer—Who is heir by the law of nature? One remark must suffice to show the nature of these difficulties. It does seem, as Mr Spencer himself thought, quite out of the question, that his principle should permit a man to gain a right simply by persistent wrong-doing. But to admit that a right may thus be gained, is, as already said, a marked characteristic of civilised law, and the more civilised, the more industrial we become, the easier we make it for men to acquire property in this way. We do not even feign that the rightful owner has acquiesced in the usurpation or been negligent about the assertion of his rights. At one moment a man is a trespasser; the clock strikes, and he is the rightful owner. How can the law of equal liberty sanction or tolerate this, without sanctioning, or, at least, tolerating whatever rules imposed by prince or parliament prove for the convenience of mankind?
So much has here been said of proprietary rights, that little, if any, space remains for the consideration of those other rights which Mr Spencer proposed to deduce from his First Principle. His treatment of property has particular claims upon our attention both because it is, as yet, the most fully worked-out example of the results that may be expected from Absolute Ethics, and because the practical part of his political teaching requires that he should place proprietary rights beyond the reach of any assaults that may be made by socialist or opportunist. But a very brief glance may be cast at his deduction of some other rights.
The first rights which he sought to obtain were “the rights of life and of personal liberty1 .” These, as I think, must be conceded to him. If A kills B it is physically impossible that B should kill A, and if A puts B under lock and key, then so long as the restraint lasts, B is not free to do the same by A. One naturally expects that Mr Spencer will next deduce that right to be free from bodily injury, from wounds and blows, which is nearly related to the rights just mentioned. It may be by an accident that he has omitted to do so, or he may not have thought it worth doing, but none the less the task has its difficulties. If A smites B, the latter not unfrequently finds himself perfectly free to repay the blow with interest. This is not always the case, and very antique law does draw a marked distinction between an injury that does and an injury that does not deprive the injured person of the power of fighting; but it would be a curious justification of semibarbarism were maiming, condemned by our First Principle, the only principle at present capable of scientific development, while mere “dry blows” were subjected only to the empirical restrictions of negative benevolence. A way of escape might seem to be open to us in the doctrine that “every pain decreases vitality1 ,” that every pain involves some loss of power and therefore some loss of liberty. But Mr Spencer distinctly refuses to avail himself of this refuge, and could hardly do so without falling into the unscientific utilitarianism. “A man may behave unamiably, may use harsh language, or annoy by disgusting habits; and whoso thus offends the normal feelings of his fellows, manifestly diminishes happiness2 .” Nevertheless we are told that his conduct is not condemned by the law of equal liberty; he merely fails in negative beneficence. What is true of the pain occasioned by harsh language is seemingly true also of the pain occasioned by a cuff or a kick; each, if Mr Spencer’s biology and psychology be correct, will decrease vitality, but the latter need no more than the former prevent him who is hurt from having equal liberty with him who hurts.
Thus among the acts causing bodily pain for which men now are punished or compelled to make reparation we must distinguish those which do from those which do not infringe the law of equal liberty; for it is only the former that the state may use its power to suppress, and any attempt to suppress the latter by coercive action would itself be a breach of the law. The result will be not a little strange, but there seems no choice except to hold either that he who beats his neighbour is not to be punished or that he who speaks harshly to his neighbour may rightfully be punished if pain will be saved thereby.
A similar difficulty occurs when we pass to “the right of property in character1 .” Mr Spencer argues that a good reputation may be regarded as property, but in the end admits that possibly his reasoning may be thought inconclusive.
“The position that character is property may be considered open to dispute; and it must be confessed that the propriety of so classifying it is not provable with logical precision. Should any urge that this admission is fatal to the argument, they have the alternative of regarding slander as a breach, not of that primary law which forbids us to trench upon each other’s spheres of activity, but of that secondary one which forbids us to inflict pain on each other.”
This, he says, illustrates a remark previously made, namely, that the division of morality into separate sections, though needful for our due comprehension of it, is yet artificial2 . Now it may at once be allowed that were this a question of mere classification, a question whether the rule which forbids slander looks best under the heading of Justice or the heading of Beneficence, it would hardly be worth discussing, being a matter of taste; but the question whether slander be forbidden by the First Principle is surely one of substantial importance, for on our answer to it depends whether or not the community may rightly strive to prevent slander by punishing the slanderer and giving the slandered a claim for reparation. To use coercion when it is not needed for the maintenance of equal liberty is to infringe the sovereign rule.
It may seem easy at first sight to get from this rule that “right of property in ideas1 ,” for which Mr Spencer vigorously pleads, but really in this case there is just the same difficulty to be met as that which faced us when discussing property in material things. The poet, the artist, the inventor, the discoverer, has but like the confuted backwoodsman made unto himself a clearing, improved some part of the common inheritance and mixed his labour therewith. The cosmopolite must explain to him also, that appropriation is only lawful when “enough and as good is left in common for others.” A man who wrote a book and could conscientiously say of it that nothing therein contained was due to any one but himself, would assuredly need no law of copyright to protect him in the enjoyment of his perfect originality. Mr Spencer does not say this, but he does grant that this proprietary right cannot be admitted without limitation, for it is highly probable that the causes leading to the evolution of a new idea in one mind will eventually produce a like result in some other mind. “Such being the fact, there arises a qualification to the right of property in ideas which it seems difficult and even impossible to specify definitely1 .” “Such a difficulty does not,” we are told, “in the least militate against the right itself,” and yet another important department of law seems here handed over to the empiricist.
Of the rights of women, the rights of children and, above all, that crowning right, the right to ignore the state, it would hardly be fair to speak at present, since here we have both warning in the preface to Social Statics and some indications in other books that we are not yet in full possession of Mr Spencer’s mature opinions. He perhaps would now say that the right to ignore the state will never exist as a right, but that the time will come when no society or community will wish to retain a member who wishes to be quit of it. Apparently he does not think that we have yet reached the stage when the law of equal liberty should without reserve be applied to women, and the liberties of children are certainly not what they were in 1850. “While an average increase of juvenile freedom is to be anticipated, there is reason to think that here and there it has already gone too far. I refer to the United States2 .” In mitigating his claim for a free nursery Mr Spencer has, as it seems to me, made a large concession to common opinion, but at the same time thrown fresh doubt upon his First Principle. “For, if it be asserted that the law of equal freedom applies only to adults; that is, if it be asserted that men have rights, but that children have none, we are immediately met by this question—When does the child become a man? at what period does the human being pass out of the condition of having no rights, into the condition of having rights? None will have the folly to quote the arbitrary dictum of the statute-book as an answer1 .” The temptation to quote the arbitrary dictum is not overpowering, but some sort of answer is now required of Mr Spencer himself, and it seems likely that the word man in our supreme rule must be subjected to an interpreting clause which will be no better than a piece of most empirical utilitarianism.
It is still however possible to hope that Mr Spencer will make over, or has already made over, the law of equal liberty to its true owners, the metapoliticians, the people who would solve ethical and political problems by juristic methods. They know what to do with it, and by implying a contract here and inventing an estoppel there can turn out a result sometimes ingenious and not always anarchical. But Mr Spencer is much too great a philosopher to stoop to these little tricks of the trade, and will find, or perhaps has already found, that his practical teaching in politics has nothing to gain from alliance with this unmanageable formula.
THE EARLY HISTORY OF MALICE AFORETHOUGHT1
While yet Mr Justice Stephen’s History of the Criminal Law is fresh in the minds of many readers, a few supplementary notes concerning the phrase “malice aforethought,” which has long formed part of our definition of murder, may perhaps be acceptable. To the very thorough historical account of that phrase, of which we are now happily in possession, little can be added that has any claim to be regarded as certainly true, but something may be guessed which may serve to make intelligible what is still a somewhat dark passage in the history of our law.
In 1531, wilful murder of malice prepensed became an unclergyable felony2 , and thenceforth there were two kinds of homicide for which the punishment was death, the one murder and an unclergyable felony, the other manslaughter and clergyable. But the phrase malice prepensed was by no means new in Henry the Eighth’s day. Seemingly it had been in use early in the 14th century, to distinguish that homicide for which a man should be hanged, from that excusable homicide for which he should have a pardon of course under the Statute of Gloucester1 . Then, in 1389, it received statutory sanction. An Act of Richard the Second2 provided that a pardon for homicide should be of no avail if the deed had been done of prepensed malice, unless this aggravation of the crime was specially mentioned in the pardon.
The word murder, on the other hand, was a very old word, but had early gotten a very strange and technical meaning. Of this it was robbed by the Statute of 1340, which abolished the presentment of Englishry3 . It had been murder if one whose English parentage could not be proved was found slain and the hundred did not produce the slayer. Before the Statute of Marlbridge4 , it had in some parts of the country been accounted a murder if a foreigner by any accident came to a violent death, that is to say, even in this case a murder fine had been levied. Mr Justice Stephen5 shows very clearly that the Statute of Marlbridge does not countenance the doctrine put forward in the Year Book of 13486 , and repeated with exaggerations by Coke7 , namely, that before this statute a man was hanged if he slew another in self-defence. The statute merely abolished the practice of fining the hundred when a foreigner perished accidentally. Probably this practice, of which there is good evidence8 , was an abuse which had gradually grown up. It is not countenanced by the earliest authorities which speak of the murder fine, but to judge from the Pipe Rolls murder fines at one time formed no inconsiderable source of royal revenue, and since we know that one very strange presumption, namely, that every slain man is a foreigner, became firmly established, we need not be surprised that in some districts the rule was even stricter, and that a foreigner’s violent death was always reckoned a murder, and a sufficient occasion for bringing money to the royal treasury. It may be worthy of note that Hobbes1 long ago pointed out that Coke had misunderstood the Statute of Marlbridge, but Hobbes himself blundered into the very reverse of the truth, and said that the murder fine was levied only when the slain man was of English birth.
However, in 1340, the word murder lost this, its technical, meaning. But the word itself was a very old word, and we read of morth long before the time when the murder fine makes its first appearance. It occurs in several of the German Folk Laws or Leges Barbarorum and seemingly always points to some attempt at concealment, more especially to the hiding away of the dead man’s body. In England, before the Conquest, it apparently bore a slightly different shade of meaning. It stood for manslaughter by poisoning, witchcraft or other diabolic practice, and such morth was punished as a true crime in days when mere deliberate manslaughter was hardly a crime at all in our sense of the word. But in Glanvill2 that the deed is done in secret is the one mark which distinguishes murdrum from homicidium simplex, for Glanvill says nothing about the murder fine and makes no distinction between Frenchman and Englishman. The only difference that he thinks fit to note in the treatment of the two crimes which he thus distinguishes, is what looks to us like a mere matter of procedure, namely that in the case of murder, only the nearest kinsman of the slain can bring an appeal, while in the case of simple homicide the appeal may be brought by anyone who is related to the slain by blood or tenure, and who has been an eye-witness of the deed. We should be rash in concluding that there was no other difference, for Glanvill’s treatment of the subject is extremely meagre. His distinction is very much that taken in the Assizes of Jerusalem1 and there we find this difference between murder and mere homicide the foundation of some very curious special pleading. However, this is all that Glanvill has to say. Bracton2 repeats Glanvill’s distinction, but immediately blurs and probably perverts it by mentioning the murder fine. Murder, he says, is secret homicide, for the slayer is unknown. By this he means that were the slayer known and produced there would be no murder fine, no murdrum. From this we may conjecture that the word had already lost the sense attributed to it by Glanvill, namely, that of manslaughter done in secret. When, therefore, in 1340, it was set free from the very technical and peculiar sense given to it by the practice of fining the hundred, it did not apparently ever regain its oldest meaning, but came in course of time to signify a manslaughter by what was called malice prepense.
As already said, Sir James Stephen has traced the phrase malice prepense back to the first years of the 14th century. A story told by a contemporary chronicler of good repute1 , enables us to follow the trail a little further. In the year 1270 a suit between John of Warenne and Alan de la Zouche came to a hearing in Westminster Hall. The litigation degenerated into a brawl. Some of Warenne’s retainers drew their swords and wounded Alan. Warenne fled away; Alan was left in the Hall half dead. With difficulty Warenne was brought to justice. He was sentenced to pay both a heavy fine to the king and heavy damages to the injured man; but besides this, he, with fifty knights, was to go on foot from the Temple to Westminster, and there they were to swear “quod non ex præcogitata malitia factum fuerat quod prædictum est, sed ex motu iracundiæ nimis accensæ.” The story is remarkable as giving an instance of compurgation in a criminal case, for clearly these fifty knights were compurgators. It is not a case of homicide, for though Zouche died of his wounds, he seemingly did not die until after Warenne had been sentenced and had made his law. Perhaps we ought not to draw from this story many inferences as to the ordinary course of law, for Warenne was a very great man and terms had to be made with him before he would submit himself to justice. Still it seems plain that already premeditated malice was a term of the law and was contrasted with sudden anger. Whether this very term can be traced yet further I do not know, but there is a very similar term which certainly has a longer history.
Sir James Stephen has brought to light the important and neglected fact that the words malice prepense occur in a statute of 1389, the statute touching pardons already mentioned. A pardon which in terms is but a pardon for homicide is to be unavailing in case the slain man has been murdered or slain “par agait, assaut, ou malice purpense.” Now these words, which are used several times in the statute to describe the worst kind of homicide, are most noticeable. Sir James Stephen remarks that they are very like the definition which the modern Penal Code of France gives of “assassinat,” and this observation opens up a field for speculation into which we may venture a little way.
First may be cited the articles of the French Penal Code1 , to which Sir James Stephen refers:—“L’homicide commis volontairement est qualifié meurtre. Tout meurtre commis avec préméditation, ou de guet-apens est qualifié assassinat . . . . . . . Le guet-apens consiste à attendre plus ou moins de temps dans un ou divers lieux un individu, soit pour lui donner la mort, soit pour exercer sur lui des actes de violence2 .” Certainly this “avec préméditation ou de guet-apens” may well remind us of the “agait, assaut ou malice purpense” of our own statute. Now it may somewhat confidently be said that the resemblance is not casual. Sir James Stephen sees no reason why the word “guet-apens” should have been introduced into the modern French code, and it is easy to believe that “the word seems to be regarded as surplusage by the Courts.” But whether or no there is any reason for its appearance, the cause of its appearance is doubtless just the same as that which preserves in our own law the phrase “malice aforethought.” It has a prescriptive right to take part in the definition of the worst form of homicide.
The appearance of “agait, assaut ou malice purpense” in the statute of 1389, and of “guet-apens” in modern French law may well set us asking whether any similar phrase had been known in England as a term of the law before the days of Richard the Second. Now this very phrase “guet-apens” occurs in a set of laws bearing the name of William the Conqueror1 . The date of the document in question is very doubtful, but I think, for reasons it were long to give, that we cannot ascribe it to a time later than the 12th century. In it we read as follows2 : “E ki enfreint la pais le rei en Merchenelahe cent souz les amendes. Autresi de hemfore et de agwait purpense. Icel plait afert a la curune le rei.” (And he who breaks the king’s peace, in the Mercian law, the fine is a hundred shillings; so also of housebreaking, and of premeditated ambush; this plea belongs to the crown of the king.) The writer is making a paraphrase of Canute’s laws, among which is found a well-known clause1 declaring what rights the king has over all men, in other words, what are the pleas of the crown. In Wessex and Mercia the king has mund-brice (otherwise grith-brice, breach of his special peace or protection), hamsocn (otherwise hamfare, or housebreaking), foresteal, and two other pleas here of no interest. There seems no doubt whatever that the writer of the Leges Willelmi used the French phrase agwait purpense, the modern guet-apens, as a translation of the English foresteal. Concerning this crime something may be learnt from the Leges Henrici2 : “Si in via regia fiat assultus super aliquem forestel est, et c. sol. emendetur regi, si ibi calumpniam habeat, ut divadietur vel retineatur ibi malefactor, vel si est in socna regis. . . . Forestel est, si quis ex transverso incurrat, vel in via exspectet et assalliat inimicum suum; sed si post eum exspectet, vel evocet, ut ille revertatur in eum, non est forestel, si se defendat.” The Latin of these Leges Henrici is perhaps the oddest ever written, but by light which falls from other quarters we may probably explain this passage to mean, that the crime called foresteal is committed, and the king becomes entitled to a fine of a hundred shillings if A lies in wait for B on the king’s highway, assaults him, and is taken in the very act, but it is not foresteal if A instead of attacking B on the flank lets him pass and calls him back, and then there is a fight in which B gets the worst. For most of this we have other authority. The Doomsday surveyors regarded foresteal as one of the ancient pleas of the crown, and mention the fine of one hundred shillings. Foresteal, says one old glossary1 , is “force faite en real chimin.” Another2 explains it as “coactio vel obsistentia in regia strata facta.” When Lanfranc in his celebrated suit asserted the privileges of the church of Canterbury, he proved3 that throughout the lands of that church the king had but three rights (consuetudines). Of these three, one was that if a man committed homicide or other crime upon the king’s highway and was caught in the very act, the king had the fine; if, however, he was not caught there and then, in that case the king had nothing. Foresteal, literally the anticipating of another, the placing of oneself before another, is then an ambush, a plotted assault upon the king’s highway. Gradually the word is appropriated by a crime of quite another character, and at last forestalling comes to mean anticipating others in the market—speculating for a rise in the price of corn. But its old sense is sufficiently plain and well attested, and probably the writer of the Leges Willelmi was quite right in translating it by agwait purpense. The French words, whose modern forms are guet, guetter, aguets, though themselves of Teutonic origin and seemingly related to our word watch, are the immediate progenitors of the English wait and await4 , and guet-apens is prepensed awaiting. Here then, we have premeditated assault upon the king’s highway a plea of the crown, at a time when by no means all assaults and by no means all homicides are pleas of the crown.
But has this any bearing on our later law? In Bracton’s day every homicide was a plea of the crown and a felony—at least every homicide that was neither justifiable nor excusable. When, however, we ask, as we ought to ask, how this came to be so, all sorts of difficulties meet us. The elaborate account of homicide given us in the Leges Henrici, which, at least in their present form, cannot be much older than the book we ascribe to Glanvill, though very diffuse and disorderly, is a tolerably consistent account, and it lets us know for certain that the writer did not regard mere intentional homicide as a felony, or as a plea of the crown, or as a capital crime. It could be paid for according to a fixed tariff. This tariff, however, owing to the feudalizing process and consequent multiplication of seignorial claims, was extremely intricate. In a large and always increasing number of cases a manslaughter was an infringement of the king’s special rights, because of the circumstances, place, time and the like, in which it was perpetrated, and very likely the fines and compositions had become so numerous and heavy that practically the slayer had often to pay with life or member for want of gold. Probably the old system would sooner or later have been found intolerable and have broken down of its own weight. But the strange thing, the great peculiarity of our criminal law, is that it was not supplanted by a myriad local customs, but by one royal and common law. At a very early date the king gathered into his hands almost all criminal justice, so that crime and plea of the crown became synonyms. The franchise of infangthief, dearly prized as it was, is but a poor reflection of what existed elsewhere. We may well regard as a curiosity the Halifax Gibbet Law, of which Sir James Stephen gives an interesting account; in Germany or Northern France it would have been no curiosity at all. Probably the chief device whereby the state of things represented by the Leges Henrici was converted into the state of things represented by Bracton, was legal fiction. Not of course that such fictions can really make any vast change in the conduct of human affairs; they can only be the machinery, not the working power. The facts which made possible the fictions are facts in the general history of England, but a word may be said of the fictions themselves.
It is perfectly true that of any fictitious machinery we see little on the surface of what Bracton writes about homicide and other crimes. But Bracton had a leaning towards Rome and Reason at a time when Romanism and Rationalism were all one, and this leaning, though it may have enabled him to lay down law for unborn generations and undiscovered continents, makes him an untrustworthy guide to the legal notions of his English contemporaries whenever he ventures beyond a mere description of what, as a matter of fact, was done in courts of law.
Without regard therefore to his theory of homicide, a theory derived from the Canonists, let us look at the words which were actually used in an appeal “de morte hominis.” The appellant says that B killed C “nequiter et in felonia et in assaltu premeditato et contra pacem domini regis ei datam1 .” Now all this may seem to us mere verbiage and common form. I imagine, however, that this brief formula contains no less than three legal fictions, the object of which is to show that the king’s rights have been infringed. The necessity for such fictions may seem to us as strange as the fictions themselves. We cannot imagine a manslayer admitting that he has taken life, but questioning why the king, of all people in the world, should interfere; nor can we fancy a slain man’s kinsfolk, or his landlord, or the landlord of the slayer protesting against any intervention of the king or his judges. But the twelfth century books require us to imagine all this. The king’s criminal justice is hemmed in on all sides by the rights of others, rights to fines and compositions and forfeitures, and besides all this there is in the background the old notion that the quarrel is a very pretty one as it stands, and that the king has no business to meddle with it. The words just cited had probably become merely formal, though they were formally essential words in Bracton’s day, and homicide was in all cases a plea of the crown, but none the less they had once had a serious meaning.
We may indeed pass by nequiter as a vituperative adverb, but the charge of felony (in felonia) contains, as I believe, fiction the first. Of course it is impossible in a casual sentence to say anything profitable about the word felony, but one remark may be pardoned, namely, that whatever may have been its original meaning, whether deceit or cruelty, it came into English law as a foreign word, and when it first appears in England it seems to be no general name for all grave crimes, but the name of a specific crime. That crime is treason, or rather, since the word treason also has changed its meaning, a breach of the obligation which binds a man to his lord; in short, very much such a crime as was afterwards called treason high and petty, when high treason still meant not a crime against “the State,” but a crime directly touching our lord the king. I believe that nowhere save in England did felony ever come to stand for a vast class of crimes, or to include such a matter as theft; and it may be observed that in England it soon lost all descriptive power. It came to stand for a number of crimes which could be enumerated, but no definition of felony ever was or could be formed. To say that felony means treason may seem contrary to the first principles of our law, but some of those first principles were only settled late in the day, and looking abroad, more especially to France, whence undoubtedly the word felony came to us, there is good reason for supposing that it once connoted a breach of the feudal tie. Such a crime had long been in England, as elsewhere, the worst of crimes; it had been regarded as the unpardonable sin, the sin of Judas who betrayed his lord, and what is more to our purpose, it had been a crime whereby a man’s lands were forfeited to his lord. The steps by which such crimes as mere manslaughter and theft became felonies it is now difficult to retrace, but probably the king’s court permitted plaintiffs to “add words of felony,” and did not permit the accused to dispute the charge thus made. Our foreign kings successfully asserted the principle that every man, whosesoever man he may be, is the king’s man, bound to the king by an immediate fealty; and perhaps to this principle the word felony owes the enormously wide meaning which it gained in England.
Whatever may be the truth about this charge of felony, the charge of breaking the king’s peace is almost certainly a fiction. It will be observed, that according to the words of the appeal, B killed C not merely “contra pacem domini regis,” but “contra pacem domini regis ei datam,” that is to say, the slain man had the king’s safe conduct, or in some other way was specially under the king’s protection, and breach of the king’s protection was undoubtedly an ancient plea of the crown. When in the Latin version of Canute’s code, and again in Doomsday, and in the would-be laws of Edward, William, and Henry the First, we read of a breach of the king’s peace, we ought certainly not to import notions from our later law and to imagine that every common assault or even every homicide could be supposed a violation of that peace, or to think of breach of the king’s peace as almost or altogether synonymous with offence. A charge of breaking the king’s peace was a definite charge of having done an act of violence to a person, or at a place, or on a day specially privileged. Probably this had lost all practical importance before Bracton’s time, and though of course it was absolutely essential to charge in words a breach of the king’s peace, this peace was thought of not as a peculiar immunity attached to places, persons, times and occasions, but as the general peace and order of the realm. Still, to make assurance doubly sure, it might be well to charge that a slain man enjoyed a peculiar peace ei datam, and thus make the crime a definite breach of the king’s grith or mund.
But the more important point is that the slayer was guilty of premeditated assault (in assultu premeditato). He is thus, I take it, charged with foresteal, agwait purpense, guet-apens. Bracton afterwards gives the words of an appeal “de pace et plagis,” an appeal of wounds, and in this the appellant charges that on a certain day he was in the peace of our lord the king in such a place, or that he was in the peace of our lord the king, “in chimino domini regis1 .” This may show a trace, though only a trace, of the old notion that the king had a special interest in crimes committed upon his highway, though by this time, just as the king’s peace was no longer a special privilege, so every highway had become, or was becoming, the king’s highway. But the main point to be noticed is that the appeals “de morte hominis, de pace et plagis,” and “de pace et mahemio,” all contain the charge of premeditated assault. That this premeditatus assultus was probably a Latin equivalent for the French guet-apens seems very probable when we remember that the procedure by appeal and wager of battle was French, not English, and compare an extremely similar form of appeal for wounds given in the Norman custumal2 . “Je me plaing de P., qui en la paix de Dieu et du Duc me assaillit félonneusement à ma charue, en aguet pourpense, et me first cest sang et ceste playe que je monstre à la justice.” In the Latin version it runs:—“Ego conqueror de T. qui ad carrucam meam, cum agueito prœcogitato, in pace Domini et Ducis me crudeliter assaltavit, et plagam, maleficium et sanguinem mihi fecit, quod demonstravi judicio.”
This charge of premeditatus assultus, which contains the germ of malice prepense, appears in the appeal “de morte hominis” as given by Fleta1 . At a much later date Staundford2 copies the old form of words from Bracton, and I suppose that so long as men waged battle in criminal cases the form remained unaltered. Probably this phrase had a well-known French equivalent. Certainly in the 13th century, and I know not how much earlier, there was a distinction in French law, or at least in the law of some parts of France, between murder and simple homicide, and the distinguishing note of the former was guet-apens. Beaumanoir, who towards the close of the century committed to writing the custom of Beauvais, says that there are four crimes for which a man shall be drawn and hanged and forfeit his possessions. These are murder, treason, homicide and rape. Murder and homicide he thus distinguishes3 :—“Murdres, si est quant aucuns tue ou fet tuer autrui en agait apensé, puis soleil couquant dusqu’à soleil levant, ou quant il tue ou fet tuer en trives ou en asseurement. . . . Omicides, si est quant aucun tue aucun en caude mellée, si comme il avient que tençons naist et de la tenchon vient lede parole et de le parole mellée, por le quele aucuns rechoit mort souventes fois.” This is very strikingly like English law as it emerges three centuries later in Staundford’s Pleas of the Crown. Murder is marked by guet-apens; manslaughter is killing in what we have chosen to call chance medley, but what doubtless should have been called, and must once have been called, even in England, chaude mêlée. In an ordinance of St Lewis1 , and in other French records of the 13th century, the same distinction appears, and guet-apens was so well-established a term of the law, that Frenchmen writing in Latin were at pains to make such words as agaitum, aguaitum2 . But the more classically-minded seem to have preferred insidiæ præpensatæ, or insidiæ præcogitatæ, and this introduction of the word insidiæ is of importance, because of a certain text in the Vulgate, of which hereafter.
Nevertheless, the punishment for simple homicide was, according to Beaumanoir, the same as the punishment for murder. It may be noted by the way that the French law in the 17th and 18th centuries was quite as strict as the English in holding that every one guilty of homicide is in theory liable to be put to death. In case of excusable homicide, there was, in France, the same necessity of obtaining from the king “lettres de grâce”—which, however, were granted as of course—that there was in England of obtaining a formal pardon3 . But whatever may have been the origin of this state of things, which perdured until the Revolution, criminal homicide not amounting to “meurtre” was a capital crime just as meurtre was. I believe that sometimes, and in some parts of France, the murderer was broken upon the wheel, while the mere manslayer escaped with a hanging, but in Beaumanoir’s time and district both were hanged. His distinction therefore may at first sight seem futile. Really it was of great importance, though it did not affect the fate of the criminal.
In France criminal jurisdiction was to a very large extent in other hands than the king’s—in the hands of great lords and chartered towns. Now murder was a plea which belonged only to the highest jurisdiction. In the records of the 13th century there are many entries touching disputes as to whether some lord’s jurisdiction extends to murders. A good illustration of the way in which the distinction between murder and simple homicide made itself felt may be found in a case which came before the king’s court in 12641 . A man had killed his wife. The mayor and jurats of Noyon hanged him. The bishop of Noyon was aggrieved by this, for that, as he alleged, jurisdiction over murder (justitia multri) was vested in him. The mayor, however, pleaded that there had been no murder, but just a simple homicide en chaude mêlée (simplex occisio facta ad calidam mesleiam). Even late in the 18th century there was this distinction: homicide by guet-apens was, while simple homicide was not, “un cas royal,” that is to say, a plea over which only the king’s judges had jurisdiction to the exclusion of the seignorial courts1 .
This, as it seems to me, may explain the appearance of premeditatus assultus in the form of words, whereby, according to Bracton, wager of battle is made. This plea, as say the Leges Willelmi, belongs to the king’s crown. This, as say the laws of Canute, is one of the rights which the king enjoys over all men. It is “un cas royal,” “placitum coronæ.” Perhaps the averment of premeditated assault was in Bracton’s day merely formal. The king’s judges must have been unworthy of their successors if they were not prepared to hold that an allegation giving the court jurisdiction cannot be contradicted, and somehow or another the great work of gathering into the king’s hands all criminal justice was successfully accomplished. If, however, we are apt to forget that any such work had to be done, we should try to realize the state of things pictured by the Leges Henrici, and consider how easily that might have developed into the state of things that existed in contemporary France; nor should we forget that Glanvill and Bracton give us but one side of a many-sided story, and that side the king’s.
From præmeditatus assultus it was no great leap to præcogitata malitia, not nearly so great a leap as it is now from assault to malice, according to the common use of words. Undoubtedly, as Sir James Stephen suggests2 , it is but gradually that malice has come definitely to mean a motive, namely, spite, malignity, pleasure in another’s pain. “Sufficit diei malitia sua1 “:—those familiar with such words as these can hardly have thought that malitia must always mean a wicked motive, nor did Wiclif scruple to translate them by “It sufficith to the dai his owne malice.” The transition from premeditated assault to malice aforethought is rendered even easier than it would otherwise have been by the statute of 1389, which combines them in the phrase “agait, assaut, ou malice purpense.” This probably is just such a generalizing crescendo as is at all times dear to the draftsman; “assault” is somewhat wider than “ambush,” and “premeditated evil” is a still more general phrase. The transition, however, is fortunately made yet easier for us by an almost contemporary French ordinance and an almost contemporary Scotch statute dealing with the very same subject-matter as this statute of 1389, for it seems that the royal prerogative of pardon was making itself felt as a nuisance in France and Scotland as well as in England.
In a French ordinance of 13562 this phrase occurs:—“Nous ne ferons pardons ne remissions de murdres ou de mutillacions de membres faiz et perpetrés de mauvaiz agait par mauvaise volunté et par deliberacion.”
A Scotch statute of 13693 , provides that no one asking a pardon for homicide shall be heard until inquisition has been made touching the crime, and if it appears “quod factum fuerit per murthyr vel per præcogitatam malisiam,” a pardon shall not be granted without consent of Parliament. Here, plain enough, is malice aforethought part of the Scotch definition of the worst form of manslaying just twenty years before the same phrase receives statutory sanction in England. But the vernacular phrase in Scotland seems to have been, not malice aforethought, but forethought felony. In 1373, this occurs as a technical term in a statute1 , such as would now be called a temporary Coercion Act. The king is to cause every manslayer to be seized and imprisoned “et incontinenti cognosci facere per assisam si homicidium fuit perpetratum ex certo et deliberato proposito vel per forthouch felony sive murthir, vel ex calore iracundiæ vz chaudemellee”; in the former case “incontinenti facienda est iusticia,” while in the latter the criminal is to be proceeded against in the ordinary course of law. From this time onwards the contrast between forthocht felony and chaude mellay recurs at intervals in the Scotch statute book. The chief consequence of the distinction became one not very unlike that which existed in England after murderers had been deprived of benefit of clergy. In Scotland, the privilege of sanctuary or grith (the church grith of our own old laws) seems to have been a more inviolable impediment to penal justice than it was even in England. At length, however, in 1469, just about the same time that petty treason was made unclergyable in England, and before murder was made unclergyable, the murderer was excepted in Scotland from the privilege of sanctuary2 . Those in charge of the sanctuary are to be informed “that sic a man has committit sic a cryme of forthocht felony tanquam Incediator [insidiator] viarum et per Industriam for the quhilk the law grantis nocht nor levis sic personis to Joise [enjoy] the Immunite of the kirk.”
Passing by for one moment this recurrence at a late date of the old notion that waylaying, insidiæ, guetapens are the true marks of the worst kind of man slaughter, we may note the close similarity between the phrases which in the latter half of the 14th century were employed in France, Scotland, and England, to designate the sort of crime which the king was not to pardon. In France it is perpetrated “de mauvaiz agait par mauvaise volunté et par deliberacion”; in Scotland “per præcogitatam malitiam,” “ex certo et deliberato proposito vel per forthouch felony”; in England “par agait, assaut ou malice purpense.” Probably, almost the same idea is expressed in all these phrases; it is a sort of homicide that is distinguishable from manslaughter en chaude mêlée. Some premeditation is of its essence, and the notion of waylaying or ambush is giving way to that of spite or malevolence.
But our last quotation from the Scotch statute book contains an allusion not to be missed. The Latin words “tanquam insidiator viarum et per industriam,” which are introduced into a statute written in the vulgar tongue, are of great historical value. They refer to a passage in Exodus1 . Our Authorised Version renders it thus:—“But if a man come presumptuously upon his neighbour, to slay him with guile; thou shalt take him from mine altar, that he may die.” In the Vulgate the words are, “Si quis per industriam occiderit proximum suum, et per insidias, ab altari meo evelles eum, ut moriatur.”
Such an one, therefore, the clergy could hardly protect, for this was not merely a text of the Bible, it was a text of the Canon Law1 . I imagine that this text had a most important influence on the criminal law of mediæval Europe. It draws a line between two kinds of culpable homicide, and sanctions the belief that insidiæ, waylaying, guet-apens, are the distinctive marks of the worse kind. There are other passages in the Pentateuch which in their Latin guise make odium as well as insidiæ characteristic of that manslaughter which is beyond the privilege of sanctuary. It may be conjectured that these passages helped not a little to establish the notion that the real test is subjective, and to supplant premeditated waylaying by malice aforethought2 .
It is not impossible that the texts in the Vulgate about insidiæ are the root of the whole matter, the cause why the old notion that murder is slaying in secret, or slaying with concealment, was after the formation of the Canon Law replaced by the theory that the differentia of the worst homicide is guet-apens, premeditatus assultus. I imagine, however, that at least a co-operative cause was the fact that waylaying, “force faite en real chimin,” was an infringement of the king’s own rights, “un cas royal,” an ancient plea of the crown, for that the highway was the king’s, and they that walked therein enjoyed his peace.
This may seem a superfluous attempt to explain the sufficiently obvious. We are wont to think, or to speak as if we thought that premeditated manslaying is the worst type of manslaying, and are perhaps rather surprised when Sir James Stephen points out that this is no universal truth. But whatever may be natural to us, we ought not to suppose that in the eyes of our remote ancestors the fact of premeditation would naturally have aggravated the guilt of manslaughter. The curious agreement between French and English law as to the necessity of obtaining a pardon in a case of excusable homicide, must suggest that this usage, for which Hale and Blackstone make half-hearted apologies, and which may have owed its long continuance partly to texts in the Old Testament, partly to the fees payable by those who sought a pardon, had its origin not in any accident, or in any desire to extort money, but in the utter incompetence of ancient law to take note of the mental elements of crime. Of this incompetence there is plenty of other evidence. The rank of the slayer, the rank of the slain, the rank of their respective lords, the sacredness of the day on which the deed was done, the ownership of the place at which the deed was done—these are the facts which our earliest authorities weigh when they mete out punishment; they have little indeed to say of intention or motive. When they do take any account of intention or motive, then we may generally suspect that some ecclesiastical influence has been at work, as when, for example, the compiler of the Leges Henrici borrows from Gratian and St Augustine that phrase about mens rea which has found a permanent place in our law books. Secrecy, or rather concealment, it may be allowed, was from of old an aggravation of manslaughter, so was the taking of an unfair advantage. Of this we see something in the definition of foresteal already quoted; it is foresteal to lie in wait for one’s enemy and to attack him on the flank; it is not foresteal to call him back and have a fight with him. But in the days of the blood feud, such days for example as are represented by the story of Burnt Njal, mere deliberation or premeditation cannot have been thought an aggravation of the crime; a man was entitled to kill his enemy provided that he was prepared to pay the price or bear the feud, but he was expected to kill his enemy in a fair, open, honest manner, not to take a mean advantage, not to fall upon him like a thief in the dark. In the fact therefore that premeditation became an element in the definition of murder, there is, as it seems to me, something that requires explanation, and towards such an explanation we have made some advance when we see that ambush or waylaying is an offence against the King, and that the book of Exodus excepts him who has slain another per insidias from the privilege of sanctuary.
THE SEISIN OF CHATTELS1 .
There is hardly a rule of our legal terminology better settled than that which is broken by the title of this paper. There is no such thing known to our law as the seisin of chattels; one may be seised of land, but of a chattel, real or personal, one shall be possessed, not seised. Of course, one may seize chattels, and between seizure and seisin the etymologist may see a close connection, but he that would commit a really bad blunder let him speak of the seisin of chattels.
Seemingly, it has been the general opinion that this distinction, now well marked, between possession and seisin is of very ancient date, an outline of immemorial common law, and could we accept one common description or definition of seisin this opinion would be forced upon us as inevitable. “Seisin,” said Lord Mansfield2 , and his words have passed into the text-books, “is a technical term to denote the completion of that investiture by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass. Sciendum est feudum, sine investitura, nullo modo constitui posse. Feud. lib. 1, tit. 25; lib. 2, tit. I; 2 Craig. lib. 2, tit. 2.” Here seisin appears as a distinctly feudal notion, and the question why there is no seisin of chattels is answered at once:—There is no tenure of movables, and the termor has no fee or feud. But it will have occurred to many readers as a little strange that Lord Mansfield, instead of vouching some English writer, Glanvill or Bracton, Littleton or Coke, to warrant what he thus said about a word which, for many centuries, had been constantly in the mouths of English lawyers, should have appealed to certain ancient Lombards and a modern Scotchman. The truth seems to be that there was no old English authority available for the purpose. Seisin is possession; that is what Bracton says at the outset, that is what Coke says at the close of the mediæval period; one and the other would have been surprised to hear that any act or consent on the lord’s part is necessary to constitute seisin.
Now, it can, as I believe, be shown that the notion of seisin, so far from having any very close connection with those ideas and institutions which we call feudal, had not even any exclusive reference to land. From time whereof there is no memory until the fifteenth century was no longer very young, English lawyers often, and in some contexts habitually, spoke about and pleaded about the seisin of chattels. Attempt will here be made to prove this assertion. The question is not one barely about the use of words. The gulf between what we call real property, and what we call personal property, is so wide and deep and ancient that we are constantly tempted to overrate its width, depth, and antiquity, and thus, perhaps, we sometimes miss important points in the history of the law. We shall hardly understand all that may be understood of that history, if we steadily refuse to bring land and goods into any relation with each other. Especially is this true when we are dealing with possession or seisin. Seisin and disseisin seem so mysterious a matter that, in despair of rational explanation, we are glad to have so satisfactory a word as feudalism wherewith to hush the questioner. It may be possible, however, that some of the mystery might be even more effectually dispelled if we understood what our old law said about the possession of goods, and from possibility we might pass to probability, if we really found that it was once a common thing to be seised of goods.
Having to argue for a conclusion which, perhaps, runs counter to general belief, a considerable mass of evidence must be pleaded. The argument should be guarded against two objections. It must be made clear that we are not confusing seisin with seizure, seisin with being seised. It must be made clear that we have not fallen into a trap set for us by some pleader’s blunder, some reporter’s carelessness, or some text-writer’s whim, but are tracing an orthodox and habitual use of words. While, however, the reader’s patience is begged for a number of citations and references, he must be asked not to expect too much. The mass of our printed information concerning the treatment of chattels in the thirteenth and fourteenth centuries is small indeed, when compared with the vast bulk of materials for a history of real property, and for the more part we shall be forced to rely on replevin cases in which the possession of chattels is just mentioned, but the whole argument turns on the title to land or rent.
We will take just one step beyond the limit of legal memory in order to notice the Leges Henrici Primi. There we find two phrases which we shall meet elsewhere. The thief who is taken with the mainour is de furto seisiatus (cap. 26). When a man has been distrained he is to be allowed to replevy his goods, et seisiatus placitet, that is, as I understand, he need not plead until he is seised (cap. 29, § 2).
We pass from this instructive apocrypha to the first book in the orthodox canon. Glanvill twice has occasion to mention possession of goods; each time he calls it seisina. The pledgee of movables may have seisin of them—cum itaque res mobiles ponuntur in vadium ita quod creditori inde fiat seisina (lib. 10, cap. 6). The plaintiff in an assize of novel disseisin recovers seisin of the land and seisin of his chattels also, seisinam omnium catallorum (lib. 13, cap. 9).
In Bracton there is very much to be read of seisina and possessio, and to me it seems that he uses the two words as precisely equivalent, though, perhaps, for him seisina is the vulgar word, possessio the technical and correct Latin term to be found in the Roman law books. We shall return to this hereafter, when we speak of chattels real. Bracton has hardly ever occasion to mention the possession of movables, but with him, as with the writer of the Leges Henrici, the hand-having back-bearing thief is seisitus de latrocinio, and is in seisina (fol. 150 b, 154 b). Fleta (fol. 54, 62) copies, Britton (vol. I., p. 56) translates these phrases. There can be no prosecution in the court of a lord having franchise of infangthief, unless the accused de rebus insecutis fuerint seisiti; in other words it is only over mesfesours trovez seisiz that such a lord has jurisdiction. Clearly, to say that a thief was taken seisitus de furto, or seisitus de latrocinio, was to use a technical phrase about an important point. It is used in the Assize of Clarendon—“si aliquis fuerit captus qui fuerit seisiatus de roberia vel latrocinio.” Bracton again (fol. 122) says that if the coroner hears of treasure trove he must inquire si aliquis inde inventus sit seisitus. Elsewhere (fol. 440 b) he discusses what is to be done if the defendant in an action of debt will not appear; his suggestion is, bonum esset adjudicare querenti ab initio seisinam catallorum secundum quantitatem debiti petiti.
Between Glanvill and Bracton we might have noticed an entry in the Placitorum Abbreviatio (p. 12) of Richard the First’s time. The roll of the King’s Court says that the wax in question has been replevied, and that he whose it was is seised of it (cera illa fuit replegiata et ille cujus illa fuit est inde saisitus). Just from Bracton’s time the same book gives a count in trespass, which charges the defendant with having sent his men to violently interrupt the proceedings of a jury, et de quodam juratore abstulerunt quemdam gladium et adhuc sunt in seisina de eodem gladio (p. 129, Mich. 37 & 38 Hen. III.).
An examination of rolls belonging to the first years of Henry the Third has supplied a dozen criminal cases in which the seisin (always seisina and never possessio) of chattels is treated as a most important matter. It is just a question of life and death whether the thief was taken in seisin of the stolen goods (seisitus de bonis furatis), whether the manslayer was taken in seisin of the murderous weapon (seisitus de cnipulo sanguinolento). If he was seised he can be hanged offhand; if he was not seised, then, unless he will put himself upon his country, he cannot even be tried, he can only be kept in custody. Sometimes a phrase that is yet more “feudal” is found, the thief was “vested and seised” of the stolen goods. The Mayor and bailiffs of Wallingford took a man vested and seised of an instrument for clipping coins:—invenerunt ipsi predictum Johannem vestitum et seisitum de seisina illa; he of course denied the seisin, deffendit saisinam illam1 . Another man had stolen tin at Bodmin; the appellor saw him vested and seised of the tin and burying it in the ground:—ipsum vidit vestitum et seisitum de stagno furato2 . One other case3 is noticeable for many reasons. The justices in eyre who went to Devonshire in 1218 hanged two men for receiving stolen goods. Their sons appealed to the king against the consequent forfeiture—“et quia videtur consilio domini regis et iusticiariis de banco quod male et iniuste suspensi fuerunt eo quod non fuerunt seisiti de aliquo furto vel roberia, nec aliquam roberiam cognoverunt, nec per dictum iuratorum potuerunt de iure dampnari, consideratum est quod heredes eorum non exheredentur, et ideo preceptum est vicecomiti quod eis terram suam habere faciat etc., et iusticiarii in misericordia”! Justices at this date had occasion to know something about the seisin of chattels. As to possessio and possideo, I have never yet found these words on any of these early rolls save in one context. The exception is instructive:—the parson possesses (possidet) the church. Here we touch the domain of the Canon Law; the fact of possession is to be established by the bishop’s certificate. But we will go back to the evidence already in print, which really is sufficient for our purpose1 .
The recently printed Year Books of Edward the First give us several examples. I quote Mr Horwood’s translations.
21 & 22 Edwd. I, p. 10. Note, that in the Replegiari, the plea ought not to proceed while he who took the beasts is seised of what he took (est seysy de la prise).
21 & 22 Edwd. I, p. 20. Note, that where one complains that B tortiously took his chattels, such as corn or other chattels (except beasts), he ought to mention the value, but there is no need to mention the value of beasts, although the taker is still seised of the beasts (tut seyt le pernur uncore sessi de les avers).
21 & 22 Edwd. I, p. 56. Note, that where, in an action for taking of beasts, one counts against the lord, and the lord is seised of the beasts (e le seygnur seyt seysi de avers), and avows the taking, there is no need for the plaintiff to reply to the avowry until he has the deliverance made.
The rule laid down by the first and third of these passages is that which seems to be indicated by the seisiatus placitet of the Leges Henrici. If goods have been taken in distress they must be delivered to the claimant or security must be given for their delivery before he pleads to the avowry, and so seisiatus placitet. The second passage gives us the phrase uncore sessi, used to describe the distrainor when no deliverance has yet been made. That phrase will haunt us for some time to come.
21 & 22 Edwd. I, p. 589. Trespass for taking thirty swans. Plea the plaintiff himself is seised of the swans (seysy de synes).
32 & 33 Edwd. I, p. 197. Replevin; the plaintiff says that the defendant is still seised of the beasts (uncore seisi de nos avers).
It is only with the greatest caution that one may cite the Mirror of Justices. The author of that book, who probably wrote in Edward the First’s reign, was moved by a bitter hatred of the King’s judges, who, in his opinion, were distorting the ancient law and oppressing the people. Unfortunately, he was not content with stating his grievances, but chose to propagate a mass of fables about King Alfred and the old law. The book has never been carefully edited or thoroughly examined, and possibly its writer may hereafter be acquitted of that charge of wilful dishonesty which his would-be quotations from imaginary records very naturally provoke. But it is just worth notice that he speaks1 , in one and the same breath, of seisin and livery of seisin of lands and goods, and argues that the purchaser of goods ought to be considered as seised of the goods so soon as the vendor has quitted them. Livery of seisin is seemingly necessary to perfect the sale of a horse; and the author, unless I have misunderstood him, complains that a brief but actual seisin by the purchaser has not been considered sufficient.
We have now to face the series of Year Books stretching, with some breaks, from Edward the Second to Henry the Eighth.
Hil., 14 Edwd. II, fol. 421. Count in replevin, the defendant has taken beasts et uncore est seisi.
Mich., 18 Edwd. II, fol. 561. Similar count, vous estes unqore seisi.
Hil., 10 Edwd. III, fol. 5, pl. 14. Similar count, et dit que il fuist uncore seisi des avers.
Hil., 21 Edwd. III, fol. 51, pl. 3. Similar count, et counta que il fut encore saisi del’ boef.
Mich., 38 Edwd. III, fol. 22. Trespass: the lord who has taken a heriot says, that because it was the best beast nous le seisimes apres la mort G. et fuimes seisis tanque vous, etc.
Hil., 39 Edwd. III, fol. 4. The king has been seized of an estray, ad este seisi, for a year and day.
Hil., 42 Edwd. III, fol. 6, pl. 18. Plaintiff counts that the defendant has arrested his wool et adhuc in arrestatione detinet. Plea, the plaintiff himself ceo jour est seisie de les biens.
Mich., 47 Edwd. III, fol. 23, pl. 55. Plea in trespass de bonis aportatis: un J. W. fuit seisie de mesmes les chateaux, et morust seisie, et fist mesme cestuy R. son executor, le quel seisist les chateaux. In the discussion, possession and seisin are used indiscriminately.
Mich., 6 Rich. II [Fitz. Abr. tit. Replication, pl. 60]. Nostre testatour morust seisi de mesme les biens apres que mort nous les happamus et de eux seisi fuomus tanque les defendants les pristrent hors de nostre possession. Three times in a brief note occurs this phrase—morust seisi de mesmes les biens. Must we not say, with the reporter, issint vide que moreant seisi de biens est material?
Pasch., 7 Hen. IV, fol. 15, pl. 20. Il mesme est seisie de mesmes les biens.
Mich., II Hen. IV, fol. 2, pl. 4. Il detient uncore nos berbits et est seisie.
This phrase, still seised, with which we are now becoming familiar, occurs also in a petition to the King in Parliament of 1321–1322. The parson of Kippax, in Yorkshire, complains that certain persons have driven off his horses and sheep, and that the beasts have come to the hands of the Earl of Arundel’s bailiffs, who uncor sunt seisis de eux. (Rot. Parl., vol. I., p. 394, no. 41.)
I have not cited by any means all the instances in the books of Edward the Second and Edward the Third that have caught my eye, but I have probably cited quite enough to show that in the fourteenth century it was common to speak of a man as seised of movables. There is a long, and I think unbroken, line of cases which show that the usual form of a count in replevin, when the beasts had not yet been delivered, stated that the distrainor was still seised of the beasts. But some of our examples will prove that similar phrases were used in other contexts. It was quite right to say, for example, that a testator died seised of goods, and that afterwards his executors were seised.
But now there begins a change in the terms used in replevin cases. In Pasch., 7 Hen. IV, fol. II, pl. 2, we find il detient a tort, where, according to precedent, we should have expected uncore seisi. But the struggle between the two phrases is not yet over. Twice in the early years of Henry the Sixth we meet with the older term.
Mich., 3 Hen. VI, fol. 15, pl. 20. Nous vous disons que le defendant est uncore seisi de les avers.
Nous disons que vous mesmes estes seisis de eux.
Hil., 4 Hen. VI, fol. 13, pl. 11. Le defendant est uncore seisi del’ taure.
These are the last instances that I have at hand. From this time onwards uncore seisi seems definitely supplanted by uncore detient. Thus we have:—
Pasch., 21 Hen. VI, fol. 40, pl. 8. Il uncore detient nos bestes.
Hil., 1 Hen. VII, fol. 11, pl. 16. Il uncore detient.
Mich., 5 Hen. VII, fol. 9, pl. 21. Et le plaintiff counta sur un Uncore detient.
I have kept back to the last, perhaps the most striking piece of evidence, because of its somewhat uncertain date. The Novae Narrationes is a brief collection of precedents for counts or declarations in French. It was printed by Pynson without date1 , and was more than once reprinted. Coke in one of his prefaces (3 Rep.) puts it into a class of old books along with Glanvill, Bracton, Britton, Fleta and Hengham, which he distinguishes from a class of newer books, comprehending the Old Tenures, the Old Natura Brevium and Littleton. In another of his prefaces (10 Rep.) he says that the Novae Narrationes was published “about the reign of King Edw. III.” The Latin version of the same preface has the more definite “juxta initium regni Regis Edw. 3 in lucem prodiit.” This date, however, is too early for the book as printed, for just at the end of it there is a declaration on the Statute of Labourers, which declaration is supposed to be made after the third year of Richard the Second. More about its date I cannot say. Near the end of Henry the Sixth’s reign1 the judges treat Les Novels Tales as a very high authority. Coke says that the book to which they refer is the work now in question, the Novae Narrationes.
Now, this book contains a precedent for a count in replevin, which describes the distrainor as still seised, unquore seisi2 . There is also a count in detinue by the purchaser of a cow, who has paid a penny in earnest (en arras), and it sets forth that cesty A. luy bailla un denier en arras, et del denier il fuit seisie3 .
The appearance of such phrases in a book of precedents is strong evidence that they were at least permissible, but I am not sure that it is stronger evidence than that afforded by the Year Books. It should not be forgotten that some of the instances above cited come from a time when pleadings were jealously scanned, in the hope that some verbal flaw might be detected in them; but though it is easy to find examples of objections, and successful objections, which seem to us very captious and unreasonable, I have not met with any instance in which exception is taken to the use of this word seised in connection with chattels, personal or real.
Now, however, we must cite the decisive passage in Littleton’s Tenures (sec. 324), which proclaims once and for all that the differentiation between seisin and possession has taken place:—
“Also, when a man [in pleading1 ] will show a feoffment made to him, or a gift in tail, or a lease for life of any lands or tenements, then he shall say, by force of which feoffment, gift, or lease, he was seised, etc., but where one will plead a lease or grant made to him of a chattel, real or personal, then he shall say, by force of which he was possessed, etc.”
Littleton, it is supposed, wrote between 1474 and 1481. We have brought down our series of counts in replevin containing the words uncore seisi to 1426. The series containing uncore detient begins in 1443. Of course very little stress should be laid on these dates, for many cases may have been overlooked, and it would be easy to draw false inferences from the casual use of a phrase. Still the evidence tends to show that there had been a change in the terms used in pleading, just long enough before Littleton’s day to make his express statement intelligible.
We have not yet spoken of chattels real, and will in this instance reverse our procedure and work from the latest authority to the earlier. And here the first witness to be called is Littleton himself, for he says (sec. 567), “Also if a man letteth tenements for term of years by force of which lease the lessee is seised,” thus himself using the very phrase that he has condemned as incorrect. We shall easily pardon this slip if we look to the older authorities, for at worst it was an archaism.
What we should expect in such a context of course is “by force of which he is possessed,” or, in the orthodox law Latin, “virtute cujus possessionatus est.” Just about Littleton’s time we find this phrase in the Year Books.
Mich., 21 Edwd. IV, fol. 10, pl. 1. Par force de quel il fuit possesse. But some seventy years earlier the other phrase occurs.
Pasch., 1 Hen. V, fol. 3, pl. 3. Count in Ejectione firmae: lease for twenty years, par force de quel il fuit seisie.
In the earlier Year Books there are very few instances in which a leaseholder pleads his title; but, skipping a century, we have
Mich., 6 Edwd. II, fol. 177. Count in Quare ejecit: lease for ten years, par quel lese A. fuist seisi.
Mich., 3 Edwd. II, fol. 49. Count in Covenant by lessee; lease for 10 years to A., par quel lees il fuist seisi ii aunz.
Instances from the reign of Edward the First are still plainer:—
32 & 33 Edwd. I, p. 529. Covenant; count by a lessee on a lease for five years of the provostship of Derby; the count, as enrolled in Latin, states that the lessees were seisiti.
30 & 31 Edwd. I, p. 142. Covenant; count that J. leased the land to Roger for eight years par quel lees il fut seisy for a certain time, and that then Roger leased to Robert par queuz lees il fut seisy for four weeks.
21 & 22 Edwd. I, p. 23. Count in covenant by lessee of a rent; lease for ten years par queu les yl fut seysy de cele par deus anz.
20 & 21 Edwd. I, p. 254. Covenant by lessee; defendant says that by virtue of a lease for twenty years the plaintiff fut sesy.
20 & 21 Edwd. I, p. 278. Covenant by lessee’s son; lease for twenty years to my father, par quel les yl fut seysy un an.
It will occur to the reader, that the value of this evidence depends on the comparative frequency of the words seised and possessed in counts by leaseholders; I must say therefore, that while I can produce, from the Year Books of the two first Edwards, seven examples of pleadings which describe the termor as seised, I have not found one in which he pleads that he is possessed. Certainly, my investigations have been far from exhaustive, and have consisted rather in following the references given in indices and abridgements under hopeful headings, than in fairly reading from cover to cover, but unless, round about the year 1300, it was strictly and technically correct to plead that a termor is seised by force of his lease, I have had a very strange run of bad luck.
Lastly, we may again refer to the Novae Narrationes and there find several precedents of Covenant, Quare ejecit, and Ejectione firmae, in which the termors are made to say that they are seised. Thus, Hubert Mappe leased a messuage to Adam Pye for a term of years not yet ended, per qui le dit Adam fuit seisy del mees avaundit. On the other hand, in one of the precedents the termor is said to have been in peaceable possession. It is noticeable that this is a precedent in Ejectione firmae, a specialised form of trespass vi et armis, and a newer remedy for the termor than the Quare ejecit, or the still older writ of covenant. This would lead us to believe that it did not become definitely wrong to speak of the termor as seised until after the end of the fourteenth century, and we have seen one precedent which contains the objectionable phrase in the Year Book of 1413.
Here again, then, our evidence points to the fifteenth century as the time when the distinction was first firmly established. But probably the differentiation was a gradual process. At first possessio and seisina are the same thing. Take two very old maxims with which all lawyers are still well acquainted. If we ask why possessio fratris de feodo simplici facit sororem esse haeredem, the answer is because seisina facit stipitem. But gradually, as it seems to me, the words become appropriated, and the lawyers in the Year Books, though, in pleading, they will speak of a man as seised of chattels, begin to talk of possession directly they begin to argue. It looks as if seised was becoming an antiquated word to use of chattels, a word which one might still have to use in formal pleading, but one which struck the ear as antiquated, or, perhaps, even incorrect. But what flaw could be seen in it? The answer will probably be found in the curious history of leaseholds, for the beginning of which we may look in Bracton’s book.
Now Bracton, as already said, has to mention possessio and seisina a very large number of times, and always treats them as interchangeable; as Dr Güterbock has well said1 , beide Worte werden promiscue gebraucht. His definition of possessio is founded on the Roman authorities, but is taken directly from the Italian lawyer Azo. Possessio est corporalis rei detentio, i.e. corporis et animi cum juris adminiculo concurrente (fol. 38 b). Now, whatever Azo may have meant by this requirement of juris adminiculum (and he seems to have thought it necessary in order to include certain cases of constructive possession), seemingly Bracton meant no more than that there are certain persons and things, such as free men and things sacred, of which there can be no possession (fol. 44 b). In general, he remains quite faithful to the notion that seisin or possession is pure matter of fact, the detention by body and mind of a corporeal thing. Nor is this mere Roman ornament, which can be stripped off without damage to the fabric of English law as reared by Bracton, for on this depends his whole learning about the scope of that commonest of all actions the assize of novel disseisin. Lord Mansfield’s theory that seisin implies some act or concurrence on the lord’s part most certainly is not Bracton’s theory. Seisin with him is simply possession, and has little to do with homage or fealty1 .
It is, of course, possible that Bracton’s very rational account of seisin is just a little too rational, but we have the clearest proof that it is not mere romance, and we may doubt whether on any other part of our law the Latin learning of the thirteenth century made so practical and so permanent an impression. We have, happily, now in print a considerable collection of assizes taken during that period, and they constantly put before us seisin as simply and merely possession, a matter of fact independent of feudal relationships and institutions. When the question is whether a certain person was seised, if there be any mention at all of homage or fealty, of suit or service (and such mention is comparatively rare), these matters are treated, not as constituting seisin, but as being evidence of seisin, evidence tending to prove that this man or that was really possessor. Roger Clifford, for example, in the 36th of Henry the Third, brings an assize of mort d’ancestor against his younger brother, Geoffrey. Geoffrey pleads a gift made to him by their father, John, in his lifetime. Roger replies that the gift is naught, because John never really gave up possession to Geoffrey. The words are remarkable: quia quamvis Johannes pater ipsorum terram illam ei [Galfrido] dedisset per cartam, nunquam se dimisit de terra illa corpore nec animo. Then the assize finds the facts at length, and, among them, that John went on doing suit for the land after the gift. This is put before the court, not as conclusive, but as one of many facts which prove that John never ceased to possess, though he went through the idle form of going off the land and sleeping somewhere else for a night. (Placit. Abbrev., p. 1281 .) This is a type of a considerable class of cases. Having no testamentary power, land-owners will try both to give and to keep. The court deals with such cases in a most reasonable way; full statements of the relevant facts are obtained from the assize, and the decisions are really no more dictated by feudalism, in any sense of that hard-worked word, than are modern decisions about voluntary settlements. Doubtless, there was a constant tendency to make seisin a matter of forms and ceremonies, of sacramental acts with rod or twig or hasp of door. So long as possession has legal consequences some persons will always be trying to substitute mummery for the real thing. “Of which goods and chattels, I, the said T. A., have put the said F. C. in full possession by delivering to him one chair”; the date of this formula is not 1268 but 18681 . But the thirteenth century decisions on the question, seised or not seised, show a remarkable disregard for formalities, a remarkable determination to make that seisin which the law protects just a real and actual possession.
But this by the way; Bracton, though he does not distinguish between seisin and possession, has another distinction which is noteworthy. He repeatedly distinguishes between being in seisin and being seised, between being in possession and possessing. One who possesses or is seised has, if ejected, the assize of novel disseisin, but a person may be in seisin or possession nomine alieno, and if he be ejected the possessory remedy belongs not to him, but to that other on whose behalf he was in possession. Thus, in one place he turns our modern terminology just upside down; the farmer is in seisin, but he does not possess (fol. 165); quia longe aliud est esse in seisina, quam seisitus esse, sicut longe aliud est esse in possessione quam possidere2 (fol. 206). In the view that he generally takes the termor does not really possess, he only holds possession for his landlord, and this is the reason why he has not the possessory remedy, the assize of novel disseisin.
We are familiar with the saying that, of old, the termor was little more than his landlord’s servant or bailiff. Now, it is a very natural thing indeed to say that a servant does not possess his master’s lands or goods, though he has sole charge of them. Mr Justice Holmes, in his lecture on possession, has well remarked how freehanded our old law was of its possessory remedies, how it attributed possession of goods to bailees whom the civilians would not have accounted possessors; still it drew the line above the servant who, in his master’s house, has custody of his master’s goods. Now, in Bracton’s opinion, the termor is denied the assize, not because he has a less estate than becomes a free man (is there really any record of a free man saying that a term of years was beneath his dignity?), but because tenet nomine alieno; in this he resembles the custos, procurator, usurarius, hospes, servus (fol. 165, 167 b, 168, 206).
Bracton’s adoption of this phraseology prepared a difficulty for him which he had to meet (fol. 220) when explaining how, after all, the termor has a possessory remedy against some ejectors, and a remedy which will restore him to possession, the Quare ejecit infra terminum. But it seems from Bracton’s own words that the difficulty was quite new, because this remedy had but recently been invented by the court (de consilio curiae), as a more efficient protection than the old writ of covenant. In later days tradition ascribed the invention of the new writ to Bracton’s contemporary, Walter of Merton (Old Natura Brevium, fol. 122 b), and more than once in the Year Books the writ is noticed as an innovation. Now, so long as the writ of covenant was the termor’s one remedy, it was very natural and proper to deny that he possessed; he had not a possession which the law protected, he had merely a contractual right. But the newly invented remedy had given him a sort of possession; it enabled him to recover his term if ejected, at least if the ejector was a purchaser from his lessor, and, whatever may have been the rule at a later date, Bracton apparently thought1 that this writ would enable the termor to recover his term even if ejected by a stranger. In describing this remedy he has to allow the termor a sort of possession, or rather, as it happens, a sort of seisin (fol. 220 b). His Roman authorities suggest to him that the termor has a usufruct, that a usufruct is but a servitude, something like a right of way. This, perhaps, should have led him to say that the termor has not possession of the land, but only quasipossession of a servitude over land possessed by another (iuris quasi possessio), but I do not think that he quite accepts this doctrine, and the most explicit statement to be had from him is that both lessor and lessee are in seisin of the tenement, the one as of his term, the other as of the freehold, quia istae duae possessiones sese compatiuntur in una re quod unus habeat liberum tenementum et alius terminum (fol. 13 b). Elsewhere (fol. 264) he can casually speak of tenant for years as seisitus.
Very probably Bracton’s verbal distinction between being in seisin and being seised, between being in possession and possessing, was a little too subtle to catch the English ear; and certainly the suggestion that a termor’s interest is a servitude over another’s land, so that the termor is quasi-possessed of a servitude, but not possessed of land, did not take root in this country. It would have been difficult to work that suggestion into a system of law which, from the outset, most unhesitatingly gave seisin to the tenant for life. A student, fresh from Roman law or “general jurisprudence,” may be puzzled when he finds Mr Joshua Williams treating an estate in remainder or reversion as an incorporeal hereditament to be contrasted with that corporeal hereditament an estate of freehold in possession, but in our old law this seems an elementary idea of first importance; the tenant for life is not a usufructuary with only a servitude and no land; on the contrary, he has the land, it is the reversioner who has an incorporeal thing. So, I take it that for some considerable time after Bracton’s day it was a matter of much uncertainty how the termor’s interest should be conceived; and lawyers were free to say, and did actually say, that the termor is seised of the land as of his term, while his lessor is seised of the land as of freehold. There was no great need for the decision of an almost metaphysical question. During the thirteenth and fourteenth centuries the termor played but a very insignificant part in English law. Gradually, however, he forced himself upon the notice of the courts, and acquired one remedy after another for the protection of his term. It became necessary to fix his position. What could be said of him? It was quite impossible to regard him any longer as one who holds possession on behalf of another; on the other hand, it was important to mark the fact that his remedies were very different from the old possessory remedies of the freeholder. He had never had, he never acquired, the assize of novel disseisin, though we may note by the way that the author of the Mirror, in several passages, declared that it is an abuse of the law to deny this assize to the termor and to the tenant in villenage1 . A word to describe the termor’s situation was wanted, and possession (a term comparatively free of technical implications) lay vacant and unappropriated. The termor, then, is possessed, not seised.
It is rather the verbal solution of the difficulty than the difficulty itself that is peculiar to England. In the yet unromanized law of mediaeval Germany Gewere (a word which we can only translate by seisin) plays, as I understand, very much the same part that seisin plays in England and in France; not quite so important a part, because Henry the Second’s institution of definitely possessory remedies gave to possession a peculiar prominence in English and in Norman law, but still an important part. Now those who have of late studied the vast stores of old German law say that the German notion of Gewere differs from the Roman notion of possessio in this, that at one and the same time lord and tenant, or lord, mesne and tenant may have possession. The cultivator who is sitting on the land is seised of the land, but the lord also to whom he pays rent in money or kind is seised of the land. In a dispute between tenant and lord seisin and its procedural advantages are with the former, but in relation to outsiders each is seised. As Bracton says, istae duae possessiones sese compatiuntur in una re. It would indeed have been hard to force the wonderfully variegated phenomena of mediaeval land tenures into the pigeon-holes of a theory which will ascribe possession to but one person at a time, and say of all others, Non possident. And this, it is said, is what obscures the discussion of the Roman possessio by commentators and glossators, by Azo, for example. With the facts of their own time before them they could not hold the faith unitarian and Roman of one dominium and one possessio; the lord has dominium directum, the vassal dominium utile, the lord possesses civiliter, the vassal possesses naturaliter, but none the less possesses for himself, and not for the lord: hence some wonderful confusions which Savigny had to clear away. We in England were fortunate in finding a second word at our disposal; so the termor is possessed and the freeholder is seised1 .
From this it would be no long step to the assertion that there is no seisin of chattels, neither of chattels real nor of chattels personal. For why is not the termor seised? The ready answer would be because he has but a chattel. The origin of this strange saying “a term of years is a chattel” is not very certain, but seemingly it meant that the term could be bequeathed; for testamentary purposes it was quasi catallum. Bracton says (fol. 407 b) that the ecclesiastical court is not to be prohibited from entertaining a suit touching the bequest of a term, quia ususfructus inter catalla connumeratur. It was catallum as contrasted with that laicum feodum with which no Court Christian may meddle. The necessity for this fiction would in course of time be forgotten. The obvious facts would be that the termor is not seised and that the termor has a chattel; an inference would lie ready to hand. The time had long gone by when it could truly be said of the termor that he held nomine alieno, leases for years were becoming common and valuable, and it was easier to lay down as one of the final inexplicabilities of the law that of chattels, whether real or personal, there is no seisin, than to rake up an old story. It may seem a far-fetched doctrine that the reason why we cannot now be seised of a horse, or of a book, is because there was a time when the tenant of land for term of years had only a contractual right, but far-fetched though it be, it is fetched from England, not from Lombardy.
However, what has just been said is no better than guesswork, and is only submitted as such to the reader, who will easily discriminate what is stated as fact from inferences and conjectures. But he will notice that such evidence as has been produced tends to prove that the distinction between seisin and possession became a settled distinction just about the time when the termor’s remedies against all men were finally perfected. The early history of the special writ of trespass known as Ejectione firmae is still in some respects obscure. It became the termor’s remedy against a stranger to the title who ejected him. Now, at the very end of the fourteenth century, it seems perfectly settled that this writ (unlike the Quare ejecit which will lie against a purchaser from his lessor) will only give him damages, and will not restore him to the land1 . On the other hand, about the middle of the fifteenth century lawyers certainly speak as though possession might be recovered by this writ2 . It is usual to refer to a decision in Henry the Seventh’s reign as having finally settled the question in favour of restitution. May we not, therefore, conjecture that the daily increasing necessity of distinguishing the title to bring Ejectione firmae from the title to bring an assize, forced upon the courts the verbal distinction between possession and seisin?
And when the middle ages are past and over, and Coke is summing up their learning, though he has many surprising things to tell us about the consequences of seisin, he can tell us no more about its meaning than that it is possession, but appropriated to freeholds. These are his sayings:—
Seisin or seison is common as well to the English as to the French, and signifies in the common law possession, whereof seisina a Latin word is made, and seisire a verb (Co. Lit. 153 a).
Seisin is a word of art, and in pleading is only applied to a freehold at least, as possessed, for distinction sake, is to a chattel real or personal (200 b).
Seised, seisitus, cometh of the French word seisin, i.e. possessio, saving that, in the common law, seised or seisin is properly applied to freehold, and possessed or possession properly to goods and chattels; although sometime the one is used instead of the other (17 a).
Nothing about investiture or admission of a tenant into the tenure, nothing feudal, simply possession, “i.e. possessio.” The distinction has no mysterious basis in the eternal fitness of things; it is a distinction which exists “for distinction sake.” And, after all, of these two words, “sometime the one is used instead of the other.” Probably this last phrase does not so much refer to the usage of Coke’s own day (for the interpretation set upon several important Statutes, in particular the Statutes of Forcible Entry and the Statute of Uses, had by that time made it definitely incorrect for one to write of a termor as seised), as to the usage of an earlier day well known to Coke from his old books. Probably, he would indeed have thought scorn of the meagre list of examples which has been set forth above. In his day it was still too soon for an English Chief Justice to be severely and intelligently feudal. In course of time it became easier to read the Libri Feudorum than to read the Year Books, and “the total silence of Sir Edward Coke on the general doctrine of fiefs” became “a matter of some surprise.” Therefore, seisin shall be deemed a “technical term to denote the completion of that investiture by which the tenant was admitted into the tenure.”
We have been dealing, perhaps, too much with words, too little with rules; but a recognition of the fact that the lawyers of the thirteenth, and even of the fourteenth century, saw no harm in pleading about the seisin of chattels is of some importance, if the history of seisin, “i.e. possessio,” is to be understood. It, at least, warns us away from an untrue explanation of that history. However strange may be the legal consequences which we find annexed to the seisin of land, they are not the result of a military policy, or anything of the sort, they are what were once considered the natural consequences of possession; and there is good reason for believing that, if we look closely enough at our comparatively few and scattered authorities for the early history of personal property, we shall find very much the same consequences annexed to the seisin of chattels.
It is very unfortunate that the passage (f. 220 b) in which Bracton most definitely faces the question as to the nature of the termor’s possession has become mere nonsense in the printed books. He is speaking of freeholder and termor and of the action Quare ejecit. This is what his latest editor makes him say; but the bracket  is mine.
Poterit enim quilibet illorum sine praejudicio alterius, [quia rectè dicimus totū nostrum fundum esse, et cum usus fructus alienus sit, quia nō dominii pars est usufructus, sed servitus fit vel via etc.1 Nec falsò dicitur meum esse, cujus non potest pars dici2 alterius esse] in seysina, esse ejusdem tenementi, unus ut de termino et alius ut de feodo et libero tenemento3 . Et datur ista actio haeredibus et competit contra haeredes ut supra in assisa novae disseisinae.
This of course is utter rubbish, and the translation of it given by Sir T. Twiss is neither better nor worse. I think it fairly certain that the bit of romanesque reasoning which I have placed within brackets is one of those marginal notes or glosses which, as Prof. Vinogradoff showed in the last number of this Review, have forced their way into the text. I have looked at twenty-one MSS. Six were indecisive, either because the whole passage had been abridged, or because it was missing or displaced. Five supported the printed text. Two others had done so when first written, but an attempt had been made to set the matter straight. Five give the bracketed passage after the words “et libero tenemento.” Three and the printed Fleta give it after “in assisa novae disseisinae.” Both of these last-mentioned arrangements make sense and the former makes good sense, but when there is so much doubt as to the place in the text at which some forty words should be introduced, the most natural inference is that they should not be in the text at all. Probably we ought to read the passage thus:—
What I take to be the gloss is not quite in harmony with the text. The text says boldly that each is in seisin of the tenement; the note suggests that the termor has only a servitude and no seisin of land. To harmonize English and Roman ideas was no easy task.
THE MYSTERY OF SEISIN1 .
Any one who came to the study of Coke upon Littleton with some store of modern legal ideas but no knowledge of English Real Property Law would, it may be guessed, at some stage or another in his course find himself saying words such as these:—“Evidently the main clue to this elaborate labyrinth is the notion of seisin. But what precisely this seisin is I cannot tell. Ownership I know and possession I know, but this tertium quid, this seisin, eludes me. On the one hand when Coke has to explain what is meant by the word he can only say2 that it signifies possession, with this qualification however that it is not to be used of movables and that one who claims no more than a chattel interest in land can not be seised though he may be possessed. But on the other hand if I turn from definitions to rules then certainly seisin does look very like ownership, insomuch that the ownership of land when not united with the seisin seems no true ownership.”
The perplexities of this imaginary student would at first be rather increased than diminished if he convinced himself, as I have convinced myself and tried to convince others, that the further back we trace our legal history the more perfectly equivalent do the two words seisin and possession become, that it is the fifteenth century before English lawyers have ceased to speak and to plead about the seisin (thereby being meant the possession) of chattels1 . Certainly as we make our way from the later to the older books we do not seem to be moving towards an age when there was some primeval confusion between possession and ownership. We find ourselves debarred from the hypothesis that within time of memory these two modern notions have been gradually extricated from a vague ambiguous seisin in which once they were blent. In Bracton’s book the two ideas are as distinct from each other as they can possibly be. He is never tired of contrasting them. In season, and (as the printed book stands) out of season also, he insists that seisina or possessio is quite one thing, dominium or proprietas quite another. He can say with Ulpian, Nihil commune habet possessio cum proprietate2 .
There are some perhaps who would have for the student’s questionings a ready and brief answer, satisfactory to themselves if not to him. If, they would say, you are thinking of ownership and applying that notion to English land, you indeed disquiet yourself in vain; dismiss the idea; it is not known, never has been known, to our law; land in this country is not owned, it is holden, holden immediately or mediately of the king. The questioner might be silenced; I doubt he would be convinced. In the first place he might urge, and it seems to me with truth, that the theory of tenure, luminous as it may be in other directions, sheds no one ray of light on the strangest of the strange effects which seisin and want of seisin had in our old law. In the second place he might appeal to authority and remark that Coke, who presumably knew some little of tenures, speaks freely and without apology of the ownership and even the “absolute ownership1 “of land, while as to Bracton, who lived while feudalism was yet a great reality, for lands and for chattels he has the same words, to wit, dominium and proprietas.
But it may well be said, and this brings us to more profitable doctrine, that English law knew no true ownership of land because the rights of a landowner who was not seised fell far short of our modern conception of ownership. Deprive the tenant in fee simple of seisin, and he is left with a right of entry. Even now this would be the most technically correct description of his right. Until lately his right might undergo a still further degradation; from having been a right of entry it might be debased into a mere right of action.
Now it is to the nature of these rights, whether we call them ownership or no, or rather to one side of their nature, that I would here draw attention. To simplify matters as much as possible we may for the moment leave out of account all estates and interests less than fee simple. The question then becomes this, what is the nature of the rights given by our old law to a person who is lawfully entitled to be seised of land in fee simple when as a matter of fact some other person is seised? or (to use words which will not be misunderstood though they are not the proper words of art) what is the nature of the rights of an absolute owner when some stranger is in possession?
Such a student as I have imagined might well be prepared to find that possession by itself, or possession coupled with certain other elements such as good faith and colour of title, or possession continued for a certain period, would have certain legal effects, effects which would consist in protecting the possessor against mere trespassers, in entitling him to recover possession if ejected by a stranger, in depriving the true owner of any right to obtain possession save by recourse to the courts, in at last depriving that owner of all right whatever and conferring on the possessor a title good against all men. He might expect too that in a system rich in definite forms of action, some possessory some proprietary, the outcome of different ages, these effects would be very complicated; and certainly he would not be disappointed. He would, for example, find the ousted owner gradually losing his remedies one by one, first the remedy by self-help, then the possessory assizes, then the writs of entry, lastly the very writ of right itself. He would here find much to puzzle him, for the rules as to the conversion of a right of entry into a right of entry into a right of action seem to us quaint and arbitrary. Still all these manifold and complex effects of possession and dispossession, seisin and want of seisin, are of a kind known and intelligible, partly due to formalities of procedure and statutory caprices, but tending in the main to protect the possessor in his possession and uphold the public peace against violent assertions of proprietary right; analogies may be found in other systems of law modern as well as ancient.
But this is far from all. Seisin has effects of a quite other kind. The owner who is not seised not only loses remedies one by one but he seems hardly to have ownership, and this, not because all lands are held of the king, but because as regards such matters as the alienation, transmission, devolution of his rights he seems to be in a quite different position from that in which we should expect to find a person who, though he has not possession, has yet ownership. Let a few rules be repeated that were law until but a short while since. They are well known, but it may be worth while to put them together, for they make an instructive whole.
(1) Until the 1st of October 1845, a right of entry could not be alienated among the living1 . In other words, the owner who is not seised has nothing to sell or to give away.
An explanation of this rule has been found in the law’s dislike of maintenance. It may be given in the words of Sir James Mansfield:—“Our ancestors got into very odd notions on these subjects, and were induced by particular causes to make estates grow out of wrongful acts. The reason was the prodigious jealousy which the law always had of permitting rights to be transferred from one man to another, lest the poorer should be harassed by rights being transferred to more powerful persons1 .” This bit of rationalism is of respectable antiquity; it is certainly as old as Coke’s day2 ; and true it is that at one time our laws did manifest a great, but seemingly most reasonable3 , jealousy of maintenance and champerty, of bracery and the buying of pretenced titles. But still the explanation seems insufficient. Its insufficiency will be best seen when we pass to some other rules. In passing, however, let us notice how deeply rooted in our old law this rule must be. We come upon it directly we ask the simplest question as to the means of transferring ownership. What is the one “assurance,” the one means of passing ownership, known to the common law? Why, if we leave out of account litigious proceedings real or fictitious, it is the feoffment, and there must be livery of seisin, that is, delivery of possession. One cannot deliver possession to another when a third person is possessing; so a right of entry cannot but be inalienable. Or put it this way: our old law has an action which is thoroughly proprietary, which raises the question of most mere right, the writ of right, the only hope of one who cannot base his claim on a recent possession. Yet even in the writ of right the demandant must count upon his own seisin or on the seisin of some ancestor, and thence deduce a title by descent; he cannot count on the seisin of a donor or vendor, “for the seisin of him of whom the demandant himself purchased the land availeth not1 .” This is a rule which can be traced from Coke to Bracton2 , a rule of procedure, be it granted, but a rule which shows plainly that he who has no seisin has nothing that he can give to another. But to this matter of alienation inter vivos we will return.
(2) Before the 1st of January 18383 a right of entry could not be devised by will. About devises of course we cannot expect much ancient common law. The question depended on the meaning of the statutes of 15404 and 15425 ; but the manner in which these statutes were interpreted is worthy of note. Throughout the verb used of the person who is empowered to make a will is the verb to have. The person who has any manors, lands, tenements or hereditaments may dispose of them by will. But though some modern judges did not much like the interpretation, still the old interpretation was that the disseised owner has not any land, tenement, or hereditament, and therefore has nothing to leave by his will6 . A case from the year 1460 shows plainly that before the statutes a similar rule prevailed; to give validity to a devise under local custom it was essential that the testator should die seised, though it was doubted whether he need be seised when making the will1 .
(3) Until the 1st of January 18342seisina fecit stipitem. Now this when duly considered seems a very remarkable rule, for it comes to this, that a land-owner who has never been in possession has no right that he can transmit to his heir, or in other words, that ownership is not inheritable. Such a person may be (to use a venerable simile) the passive “conduit-pipe” through which a right will pass, but no one shall ever get the land by reason that he was this man’s heir; a successful claimant must make himself heir to one who was seised. But what explanation have we for this? A fear of maintenance very obviously fails us, and as it seems to me feudalism must fail us, and as it seems to me feudalism must fail us also, unless we are to suppose a time when seisin meant not mere possession but possession given, or at least recognized, by the lord of the fee. But for imagining any such time we have no warrant. It seems law from the first that the rightful tenant can be disseised, though the lord be not privy to the disseisin, and that the disseisor will be seised whether the lord like it or no.
And to constitute a new stock of descent a very real possession was necessary. The requisite seisin was not a right which could descend from father to son; it was a pure matter of fact. Even though there was no adverse possessor, even though possession was vacant, the heir was not put into seisin by his ancestor’s death; an entry, a real physical entry, was necessary. We all know the old story of the man who was half inside half outside the window, and who was pulled out by the heels. It was certainly a nice problem whether he possessed corpore as well as animo; but at any rate on this depended the question whether he had been seised and could maintain the novel disseisin against those who extracted him1 .
(4) The Dower Act of 18332 for the first time gave a widow dower of a right of entry; but for that statute the widow of one who has not been seised goes unendowed. It is true that in this case “a seisin in law or a civil seisin” would answer the purpose of “a seisin in deed3 .” But this “seisin in law” only existed when possession was in fact vacant. A man was seised neither in fact nor yet in law if some other person had obtained and was holding seisin. If such an one did not get seisin during the coverture his wife would get no dower.
Here it may be remarked that seisin did to some extent become a word with many meanings or rather shades of meaning. The seisin which is good enough for one purpose is insufficient for another. “What shall be said a sufficient seisin” to give dower, to give curtesy, to constitute a stock of descent, to maintain a writ of right4 —each of these questions has its own answer. But I believe that the variations are due (1) to the treatment of cases in which no one has corporeal possession of the lands, and (2) to the application of the idea of possession to subjects other than lands, namely, the incorporeal hereditaments, an application which must necessarily be difficult and may easily be capricious. No fictitious seisin in law was, so far as I am aware1 , ever attributed to one who however good his title was clearly dispossessed, to one whose land was being withheld from him by a stranger to the title. And the “seisin in law” may well set us thinking. When we hear that A is B in law we can generally draw an inference about past history:—it has been found convenient to extend to A a rule which was once applied only to things which were B in deed and in truth; in short, there was a time when A was not B even in law. For a few but by no means all purposes we may say with the old French lawyers, “le mort saisit le vif”; the seisin in law would, e.g. give dower, but it would not make a stock of descent.
(5) To give a husband curtesy seisin during the coverture was necessary. This rule has never yet been abolished, though it has been somewhat concealed from view both by Equity and by statutes.
So far we have been concerned with rules which are still generally known, and one of them, the rule about curtesy, has not yet become a matter for the antiquary. It now becomes desirable to glance at some obscurer topics. Since we are sometimes assured that in one way or another the strange effects of seisin and want of seisin are due to feudalism, we ought to ask how the rights of a lord were affected by the fact that “the very tenant,” the true owner, was out of seisin and some other person in seisin.
Suppose tenant in fee simple is disseised and then dies without an heir, what can be plainer on feudal principles (feudal principles as understood in these last times) than that the land will escheat to the lord, that the lord will be able to recover the land from the disseisor or from any person who has come to the land through or under the disseisor? But such was not the law even in the last, even in the present century, and if it be law now, a point about which I had rather say nothing, this must be the result either of the statutes which have deprived feoffments and descents of their ancient efficacy or else of a convenient forgetfulness. In Coke’s day it seems to have been settled that from the original disseisor the lord could obtain the land either by entry or by action (writ of escheat), provided that he had not accepted the disseisor as tenant. If however before the death of the disseisee the disseisor made a feoffment in fee, or died seised leaving an heir, there was no escheat at all, “because the lord had a tenant in by title”; he had, that is, a tenant who could not personally be charged with any tort. Of a right of action, as distinguished from a right of entry, there was no escheat; “such right for which the party had no remedy but by action only to recover the land is a thing which consists only in privity, and which cannot escheat nor be forfeited by the common law1 .” What is more, it had been held that the most sweeping general words in acts of attainder would not transfer such rights to the crown; they were essentially inalienable, intransmissible rights.
But if we go behind Coke we find that so far from the law having been gradually altered to the detriment of the lords, if altered at all it had been altered to their profit. We come to a time when there seems the greatest uncertainty whether the lord can get the land from the very disseisor. The writ of escheat, his only writ, distinctly says that his tenant has died seised. I do not wish to dogmatize about a very obscure history, but it will be enough to say that under Henry VII Brian C. J. denied that the lord could enter or bring action against the disseisor1 .
It was so with the other feudal casualties. Coke says2 that if the disseisee die having still a right of entry and leave an heir within age the lord shall have a wardship. Doubtless the law was so in his day, but the earliest authority that he cites is from the reign of Edward III and to this effect—“In a writ of ward it is a good plea that the ancestor of the infant had nothing in the land at the time of his death; for if he was disseised the lord shall not have a wardship, neither by writ of ward nor by seizing him [the heir], until the tenancy is recontinued1 .” But at all events of a right of action there was no wardship. On the other hand, if the disseisor died without an heir the lord got an escheat, if the disseisor died leaving an infant heir the lord got a wardship, though in either case his rights were defeasible by the disseisee. In short, the lord must take his chance; it is no wrong to him if his tenant be disseised; he cannot prevent this person or that from acquiring seisin, yet thus he may be a great loser or a great gainer. The law about seisin pays no regard to his interests.
There is another side to the picture we have here drawn. He who is seised, though he has no title to the seisin, can alienate the land; he can make a feoffment and he can make a will (for he who has land is enabled to devise it by statute), and his heir shall inherit, shall inherit from him, for he is a stock of descent; and there shall be dower and there shall be curtesy, and the lord shall have an escheat and the king a forfeiture, for such a one has land “to give and to forfeit.” This may make seisin look very much like ownership, and in truth our old law seems this (and has it ever been changed2 ?) that seisin does give ownership good against all save those who have better because older title. Nevertheless we err if we begin to think of seisin as ownership or any modification of ownership; after all it is but possession. A termor was not seised, but certainly he could make a feoffment in fee and his feoffee would be seised. This seems to have puzzled Lord Mansfield1 , and puzzling enough it is if we regard seisin itself as a proprietary right, for then the termor seems to convey to another a right that he never had. But when it is remembered that substantially seisin is possession, no more, no less, then the old law becomes explicable. My butler has not possession of my plate, he has but a charge or custody of it; fraudulently he sells it to a silversmith; the silversmith now has possession: so with the termor, who has no seisin, but who by a wrongful act enables another to acquire seisin.
But, it will be urged, the termor’s feoffee (here is the difficulty) acquires an estate in fee simple and no less estate or interest. Certainly, and what of the silversmith who buys of the fraudulent butler? He has possession, and in a certain sense he possesses as owner; he claims no limited interest, such as that of a bailee, in the goods. How his rights would best be described at the present day we need not discuss, but it seems plausible to say that at least if an innocent purchaser, he has ownership good against all save those who have better because older title2 . Regarded from this point of view the termor’s tortious feoffment is no anomaly. It is true that in our modern law there may be nothing very analogous to the process whereby an infirm title gained strength as it passed from man to man, the ousted owner losing the right to enter before he lost the right of action; still it is conceivable that in the interests of public peace law should, for example, permit me to take my goods by force from the thief himself, but not from one to whom the thief has given or sold them, nor from the thief’s executor. Thus would my entry be tolled and I should be put to my action1 .
But this by the way, for the position of the nonpossessed owner is more interesting and less explicable than that of the possessed non-owner. Now we seem brought to this, that ownership, mere ownership, is inalienable, intransmissible; neither by act of the party nor by act of the law will it pass from one man to another. The true explanation of the foregoing rules will I believe be found in no considerations of public policy, no wide views of social needs, but in what I shall venture to describe as a mental incapacity, an inability to conceive that mere rights can be transferred or can pass from person to person. Things can be transferred; that is obvious; the transfer is visible to the eye; but how rights? you have not your rights in your hand or your pocket, nor can you put them into the hand of another nor lead him into them and bid him walk about within their metes and bounds. “But,” says the accomplished jurist, “this is plain nonsense; when a gift is made of a corporeal thing, of a sword or a hide of land, rights are transferred; if at the same time there is a change of possession, that is another matter; whether a gift can be made without such a change of possession, the law of the land will decide; but every gift is a transfer of ownership, and ownership is a right or bundle of rights; if gift be possible, transfer of rights is possible.” That, I should reply, doubtless is so in these analytic times; but I may have here and there a reader who can remember to have experienced in his own person what I take to be the history of the race, who can remember how it flashed across him as a truth, new though obvious, that the essence of a gift is a transfer of rights. You cannot give what you have not got:—this seems clear; but put just the right accent on the words give and got, and we have reverted to an old way of thinking. You can’t give a thing if you haven’t got that thing, and you haven’t got that thing if some one else has got it. A very large part of the history of Real Property Law seems to me the history of the process whereby Englishmen have thought themselves free of that materialism which is natural to us all.
But it will be said to me that this would-be explanation is untrue, or at best must take us back to a merely hypothetical age of darkness, because from time immemorial there were rights which could be transferred from man to man without any physical transfer of things, namely, “the incorporeal hereditaments which lay in grant and not in livery.” In truth however the treatment which these rights receive in our oldest books is the very stronghold of the doctrine that I am propounding. They are transferable just because they are regarded not as rights but as things, because one can become not merely entitled to, but also seised and possessed of them, corporeally seised and possessed. Seisin, it may be, cannot be delivered; I cannot put an advowson into your hand, nor can an advowson be ploughed and reaped; nevertheless the gift of the advowson will be far from perfect until you have presented a clerk who has been admitted to the church. In your writ of right of advowson you shall count that on the presentation of yourself or your ancestor a clerk was admitted, nay more, that your clerk exploited the church, took esplees thereof in tithes, oblations and obventions to the value of so many shillings1 . But we may look at a few of these things incorporeal a little more closely.
And first then of seignories, reversions, remainders. These, it is said, lie in grant. But for all that the tenant of the land must attorn to the grantee; the attornment is necessary to perfect the transfer of the right. Such was the law in 17052 . Whence this necessity for an attornment?
It may be replied:—Here at all events is a feudal rule. Just as (before the beginning of clear history) the tenant could not alienate the land without the lord’s consent, so in the reign of Queen Anne the lord could not alienate the seignory without the tenant’s attornment. There was a personal bond between lord and vassal; the need of attornment is to start with the need of the tenant’s consent, though certainly in course of time he could be compelled to give that consent.
Now it may not be denied that in this region feudal influence was at work. To deny this one must contradict Bracton. But the sufficiency of the explanation should not be admitted until some text of English law is produced which says that the tenant can as a general rule refuse consent to an alienation. Bracton does say that except in exceptional cases there can be no transfer of homage unless the tenant consents; on the other hand he says that all other services can be transferred and the tenant shall be attorned velit nolit1 . It is of course possible to regard this state of things as transitional, to urge that in Bracton’s day the tenant had already lost a veto on alienation that he once had; but before we adopt this theory let us see how much less ground it covers than the rules which have to be explained.
(a) The doctrine of attornment holds good not only of a seignory and of a reversion but of a remainder also2 ; but between the remainderman and the tenant of the particular estate there is no tenure, no feudal bond.
(b) Much the same doctrine holds good when what has to be conveyed is the land itself (immediate free-hold) but that land is in lease for years. Here the transfer can be made in one of two ways. There may be a grant and then attornment will be necessary1 , or there may be a feoffment. But if there is to be a feoffment, either the termor must be a consenting party or he must be out of possession2 . If the termor chooses to sit upon the land and say “I will not go off and I will not attorn myself,” there can be no effectual grant, no effectual feoffment; recourse must be had to a court of law. But surely it will not be said that in the days of true feudalism, when, as we are told, the termor was regarded much as his landlord’s servant, he had a legal right to prevent his landlord from selling the land?
(c) The doctrine of attornment holds good of rents not incident to tenure3 . The terre-tenant will not hold of the grantee of the rent, nevertheless he must attorn if the grant is to have full efficacy. Indeed the learning of rents as it is in Coke4 , and even as it is at the present day, seems to me very suggestive of an ancient mode of thought. The rent is regarded as a thing, and as a thing which has a certain corporeity (if I may so speak); you may be seised, physically possessed of it; you have no actual seisin until you have coins, tangible coins, in your hand. On getting this actual seisin much depended; in modern times a vote for Parliament5 . An attornment would give you a fictitious “seisin in law”; nothing but hard palpable cash would give you seisin in fact. Such an incorporeal hereditament as a rent can be given by man to man just because it occasionally becomes corporeal under the accidents of gold or silver; this seems the old theory.
Now as to attornment, a valuable analogy lies very near to our hands. Suppose that we shut Coke upon Littleton and open Benjamin on Sales. Describing what will be deemed an “actual receipt” of sold goods within the meaning of the Statute of Frauds, Mr Benjamin writes thus:—“When the goods, at the time of the sale, are in the possession of a third person, an actual receipt takes place when the vendor, the purchaser, and the third person agree together that the latter shall cease to hold the goods for the vendor and shall hold them for the purchaser. . . . All of the parties must join in the agreement, for the agent of the vendor cannot be converted into an agent for the vendee without his own knowledge and consent1 .” This is familiar law, and surely it explains much. Baron Parke used a very happy phrase when he said that there is no “actual receipt” by the buyer “until the bailee has attorned, so to speak” to the buyer, a happy phrase for it explained the obscure by the intelligible, the old by the modern2 .
Without transfer of a thing there is no transfer of a right.
Starting with this in our minds, how, let us ask, can a reversioner alienate his rights when a tenant for life is seised, how can a tenant in fee simple alienate his rights when there is a termor on the land? There is but one answer. The person who has the thing in his power must acknowledge that he holds for or under the purchaser. If he does this, then we may say (as we do say when construing the Statute of Frauds) that the purchaser has “actually received” the thing in question. It is I admit difficult to carry this or any other theory through all the intricacies of our old land law. The fact that in course of time there came to be two legally recognized possessions, first the oldfashioned possession or seisin which no termor can have (possessio ad assisas), and then the new-fashioned possession which a termor can have (possessio ad breve de transgressione), complicates what, to start with, may have been a simple notion1 . But the clue is given us in some words of Britton:—tenant in fee wants to alienate his land, but there is a farmer in possession; until the farmer attorns there can be no conveyance, car la seisine del alienour sei continue touz juirs par le fermer, qui use sa seisine en le noun le lessour2 ; the seisin is held for the alienor until the farmer consents to hold it for the alienee. So when the person on the land is tenant in fee simple, here doubtless he is seised on his own behalf, seised in demesne, but the overlord also is seised, seised of a seignory, or, as the older books put it, he holds the land in service (non in dominico sed in servicio); he holds the land by the body of his tenant; he can only transfer his rights if he can transfer seisin of the seignory; he transfers seisin when the tenant admits that he is holding under a new lord1 . So with a rent which “issues out of the land”; we cannot make a rent issue out of land, or turn the course of a rent already issuing, unless we can get at the land; if some one else has possession of the land, it is he that has the power to start or to divert the rent. This phrase “a rent issuing out of land” would seem to us very wonderful and very instructive, had we not heard it so often. What a curious materialism it implies!
Bracton’s whole treatment of res incorporales shows the same materialism, which is all the more striking because it is expressed in Roman terms and the writer intends to be very analytic and reasonable. Jura are incorporeal, not to be seen or touched, therefore there can be no delivery (traditio) of them. A gift of them, if it is to be made at all, must be a gift without delivery. But this is possible only by fiction of law. The law will feign that the donee possesses so soon as the gift is made and although he has not yet made use of the transferred right. Only however when he has actually used the right does his possessio cease to be fictiva and become vera, and then and then only does the transferred right become once more alienable2 .
Of all these incorporeal things by far the most important in Bracton’s day and long afterwards was the advowson in gross, and happily he twice over gives us his learning as to its alienability with abundant vouching of cases1 . To be brief:—If A seised of an advowson grants it to B, and then the church falls vacant, B is entitled to present. Thus far have advowsons become detached from land. But if before a vacancy B grants to C, and then the parson dies, who shall present? Not C, nor B, but A. Not C, for though B had a quasi-possession when he made the grant he had no real possession, for he had never used the transferred, or partially transferred, right; he had nothing to give; he had nothing. Not B, for whatever inchoate right he had he has given away. No, as before said, A shall present, for the only actual seisin is with him. One has not really got an advowson until one has presented a clerk and so exploited one’s right.
We may take up the learning of advowsons some centuries later. The following comes from a judgment not unknown to fame, the judgment of Holt in Ashby v. White2 . He is illustrating the doctrine that want of remedy and want of right are all one. “As if a purchaser of an advowson in fee simple, before any presentment, suffer an usurpation and six months to pass without bringing his quare impedit he has lost his right to the advowson, because he has lost his quare impedit which was his only remedy; for he could not maintain a writ of right of advowson; and although he afterwards usurp and die and the advowson descend to his heir, yet the heir cannot be remitted, but the advowson is lost for ever without recovery.” So, as I understand, stood the law before the statute 7 Ann. c. 18. It comes to this, that if the grantee who has never presented suffers a usurpation, and does not at once use a special statutory remedy1 , his right, his feeble right, has perished for ever. Writ of right he can have none, for he cannot count on an actual seisin. Very precarious indeed at Common Law was the right of the grantee who had not yet acquired what could be regarded as a physical corporeal possession of a thing. Indeed when we say that these rights lay in grant we use a phrase technically correct, but very likely to mislead a modern reader.
Space is failing or I would speak of franchises, for even to negative franchises, such as the right to be quit of toll, does Bracton apply the notion of seisin or possession; and the more the history of the incorporeal hereditaments is explored, the plainer will it be that according to ancient ideas they cannot be effectually passed from person to person by written words: there is seisin of them, possession of them, no complete conveyance of them without a transfer of possession, which, when it is not real must be supplied by fiction. But now if we put together all the old rules to which reference has here been made (and I will ask my readers to fill with their learning the many gaps in this brief argument), does it not seem tahat these “very odd notions” of our ancestors, which Sir James Mansfield ascribed to “particular causes,” were in the main due to one general cause? They point to a time when things were transferable and rights were not. Obviously things are transferable, but how rights?
And here let us remember the memorable fact that the chose in action became assignable but the other day. The inalienability of the benefit of a contract, like the inalienability of the rights of the disseised owner, has been set down to that useful, hard-worked “particular cause,” the prodigious jealousy of maintenance. The explanation has not stood examination in the one case1 , I doubt it will stand examination in the other. According to old classifications the benefit of a contract and the right to recover land by litigation, stand very near each other. The landowner whose estate has been “turned to a right” (a significant phrase) has a thing in action, a thing in action real. There is a contrast more ancient than that between jus in rem and jus in personam, namely, that between right and thing. Of maintenance there is, I believe, no word in Bracton’s book, but that there can be no donatio without traditio is for him a rule so obvious, so natural, that it needs no explanation, though it may be amply illustrated by cases on the rolls. What the thirteenth century learned of Roman law may have hardened and sharpened the rule, but it seems ingrained in the innermost structure of our law.
I am far from saying that within the few centuries covered by our English books it has ever been strictly inconceivable that a right should be transferred without some transfer of a thing, or without some physical fact which could be pictured as the use of a transferred incorporeal thing. Should it even be proved that the Anglo-Saxon charter or “book” passed ownership without any transfer of possession, this will indeed be a remarkable fact, but far from decisive, particularly if the proof consist of royal grants. The king in council may have been able to do many marvellous feats not to be done by common men, and we know that ages before the year 1875 the king could assign his chose in action. But old impotencies of mind give rise to rules which perdure long after they have ceased to be the only conceivable rules, and then new justifications have to be found for the wisdom of the ancients, here feudalism, there a dread of maintenance, and there again a hatred of simony. So long as the rules are unrepealed this rationalizing process must continue; judges and text-writers find themselves compelled to work these archaisms into the system of practical intelligible law. Only when the rules are repealed, when we can put them all together and look at them from a little distance, do they begin to tell their true history. I have here set down what seems to me the main theme of that history. For this purpose it has been necessary to speak very briefly and superficially of many different topics, about every one of which we have a vast store of detailed and intricate information. Before any theory such as that here ventured can demand acceptance, it must be stringently tested at every point and other systems of law besides the English should be considered. But it seemed worth while to draw notice to many old rules of law which we do not usually connect together, and to suggest that they help to explain each other and are in the main the outcome of one general cause1 .
THE DEACON AND THE JEWESS; OR, APOSTASY AT COMMON LAW1 .
In the year 1222, Archbishop Stephen Langton held at Oxford a provincial council, and of this council one result was that a deacon was burnt, burnt because he had turned Jew for the love of a Jewess.
I propose here to set in order the scattered evidence that we have for this story. This, so far as I am aware, has not yet been done, and it seems worth doing. The story became famous, for the passage in which Bracton made mention of it became the main, almost the only, authority for holding that, without help from any statute, English law can burn a heretic or, at least, an apostate. We have indeed no warrant for saying that from the death of this deacon until the death of Sautre in 1400 (whether Sautre was burnt under the statute of that year or under the common law, must not here be asked), no one in England was burnt for heresy, but we may say with some confidence that during this long period, near two hundred years, if English orthodoxy had a victim, there is no known record of his fate2 .
Now for just so much of the tale as is told above we have testimony ample in quantity and excellent in quality. But I have purposely used a loose phrase:—the apostate’s death was a “result” of the council. If we strive to be more precise and ask by what authority he was committed to the flames, who passed, who executed the sentence, we have before us a problem difficult but interesting. Not only in course of time did the solid tragic fact attract to itself some floating waifs of legend and miracle, but even our best witnesses have not been so careful of their words as doubtless they would have been had they known that they were writing for an ignorant nineteenth century. We must collate their testimonies, mark what they say, also what they do not say. So doing we shall be drawn into noticing another story about a man and a woman who were immured (whatever “immured” may mean), and this story also deserves being brought to light, for it is very curious.
That the council was held is quite certain. The scene and time we can fix exactly. The scene was Oxford, or, to be more particular, the conventual church of Osney1 . The day is variously described, the day on which one reads in the gospel, “I am the good Shepherd,” the day on which one sings in the introit, “The earth is full of the mercy of the Lord”; but all descriptions come to this, it was the 17th of April, and the Second Sunday after Easter, in the year 1222. The canons which the council published we have2 . Naturally enough, being general ordinances, they say nothing of the deacon; but there are two of them which claim brief attention.
It was ordained that no beneficed clerk, or clerk in holy orders, should take any part whatever in the judicial shedding of blood1 . This, even if it stood by itself, would assure us that no sentence of death was pronounced by the council. It may be that this canon was habitually disobeyed, or obeyed only according to its very letter. At this time, and for many years afterwards, the regular judges in our King’s Court (to say nothing of abbots and even bishops sent out as justices in eyre) were for the more part ecclesiastics, and the judicial bench was often a step to the episcopal throne. But this seems to have been a scandal to churchmen of the straiter sort, and it would be quite one thing for this or that ordained clerk to hold pleas of the Crown, leaving to some lay associate the actual uttering of the fatal suspendatur, quite another for an ecclesiastical council to break while in the very act of publishing a law for the church2 .
Also the council had something to say about the mingling of Jews with Christians, something which suggests, what indeed seems the truth, that at this time the Jews in England, despite the exactions of their royal protector, and despite occasional outbursts of popular fury, were a prosperous thriving race. Jews are not to have Christian servants, it being contrary to reason that the sons of the free woman should serve the sons of the bond1 . Again, there being unfortunately no sufficiently visible distinction between Jews and Christians, there have been mixed marriages or less permanent unions; for the better prevention whereof, it is ordained, that every Jew shall wear on the front of his dress tablets or patches of cloth four inches long by two inches wide, of some colour other than that of the rest of his garment2 . We might guess that the council was moved to this decree by the then recent and shameful crime of the apostate deacon. But there is no need for any such supposition, for in this and in most of its ordinances the Oxford Council was but endorsing and re-enforcing the acts of a still more august assembly, the Fourth Lateran Council held by Pope Innocent the Third in the year 1215.
The Lateran Council had prohibited the clergy from taking part in judgment of blood3 , also it had ordained that Jews and Saracens should wear some distinctive garb4 , lest under cover of a mistake there should be an unholy union of those whom God had put asunder. But this was but bye-work; the suppression of flagrant heresy had been the main matter in hand. Of heresy England indeed had known little, almost nothing. It is true that in 1166 some heretics, Publicani or the like, had been condemned by an ecclesiastical council (this council also was held at Oxford), had been handed over to the secular power, and then by the king’s command whipt, branded, and exiled; some of them, it seems, perished very miserably of cold and hunger1 . But even these were foreigners, Germans, and the writer who tells us most about them boasts that though Britain was disgraced by the birth of Pelagius, England, since it had become England, had been unpolluted by false doctrine. He boasts also, and apparently with truth, that well-timed severity had been successful2 . Only one other case is recorded, and of this we know next to nothing. In 1210 an Albigensian was burnt in London; we are told just this and no more3 . It must not surprise us therefore if English law had no wellsettled procedure for cases of heresy; there had been no heretics. But of course it was otherwise elsewhere. When the Lateran Council met the Albigensian war had been raging for some years, and it had been a serious question whether a considerable tract of France would not be permanently lost to the Catholic Church. So one great object of the council was to impress upon all princes and potentates the sacred duty of extirpating heretics. A definite method of dealing with them was ordained4 . They were to be condemned by the ecclesiastical powers in the presence of the secular powers or their bailiffs (saecularibus potestatibus praesentibus aut eorum baillivis) and delivered to due punishment, clerks being first deprived of their orders. Also it was decreed that if the temporal lord, when required and admonished by the church, neglected to purge his land of heresy, he should be excommunicated by the metropolitan and the other bishops of the province. If then for the space of a year he should still be contumacious, that was to be signified to the Pope, who would thereupon discharge his subjects from their allegiance. It was from taking part in such legislation as this that the English bishops had but lately returned when they met at Oxford. The council at Oxford, having recited and republished the Lateran canons, can have had little doubt as to how it ought to deal with a deacon who had turned Jew.
It will hardly be a digression, and indeed may lead us to the right point of view, if we notice that this same Lateran Council made (or if the word made be objectionable, then let us say caused) a great change in English criminal law. It abolished the ordeal, or rather it made the ordeal impossible by forbidding the clergy to take part in the ceremony1 ; no more remained for the council of the English king (the king himself was yet a boy) than to find some substitute for a procedure which was no longer practicable2 . We may respect the motives which urged Blackstone to protest that no change in English law could be made by a body of prelates assembled at Rome3 ; but we shall scarcely understand the history of the time unless we understand that the exclusive power of the church to rule things spiritual,—and the ordeal, the judgment of God, was a thing spiritual,—was unquestioned. It may be difficult now to grasp the old theory of Church and State, the theory of the two swords; a distinction between things spiritual and things temporal may seem to us vain and impossible; still we must reverence facts, and the theories of a time are among its most important facts. Our own doctrine of sovereignty, our modern definitions of law, are out of place if we apply them to the middle ages. They will bring us but to some such unprofitable conclusion as that there were no sovereigns, no political communities, no law, nothing but “dormant anarchy.”
Though it may delay us from our story, there is yet one question which should be asked and answered before we can fully comprehend the evidence that is to come before us. Who at Oxford in the year 1222 was the natural and proper representative of temporal power, who was the manus laicalis? Doubtless the sheriff of Oxfordshire. Now it happened that the sheriff of Oxfordshire was one of the most notable men in England; more than king in England (“plusquam rex in Anglia”) some said1 . He was Fawkes of Breauté, just at the full height of his power, a man not unlikely to act in a high-handed imperious way without much regard for forms and precedents, a man who very likely was already plotting revolt and civil war, a man somewhat given to disseising and otherwise pillaging the clergy, and therefore, it may be, not unwilling to do the church a service if that service would cost him nothing. He was soon to find that the church could be a terrible enemy, that of all his foes Langton was the most resolute.
These things premised, we may call the witnesses, and first of all Bracton, not that his testimony is the earliest but because it is perhaps the best and certainly the best known. A lawyer writing for lawyers, he would be likely to see the case in its legal bearings and to speak of it carefully. We cannot assign any very precise date to his evidence, and he may well have given it between thirty and forty years after the event. Still it is from round about the year 1222, the year of the Oxford Council, that he collected the great mass of his case law. That was the great time when there were great judges whose judgments were worthy of record. Of their successors, his own contemporaries, he seems for some reason or another to have thought but meanly. It was to the examination of old judgments, as he himself expressly says, that he had given his mind1 . He is speaking then, if not of his own time, yet of a time that he has studied. He has been telling us that a clerk convicted of crime is to be degraded by the Court Christian2 . He is to undergo no further punishment, degradation is punishment enough, “unless indeed he is convicted of apostasy, for then he is to be first degraded and then burnt by the lay power (per manum laicalem), as happened at the Oxford Council holden by Stephen Archbishop of Canterbury of happy memory, touching a deacon who apostatised for a Jewess, and who, when he had been degraded by the bishop, was at once (statim) delivered to the fire by the lay power.” Two things we remark. In the first place there is no talk of any sentence of death being pronounced by any court, temporal or spiritual; the miscreant was burnt at once, on the spot, so soon as he has been degraded: there is no talk even of any royal writ. Secondly, the case is good law; it is a precedent to be followed when occasion shall require.
But Bracton does not stand alone. If he did, we should perhaps have some cause for doubting his testimony. It was an age very fertile of chroniclers and annalists, and there are some dozen books in which we may hope to find a trustworthy and early, if not quite contemporary, account of an event which took place in 1222, an event which, though neither very marvellous nor of first-rate importance, was still picturesque and unprecedented. Some of these books are silent. The silence most to be regretted is that of Roger of Wendover. We would gladly have had an account from one so careful and so well informed. But he is taken up with more momentous matters, the loss of Damietta and a serious riot in London, not suppressed without the aid of Fawkes and his soldiery. Beyond this he tells of nothing but terrible tempests. And, indeed, the weather this year was abominably bad; about this all our authorities are agreed. It is the only fact that the annalist of Margan in Glamorgan found worthy of remark. The annals of Burton, of Worcester, and of Bermondsey do not even mention the council; those of Winchester and Tewkesbury tell us that the council was held, but tell us no more. The annals of Osney, to which we look hopefully, say merely that the council was held, and held at Osney. But all this silence cannot, I believe, be reckoned as negative evidence. The monastic annalist, working with no definite plan, with no consistent measure for the greatness of events, jotted down what might interest his house or had struck his fancy, making sometimes what seems to us a very capricious selection of facts. He could pass by the fate of the perverted deacon, but he could also pass by very many things which, tried by any test, were much better worth recording.
But from the Cistercian house of Waverley in Surrey we have this1 :—“In this council an apostate deacon who had married (duxerat) a Jewess was degraded and afterwards burnt. Also a countryman (rusticus) who had crucified himself was immured for ever.” A somewhat longer version comes from Dunstable2 , and it seems to be the version of one who likely enough was an eye-witness, Prior Richard Morins, who was describing events as they happened year by year3 . He had certainly been at the Lateran Council4 , and I suppose that it was his duty to be at the Oxford Council also. He must have been a careful man of business, for these Dunstable Annals are a long detailed record of litigation and legal transactions described in technical legal language. What he says is this:—“In this council there was condemned to the flames, after his degradation, a deacon who for the love of a Jewess had been circumcised; and he was burnt with fire outside the town by the king’s bailiffs who were present on the spot (ibidem praesentes). There also another deacon was degraded for theft. Also a woman who gave herself out to be Saint Mary and a youth who had given himself out to be Christ and had pierced his own hands, side and feet, were immured at Banbury.” The prior certainly says that the pervert was condemned to the flames in (not by) the council. Could we now draw his attention to these words he would, I think, say (after a grumble about hypercriticism) that of course the council did not in so many words pronounce a sentence of death, but would add that it did what was for practical purposes the same thing, it convicted the man of apostasy and handed him over to the secular power; he might add, too, that no one for whom he wrote would have imagined that a judicium sanguinis was uttered by this assembly of ecclesiastics. Of any temporal court he says nothing, and nothing of any royal writ, but the king’s bailiffs were present on the spot, as required by the Lateran Council, and they burned the convict.
The account which comes to us from the Abbey of Coggeshall in Essex is yet fuller1 . It is contained in a very valuable chronicle, and in all probability was written within some five years after the event. Archbishop Stephen held a council at Oxford, and there “degraded an apostate deacon, who for the love of a Jewess had circumcised himself. When he had been degraded he was burnt by the servants of the lord Fawkes. And there was brought thither into the council an unbelieving youth along with two women, whom the archdeacon of the district accused of the most criminal unbelief, namely that the youth would not enter a church nor be present at the blessed sacraments, nor obey the injunctions of the Catholic Father, but had suffered himself to be crucified, and still bearing in his body the marks of the wounds had been pleased to have himself called Jesus by the aforesaid women. And one of the women, an old woman, was accused of having long been given to incantations and having by her magic arts brought the aforesaid youth to this height of madness. So both being convicted of this gross crime, were condemned to be imprisoned between two walls until they died (jussi sunt inter duos muros incarcerari quousque deficerent). But the other woman, who was the youth’s sister, was let go free, for she had revealed the impious deed.” We notice the appearance of Fawkes of Breauté, or rather of his underlings, remembering however that the ministri domini Falconis would also be the ballivi domini Regis mentioned by the Prior of Dunstable. We notice also that here there is no sentence of death, no royal writ.
Of about equal value and of about even date must be the account which, according to Dr Stubbs, comes from some nameless canon of Barnwell, the account which is preserved in the Memoriale of Walter of Coventry1 . “A priest and a deacon were there degraded inside the church before the council by the lord of Canterbury, the priest for homicide, the deacon for sacrilege and theft. But another deacon had sinned enormously; he had renounced the Christian faith; blaspheming and apostatising, he had caused himself to be circumcised in imitation of the Jewish rite. He was degraded by the lord of Canterbury outside the church and before the people. Relinquished by the clergy, he was as a layman and captured apostate delivered over to be condemned by the judgment of the lay court, and being at once (statim) delivered to the flames he died a miserable death. In degrading the priest and the deacons, when the lord of Canterbury had stripped off the chasuble, or stole, or whatever it might be, by lifting it with the end of his pastoral staff, he made use of these words, ‘We deprive you of authority’ (Exautoramus te). There was brought into the council a layman who had allowed himself to be crucified, and the scarred traces of the wounds might be seen in his hands and feet and his pierced side and his head. There was brought also a woman who, rejecting her own name, had caused herself to be called Mary Mother of Christ. She had given out that she could celebrate mass, and this was manifested by some proofs which were found, for she had made a chalice and patten of wax for the purpose. On these two the council inflicted condign punishment, that enclosed within stone walls (muris lapideis inclusi) they should there end life.” One peculiarity of this life-like account is that it says nothing about the Jewess. But we have also to note the mention of the lay court, for of this we have hitherto heard nothing. The deacon was delivered over to be condemned by its judgment. These are the important words: “velut laicus et apostata captus traditur judicio curiae laicalis condemnandus.” Nevertheless we do not read that he was in fact condemned by or brought before any secular tribunal; on the contrary, he was forthwith committed to the flames.
I believe that I have now stated what may be called the first-rate evidence, and that it is far more than sufficient to establish the chief facts. It will not escape the reader’s notice that all these early accounts of the matter are very sober, strikingly sober when the nature of the story and its subsequent fate are considered. We come to witnesses of a somewhat less trustworthy kind. And first there is Matthew Paris, who died in 1259. Roger of Wendover, as already said, does not even mention the Oxford Council. When Paris was absorbing Wendover’s work into his own Chronica Majora, he inserted a notice of the Council and of the deacon’s death. A more elaborate tale he set forth in his Historia Minor or Historia Anglorum, and to this we will turn first since there he cites his authority, and this authority an eye-witness, one Master John of Basingstoke, Archdeacon of London1 . Of any such Archdeacon of London nothing is said elsewhere, but a John of Basingstoke was Archdeacon of Leicester2 . Paris seemingly knew him well, and doubtless he is the person meant. He was a friend of Simon de Montfort and died in 1252. Paris, on the occasion of his death, speaks of him as a very learned man3 . He had been to Greece and had learnt Greek, had learnt it from a young Greek girl of whose wonderful accomplishments he had strange things to tell; she could foresee eclipses, pestilences and even earthquakes, and had taught the archdeacon all that he knew. Perhaps while seated at her feet the archdeacon not only learnt but forgot; perhaps as a traveller he acquired a habit of telling good stories. At any rate the story that he told to Paris was this:—“An English deacon loved a Jewess with unlawful love, and ardently desired her embraces, ‘I will do what you ask’ said she ‘if you will turn apostate, be circumcised and hold fast the Jewish faith.’ When he had done what she bade him he gained her unlawful love. But this could not long be concealed, and was reported to Stephen of Canterbury. Before him the deacon was accused; the evidence was consistent and weighty; he was convicted and then confessed all these matters, and that he had taken open part in a sacrifice which the Jews made of a crucified boy. And when it was seen that the deacon was circumcised, and that no argument would bring him to his senses, he solemnly apostatised before the archbishop and the assembled prelates in this manner:—a cross with the Crucified was brought before him and he defiled the cross1 , saying, ‘I renounce the new-fangled law and the comments of Jesus the false prophet,’ and he reviled and slandered Mary the mother of Jesus, and made a charge against her not to be repeated. Thereupon the archbishop, weeping bitterly at hearing such blasphemies, deprived him of his orders. And when he had been cast out of the church, Fawkes, who was ever swift to shed blood, at once carried him off and swore, ‘By the throat of God! I will cut the throat that uttered such words,’ and dragged him away to a secret spot and cut off his head. The poor wretch was born at Coventry. But the Jewess managed to escape, which grieved Fawkes, who said, ‘I am sorry that this fellow goes to hell alone.’”
Eye-witness and archdeacon though Master John of Basingstoke may have been, we cannot believe all that he said. In the first place, he will have the deacon’s head cut off, while all our best witnesses agree about the burning. In the second place, either the charge of crucifying a boy is just the mere “common form” charge against the Jews (the Jews were always crucifying boys, as every one knew, and were now and again slaughtered for it), or else the archdeacon has muddled up the history of the deacon with that of the labourer who was immured for crucifying himself. Nor does it seem likely that the assembled prelates gave the apostate an opportunity for manifesting his change of faith in a fashion at once very solemn and very gross. But what is said of Fawkes of Breauté does deserve consideration. Fawkes when this story was told was long since banished and dead, and it may well be that he had become a bugbear, a mythical monster to whom, under Satan, mischief of all sorts might properly be ascribed. But what mischief, what evil doing had there been? Why should a perfectly lawful execution be converted into a hurried and secret act of this cursing and bloodthirsty enemy of mankind, this Fawkes of Breauté, “ever swift to shed blood,” with imprecations about the throat of God? Certainly the impression left on the archdeacon’s mind seems to have been that of a deed which, though perhaps lawful, was indecently hasty.
What Paris says in his Chronica Majora1 is briefer, but it has a new marvel for us, and shows that we are already on treacherous ground. He introduces us to a hermaphrodite. A man has been apprehended who has in his hands, feet and side the five wounds of the crucifixion; he and an accomplice, a person utriusque sexus, scilicet, Ermofroditus, confess their offences and are punished by the judgment of the Church. “Likewise also a certain apostate, who being Christian had turned Jew, a deacon, he too was judicially punished (judicialiter punitus); and him Fawkes at once snatched away and caused to be hanged (quem Falco statim arreptum suspendi fecit).” The poor deacon who has been already burnt and beheaded is now hanged; this we may pass by, nor will we discuss the question how the old woman who called herself St Mary became a hermaphrodite, but we again notice that the slaying of the apostate is due to Fawkes, and seems a lawless or at least irregular act. Doubtless the Abbey in which Paris wrote was just the place in which stories discreditable to Fawkes would be readily believed and invented, and Paris himself seems to have cherished a bitter hatred for “the great enemy and despoiler of St Alban’s2 .” But again we have to ask, whether and why there was anything reprehensible in putting to death this degraded clerk, and, if not, why that evil principle, Fawkes of Breauté, should be invoked to account for what was perfectly natural and right?
Another ornate version is given by Thomas Wykes, who, it is believed, wrote near the end of the thirteenth century and in the monastery of Osney, the scene of the council1 . “In this council there was presented a deacon who, some time ago, had for the love of a Jewess rejected Christianity, apostatised, and been circumcised according to the Jewish rite. Being convicted of this he was first degraded, then condemned by a secular judgment (saeculari judicio condemnatus) and burnt by fire. It was said that this same apostate, in contempt of the Redeemer and of the Catholic faith, had even dared to throw away in an ignoble place (in loco ignobili) the Lord’s body which had been stolen from a church. A Jew revealed this, and in corroboration of the Christian faith the Lord’s body was found unpolluted, uncorrupted, in a fair vessel, prepared for it, as one may well believe, by angel hands. And there was brought into the same council a country fellow (rusticus) who had come to such a pitch of madness that, to the despite of the Crucified One, he had crucified himself, asserting that he was the Son of God and the Redeemer of the world. He was immured by the judgment of the Council, and shut up in prison he ended his life, fed on water and hard bread.” This is, I think, the first and only account which states that the deacon was condemned by a lay court, and I believe that it comes from too late a time to be trusted; the legend about the consecrated wafer shows that the story was already being improved by transmission.
There is not much more to be said. Later writers repeat with more or less accuracy what we have already read. Just one new ornament is added, and a pretty ornament too. Having learnt how the rusticus (such is the stereotyped description of the miserable man, and it well may mean that he was a villein) crucified himself, and how the deacon assisted at the crucifixion of a Christian boy, we may read in the pages of Holinshed and elsewhere how the council crucified a hermaphrodite, a version of the tale which good Protestants must think very proper and probable1 .
Such being the evidence, were I to venture a guess as to what really happened it would be this:—No one in England doubted for one moment that this deacon ought to be burnt, except, it may be, the deacon himself and his fellow Jews. It is not necessary here to assume that had his offence been mere heresy, his fate would have been the same, though I believe that of this there can be little doubt. But his crime was enormous, he had piled sin on sin. A deacon of the Christian Church he had turned Jew, turned Jew for love and for the love of a Jewess. Excommunication would have awaited the king, interdict the nation, if mere heresy had gone unpunished, and England had lately had some sad experience of interdicts. But in such a case as this no ecclesiastical threat would be needed; every one would agree that this self-made Jew must be burnt, that his death was demanded by all laws human and divine. It was the duty of the council to degrade him, to demand that he should be punished, to see that he was punished; but the council could not pronounce upon him any sentence beyond that of degradation. He was degraded then, not inside the church like the manslayer and the thief, but outside the church, before the people, and he was then handed over to the sheriff or his bailiffs. He was at once burnt; most of our witnesses bring out this fact that he was burnt at once and without any further formality. Possibly it was intended that there should be some further formality, some sentence pronounced by a lay tribunal; one of our best witnesses, the canon of Barnwell, seems to say as much, and the story about the indecorous haste of Fawkes points the same way. Possibly, then, Fawkes or his subordinates did act with unexpected promptitude; Fawkes, unless he is maligned, was not much given to waiting for orders. One writer at the end of the century says that the man was condemned by the lay court. I take this to prove that by that time, when the relation between Church and State had undergone some change, it was thought that there ought to be, assumed that there must have been some sentence by a lay tribunal, at least some writ from the king. But whatever was expected and omitted was but a bare formality, the registration by the king’s court of a foregone conclusion. By an informality the deacon gained a speedier release from a painful world. Any notion that he would have been saved had he been brought before the king’s justices we may dismiss as idle. Those justices, almost to a man, would have been ecclesiastics, and among laymen he would assuredly have fared no better. There was no statute, there may perhaps have been no precedent to the point; such a case is not foreseen in advance, and when it happens it is of course unprecedented; but that a deacon who turns Jew for the love of a Jewess shall be burnt, needed no proof whatever. Bracton, as I think, knew that there had been no judgment of any lay court (“qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem”), and he fully approved of what had been done and so far generalized the case as to state for law that an apostate clerk (a layman would have been in no better plight, but Bracton, as it happens, is discussing clerical privileges) is to be delivered to the lay power and burnt.
The fate of the man and woman who were immured, fanatics, lunatics, impostors, enthusiasts, or whatever they were, is really quite as remarkable as the fate of the deacon. The notion that for breach of monastic vows persons were sometimes bricked up in walls was once current and may still be entertained by some who take their Marmion too seriously. Scott indeed sanctioned it not only by verse but by a solemn prose note. Very possibly the main foundation of this notion is some version of the story that has here been before us, for I believe that this is almost all that is to be found about immuration in any English records or chronicles. We see plainly (and this might, I take it, be fully proved from foreign books) that our witnesses do not mean that two persons were suffocated in brick or stone. They were imprisoned for life and fed on bread and water. Doubtless the imprisonment was very close and strait, otherwise we should not have this same immuratus from writer after writer when incarceratus and imprisonatus lay ready to hand, and one writer says that they were enclosed between two walls, not between four; but still they were fed, though water and hard bread were their fare. But what most deserves attention is that they were sentenced to imprisonment, life-long imprisonment, by an ecclesiastical council, and that the sentence was carried out. What is more, they were lay folk. The sentence here was no judicium sanguinis, and by pronouncing it the council broke no canon of the Church. But what of the common law? At common law could the ecclesiastical court send a man to prison? This seems to me a vain question; every question about what was “the common law” is vain that does not specify some date. But suppose that the year 1222 be mentioned, then apparently our answer must be this:—In that year two persons were sent to imprisonment for life by the judgment of an ecclesiastical council, and, in the absence of evidence to the contrary, the natural presumption is that they were imprisoned lawfully.
THE BEATITUDE OF SEISIN1
The subject of this essay is an episode in the history of English law, which has hardly received all the attention that it deserves. It is in itself curious and interesting, and a full understanding of it might lead to the understanding of some other passages in our legal history, which are not very intelligible. It concerns the protection which our law of the middle ages cast over seisin, and more especially the protection of seisin against proprietary right.
Now a doctrine of possession and a system of possessory remedies seem to find their most critical test in the question—How, and in what circumstances, is possession protected against ownership? It may well be, as some think, that to protect possession against ownership has not been the object of those by whom possessory remedies have been instituted and developed. In protecting possession they may have had chiefly in their view possession by those who have right; they may have wished to facilitate proof in favour of owners; and it may have been but an accident in their schemes, though an inevitable accident, that they were forced to maintain the sanctity of possession even against ownership. But though this may be so, still it is hard to determine whether, or in what sense, a remedy is “possessory,” until we have seen it conceded or denied in cases in which it would act as a limit to proprietary rights. When the contest is merely between a possessor and one who claims no right in the thing, then it is often possible to dispose of the question by saying that “possession is evidence of ownership,” or again, to contend that possession engenders title of a sort—title good against all who have no better, because older, title. When however we see the possessor protected against one who admittedly is the owner, or against one who is ready and willing to prove his ownership, then we know for certain that possession itself is protected by law, and protected for its own sake. By this phrase, “for its own sake,” I mean not to stir any question about the ultimate reason for protecting possession, but only to point out that when we see an owner succumbing to a possessor, forced to deliver up what is his own, or forced to pay damages for having touched what is his own, then there can be no doubt that the law really does protect possession, and does not merely regard it as affording evidence of title, or as giving a title good against those who have no better. Thus it becomes an important inquiry as regards any system of law, whether and how the rights of owners are limited by the rights of possessors. To such an inquiry let us subject our medieval law.
Looking then at the state of affairs at the end of the middle ages,—the accession of Henry VII will be a good moment to fix, and we can turn to Littleton’s Tenures as to a very recent book,—we may be inclined to think for one moment that the common law (as distinct from statute law of no great antiquity) never protects either the old-fashioned seisin or the more modern “possession” against ownership, against the entry and even the forcible entry of “him that right hath.” The statutes to which reference has just been made are of course the Statutes of Forcible Entry, of which the earliest is no older than 13811 , and of which for the present we will take no further notice. It has been the general opinion that nothing but those statutes stood in the way of a forcible entry on the part of one who had a right to enter. But then stress must be laid on the phrase “a right to enter”: it at once reminds us that a person might well be owner of land and as such be entitled to be seised and possessed of it, and yet might have no right whatever to enter upon it. The methods whereby this state of things might be brought about were those which we are wont to group under the two heads of Descent Cast and Discontinuance. To put the matter very briefly:—If a disseisor (or the alienee of a disseisor) died seised and the ousted owner had not by continual claim kept alive his right to enter, then he could not enter upon the heir of him who had thus died seised; “the descent cast had tolled his entry,” his entry was no longer congeable. Then, again, if an abbot seised in right of his monastery, a husband seised in right of his wife, or a tenant in tail made a feoffment in fee simple, this was a discontinuance, and the successor, wife, issue, might not enter on the feoffee. In these scattered cases, which we need not at this moment define more accurately, seisin was protected against ownership; and very effectually protected; the true owner, the person who of all the world had the best right to be possessing the land, might not set foot upon it.
We can hardly think of these rules otherwise than as rules which exist for the protection of seisin,—not indeed of every seisin, or even of every seisin that has colour of title, but of seisin acquired under certain particular titles. But the scope of these rules is so narrow and (as it must seem to us) so capriciously defined, that we have great difficulty in conceiving them as forming part of a rational coherent theory of possession; we are tempted to pronounce them quite unintelligible, and therefore presumably “feudal.” The explanation which I shall here hazard is that they are the last relics, somewhat casually preserved, of a coherent theory of possession, of an extremely rigorous prohibition of self-help, of a system of possessory remedies which was once a simple and effective system, but which fell to pieces in the course of the fourteenth century. The main outline of this historical explanation is suggested by a passage in Coke upon Littleton1 ; but to fill up some part of that outline seems a reasonable purpose; for really the treatment of seisin in our oldest common law must be understood if ever we are to use the vast store of valuable knowledge that lies buried in the Plea Rolls and the Year Books. If we were free to write history out of our own heads, it would be a plausible doctrine that gradually and steadily the right of a dispossessed owner to right himself, to take what is his own, is curtailed by law; that in the law of the later middle ages, the law of Littleton’s time, we may see the first tentative and clumsy advances towards a protection of possession against ownership. But such a doctrine would be quite untrue; the sphere allowed to self-help by the law of the twelfth century is almost infinitely narrower than that allowed by the common law of the fifteenth. This seems to me an important fact, and I shall here attempt to collect some proofs of it.
We have every reason to believe that our possessory actions, the three assizes of novel disseisin, mort d’ancestor and darrein presentment, were not developed out of ancient folk-law but were of positive institution, that they were established by ordinance early in the reign of Henry the Second. Their very name “assizes,” the express testimony of Glanvill1 and Bracton2 , to say nothing of later tradition3 , the equally clear testimony of the Norman books as to the origin of the Norman assizes4 , all point the same way, and it is even possible that we have “the text of the law on which the assize of mort d’ancestor was founded5 .” We may add to this that a definitely possessory remedy does not seem native to the law of our race; that when it appears in England or in Germany or in France, it bears witness to the influence of alien jurisprudence, of Roman law working either directly, or through the medium of the Canon Law. At the same time we must not think of the Norman or the English assizes as copies of the interdicts or of the actio spolii. It would be easy for us to exaggerate the amount of Roman law that can have been known in the court of Henry the Second. Much more had become known by Bracton’s time; but Bracton had great difficulty in finding the assizes in the Roman books1 . They were not pedantries, but lively, effective institutions, well suited to the Normandy and the England of Henry’s day, and they struck deep root and flourished. A century after Henry’s death the Novel Disseisin was still “festinum remedium,” the most summary proceeding known to the Chancery2 .
If we ask for the motive of this new institution, we ought perhaps to distinguish between motives which are and those which are not avowed. Henry’s main object may have been to strike a heavy blow at feudalism, to starve the feudal courts, to weaken the tie between man and lord, to strengthen the tie between subject and king, to make every possessor feel that he owed the blessedness of possession to a royal ordinance, to the action of a royal court. Also it is not to be disguised that he made money out of his assizes1 . But he could not have succeeded had there not been a strong feeling that a possessory action was a right and good thing, that the peace ought to be maintained, that proof should be easier, that the dilatory processes of the old actions were working injustice. The avowed motive for the new institution was, at least according to Norman tradition, the protection of the weak against the mighty, the poor against the rich; along with this we have the homely thought, that the plough must not be disturbed, that he who sows should also reap2 . Perhaps at the base of the new remedies there was no one clearly thoughtout principle, but rather several different ideas, which, though for a while blent and harmonious, would in course of time become separate and discordant.
Of all the possessory assizes the Novel Disseisin is by far the most interesting; and since everything depends upon the words of its formula, that formula, the question which the recognitors were summoned to answer, must here be set forth:—
Si B injuste et sine judicio disseisivit A de libero tenemento suo in X post [ultimam transfretationem domini Regis in Normanniam—or other the time of limitation].
Glanvill speaks but very briefly of this assize, and gives us no information as to the precise meaning of the terms used in its formula1 . Again, Palgrave’s Rotuli Curiae Regis give us but little help. We may indeed see that in Richard’s reign and John’s the new remedy had become very popular; it was doing a great work. But just because it was working well, the records of its working are uninstructive. In case after case there is no pleading at all, and the jurors answer the question put to them with almost monosyllabic brevity—“disseisivit eum”—“non disseisivit eum”; they well understand what is meant and do not pray the aid of the justices. During Henry the Third’s reign special pleas (exceptiones) become not very uncommon, and special verdicts become still commoner. The ideas answering to the terms “injuste,” “disseisivit,” “libero tenemento” are being developed and defined, and it is becoming rather rash for laymen, over whose heads an attaint is pending, to swear that B has unjustly disseised A of his free tenement. Then from the middle of the thirteenth century we have Bracton’s book with an elaborate doctrine about the scope of the assize.
Before we turn to that account it will be well to remember how summary an action this Novel Disseisin was, how sharp was the contrast between it and other actions2 . To begin with, “personal service” (to use a modern term) was unnecessary; to attach the defendant’s bailiff was enough; there could be no essoin; there could be no vouching to warranty of any one not named in the writ; the assize could be taken by default; no pleading to issue was necessary; the question for the recognitors was defined in the writ. Lastly, this was the only action in which one could recover both land and damages. It is not, in Bracton’s view, a real action; it is a personal action founded on tort1 .
Now in order that we may understand the spirit of this assize as administered in Bracton’s day, we had better at once put the extreme case, which is also the simplest case:—A is the true owner, or very tenant in fee simple, of land and is seised of it; he lives on it and cultivates it himself; there comes one B who has no right whatever; he casts A out and keeps him out, by force and arms. When, we must ask, does A cease to be seised and when does B begin to be seised? Doubtless in one sense or for one purpose, A is disseised so soon as he is put off the land; he can at once complain to a court of law that B has disseised him. Indeed to found such a complaint no actual ouster was necessary; had he repulsed B he might still have complained of a disseisin. The assize serves the purpose of an interdict for retaining, as well as that of an interdict for recovering possession; had B but entered with an intent to assume possession this would have been disseisin enough. In many cases the mere troubling of possession is a sufficient disseisin, if the person seised choose to complain of it as such2 . But even when A has been extruded from the land, B is not at once seised (at least as regards A), that is to say, he is not protected by the assize (at least as against A); if within a certain limited time A returns and ejects B, B will have no ground of complaint. Bracton sometimes expresses this principle in a romanesque form, derived from what is now held to be a misinterpretation of a famous sentence in the Digest1 ; one can retain possession animo solo. The ejected A so soon as he has been de facto ejected has ceased to possess corpore, but he has not ceased to possess animo; he has lost possessio naturalis, he has not lost possessio civilis. When however we come to ask what this really means, we find that the talk about a man retaining seisin animo solo—apart from any objection about the misuse of Roman terms—is somewhat misleading. Really there seems to be a set of hard and fast rules about the matter. A must turn B out within four days; otherwise B will have a seisin protected by the assize. Such is the case if A was actually on the land and was himself cast out. If however he was away from the land when the disseisin took place, then a longer time will be allowed him. In the first place, he will not be disseised until the act of disseisin is brought to his knowledge. In the second place, he will then have a reasonable time within which to come to the land, and after that he will have his four days. The “reasonable” time is in several cases determined by the parallel rules about essoins. Thus the man who is in Gascony or on a pilgrimage to Compostella has forty days, two floods and an ebb, fifteen days and then the four days. Bracton, if I understand him rightly, seems to think that for a man in England fifteen days would always be reasonable, but says that at the present time this rule is not observed. The four days he tells us are allowed a man for the purpose of collecting friends and arms1 . Fleta2 and Britton3 repeat, though not very clearly, this curious doctrine; four days seems still the fixed time within which a person who has himself been cast out of the land may lawfully enter upon and eject his ejector.
Mr Nichols in his fine edition of Britton has supplied a gloss from a Cambridge MS., which there is some reason for attributing to John of Longueville, a justice of Edward the Second’s time4 . The first words of it are very interesting:—“Where the disseisin is done in the presence of the disseisee, the disseisor must be ejected within five days; because the law of ancient time granted that the disseisee should go one day to the east, the second day to the west, the third day to the south, and the fourth day to the north, to seek succour of his friends all the country round.” This same MS. contains a Bracton as well as a Britton, and in the margin of the Bracton I have found a Latin note, to the following effect:—”A being at London is disseised of his free tenement in York, for his family is ejected; if it be asked within how long a time he may lawfully re-eject his ejector by his own force, I am safe in saying (dico secure), within fourteen days, or fifteen; for in five days a messenger may come from York to London to give him notice; then A himself can go thither in other five days, and four days being spent in obtaining the aid of friends, he can re-eject the ejector on the fifth. And so wheresoever he be, by computing the days reasonably necessary for coming and going (the allowance being more or less liberal according to the discretion of the justices) and four days for getting the help of friends, one can decide whether time has run against him or no1 .” It would seem then that in the opinion of some lawyer of the fourteenth century this rule about the four days was still law. We shall have some difficulty in reconciling this with the testimony of the Year Books; but we know how legal texts are haunted by the ghosts of dead doctrines.
If a somewhat close attention is paid to Bracton’s words, we shall find that a period of four days is mentioned more than once in connexion with the acquisition of seisin; some attention is necessary, because, as it seems to me, he was inclined to speak vaguely of it and to rationalize it away. Thus if A, who has been ejected, die without having purchased a writ, his heir will not have the mort d’ancestor against the ejector, unless A die within four days after the ejectment2 If he die within the four days then he “dies seised” within the meaning of the writ of mort d’ancestor3 . Again, a case is put in which I enfeoff you to the intent that you marry my daughter; you marry some one else; I may eject you, but must do so infra triduum vel quartum diem, vel aliquantulum ulterius, sed cum causa. Seemingly this means that I must enter within four days, but that a longer time will be allowed me if there be cause, if e.g. I am not on the spot1 . Then, again, Bracton considers personal liberty and personal villeinage as the subjects of a sort of possession or seisin. A runaway serf must be captured infra tertium vel quartum diem, otherwise he will be in possessione libertatis, will be statu liber, and the lord will be put to his action2 . This term of four days must be carefully distinguished from the term of year and day, by dwelling for which in a privileged place a villein may gain the right of liberty. It will take him a year to gain a right to his freedom; but in four days he may get possession, legally protected possession, of it.
A term of four days seems therefore the time during which one who has ousted the owner must de facto hold the land in order that he may have a seisin of it, legally protected against the owner. On the other hand, if one comes to the land by good title, no lapse of time is necessary; the feoffee is seised so soon as the feoffor has delivered seisin. But even within the region of conveyance, we in one case meet with a requirement of a four days’ seisin. If a man is going to enter religion and to endow the religious house with his land, he must deliver seisin per tres dies vel quatuor before he becomes professed3 . Bracton speaks rather casually about this point, and it would be rash to lay much stress upon what he says; but it deserves remark that we here come across something not unlike the “sessio triduana” of German medieval law.
In certain cases, German law of Bracton’s time required of a man that he should remain in a very actual and obvious possession of land—should steadily sit upon the land—for three days and three nights. In what cases and to produce what legal results this was required, have been controverted questions. At one time it was maintained that the purchaser of land would not have acquired a legally protected possession, until he had held the land for the three days1 . Recent writers have come to a different opinion. The commonest of all the “common assurances” of Germany was the “Auflassung,” a proceeding closely akin to our own Fines and Recoveries. It took the form of a fictitious action between seller and buyer, in which the land was adjudged to the latter. Having been put into possession, it seems to have been required of him that he should abide on the land three days and three nights. The object however of this requirement, according to modern authorities, was not the acquisition of a legally protected seisin, but rather the preclusion of any claim on the part of the seller or of any one else who was present in court when the Auflassung was made2 . The origin of this period of three days, it is said, was this:—In old times a Ding (“a judicial session,” I suppose we must say, unless we prefer “a moot”) lasted three days, and the person who acquired land by a judgment was not safe until the Ding was over, until court and suitors were dispersed3 . So the English suitor must await his adversary four days in court. I know not whether the rule that we find in Bracton that a disseisor may be ejected infra quartum diem has any direct connexion with the German rule; very possibly not, for I believe that in Germany the disseisee would have been allowed at least a year and day for the re-ejectment of his disseisor. But Bracton’s rule has all the appearance of being very ancient. We may perhaps detect its origin in yet older law. In the Lex Salica it makes a great difference to the man who is following the trail of stolen cattle, whether he comes upon them before or after three nights have elapsed. On this depends, what is all important in ancient law, the burden, or rather the benefit of the proof1 . The idea at the base of this distinction seems to be that after three nights a theft is no longer flagrant; the malefactor will not be caught in the act. It is not impossible that in the Judicia Civitatis Londoniae, the statutes of the London peace-guild, which seemingly belong to the reign of Athelstan, we may find a trace of the same idea. He whose cattle have strayed must announce the loss to his neighbours “infra tres noctes,” otherwise the guild will not make good the loss2 . So in the law of Bracton’s day a disseisin ceases to be flagrant “infra quartum diem.” A curious confirmation of this rule, and of the fact that before the end of the thirteenth century it was no longer observed, occurs in The Mirror. The writer, who is a conservative and an antiquary, complains that “force holds in disseisins after the third day of peaceable seisin.” This, he says, is an abuse, “forasmuch as he is not worthy of the law’s help who contemns judgement and uses force1 .”
But be the origin of the rule about the four days what it may, this allowance of a certain time for re-ejectment becomes of considerable importance. That there should be some such allowance, more or less precisely defined, is of course, according to our modern ideas, very natural, especially if there is to be a possessorium so strict that it will protect even a vicious possession against the self-help of the owner. The disseisor who has forcibly turned the owner out, or who has come upon the land during the owner’s absence, cannot be protected directly he is the only person on the land, at all events he cannot be protected against the owner. “A mere trespasser,” says modern authority, “cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and drive him to produce his title, if he can without delay reinstate himself in possession2 .” It was held in the case just cited that a trespasser who had been occupying a house for eleven days had not acquired “what the law understands by possession.” A trespasser, it is said, “does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner3 .” The writer who says this thinks also that until there has been something like acquiescence on the part of the rightful owner, the trespasser who is on the land will have no possession legally protected even against outsiders, supervening trespassers. This, for anything that I know, may be the modern law. If so, any one who now wishes to make a theory of possession has an easier task than that which was set before Bracton; for clearly it was law in his day that in the very moment of the ejectment the wrongful ejector gained a seisin protected against persons in general1 . To account for this out of the theoretic materials ready to his hand was difficult. He had to hold that a man may be seised as regards some, not seised as regards others, and to speak of the disseisor obtaining a naturalis possessio which is protected against those who have no right, before he acquires the civilis possessio which is protected even against those who have right.
However, the main point which needs attention is this, that when once the short period of four days (or it may be a little longer) has elapsed, the disseisor has acquired a seisin which is protected against all men. If ejected even by the rightful owner, he will have the assize and he will be reinstated in his possession. If we are to use the terms of later law, we must say that the disseisee’s entry is already tolled. There is no need for any descent cast, there is no need for any alienation by the disseisor to a third person, there is no need for any such lapse of time as can have (at least to our minds) a prescriptive effect: all that is needful is that the disseisor shall have really obtained possession of the land, and that he has done so is sufficiently manifested if he has remained undisturbed for four days, the disseisee being in the neighbourhood and cognizant of the disseisin.
But what a most rigorous possessorium have we here! It protects even a “vicious” possession. If A, having been cast out by B, lets four days elapse, and then has recourse to self-help, B will bring the assize against him, and it will be useless for A to except that B obtained his possession by force, and by force used against him, A. This extreme rigour is so remarkable and yet has so seldom been remarked, that were not Bracton’s text very clear I should doubt whether I had understood it; but I think that if others will read the whole book on the Novel Disseisin they will come to the conclusion that has here been stated. It is necessary to read the whole book, because Bracton has a way of speaking about time which is very apt to lead modern readers astray. He constantly speaks as though lapse of time were necessary in order to give the disseisor a seisin protected against the true owner:—he must have time on his side, a long time, a long interval, a long and peaceable seisin; and again, the true owner loses the right of self-help when he has ceased to have the mind to possess, when he has dissimulated the injury, when he has acquiesced. The truth that such words as “long” and “short” are very vague words will be forcibly brought home to us when we discover that by “a long time” in this context Bracton means four days.
Distinct from the case of the disseisor is that of the intruder, of one who enters on a vacant possession, on a possession, for example, left vacant by the death of a tenant for life. He may be ejected antequam habuerit longum tempus et pacificum; but then this longum tempus is to our minds not very long; it is but year and day—at least such is one opinion1 . Britton remarks that an intruder ejected by the true heir within year and day cannot recover his possession. To this the Cambridge glossator objects, “because it seemeth to me that an intruder should not be in a worse condition than a disseisor would be2 “; a remark which shows once more that, in his opinion, a disseisor would gain protection in less than a year. Probably the explanation for this seeming favour shown to a disseisor as contrasted with an intruder, is that (albeit a disseisin is a much more serious injury than an intrusion) the person who is really entitled to be in possession is much more likely to get speedy notice of a disseisin than of an intrusion; he may well not know that a right to enter has accrued to him until the intruder has been upon the land for some months.
Bracton of course has no doctrine about discontinuances or descents cast. He has no need of any, because he has a comprehensive doctrine of possession. Even the disseisor himself in a very short time, at least in what seems to us a very short time, will have a seisin protected against the disseisee, and as to alienees of the disseisor, or disseisors of the disseisor, the question whether the original disseisee may eject them will be the question whether he has stood by for four days since the original disseisin.
All this seems to me so plainly written on page after page of Bracton’s book, that I should have said that there could be no doubt about it whatever, were it not that Mr Justice Holmes has written something which seems to contradict it. “English law,” he says, “has always had the good sense to allow title to be pleaded in defence to a possessory action. In the assize of novel of disseisin, which was a true possessory action, the defendant could always rely on his title1 .” Now in a certain sense, though not as it seems to me a very precise sense, this is true of days much later than Bracton’s, and very possibly the word “always” was not intended to comprehend so remote a time as the thirteenth century; but as some of the many readers of one of the best of books may suppose that this sentence refers to the law of Bracton’s time, I am bound to controvert it, and that too in Bracton’s own words.
In the following passage we have perhaps his fullest statement of the principle that possession is to be protected even against ownership:—
Si autem verus possessor negligens erit post disseisinam, et negligens impetrator, patiens et dissimulans injuriam, impotens omnino, vel de potentia sua desperans, ut praedictum est, ita quod utramque amisit possessionem, naturalem videlicet et civilem, non succurritur ei nisi per assisam. Et si forte assisam contemnat, et possessionem suam (viribus utens non judicio) sibi usurpare praesumat, competit spoliatori propter usurpationem assisa, non quia “injuste” disseisitus sit, sed quia “sine judicio,” et quia per negligentiam veri domini utramque habere incepit possessionem, naturalem videlicet et civilem. Et si verus dominus habere velit regressum, vix aut nunquam audietur, nisi tantum super proprietate; si autem velit ad assisam recurrere, quae ei primo competebat, non poterit: quia assisam demeruit et gratiam juris, et quia frustra legis auxilium invocat qui in legem committit2 .
Bracton afterwards treats at very great length the possible pleas in bar to the assize. The defendant can only prevent the assize being taken by excepting to some of the words of the writ. The writ inquired “whether B unjustly and without a judgment disseised A of his free tenement in X.” If it was found that B had done this, then A recovered his seisin. Now there may seem to us to be two terms in the writ which might be attacked by the true owner who, after some delay, had ejected his disseisor. He might plead that what he did was not done “unjustly,” or again he might plead that the tenement from which A was ejected was not A’s free tenement. At either point however the law of Bracton’s day would meet him and defeat him. As to the “unjustly,” Bracton almost explains this word away by saying that every disseisin done “without a judgment” is done “unjustly,” injuste quia sine judicio; the only force of the word seems this, that a disseisin may be unjust even when there has been a judgment.
Quamvis verus dominus jus habeat in re et “juste” ejiciat, tamen “injuste” ejicit, quia “sine judicio,” et quia propriis viribus reposcit quod per judicem [corr. judicium] reposcere debuit, ideo per judicium restituat quod sibi sine judicio viribus usurpavit; nunquam postmodum, nisi vix tantum super proprietate, erit audiendus; et hoc si post tempus ejiciatur quod sufficere possit pro titulo ad hoc quod sine brevi non teneatur tenens respondere; secus autem esset si incontinenti rejiciat disseisitorem1 .
It would be difficult to say in plainer language than this that the true owner, despite his title, may be compelled by a court of law to yield possession to a disseisor. Then as to the term “freehold” or “free tenement” in the writ. It is competent for the defendant to except that the plaintiff was not seised of a free tenement, and in this form divers objections can be made. It may be asserted that the tenement was held of the defendant in villeinage, it may be asserted that the plaintiff was merely in as bailiff or as termor. Such pleas as these are beside our point. But suppose that B with no sort of title but his own strong arm put A out of the land, and that A let some time go by without doing anything, but then returned and cast B out; A has disseised B of B’s free tenement; and the Court not heeding, not permitting any talk about ownership, will put B back again.
In hoc autem quod dicitur in brevi “de libero tenemento” competit exceptio tenenti contra quaerentem; sed ad omnes non pertinet exceptio, quia licet “juste” ejicere possunt, tamen non possunt “sine judicio,” licet jus habeant ejiciendi. Jus tamen habet recenter, post tempus autem nequaquam; unde si verus dominus allegaverit quod “juste,” replicari poterit quod “injuste” quia “sine judicio.” Et unde si verus dominus excipiat quod jus habeat et liberum tenementum, et “injuste et sine judicio” ejectus sit, et quod quaerens qui injuste ejecit feodum et liberum tenementum habere non possit, replicare poterit de tempore, quod verus dominus liberum tenementum amisit, per cursum temporis, per patientiam sive negligentiam vel per impotentiam. Patientia enim longa trahitur ad consensum, et negligentia sive dissimulatio obolent injuriam. Et unde disseisitor cum tempus habeat pro se et quasi liberum tenementum, sine brevi et sine judicio disseisiri non potest. Et unde si fuerit sine judicio disseisitus et portaverit assisam, non obstabit ei quod liberum tenementum non habuit quaerens, propter usurpationem sine judicio quantum ad verum dominum, et propter tempus quantum ad disseisitum1 .”
It must certainly be admitted—or rather let us particularly observe—that Bracton does here and elsewhere account for the law’s protection of the disseisor partly at least by referring to the disseisee’s delay; he has acquiesced, he has dissimulated, he has been negligent—this very probably is an important moment in the history of our possessory actions; but of the owner’s being able to rely on his ownership there is no talk. On the next page we have these conclusive sentences:—
Videamus quae poena teneat eos qui seisinam suam in causa spoliationis [corr. teneat eos in causa spoliationis qui seisinam suam] post tempus viribus usurpaverint: intrusor vel disseisitor erit restituendus non obstante aliqua exceptione proprietatis. Et si obstare non debeat exceptio proprietatis in persona veri domini, ut si dicat “Juste disseisivi vos, quia tenementum meum est et ego dominus, et tu nullum liberum tenementum habere potes quia non habes ingressionem nisi per intrusionem vel disseisinam,” ita exceptio non valebit ei, quamvis “juste” se ponat in seisinam quantum ad jus, “injuste” tamen hoc facit quia “sine judicio,” ut supra dictum est. Prius enim cognoscendum est de vi quam de ipsa proprietate.
An examination of the records of Bracton’s time will I believe fully bear out his doctrine. But still I think we can see both in them and in Bracton’s own pages a certain growing doubt as to whether “seisin of free tenement” does not imply title, not of course good title, but title good or bad. He occasionally hesitates about saying that the disseisor acquires “liberum tenementum,” and allows him only “quasi liberum tenementum”; and he is inclined to base the requirement of “tempus” on the necessity for some acquiescence, or negligence, or dissimulation on the part of the disseisee. Seemingly it was a further reflection upon and development of this idea of “liberum tenementum,” which set at work that great change which makes the law as it is in Littleton so very different from the law as it is in Bracton. Very probably these words in the writ—“de libero tenemento suo”—were originally intended merely as a denial of the assize to the tenant in villeinage; the obvious, primary opposite to “liberum tenementum” is “villanum tenementum.” To have given every villein a possessory remedy in the king’s own court would have been too daring an infringement of the manorial system even for Henry the Second; to give such a remedy to every possessor of land not burdened with villein services was a sufficiently high-handed invasion of the first principle of feudalism. But in course of time new contrasts are found for the “liberum tenementum.” The assize is denied to the termor; according to Bracton because he holds merely on behalf of his land-lord; tenet nomine alieno; so the termor has no free tenement. Then there slowly creeps in the idea of “an estate of freehold”; “freehold” begins to imply a certain kind of proprietary right. Parallel with this process is the growth of special pleading. In Henry the Third’s reign pleas in bar of the assize are becoming frequent. Even if we regard the assize as still in the very strictest sense a possessory remedy, such pleas have their proper place. The defendant’s view is that he has committed no disseisin, that he has ejected nobody, that he obtained his possession under some judgment, fine, feoffment, covenant; he specially pleads this matter, because he is naturally anxious that delicate questions of law shall not be left in a lump to a dozen laymen. Such pleas go to the question of possession and dispossession, and I have seen no instance of a plea which, admitting the disturbance of a settled possession, justifies that disturbance as an exercise of proprietary right. But still the development of pleading begins (in a manner which should be familiar to us) to turn matter of fact into matter of law.
But not to anticipate what must come before us hereafter as belonging to a later age. Bracton’s doctrine as to the scope of the assize seems in brief this:—it protects possession, untitled possession, even “vicious possession.” As to this last point, he expressly accepts the words of the Institutes which describe the scope of the interdictum unde vi as it was in Justinian’s day. If O, the owner, turns P, the possessor, out, P will recover his possession even though he obtained that possession from O vi vel clam vel precario. A wrongful ejector however does not acquire possession directly he is the one person on the land, or rather he does not at once acquire possession as against the owner whom he has ejected. Such an ejector will at once be protected against mere outsiders, but he will not be protected against the owner until some days, or it may be months, have elapsed. How to account by a rational theory for this state of things is the difficulty. Bracton is unfortunately, but very pardonably, misled into supposing that according to Roman theory a person who has ceased to possess corpore can go on possessing animo solo. This brings him to lay stress upon acquiescence, to speak as though it were the owner’s acquiescence (for four days or so) that gives the ejector a claim to protection, as though this acquiescence were equivalent to “title,” or were itself a sort of title. It is but a short though an important step forwards from this position to say that what the law protects is not possession, but titled possession, to hold that the “seisin of freehold” which the plaintiff in an assize must prove, is seisin acquired by some lawful title, some act in the law, or else seisin fortified by lapse of time.
Dr Heusler, to whose excellent account of Bracton’s theory of possession1 I owe whatever is good in this paper, says that the assize of novel disseisin gradually becomes a sort of Publiciana, and that in Britton’s book the process is complete, “die Besitzklage ist eine förmliche Publiciana.” We do not, as it seems to me, find much change in the actual rules of law as we pass from Bracton to Britton; we still hear, though somewhat indistinctly, of the four days; but there is a change of theory. In great part this is just a change from clear thought to muddled thought. The grip of possession which a few years ago seemed so assured has been relaxed. By his definition Britton goes so far as to make “property” an essential element of possession:—“possessioun proprement est seisine et tenir de acune chose par cors et par volonté oveke la propreté2 .” No comment on this is possible, except that the writer was too stupid to understand Bracton3 . Still we can make out that “title” has now become essential to “free tenement.” The plaintiff in the assize must have had “title de fraunc tenement.” This he may have got by inheritance, by feoffment or the like, or again by peaceable seisin after a vicious entry1 . The law therefore no longer endeavours to protect possession against ownership; but it will protect, even against ownership, something that stands as it were midway between possession and ownership, some tertium quid, that can only be described as “title de fraunc tenement.” It is attempting to steer a very difficult course. Of its subsequent adventures hereafter2 .
By a previous paper I have tried to draw attention to a great and very remarkable change which came over our law in the course of the later middle ages. Does the law protect possession against property? If we ask this question in Bracton’s day, the answer must be: Yes, it protects possession, untitled and even vicious possession; if O, the owner, has been ousted by P, he must reeject P at once or not at all; should he do so after a brief delay, then P will bring the Novel Disseisin against him and will be put back into possession. But if we ask this question in the days of Littleton, the answer must be: No, the common law does not protect possession against ownership, except in those comparatively rare cases in which there has been a descent cast or a discontinuance, one of those acts in the law (their number is very small) which have the effect of tolling an entry. In the present paper I propose to collect some cases which illustrate this change, and then to say a little about its causes.
The fourteenth century produced no great textwriter, and we have therefore to rely upon the Year Books. It may be well therefore to observe that the Year Books are for this or any similar purpose very unsatisfactory material, because they are chiefly concerned with points of pleading, and by the middle of the fourteenth century pleadings had become very unreal things. Often the whole object of the defendant’s pleader is delay, and the elaborate story that he tells has in all probability but little connexion with fact; he is just trying to puzzle the court and his adversary, and so no wonder if he puzzles us. A good selection from the Plea Rolls would be much better material; because at least occasionally we should find in it some real facts, some cases in which the assize was taken, in which special verdicts were returned and judgments given upon those verdicts. Even in the fourteenth, even in the fifteenth century, some real justice was done, but as it is we can hardly see the justice for the chicane.
It will be remembered that the Novel Disseisin lies if B unjustly and without a judgment has disseised A of his free tenement. The plaintiff therefore must have been “seisitus de libero tenemento.” What does this imply? This is the question which successive generations have to answer. We have heard Bracton’s answer, and Britton’s. The latter requires that the plaintiff shall have had “title de fraunc tenement,” but peaceable seisin for a long time after a vicious entry is enough to give “title de fraunc tenement1 ,” that is to say the disseisor himself may acquire a possession protected against the disseisee. In the following notes of cases we may, I think, see this requirement of “title” growing ever more and more stringent: the assize is gradually denied to any one who has himself been party to a disseisin, then to the alienee of a disseisor, then to the alienee of the alienee of a disseisor, until at last the cases in which the true owner is debarred from entering are quite few and very anomalous. All the while the theory, so far as there is one, remains this, that one who is “in by title” (as contrasted with one who is “in by tort”) ought not to be ejected without process of law; but as to what “title” is, we get no clear statement.
1292. (Y. B. 20 & 21 Edw. I, p. 221.) M is tenant for years, A tenant in fee; M enfeoffs X; A suffers X to remain in possession for a quarter of a year and then turns him out, the term not having yet expired; X brings the assize against A and succeeds. Otherwise would it have been if A had ejected X at once; as it is, A has suffered X to continue his seisin “e entant granta le franc tenement estre le seu.”
1292. (Y. B. 20 & 21 Edw. I, p. 267.) M is tenant for years, A tenant in fee; M dies during the term; his wife N remains in possession for a quarter of a year, and then enfeoffs X, who remains in possession for a quarter of a year and is then ejected by A; X recovers seisin against A in an assize. It is said of A that “par sa suffraunce demeyne si acrut franc tenement a le feffe.” Counsel for A says that if a termor alien in fee, yet even if the feoffee continue his estate for half a year, he may be ejected by the reversioner after the end of the term; “quod non credo verum generaliter,” says the reporter.
1302. (Y. B. 30 & 31 Edw. I, p. 123.) Land is settled on husband and wife and the heirs of their bodies; they have a son A; the husband dies; the wife marries X; the wife dies; X claims curtesy and remains in possession for ten years; A ousts X; X recovers seisin against A in an assize. Even if X was not entitled to curtesy, still he entered claiming a freehold and ought not to have been ejected after ten years. The case is a good illustration of possessory procedure, for A at once brings a formedon against X. In this he fails; but only because the conditional gift was made before the Statute De donis, and so X really was entitled to curtesy.
1318. (Y. B. II Edw. II, f. 333–4.) It is said by counsel that if tenant for life alienates, and the reversioner does not assert his right for three or four years, the feoffee will be able to recover his seisin against him in an assize.
1327. (1 Ass. f. 2, pl. 13, and Y. B. I Edw. III, f. 17, 22, Trin. pl. 1, 10.) Land is recovered from A the true owner by one X whom A had ejected; such title as X had was derived (without any descent cast) from a grant made by M who had no title, but whom A had suffered to occupy the land; A had stood by while the land had been dealt with by M and persons claiming under M. Counsel urges that it is “inconvenient” to award seisin to one who has no estate; but the judgment shows the true possessory spirit, “quod licet A jus habeat ut videtur . . . tamen de facto suo proprio sine judicio intrare non potuit; ideo X recuperet seisinam suam.” Brooke (Abrid. Entre Congeable, 48) notices that this case, and that last cited, imply a doctrine which in his day was no longer law. He rightly remarks that in cases of this date stress is laid on the fact that the person who has come to the land by a feoffment, will, in case he be ejected without action, lose the benefit of vouching his feoffor to warranty.
1334. (8 Ass. f. 17, pl. 25.) On the death of tenant for life, M who has no right enters and enfeoffs X; A who is the reversioner enters and is ousted by X; A recovers from X in an assize. The reporter calls on us to note that X was in by feoffment, but that A entered immediately on the livery of seisin.
1344. (17 Ass. f. 53, pl. 27; Y. B. 18 Edw. III, f. 35, Mich. pl. 16.) M is tenant for life, A has the remainder by fine; M enfeoffs X in fee; M dies; A may not enter on X.
1347. (21 Ass. f. 86, p. 23.) It was said that a man may enter on the feoffee of his disseisor even though the feoffee has continued his estate for ten years. “Tamen quaere,” says the reporter.
1348. (22 Ass. f. 93, pl. 37.) M doweress, A heir; M demises to X for years and dies within the term; X holds on after the term; A may enter on X; but it is argued that he may not: the decision is based upon the fact that X was “party to the tort.” Counsel for X says that after the death of M “nous continuamus nostre possession ans et jours”: of which phrase notice must be taken hereafter.
1368. (Y. B. 42 Edw. III, f. 12, Pasch. pl. 18.) It seems assumed that a disseisee may enter on the alienee of a disseisor and on the alienee’s alienee, but may not enter on the disseisor’s heir; the question is raised, Why should this be so, as both heir and alienee are in by title?—but no answer is found.
1369. (43 Ass. f. 273, pl. 24.) Tenant in tail after possibility of issue extinct makes a feoffment in fee and dies; the reversioner may enter on the feoffee even after the lapse of six years; but the justices of assize had doubted this and adjourned the case to Westminster.
1369. (43 Ass. f. 280, pl. 45.) A tenant for life, B tenant in remainder; A enfeoffs X in tail, remainder to Y; X dies without issue, Y enters; may B enter on Y? Yes, he may; but the case is discussed at length and the decision is put upon the ground that Y by entering has made himself a party to the forfeiture and a disseisor, and it still seems the opinion of the justices that one may not enter upon a person who is “in by title.” Brooke (Abrid. Entre Congeable, 85) comments on this case thus, “In those days one could not enter on him who was in by title, except in a special case (such as this was) where he was party to the tort, and one could not enter on one who was seised for a long time (que fuit seisie ans et jours), as appears frequently in the Book of Assizes. But otherwise in these days, for a man may enter on the twentieth alienee if there has been no descent to toll the entry, or something of the sort.”
1376. (Y. B. 50 Edw. III, f. 21, Mich. pl. 3.) M tenant for life; A reversioner; M enfeoffs X for life with remainder to Y in fee; M dies; X dies and Y enters; A or A’s heir may enter on Y. This is decided after much debate. It is however asserted by counsel that a reversioner cannot enter on the feoffee of the feoffee of the tenant for life; at all events if he is to enter he must do so at once.
It seems unnecessary to trace this matter further, and we have come to the gap in our authorities due to the fact that no Year Books of Richard II’s reign are yet in print. Before the death of his grandfather the common law seems to be taking its final form; possession is not protected against ownership except in certain very exceptional circumstances. We shall here do well to observe that Coke, like Brooke before him, well knew that there had been a change in the law. “In ancient times,” he says, “if the disseisor had been in long possession, the disseisee could not have entered upon him. Likewise the disseisee could not have entered upon the feoffee of the disseisor, if he had continued a yeare and a day in quiet possession. But the law is changed in both these cases, only the dying seised, being an act in law, doth hold at this day1 .” In the margin Coke refers to Bracton, Britton and Fleta, and to some of those cases in the Year Books which have already come before us.
Now as regards the owner’s right to enter, we seem fully entitled to say that Coke had good warrant for his opinion that there had been a great change in the law, a change in favour of the owner; he had gained a right to enter in many cases in which it would formerly have been denied to him. But for the more precise rule that a disseisor’s feoffee must not be disturbed after year and day, I have not been able to find any definite authority. I think that Coke may have taken it from a statement in Brooke’s Abridgement which has been mentioned above. The phrase however which Brooke uses is not “an et jour,” but “ans et jours,” and this I believe means vaguely “a considerable time.” Coke’s rule was not the rule of Bracton’s day, for this was yet more favourable to possession. Still even in Bracton’s time a year’s possession was required of an intruder before he could claim protection against the remainderman, and it seems to me very possible that the gradual dissolution of the old law was checked for a moment at the point when protection was still given to a disseisor’s feoffee if he had been in possession for year and day. There are certain reasons, which I hope to give on another occasion, for thinking that this may have been the case.
But now how are we to understand this episode in our legal history, this gradual victory of the rights of ownership over the rights given by possession? If, with Mr Justice Holmes, we regard it as a mark of “good sense” that a defendant in a possessory action should be allowed to rely on his title, then we may regard this as a gradual victory of good sense. But let us first note that after all the victory was but partial. It was the nineteenth century before a defendant became able to rely upon title, if by title be meant a right to possess the land. The only “title” that even the fully developed common law enabled him to assert was a right to enter upon the land1 . In 1833 it was still possible that the person entitled to be in possession of land should have no right to enter upon it “sine judicio”; if he entered and ousted the possessor, he would, I take it, have had no defence to an action of ejectment or to an assize2 . That in actual practice this happened very seldom was not due to the good sense of the common law, but to statutes which had helped the common law out of the bad mess into which it had got in Littleton’s day. A statute of 1540 confined the doctrine of descents which toll entries within very narrow limits1 . Another statute of the same year prevented a husband from effecting a “discontinuance” of his wife’s lands2 . The dissolution of the monasteries and legislation as to other ecclesiastical corporations, left tenant in tail the one person who could “discontinue the possession,” and this power of his became unimportant because generally he could do much more than “discontinue the possession,” he could utterly bar his issue, remaindermen and reversioners3 .
Now by way of explanation of what happened between Bracton’s time and Littleton’s, it might be suggested that in the course of civilization wrongful ejectments became much rarer, and that therefore it was needless, and if needless then unjust, to maintain the old possessory action in all its pristine rigour. But it may well be doubted whether during the period of which we speak wrongful ejectments became rarer. The fifteenth century was at least as lawless as the thirteenth. This was the time of forcible entries and private wars, of maintenance and champerty. “In 1399,” says Dr Stubbs, “the commons petitioned against illegal usurpations of private property; the Paston Letters furnish abundant proof that this evil had not been put down at the accession of Henry VII1 .” “Forcible entry and disseisin with violence,” says Mr Plummer, “were every-day occurrences, and were almost restored to the position of legal processes which they had held before the invention of the grand assize2 .” Not a little of the blame for this state of things should rest upon the judges who, by allowing the utmost license to mendacious pleadings, had made the assize of novel disseisin anything but the festinum remedium which it still was in the days of Edward I. That assize must have been very badly handled; otherwise the Statutes of Forcible Entry would never have been necessary. In 1381, 1391, 1402, 1429, statutes were made which ransack the whole armoury of the law for weapons against disseisors, indictments, summary convictions, imprisonment, ransom, actions of trespass, special assizes, restitution, treble damages, treble costs. Even under the strong rule of Henry VIII it was necessary to furbish up these weapons. So late as 1623 there is a new statute for the protection of possessors who are not freeholders1 . It may I think be gathered from these statutes and the decisions upon them, that the true remedy for a crying evil was found in making forcible entry a crime. The judges refused a civil remedy under the statute of 1429 to a possessor forcibly ejected by an owner whose right of entry had not been tolled; although such a possessor could have obtained restitution in criminal proceedings2 . Whether the makers of the statute meant this may perhaps be doubted; but at any rate the decision shows how far the judges had departed from Bracton’s position; they could not conceive that a possessor with no title or bad title could be “disseised” by a person who had good title, and whose right to enter had not been tolled by descent cast or discontinuance. “Disseisin” in such a context had come to imply something more than dispossession of a possessor, something more than dispossession of a possessor who has colour of title; it had come almost to mean dispossession of one who has relatively good title by one who has relatively bad title.
It may be that for a long time past the judges had felt that there was some want of “good sense” in allowing A to recover possession from B, when B was willing to prove that he had a right to be in possession; some want of good sense because this would be putting A into possession merely in order that a question might be raised in some future action, which might very well be decided once for all in the present. But then the judges of Bracton’s day saw no want of good sense in this, so we have to account for the change of mind. What is more, we may never safely refer great changes in the common law directly and immediately to opinions as to what is politic or expedient, least of all changes which took place in the period of the Year Books. Judges and counsel talk little of public policy; “Fiat justitia, ruat coelum,” is their maxim; the social fabric may fall in with a crash, but their legal logic must have its way. Thoughts of the common weal must be expressed in forensic terms, “seisin” and “freehold” and so forth, before they can influence decisions. To a full explanation of the process indicated by those notes of cases which I have given above we shall hardly at present attain; but a little may be done towards clearing the way for other investigators.
In the first place something may be learned from the history of the law touching the time within which an assize must be brought. It seems that from the first the Norman writ of novel disseisin, which probably we ought to regard as the parent, or perhaps elder sister, of our own, could only be brought by one who had been disseised since last August. Each harvest set a term of limitation running; if a man was disseised at harvest time he had a full year within which to complain; if he was disseised shortly before harvest, then he had but a much shorter time. Year and day seems regarded as the normal term of limitation, but it is assumed that harvest time is the great time for disseisins. This gives to the Norman law a curiously homely character1 . In England no such annual limitation was established. Glanvill tells us that the period within which an assize can be brought is fixed from time to time by royal ordinance. The writ that he gives mentions the king’s last journey into Normandy, an event that must have been quite recent2 . Such ordinances were issued after Glanvill’s day; we find Richard’s first and second coronations, John’s coronation, John’s return from Ireland, Henry’s coronation, Henry’s journey to Gascony, are chosen as limits behind which a plaintiff may not go. When this last event was chosen it was but seven years old or thereabouts3 . The Statute of Westminster I, while it altered the time for other writs, left this unaltered: so in 1275 it seems to have been considered that a disseisin committed five and forty years ago was yet “novel.” This means a great change, but is little to what follows; for no other time was limited until the reign of Henry VIII, so that in 1540 a disseisin three hundred years old was still “novel4 .” Now this should be had in mind, for though in theory it may well be possible that an action shall be thoroughly and truly possessory, and yet be subject to no rule that limits a time within which it may be brought, still it would be difficult to maintain the theory in practice. If I be permitted to demand restitution of land on the ground that you ejected me eighty or even twenty years ago, whatever we may call this complaint, it will be difficult to think of it as other than a demand that you should restore to me what is mine, difficult to think of it as based not on proprietary right but on injured possession, and difficult because substantially unjust to prevent your pleading whatever title you may have.
We ought to look below this curious history to its cause, which is not to be found altogether in the remissness of parliament. In 1275 parliament in a splendid outburst of youthful vigour was beginning to overhaul the whole law of the land; and yet a term of more than forty years was not thought too long for the assize of novel disseisin. Ten years later the secret is revealed. “Forasmuch,” says the Statute of Westminster II, “as there is no writ in the Chancery whereby plaintiffs can have so speedy a remedy as by a writ of novel disseisin.” Here is a summary remedy for the recovery of land, why not extend its beneficent operation? Why insist that the defendant shall have obtained possession so very recently, or by what is technically called a disseisin? If we have come by a good form of action, why not use it? This seems the view of the matter taken by the parliaments of Edward I. A sensible, practical view it may be; but legal principle avenges itself. If we try to make our possessorium do the work of a petitorium, it will soon refuse to do its own proper work; questions of title will be raised in it and will be decided.
Thus the most elementary notions of the law are blurred. Take for instance the classification of actions as real and personal, or real, personal and mixed. This in all probability was not native in our law and was never thoroughly at home there. Bracton introduces it. He holds indeed that an action for goods cannot be in rem, because the defendant has the option of paying the value of the goods instead of surrendering them; but he knows too much of Roman law to call an action “real” merely because the successful plaintiff will thereby obtain possession of a specific thing. The Novel Disseisin, for example, is actio personalis; it may be rei persecutoria, but it is personalis1 . So the cognate writ of intrusion is omnino personalis2 . So the Quod permittat is potius personalis quam realis3 . With him the test is rather the nature of the mesne, than the nature of the final, process. If the mesne process is against the thing, if e.g. the land is seized into the king’s hand, the action is real, but if, as in the assize of novel disseisin, the process is attachment, then the action is personal. The active party in such litigation is not a demandant, he is a plaintiff, he is not petens, but quaerens. This last distinction perdured to the end; it is a mistake to speak of a “demandant” in an assize. But after a while an action becomes “real” merely because land is obtained thereby, and it is “mixed” if damages also can be obtained4 . Indeed even an action on a covenant may be a real action5 . Had Bracton been a pupil of Savigny he could not have stated more clearly than he has done, that the Novel Disseisin is a personal action founded on tort1 . The mere change in terminology, a retrogressive change as it may seem to some, may be explained by the fact that our law became always more insular, our judges always more ignorant of any law but their own; but that the Novel Disseisin fell into the general mass of real actions requires some further explanation.
This we may find if we turn to another famous distinction, that between possessory and proprietary actions. Between the proprietary writ of right and the possessory assizes there grows up a large group of actions, the writs of entry. Of their history I hope to write a little on another occasion. Here it must be enough to say that in Bracton’s view they are, with some exceptions, distinctly proprietary actions. In course of time however they come to be called possessory. This one fact by itself is enough to warn us that the distinction becomes exceedingly obscure. Now these actions became quite as easy as the assize; indeed it would seem that they became even easier, for a particular form of writ of entry (the writ of entry in the nature of an assize, or writ in the quibus) came to be commonly used in the fifteenth century instead of the Novel Disseisin. As regards simplicity and dispatch, the equalising process seems to have been rather one whereby the possessorium was deteriorated than one whereby the petitorium was improved. So far as mere “process” is concerned the Novel Disseisin must down to the very end, down to 1833, have been a fairly rapid action, quite as rapid I should think as the action of ejectment. Why it went out of use is no very easy question; but apparently the subtleties of pleaders “feigned, dilatory and curious pleadings” worked its ruin1 . The formulation in the original writ of the question for the jurors, was a device only suitable to an age whose law was as yet but meagre. As such terms as “freehold” and “disseisin” become more and more technical, the pleader of one litigant becomes more and more anxious that the question so formulated shall not be answered, and the justices take that pleader’s side, for they hold that matter of law is for the Court and only the purest fact for laymen. The pleadings in assizes become at least as complicated and “colourable” as the pleadings in other actions, perhaps more complicated and “colourable,” because there is a fixed question for the jurors which has to be evaded. And so the assizes fall into the ruck of “real actions.” Now it is not inconceivable that a possessory action should be strictly possessory, although it is not distinguished from proprietary actions by a specially summary procedure. But that this should be so must imply a legal theory of possession and of the reasons for protecting it, fully developed and precisely defined. Such a theory our lawyers of the fourteenth century had not got, and the momentous contrasts in procedure were things of the past. It was easy in Henry II’s time to distinguish the rapid possessory procedure in the king’s court from that proprietary procedure in the feudal courts wherein the tenant after manifold essoins could always wage battle if he pleased. In Edward II’s time, when normally all questions of fact (and no other questions) were tried by a jury, when there was as much pleading in an assize as in any other action, when there were writs of entry which some thought possessory and others proprietary, when there was hardly any “real” action in which damages could not be recovered, no wonder that the theory of the Novel Disseisin was not maintained, no wonder that it refused any longer to protect possession against ownership, or only did so in a spasmodic, capricious, half-hearted way.
Coming a little nearer to our problem, we see that the process which gradually extends the sphere of self-help allowed to the ousted owner begins by permitting him to enter, regardless of lapse of time, upon the person who has himself been guilty of a disseisin. Bracton, we have seen, had apparently inherited a set of ancient positive rules determining the time for reejectment; normally it must be accomplished within four days, but a longer time is allowed to an owner who is absent when the disseisin is committed. But he rationalizes these rules by speaking of patience, negligence and acquiescence. In this there is no harm, even on a very strict theory of possessory remedies, provided acquiescence in the mere physical fact of adverse possession be carefully distinguished from any such acquiescence as will serve to confer or extinguish proprietary rights. But even Bracton himself does not bring this out very clearly; a longa et pacifica seisina protects the possessor against the owner’s self-help; a longa et pacifica seisina bars the owner from his action and acts as a usucapio1 . The old positive rules being rationalized away, such language becomes very dangerous. The problem then becomes this, What length of seisin will serve to confer a “title de fraunc tenement,” “an estate of freehold.” There is no answer ready; it is a matter for judicial discretion; the judges lean towards the owner; there is no longer a striking contrast between possessory and proprietary procedure to direct their thoughts; they no longer feel, what Bracton felt, that for an owner to take the law into his own hands, to make himself judge in his own cause, is a usurpation of judicial functions, a contempt of court; they no longer feel the force of the phrase, “injuste quia sine judicio.” The notion of acquiescence is an insecure foot-hold, and gradually it slips away. No distinction can be found between the acquiescence which bars entry, and the acquiescence, or rather lapse of time, which bars action. So on the disseisor himself the owner may always enter.
But cannot firm ground be found in the protection of titled possession? Let the owner enter on one who is “in by tort,” but not on one who is “in by title.” It seems that our law was arrested at this spot for a while. But really the ground is not firm. To protect possession as such even against ownership, may be wise; and to protect possession acquired by title and in good faith, may also be wise; but to require title and yet ask nothing as to good faith can hardly serve any useful purpose. Suppose that A has been disseised by B; we refuse to protect B against A’s selfhelp. Then B enfeoffs C; shall we protect C against A, and this without inquiring whether C took the feoffment in good faith? To do so is absurd; for if we do it every disseisor will have a C ready to hand. Had a requirement of good faith been introduced, then indeed a halting-place might have been found. But this could not be done; a psychological investigation was beyond the means, beyond the ideas, of our law. “The thought of man shall not be tried, for the devil himself knoweth not the thought of man.”
Then again reference must be made to a statute. The Novel Disseisin was so convenient a remedy that its scope was enlarged. The statute of Westminster II, as already said, informs us that “there is no writ in the chancery whereby plaintiffs can have so speedy a remedy as by a writ of novel disseisin.” Therefore this writ is to be extended to cases in which as yet it has not lain. If a tenant for years or a guardian aliens in fee, both feoffor and feoffee are to be adjudged disseisors1 . It seems probable both from the words of the statute and from Bracton’s text that before this act the feoffee was no disseisor, though I know that according to later opinion—at least according to the opinion of some later lawyers—this statute was made “in affirmance of the common law.” But this only means that in course of time the same rule was applied to cases not within the very words of the clause: the feoffee of a tenant at will, or by suffrance, or by elegit, or statute merchant was held to be a disseisor2 . Such a feoffee therefore was not “in by title.” This must have opened up the question, What then is title? since the mere fact that a person had come to the land by feoffment was inconclusive. For this question there was no easy answer, and we soon find that one who takes a feoffment even from a tenant for life (a person who is seised), is regarded as “party to the tort.” It seems to me that the rule which treated a feoffment in fee made by a tenant for life as a forfeiture was not yet well settled in Bracton’s day, and that as the law of forfeiture grew stricter the position of feoffees grew worse and worse. Then, as may be seen in some of the cases noted at the beginning of this paper, the question arises as to the feoffee of a feoffee. But no logical rest can be found; twenty feoffments may be made in one day, and the last feoffee will be just as guilty as the first. So as a general rule the feoffee has no more protection than the feoffor has; he is unprotected against the owner. The “discontinuances” remain outstanding as exceptional cases. No forfeiture is involved in them; if a husband alienates his wife’s land, this of course cannot be a forfeiture; husband and wife are too much one for that: if an abbot alienates the abbey lands, there is no one who can have any right to take the land from the feoffee so long as that abbot is abbot; as to the tenant in tail, it would have been very difficult to hold that by alienating he forfeited his estate to his own issue. So in these few quite exceptional cases the feoffee comes in without there being any disseisin or any forfeiture; here then the old rule still prevails, he has a seisin of freehold in which the law protects him even against the true owner.
The doctrine of descents cast is another relic. Blackstone seeks to account for the law’s protection of the disseisor’s heir by some ingenious arguments:— (1) the heir comes to the land “by act of law, and not by his own act”; (2) “the heir may not suddenly know the true state of his title”; (3) this rule was “admirably adapted to the military spirit of the feodal tenures, and tended to make the feudatory bold in war; since his children could not by any mere entry of another be dispossessed of the lands whereof he died seised.” Such reasoning as this seems to me conspicuously absent in the Year Books. If Blackstone’s object was to explain the history of the rule and not to find some excuse for retaining it in the eighteenth century, then he asked the wrong question; instead of inquiring “Why is the disseisor’s heir protected?” he should have inquired, “Why is not the disseisor’s feoffee protected; why is not the disseisor himself protected?” It seems to me that English law having once given up the attempt to protect mere possession against ownership, stumbled forward towards the “good sense” (if such it be) of never giving any civil remedy against a person, who being entitled to possession, takes possession. But it knew not well whither it was going. For a long time, for a century and upwards, it had before it a vague idea that though mere possession is not to be protected against the owner, still innocent possession deserves protection. The disseisor’s feoffee loses protection because in very many cases he is party to a forfeiture and a tort. On the other hand the heir enters innocently; death and descent cast are not wrongful acts; there is no fraud in entering upon that of which one’s ancestor dies seised. The law demands innocence; but innocence it judges by rude external standards. To our minds of course the possessor, who of all others is best entitled to favour, is not the heir but “the bonâ-fide purchaser for value” who has honestly but unfortunately bought a bad title. But an inquiry into good faith, a respect for valuable consideration, these do not belong to the law of the fourteenth century, and if we suppose ourselves unable to try the thought of man, then we shall think that the heir’s position is stronger than that of the feoffee. Very probably the latter has been guilty of some tort, very possibly he is but a man of straw behind whom the disseisor himself is lurking; but the heir is presumably innocent, and undoubtedly he comes to the land by “title.” If however we read Littleton’s chapter on “Descents which toll Entries,” we shall hardly fail to observe that the protection which is still given when a descent has been cast is given very grudgingly; every sort of excuse seems accepted for allowing “him that right hath” to enter upon what is his own. The rule which protects the heir looks as if it were being pared to the quick. It has become an isolated anomaly; that it did not disappear altogether may be in great measure due to Littleton’s genius; a man of his ability had it in his power to stereotype the law at an evil moment. Then, as already said, Parliament came to the rescue and the tolling of an entry became an anomaly, and in actual practice a rare anomaly; but it was not until 1833 that the long experiment, the experiment of Henry Fitz Empress, was brought to a formal and final end. Practically for the last three hundred years and more, theoretically as well as practically for the last fifty years and more, we have had no action in which an ejected possessor could recover possession from the owner who ejected him: certainly this is a fact which deserves the consideration of all who are troubled with theories of possession1 .
THE SUITORS OF THE COUNTY COURT1
Who were the suitors at the county court? The generally accepted answer is, all the freeholders of the county. But as regards the thirteenth century there seems to be a great deal of evidence that this was not so. The opinion which our documents favour is much rather this: that suit to the county court was not an incident of freehold tenure, but had become a burden on specific lands; and that when the number of free-holders was increased by subinfeudation, the number of suitors was not thereby increased. This vill or this manor or this tract of land which belongs to A, owes suit to the county court; A enfeoffs B, C, and D with pieces of land; the whole vill, manor, or tract still owes the accustomed suit, but it owes no more; by whom this suit shall be done is a matter that A, B, C, and D settle among themselves by the terms of the feoffments. In this respect the burden of suit of court is very like the burden of scutage; the amount of scutage is not increased by the creation of new sub-tenancies, but the ultimate incidence of scutage can be settled by feoffor and feoffee.
The Hundred Rolls of 1279 supply a large stock of illustrations, a few of which shall be given. In Cambridgeshire the greater part of the vill of Bottisham is held of the earl of Gloucester by the priors of Anglesea and Tunbridge; but there are two tenants of the earl’s there who do suit to the hundred and county courts for the whole township: Dominus Simon de Mora tenet unam virgatam there de eodem Comite et facit sectam ad comitatum et hundredum pro Comite et pro tota villata; Martin son of Eustace holds two virgates on the same terms1 . The abbot of Ramsey has a manor at Burwell in the same county; the jurors do not know that he does any service for it except two suits to every county court; facit duas sectas comitatus Cantebrigie de comitatu in comitatum. But these two suits are actually done for him by two tenants; J. A. holds a hide and does one suit to the county and to the hundred from month to month for the abbot; B. B. holds ninety acres and does one suit to the county and to the hundred for the abbot2 . In Croxton in the same county there are two manors; the lord of one does two-thirds of one suit (duas partes unius secte) to the hundred and county; the remaining one-third is done by a freehold tenant of the other manor3 . The suit is thus split into fractions; at Yaxley a tenant owes a half-suit to the county court and an entire suit to the lord’s court (dimidiam sectam, sectam integram)4 . At Isleham again the suit has been partitioned; for half the year it is done by H. H., for the other half of the year by two tenants of his5 . Indeed in these rolls it is a quite common thing to find some one of the freehold tenants marked out as doing the suit for the manor or the vill1 ; this is the service or part of the service whereby he “defends” his land against the lord (defendit duas virgatas terrœ faciendo sectam ad comitatum Huntingdonie et ad hundredum de Normancros pro dicto domino2 . In Oxfordshire the jurors have a technical name for such a tenant; he is the attornatus feoffatus. At Shifford the abbot of Eynsham has a manor for which he must come twice a year to the hundred court, and he owes suit from three weeks to three weeks by (per) William Freeman his enfeoffed attorney and his only freehold tenant3 . The prior of Deerhurst owes one single suit (debet unicam sectam) to the county of Oxford for his manor of Taynton, and this is done for him by J. S. his attorney enfeoffed for this purpose in ancient times (attornatum suum ad hoc antiquitus feoffatum)4 . Many of the Oxfordshire landowners owe suit to the county court but twice a year.
In the monastic cartularies we find the same thing. Thus, at Hemingford, according to the Ramsey Cartulary5 , Simon Geoffrey’s son holds two virgates for which he “defends” the township at the county and hundred, and when the justices in eyre come round he must appear as reeve (erit loco prepositi). At Ellington, John John’s son holds a hide for which he does suit to every third county court6 ; at Holywell, Aspelon of Holywell does the suit to the county and hundred7 , at Broughton it has been done by Nicholas Freeman8 . We can trace John of Ellington from the cartulary to the hundred roll, and still find him doing his “one-third part of one suit” to county and hundred1 . Turning to the Gloucester Cartulary, we find a charter of feoffment whereby the feoffee is bound to acquit the vill from suit to all courts of the hundred, or of the county or of justices in eyre, and all other suits which pertain to the said vill2 . At Clifford, R. E. and another freeholder pay no rent, but are bound to do the lord’s suit to the county and hundred; and if by their default the lord be distrained, they must indemnify him3 . At Northleach is a freeholder who in respect of his land owes suit for the lord to the county court of Gloucestershire and to all the hundred courts of Cirencester, and must remain before the justices in eyre during the whole of their session4 . A particularly clear case occurs on the Ramsey manor of Cranfield in Bedfordshire: there are four virgates which pay no rent because they defend the whole township from suit to the hundred and county courts—they are virgates quœ sequuntur comitatum et hundredum pro tota villata; and this is an ancient arrangement, the result of some vetus feoffamentum5 .
All this seems inconsistent with the notion that every freeholder as such owes suit to the county court. The quantum of suit due from the whole county is regarded as having been once for all fixed at some remote time. Very usually a vill is the unit which owes a full suit. In that case the lord of the vill, if the vill is owned by one lord, is primarily liable to do the suit or get the suit done: usually he has stipulated that it shall be done for him by one of his feoffees—the feoffee, let us say, of a particular virgate. Then as regards the feoffor that virgate is burdened with the suit, and the burden will lie on that virgate into whosesoever hands it may come.
Really when one looks at the Hundred Rolls it is quite impossible to suppose that every freeholder did suit to the county. There are too many free-holders for that. On many manors, it is true, there were hardly any freeholders; this is true in particular of the manors belonging to the religious houses; such houses were as a rule very chary of creating freehold tenancies; they kept but two or three freeholders, one of whom had often been enfeoffed for the special purpose of doing the suit due from the whole manor or township. But on the estates of lay lords there were often many small freeholders. Thus at Bottisham the earl of Gloucester seems to have over forty freeholders. Are they bound to go to the county court month by month? No, two of them do the suit for the whole vill1 . The plenus comitatus was not a very large assembly.
As regards suit to the hundred court we have some yet clearer information. The view taken by the jurors from whose verdicts the Hundred Rolls were compiled, very distinctly was that suit was a burden upon particular tenements, and that the subdivision of those tenements by the process of subinfeudation ought not to increase the number of suitors. They complain that the earl of Surrey, who owns the hundred court of Gallow, has not observed this rule. There was, for instance, a tenement in South Creake containing 100 acres; it owed a single suit; it has been divided into forty tenements, and forty suits are exacted. Many other examples are given1 . A similar complaint goes up from the hundred of Humbleyard2 . So, again, when the tenement becomes divisible among coheiresses, the number of suitors should not be increased; the burden of the suit should lie on the share of the eldest sister. That this rule has been infringed is matter of complaint in the hundred of North Erpingham3 . So in the Bingham wapentake of Nottinghamshire there are but twelve tenements which owe suit; their holders have been enfeoffed for the purpose, and there ought to be no other suitors4 . The wapentake of Rushcliffe in the same county has but six suitors, each owes suit in respect of a particular tract of land5 .
How could this somewhat capricious distribution of the burden, to which the Hundred Rolls bear witness, have been effected? By way of answer to this question we may suppose—this can be but an hypothesis, for evidence fails us—that when Henry I revived and enforced the duty of attending the local courts, that duty was conceived as being incumbent on all freeholders, or rather (and the exception is important) on all freeholders who or whose overlords had no chartered or prescriptive immunity; but that it was also conceived as being, like the taxes of the time, a burden on the land held by those freeholders, so that when the land held by one of them was split up by subinfeudation or partition among heiresses, the number of suits due was not increased. Some such supposition seems to be warranted by the “Leges Henrici Primi,” which after Dr Liebermann’s researches we may ascribe to Henry I’s reign. All the terrarum domini are bound to attend; but if any lord attends by himself or his steward, he thereby acquits his whole demesne1 . This last passage may very well mean that if he bestows part of his demesne on a feoffee, a single suit will acquit them both. That during the thirteenth century the number of freeholders increased rapidly, there can be no doubt; but an increase in the number of freeholders did not mean an increase in the number of suits due to the county court.
Of course it may be that on special occasions, in particular to meet the justices in eyre, all the freeholders were bound to attend the county court. But it is possible to doubt even this. The words in the writ of summons directing all freeholders to come may well have been understood to mean all freeholders who owed suit. An examination of the amercements for non-attendance and the “essoins of the general summons” found on the eyre rolls might throw some light upon this problem; to a superficial glance they do not seem nearly adequate to support the received opinion. But at any rate it seems plain that the ordinary form of the county court, the plenus comitatus which heard cases and delivered judgments, was not an assembly of all freeholders, but an assembly of those persons who by means of proprietary arrangements between lords and tenants had become bound to do that fixed quantum of suit to which the county court was entitled. It was not an assembly of the king’s tenants in chief, though probably the persons primarily liable were in many or most cases the tenants in chief. On the contrary, the person who does the suit, and who is bound by tenure to do the suit, is sometimes a small socager holding a single virgate. But though it was not an assembly of tenants in chief, it was not an assembly of all freeholders.
It is impossible to speak of this matter without perceiving that there is a big question as to “the county franchise” in the near background. That question we need not now attack; but before it is solved we ought to have a clear opinion as to who were the persons bound to do suit at the county court, and it is here humbly submitted that the received opinion as to this obligation does not harmonise with the evidence. Of course, it is conceivable by us that though all freeholders were not bound to attend the court, still all had a right to attend. But would such a right have been conceivable by a man of the thirteenth century? If we asked him as to the existence of such a right, might he not reply by asking us whether those modern Englishmen who are not bound to pay income tax, enjoy the right of paying it if they please? The right to do what nobody wants to do can hardly be said to exist. It would have been very dangerous for any one to attend the county court unless he was bound to go there, for he would have been creating evidence of a duty to attend; solebat facere sectam, sed modo subtrahit se—this would have been the neighbours’ opinion as to the conduct of an occasional attendant. We may some day have to confess that the original “county franchise” (if we may use that term to describe what those who had it would have regarded as the very negation of a “franchise”), so far from being settled by the simple rule that all freeholders have votes, was really distributed through an intricate network of private charters and prescriptive liabilities.
THE SHALLOWS AND SILENCES OF REAL LIFE1
In the above title we claim no copyright, and we freely place it at the service of any of our readers who may be on the outlook for a pretty name to give to some volume of pensive musings. “The Shallows and Silences of Real Life,” by the author of “Soul Flakes,” “Seaweed from the Sands of Time,” “The Cosier Corners of a Quiet Pew,” etc., would look well, and should command a sale in serious family circles. But it requires only a slight acquaintance with our classical literature and our current politics to understand that here we mean to speak of county government. Many mean to speak of it before long; we shall be deluged with speeches about it; there will be severe fighting, and like enough, before the end of the session, every one, by virtue of his political profession as Tory or Radical, will be bound to have or suppose that he has very definite opinions about all its pettiest details. While as yet the strife is but beginning, we have still time to cast a quiet look around us, and to inquire in a spirit of truth, what all the fuss that we anticipate is going to be about.
To put the matter briefly, an old form of local government which has served us for five centuries and more, is breaking up, and, to say the least, must undergo a great change which cannot leave even its essential character unaltered. A vital organ of the body politic must be renewed. Hitherto such government as our counties have had, has been government by justices of the peace—government, that is, by country gentlemen, appointed by the Lord Chancellor in the Queen’s name, on the recommendation of the Lord Lieutenant of the county, legally dismissible at a moment’s notice; but practically holding their offices for life. This institution has had a great past, we had almost said a splendid past; but Englishmen, unless they are taught by foreigners, seldom see its greatness, and to talk of splendour might therefore seem absurd. Our historians, even some who write what call themselves “constitutional histories,” are apt to spend all their energies upon describing the flashy episodes of national life, scenes in Parliament, tragedies on Tower Hill, the strife of Whigs and Tories, wars and rumours of wars.
To deal with the vulgar affairs of commonplace counties, to show what the laws made in Parliament, the liberties asserted in Parliament, really meant to the mass of the people, this was beneath their dignity or beyond their industry. To chronicle such exiguous beer (for even of the control over ale-houses there is much to be said) would bring no fame, and would be a very laborious task. Some day it will be otherwise: a history of the eighteenth century which does not place the justice of the peace in the very foreground of the picture, will be known for what it is—a caricature. The excuse for our historians—and of course there is an excuse—is this: that having been brought up to regard the justice of the peace as a perfectly natural phenomenon—natural as the air we breathe—they find nothing to say about this incarnation of the obvious. If there had not been justices, this indeed, as a thing contrary to nature, would have called for explanation, and perhaps regret. We say that some day it will be otherwise, for no doubt there is a great change coming. When it has come and has worked for a while, then to those reared under the new system the historian will have to explain that their fathers lived under a very different system, and one which well deserves retrospective examination, possibly retrospective praise. We think that the praise will come, that it has been deserved by centuries of honest, capable, unostentatious work. The justice is a modest man; he has no constituents, and therefore can afford to be modest; perhaps he seldom knows how important he really is. He has become accustomed also to hear small wit broken over “the great unpaid”; and, doubtless, to be great and yet unpaid is a piece of aristocratic insolence. We ourselves will confess to having referred to two famous justices of Henry IV’s reign, in the hope—a vain hope, we fear—of attracting readers by a title which should recall an excellent piece of good wit. But to have made men merry, this surely is not even yet the unpardonable sin; that from age to age people have been pleased to be pleasant over their governmental institutions is surely not a fact which damns those institutions as unsuitable to the people. A joke is better than a curse, and local rulers have not always gone uncursed in all parts of the world.
Certainly, to any one who has an eye for historic greatness it is a very marvellous institution, this Commission of the Peace, growing so steadily, elaborating itself into ever new forms, providing for ever new wants, expressing ever new ideas, and yet never losing its identity, carrying back our thoughts now to a Yorkist, now to a Lancastrian king, stamped with the sign manual of the Tudor monarchy, telling us of rebellion, restoration, revolution, of peaceful Georgian times, of the days of Bentham and the great reforms. Look where we may, we shall hardly find any other political entity which has had so eventful and yet so perfectly continuous a life. And then it is so purely English, perhaps the most distinctively English part of all our governmental organisation. The small group of country gentlemen appointed to keep the peace, to arrest malefactors, and lead the hue and cry, acquires slowly and by almost insensible degrees the most miscellaneous, multitudinous duties, judicial and administrative, duties which no theorist will classify, for their rich variety is not the outcome of theory, but of experience. And all the while this group shows the most certain sign of healthy life; it can assimilate fresh elements of the most different kinds, and yet never cease to be what it has been. Aristocratic it has been from the first, but never obligarchic; always ready to receive into itself new members who would have the time, the means, the will to do the work, without inquiring into the purity of their pedigrees or their right to coat armour. Our justices have never been a caste, nor the representatives of a caste; there has been nothing feudal, nothing patrimonial in their title; they have represented the State, and yet no one would call them officials. They have adapted themselves to many changes in their environment; they may do so yet once more.
Now, no one doubts that a great change is at hand, that the justices are going to lose some of their most important functions. But that this should be so is not a little strange. Generally, when some great change is at hand in the domain of politics, very strong language is used about the “abuse”—for such it is called—that is to be destroyed. The vials are outpoured, the trumpets are blown, doomsday has at last overtaken the wicked. A terrible indictment is sworn, in which the weakest words are incompetence and corruption, oppression and extravagance. In the present case there has been nothing of the sort; the most zealous advocates of reform have hardly gone beyond a more or less graceful pleasantry.
Shallow, as they call him, is at worst an anomaly, and Silence is obviously an anachronism in this eloquent nineteenth century. It is not asserted that the justices, in administering the affairs of the county, have been corrupt or extravagant. Notoriously the fact is otherwise. For the last half-century we have been trying many experiments in local government: we have had municipal corporations, poor-law boards, boards of health, school boards, all constituted on different principles. The result of these experiments is simply this: that of all known forms of local government, government by justices of the peace is the purest and the cheapest. More than this can be said; it is the form which requires least control on the part of the central Government; this is no slight merit in these days when all are complaining of over-centralisation. The average justice of the peace is a far more capable man than the average alderman, or the average guardian of the poor; consequently he requires much less official supervision. As a governor he is doomed; but there has been no accusation. He is cheap, he is pure, he is capable, but he is doomed; he is to be sacrificed to a theory, on the altar of the spirit of the age.
Let it well be understood that a great change is absolutely necessary. Taken as a whole, our local government is a weltering chaos out of which some decent order has to be got. During the last fifty years boards of ever so many different kinds have been created all over the country; their districts overlap, their powers conflict; they are not much respected, they are not much trusted; their duties are too humble to attract competent men; they have to be bound hand and foot by the orders of a central bureau. Rearrangement and consolidation there must certainly be, and the sooner the better. This work cannot possibly be done without interfering with the powers of the justices; and to increase the powers of the justices no one proposes. If we ask why not, the answer must be that the spirit of the age forbids it. Rightly or wrongly, we have determined to carry the principle of popular election into every department of Government. To regret this would be vain, and the control of the central Government having already been placed in the hands of the great mass of the people, it seems to us distinctly desirable that the control over the local government should be in the same hands.
The wisest advocates of representative government—those who have based their case, not upon natural rights, but upon considerations of national welfare—have laid much stress upon the educational influence of the electoral franchise. Now, if ever the multitude of the newly-enfranchised is to be educated by having votes, it must be by having votes which they can exercise about matters fairly within the range of their intellect and their interests. It is possible, and we hope not treasonable, very seriously to doubt whether the issues of national politics are at the present day within that range. About local affairs the judgment of the average elector is already better worth having, and it would become still more valuable if local affairs were to gain new dignity and importance. As it is, we have begun at the wrong end; we have asked men to have opinions about extremely difficult questions, when they have never had a chance of forming effective opinions about simpler questions. Any way, the education of the electoral body will be a very long affair; but there is no school for it but that which is kept by experience. Perhaps the lesson of the parish should have been learned before the study of the county was begun, and the county should have been mastered before the kingdom was touched. Things have fallen out otherwise. This could hardly have been helped, and the mistake may not yet be irretrievable. By the commission of copious blunders in local business, the governing class may be taught to avoid more disastrous blunders in national business. A highly-privileged governing class we have raised up—a class with ample political rights and few political duties. Duties should be provided for it. In vain we think of old times, when the voter was one who, in countless ways, had to serve his township, his county, his king. We cannot invite our rulers even to take their turn at jury service; they would refuse the invitation; and if they accepted it, there would soon be an end of trial by jury. We trust men to decide the question of Home Rule whom we would not trust to try an action for slander. There seems nothing for it but to give them a sphere of action in which the consequences of their errors should be very obviously manifest. At present there is no such sphere. The various local boards which exist are too obscure; governmental powers have been too much macadamised; responsibility has been scattered about in fragments; not one man in a thousand knows under how many “authorities” he lives.
The situation is critical; it should be faced boldly. If it is so faced there is a chance that out of a great deal of immediate evil some permanent good may come. There will be jobbery and corruption, incompetence and extravagance, very possibly there will be gross injustice. Then will come the cry for ever fresh interferences on the part of the central Government, for more State-appointed inspectors, accountants, auditors; but if the lesson of the past fifty years has really been of any good to us, the cry should be resolutely resisted. The local bodies should be left to flounder and blunder towards better things. A local board under the present pressure of central government is a sorry thing; a body, which, if it is unwise, is futile; which, if it is wise, is governed by its clerk. That pressure should be lightened; there is no good in half trusting men; they should be trusted fully or not at all. The fullest trust, however, does not necessarily imply that the person trusted is wise; it may well mean only that he ought to have an opportunity of showing himself how unwise he is. Give the local “authorities” a large room in which, if they can do no better, they can at least make fools of themselves upon a very considerable and striking scale. Such is the counsel that we are inclined to give, and it is one which should be acceptable to all parties in the State.
For a similar reason it may be hoped that no elaborate attempt will be made at a compromise between the old and the new. If the principle of government by elected representatives is to be extended, it should be extended frankly and courageously, otherwise there will only be fresh irritation and discontent. The hope of securing able and just administrators must now lie, not in the creation of fancy franchises, which at best are fleeting, rickety things, but in the character of the work. It must be made dignified and attractive. If possible, men of the same stamp as those who have hitherto been active at Quarter Sessions should be obtained; but no tinkering of the electoral machinery can assure this result. The old spirit, the spirit which century after century has moved the squires of England to work hard in their counties, doing justice and keeping order, is not yet extinct. Capable men there are, and it will be possible to attract them if the work to which they are called is interesting, important work, and not the mere registering of the orders of the central bureau. If they have patience they will be elected, if elected they will be heard; for even the most ignorant and careless electorate will at times be convinced that the foolishness of fools is folly.
The outlook is certainly gloomy; the darkest cloud has not yet been mentioned. If the justices are deprived of their governmental work, will they care to be justices any longer? This is a momentous question; on the answer to it depends a great deal of the future history of England. Suppose that they abandon the judgment seat; in place of the collegiate body of unpaid justices we shall have the paid professional magistrate, the inevitable “barrister of seven years’ standing.” This will mean more patronage for the Minister, more promotion for politically useful lawyers, and, of course, more expense. But it is not of expense that we would speak. It is indeed very difficult to tell how much of the English respect for law, which (though recent ebullitions may look to the contrary) is still deep-seated, is centred in the amateur justice of the peace. If we have to name the institution which has had most to do with its growth, we should long hesitate between the Commission of the Peace and Trial by Jury. Englishmen have trusted the law; it were hardly too much to say that they have loved the law; but they have not loved and do not love lawyers, and the law that they have loved they did not think of as lawyers’ law. The most learned “barrister of seven years’ standing” will find it hard to get so high a reputation among country folk for speaking with the voice of the law, as that which has been enjoyed by many a country squire whose only juristic attainment was the possession of a clerk who could find the appropriate page in Burn’s Justice.
This reputation depended in part on the fact that the squire was the squire, and respect for the squire as such is certainly disappearing; but it depended also on the fact that the squire was no trained lawyer, that his law was very simple, that his words were few and plain, and went straight to the point. Of course we can all, when occasion serves, make merry over justices’ justice; but if we look at the history of this justice as a whole, we see that it has been marvellously, paradoxically successful. Even at the present day, if the honest people who come in contact with magistrates (the votes of the criminal class we are not at pains to collect) had their choice between lawyers’ law and justices’ justice, we should find that the coarser article had many humble admirers. At any rate, it should be understood that the future of the amateur magistracy is very doubtful. Hitherto the dreary task of hearing petty charges has been varied and enlivened by very miscellaneous business of a more or less governmental kind. Whether many men will care to be mere police magistrates, and get no pay for the work, is certainly open to question. Time after time the country gentlemen have risen to the occasion; they may do so yet once more.
But the severance of administrative from judicial work must have very serious consequences. It is curious that some political theorists should have seen their favourite ideal, a complete separation of administration from judicature, realised in England; in England of all places in the world, where the two have for ages been inextricably blended. The mistake comes of looking just at the surface and the showy parts of the constitution. The work of separating what have never been conceived as separate will be hard enough; but suppose it done, shall we be the gainers? Hitherto all the business of granting licenses, and the like, has been transacted by men trained in judicial work, men seated on a bench, men holding sessions, men who on the same day would like enough have to try a vagabond, or to consider whether there was sufficient reason for sending a prisoner to trial for murder. We puzzle foreigners by our lax use of the word “jurisdiction,” and it is remarkable enough. Whatever the justice has had to do has soon become the exercise of a jurisdiction; whether he was refusing a license or sentencing a thief, this was an exercise of jurisdiction, an application of the law to a particular case. Even if a discretionary power was allowed him, it was none the less to be exercised with “a judicial discretion”; it was not expected of him that he should have any “policy”; rather it was expected of him that he should not have any “policy.” And now all this is likely to be otherwise. A board will take the place of the bench; a policy voted about by constituents will take the place of law. All will be very neat and pretty, and explicable by first principles; the administrative work will be performed by the elected representatives of those whose interests are concerned; for the judicial work there will be the barrister of seven years’ standing. The amphibious old justice who did administrative work under judicial forms, will be regarded as inadequately differentiated to meet the wants of a highly evolved society. But unless our reformers go very wisely to work, they will sacrifice the substance of just government to mere theoretic elegance. Much is at stake, no less than the general trust of the people in law and government. What first and foremost is wanted in local government, is not administrative ability, but plain justice; whether we shall get this out of boards elected to echo party cries, to represent policies, remains to be seen. Our best hope must be that such men as those who have hitherto done work of every kind under the name of justices, will still do that work, and more also, partly under the name of justices, partly under some other name. Unless the services of such men can be obtained, the present year will be a mournful year in English history. On the other hand, if the present Ministry and the present Parliament can meet and conquer the very serious difficulties of the case, we shall place to their credit one of the greatest legislative exploits of the century.
WHY THE HISTORY OF ENGLISH LAW IS NOT WRITTEN1
Though I am speaking for the first time in a new character, though I have before me the difficult task of trying to fill the place of one who was honoured by all who knew him and loved by all who knew him well, I yet have not the disadvantage—or should I say advantage?—of coming as a stranger to the Cambridge Law School. At any rate I mean to excuse myself on this occasion from any survey of the whole of the vast subject that has been committed to my care; rather I will make a few remarks about one particular branch of study, a branch that is very interesting to me, though I hope that I shall never overrate its importance. And if I have to say that it is not flourishing quite as it ought to flourish, believe me that this is said very modestly.
Our patience of centennial celebrations has been somewhat severely tasked this year, nevertheless it may be allowed me to remind you that next year will see the seven-hundredth birthday of English legal memory. The doctrine that our memory goes back to the coronation of Richard I and no further is of course a highly technical doctrine, the outcome of a statute of limitation, capricious as all such statutes must be; still in a certain sense it is curiously true. If we must fix a date at which English law becomes articulate, begins to speak to us clearly and continuously, the 3rd of September 1189 is perhaps the best date that we can choose. The writer whom we call Glanvill had just finished the first text-book that would become a permanent classic for English lawyers; some clerk was just going to write the earliest plea-roll that would come to our hands; in a superb series of such rolls law was beginning to have a continuous written memory, a memory that we can still take in our hands and handle. I would not for one moment speak slightingly of the memorials of an earlier time, only I would lay stress on the fact that before the end of the twelfth century our law is becoming very clear and well attested. When another century has gone by and we are in Edward I’s reign the materials for legal history, materials of the most authoritative and authentic kind, are already an overwhelming mass; perhaps no one man will ever read them all. We might know the law of Edward’s time in very minute detail; the more we know the less ready shall we be to say that there is anything unknowable. The practical limit set to our knowledge is not set by any lack of evidence, it is the limit of our leisure, our strength, our studiousness, our curiosity. Seven hundred years of judicial records, six hundred years of law reports; think how long a time seven centuries would be in the history of Roman Law.
Our neighbours on the continent are not so fortunate as we are. True that for some very early ages they have fuller memorials than we can show; but already in the eleventh century Domesday Book stands out in its unique grandeur, and when our rolls of the King’s Court begin in Richard’s day, when our manorial rolls begin in Henry III’s or John’s, and our Year Books in Edward I’s, then we become the nation whose law may be intimately known. Owing to the very early centralization of justice in this conquered country we acquired, owing to our subsequent good fortune we have preserved, a series of records which for continuity, catholicity, minute detail and authoritative value has—I believe that we may safely say it—no equal, no rival, in the world. And let those who think the twelfth century too late an age to be interesting, who wish for the law of more primitive times, consider how sound a base for their studies these records are. If once we were certain of our twelfth century we might understand Domesday, if once we understood the state of England on the day when the Confessor was alive and dead, then we might turn with new hopes of success to the Anglo-Saxon dooms and land-books.
I have said that our neighbours are less fortunate than we are; but perhaps that is not so, for hoarded wealth yields no interest. Of what has been done for the history of Roman law it is needless to speak; every shred of evidence seems to have been crushed and thrashed and forced to give up its meaning and perhaps somewhat more than its meaning. But look at the history of French law or of German law; it has been written many times on many different scales from that of the popular handbook to that of the erudite treatise, while the modern literature of monographs on themes of legal history is enormous, a literature the like of which is almost unknown in England. For our backwardness it is some excuse, though hardly a sufficient excuse, that we are overburdened by our materials, are becoming always better aware at once of their great value and of their unmanageable bulk. A Romanist may be able to say about some historical problem—I know all the firsthand evidence that there is, nay, I know it by heart; the truthful English historian will have to confess that he has but flitted over the surface. On the other hand, if we compare the task of writing English legal history with that which French and German historians have before them, there is a fact which goes far to outbalance any disadvantage occasioned by the heavy weight of our materials. The early centralization of justice gives to our history a wonderful unity; we have not to compare the customs of divers provinces, or the jurisprudences of rival schools; our system is a single system and revolves round Westminster Hall.
Well, I am afraid that it must be allowed that Englishmen have not done all that might have been expected of them by those who do not know them well. I believe that no attempt has ever been made to write the history of English law as a whole. The praiseworthy work of Reeves on the law of the later middle ages was done at a dark time and is long out of date. In some particular departments very excellent work has been done; the constitutional law of the middle ages has been fully explored; the same may be said of the constitutional law of later days if we give to “constitutional” a narrow meaning, and much has been done for criminal law and real property law. But there are vast provinces which lie unreclaimed, not outlying provinces but the very heart of the country. For instance, take the forms of action, the core of English law; a history of them ought to be a most interesting book, dealing as it would have to deal with the evolution of the great elementary conceptions, ownership, possession, contract, tort and the like. Perhaps there are countries in which the writing of historical monographs has become a nuisance; but surely it is better to have too many than none at all. And then again, look at the state of the raw material, look at the hopeless mass of corruption that passes as a text of the Year Books, then look at Mr Pike’s volumes and see what might be done. Then think of the tons of unprinted plea rolls. It is impossible to print them all; but think what ten men might do in ten years, by selecting, copying, indexing, digesting; the gain would be enormous, not merely for the history of English law, but for the history of law in general. There is so much to be done that one hardly knows where to begin. He who would write a general history thinks perhaps that his path should be smoothed by monographs; he who would write a monograph has not the leisure to win his raw material from manuscripts; but then only by efforts at writing a general history will men be persuaded that monographs are wanted, or be brought to spend their time in working at the rolls. And so we go round in a vicious circle.
There is I think some danger lest the history of English law should be better known and better taught in other countries than in England. As regards the very oldest periods, “the time beyond memory,” this is no longer a danger but an accomplished fact. It gives us no surprise when we hear that a new edition of our oldest laws will be published by the Bavarian Academy; who else should publish the stupid things? And the process of annexation is being pushed further and further. Foreigners know that the history of our law has a peculiar interest. I am not speaking merely of political matters, but of our private law, law of procedure, criminal law; a great part of the best work that has been done has not been done by Englishmen. Of what has been done in America we will say nothing, for in this context we cannot treat the Americans as foreigners; our law is their law; at times we can even be cosmopolitan enough to regret an arrangement of the universe which has placed our records in one hemisphere and those who would make the best use of them in another. And all foreigners are welcome, Frenchmen and Germans and Russians; there is room enough and to spare; still we are the children of the kingdom and I do not see why we should cast ourselves out. But we are such a humble nation, we are. It is easy to persuade us that the early history of Roman law is interesting. To know all about the Roman formulary system, that is juristic science; to know anything about our own formulary system, which we only abolished the other day, that would be barbarian pedantry. But foreigners do not take this view.
A good deal, as it seems to me, depends upon our asserting our right, though it be no exclusive right. Think for a moment what lies concealed within the hard rind of legal history. Legal documents, documents of the most technical kind, are the best, often the only evidence that we have for social and economic history, for the history of morality, for the history of practical religion. Take a broad subject—the condition of the great mass of Englishmen in the later middle ages, the condition of the villagers. That might be pictured for us in all truthful detail; its political, social, economic, moral aspects might all be brought out; every tendency of progress or degradation might be traced; our supply of evidence is inexhaustible: but no one will extract its meaning who has not the patience to master an extremely formal system of pleading and procedure, who is not familiar with a whole scheme of actions with repulsive names. There are large and fertile tracts of history which the historian as a rule has to avoid because they are too legal.
It need hardly be added that the science of comparative jurisprudence “if it ever exists” will involve the most elaborate study of particular systems of law, and among others assuredly of that system which has the most unbroken record. “If it ever exists”:—I have used the cautious phrase used thirteen years ago by our Rede Lecturer, Sir Henry Maine. Of the great man who when that science exists will be honoured as its prophet, and its herald, of the great man whom we have lost, may I say this?—His wonderful modesty, his dislike of all that looked like parade or pedantry, the fascination of his beautiful style are apt to conceal the width and depth of his reading. He was much more than learned, but then he was learned, very learned in law of all sorts and kinds. It is only through learning wide and deep, tough and technical, that we can safely approach those world-wide questions that he raised or criticize the answers that he found for them. What is got more cheaply will be guess-work or a merely curious collection of odds and ends, of precarious odds and questionable ends.
And now why is our history unwritten? In the first place, I think we may say, because of the traditional isolation of the study of English law from every other study, an isolation which is illustrated by the fact that it is only of late years, late years to us who have been dealing in centuries, that English law has had a home in the Universities. In 1850 when my predecessor Professor Amos came to the chair, the class of English law in this University consisted of one M.A., one B.A. and two undergraduates. At another time it may be interesting to account for this, to observe the formation of law schools in London while the Universities are teaching to ever fewer students a kind of law, Roman and Canon Law, which is not the law of the King’s Courts, and becomes of ever less and less importance to the bulk of Englishmen. This process had momentous results and, all things considered, we cannot regret them. If the Universities had taught English law, English law would sooner or later have ceased to be English. But as it was, the education of the English lawyer—I speak of the later middle ages and of the Tudor time—was not academic; it was scholastic. It would be a great mistake to suppose that the lawyers of that age got their law in the haphazard hand-to-mouth fashion that is familiar to us under the name of “reading in chambers.” They went through an elaborate scholastic course which if not severe was at least prolonged—ten or twelve years of “readings,” “mootings” and “boltings,” of hearing and giving lectures, and the path of scholastic success was the path to profit and to place. The law which this school evolved stood us in good stead: it was the bridge which carried us safely from medieval to modern times and we will speak well of it. But one thing it could not do, it could not possibly produce its own historian. History involves comparison and the English lawyer who knew nothing and cared nothing for any system but his own hardly came in sight of the idea of legal history. And when the old scholastic plan of education broke down no other plan took its place. It is hardly too much to say that nobody taught law or attempted to teach it, and that no one studied law save with the most purely practical intentions. Whatever may be the advantages of such a mode of study it will never issue in a written history of English law.
The one great law book of the last century may serve to illustrate two points, though I have some hesitation about mentioning the first of them. Blackstone’s work was the firstfruits of a professorship of law; in the presence of that book every professor of law will always feel very small, but there it stands the imperishable monument of what may be done by obliging a lawyer to teach law. But in the second place let us take one of Blackstone’s greatest exploits, his statement of our land-law and of its history. Every one now-a-days can pick holes in “the feudal system” and some great writers can hardly mention it without loss of temper. But the theory of a feudal system it was that enabled Blackstone to paint his great picture, a picture incomplete and with many faults in it, but the first picture ever painted. Whence did he get the theory which made this possible? From Coke? Coke had no such theory and because he had none was utterly unable to give any connected account of the law that he knew so well. No, the feudal system was a very early essay in comparative jurisprudence, and the man who had the chief part in introducing the feudal system into England was Henry Spelman. It was the idea of a law common to all the countries of Western Europe that enabled Blackstone to achieve the task of stating English law in a rational fashion. And so it will be found during the length of our national life; an isolated system cannot explain itself, still less explain its history. When great work has been done some fertilizing germ has been wafted from abroad; now it may be the influence of Azo and now of the Lombard feudists, now of Savigny and now of Brunner. Let me not be misunderstood:—there is not much “comparative jurisprudence” for those who do not know thoroughly well the things to be compared, not much “comparative jurisprudence” for Englishmen who will not slave at their law reports; but still there is nothing that sets a man thinking and writing to such good effect about a system of law and its history as an acquaintance however slight with other systems and their history. One of the causes why so little has been done for our medieval law is I feel sure our very complete and traditionally consecrated ignorance of French and German law. English lawyers have for the last six centuries exaggerated the uniqueness of our legal history by overrating and antedating the triumphs of Roman law upon the continent. I know just enough to say this with confidence, that there are great masses of medieval law very comparable with our own; a little knowledge of them would send us to our Year Books with new vigour and new intelligence.
In the second place it may seem a paradox, but I think it true, that the earlier ages of English law are so little studied because all English lawyers are expected to know something about them. In his first text-book the student is solemnly warned that he must know the law as it stood in Edward I’s day, and unfortunately it is quite impossible to write the simplest book about our land-law without speaking of the De Donis and the Quia Emptores. Well, a stranger might exclaim, what a race of medievalists you English lawyers ought to be! But on enquiry we shall find that the practical necessity for a little knowledge is a positive obstacle to the attainment of more knowledge and also that what is really required of the practising lawyer is not, save in the rarest cases, a knowledge of medieval law as it was in the middle ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts. A lawyer finds on his table a case about rights of common which sends him to the Statute of Merton. But is it really the law of 1236 that he wants to know? No, it is the ultimate result of the interpretations set on the statute by the judges of twenty generations. The more modern the decision the more valuable for his purpose. That process by which old principles and old phrases are charged with a new content, is from the lawyer’s point of view an evolution of the true intent and meaning of the old law; from the historian’s point of view it is almost of necessity a process of perversion and misunderstanding. Thus we are tempted to mix up two different logics, the logic of authority, and the logic of evidence. What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better. This when stated is obvious; but often we conceal it from ourselves under some phrase about “the common law.” It is possible to find in modern books comparisons between what Bracton says and what Coke says about the law as it stood before the statutes of Edward I, and the writer of course tells us that Coke’s is “the better opinion.” Now if we want to know the common law of our own day Coke’s authority is higher than Bracton’s and Coke’s own doctrines yield easily to modern decisions. But if we are really looking for the law of Henry III’s reign, Bracton’s lightest word is infinitely more valuable than all the tomes of Coke. A mixture of legal dogma and legal history is in general an unsatisfactory compound. I do not say that there are not judgments and text-books which have achieved the difficult task of combining the results of deep historical research with luminous and accurate exposition of existing law—neither confounding the dogma nor perverting the history; but the task is difficult. The lawyer must be orthodox otherwise he is no lawyer; an orthodox history seems to me a contradiction in terms. If this truth is hidden from us by current phrases about “historical methods of legal study,” that is another reason why the history of our law is unwritten. If we try to make history the handmaid of dogma she will soon cease to be history.
Macaulay in an amusing passage, amusing because it comes from him, has told us how “the historical literature of England has suffered grievously from a circumstance which has not a little contributed to her prosperity. . . . A Frenchman,” he says, “is not now compelled by any strong interest either to exaggerate or to underrate the power of the kings of the house of Valois.. . . . The gulph of a great revolution completely separates the new from the old system. No such chasm divides the existence of the English nation into two distinct parts. . . . With us the precedents of the middle ages are still valid precedents and are still cited on the gravest occasions by the most eminent statesmen. . . . In our country the dearest interests of parties have frequently been staked on the researches of antiquaries. The inevitable consequence was that our antiquaries conducted their researches in the spirit of partisans.” Well, that reproach has passed away; but the manipulation which was required to make the political precedents of the middle ages serve the turn of Whig or Tory was a coarse and obvious distortion when compared with the subtle process against which the historian of our law will have to be on his guard, the subtle process whereby our common law has gradually accommodated itself to changed circumstances. I make no doubt that it is easier for a Frenchman or a German to study medieval law than it is for an Englishman; he has not before his mind the fear that he is saying what is not “practically sound,” that he may seem to be unsettling the law or usurping the functions of a judge. There are many good reasons for wishing that some parts of our law, notably our land-law, were thoroughly purged of their archaisms; of these reasons it is needless to say anything; but I am sure that the study of legal history would not suffer thereby. I do not ask for “the gulph of a great revolution”; but it is to the interest of the middle ages themselves that they be not brought into court any more.
Are we to say then that the study of modern law and the study of legal history have nothing to do with each other? That would be an exaggeration; but it is true and happily true that a man may be an excellent lawyer and know little of the remoter parts of history. We can not even say that every sound lawyer will find an interest in them; many will; some will not. But we can say this, that a thorough training in modern law is almost indispensable for any one who wishes to do good work on legal history. In whatever form the historian of law may give his results to the world—and the prejudice against beginning at the end is strong if unreasonable—he will often have to work from the modern to the ancient, from the clear to the vague, from the known to the unknown. Of course he must work forwards as well as backwards; the stream must be traced downwards as well as upwards; but the lower reaches are already mapped and by studying the best maps of them he will learn where to look for the sources. Again I do not think that an Englishman will often have the patience to study medieval procedure and conveyancing unless he has had to study modern procedure and modern conveyancing and to study them professionally.
This brings us to the heart of the matter. The only persons in this country who possess very fully one of the great requisites for the work are as a rule very unlikely to attempt it. They are lawyers with abundant practice or hopes of abundant practice; if they have the taste they have not the time, the ample leisure, that is necessary for historical research.
What then can the Universities do? Pardon me if I say that I do not answer this question very cheerfully. In the first place, the object of a law school must be to teach law, and this is not quite the same thing as teaching the history of law. We should not wish to see a professor of law breaking and entering the close of the professor of history, though the result of our scheme of Triposes may be that legal history falls to the ground between two schools. Secondly, I believe that any one who aspires to study legal history should begin by studying modern law. Could we dispose of the time and energies of the young man who is destined—surely he is born by this time—to tell the story of English law, we should advise him to pursue some such course of reading as that prescribed for our Tripos, to go into chambers and into court, even to do what in him lies to acquire some small practice; many other things he should do, but these should not be left undone. Thirdly, the time that we have at our command is exceedingly short. We can not reckon that an undergraduate will give so much as two years to English law, and what he can learn in two years is not very much, regard being had to the enormous scope of our modern law. Fourthly, our students are many and teachers are few. Thus I have come to the conclusion, reluctantly for I have had my dreams, that in the ordinary teaching of our law school there is very little room for history, hardly any for remote history. At the same time every effort should be made which can possibly have the result of inducing a few students, those who will have taste and leisure for the work, to turn their thoughts towards the great neglected subject. They might at least learn to know where the evidence lies. May I mention my own case? I had not the advantage of studying law at Cambridge, otherwise perhaps I should not have been a barrister of seven years’ standing before I had any idea of the whereabouts of the first-hand evidence for the law of the middle ages. It were to be wished that we had more prizes like the Yorke prize; already it has done more for the cause than any Tripos could do. It were to be wished that our doctor’s degree had all along been reserved for those who had done some considerable thing for law or legal history:—but then what could we have done for potentates and politicians and such? Impossible to convict them of divinity or medicine, it was convenient to fall back on the legal principle that every one must be taken to know the law sufficiently well to be a doctor thereof.
Where then lies our trust? Perhaps in failure. Failure is not a pleasant word to use in the presence of youth and hope; it would be pleasanter to wish all our law students success in their chosen profession. But let us look facts in the face. Only a few of the men who choose that profession succeed in it: the qualities which make a man a great lawyer are rare and the space on the wool-sack is strictly limited. The Cambridge law student should be prepared for either fortune. The day may come when in the bitterness of his soul he will confess that he is not going to succeed, when he is weary of waiting for that solicitor who never comes, when the prolonged and costly education seems thrown away. That is the hopeful moment; that is the moment when something that has been said here may bear its fruit. Far be it from us to suggest that there is but one outgo from the dismal situation; there are many things that a man can do the better because he knows some law. But in that day of tribulation may it be remembered that the history of English law has not been written. Perhaps our imaginary student is not he that should come, not the great man for the great book. To be frank with him, this is probable; great historians are at least as rare as great lawyers. But short of the very greatest work, there is good work to be done of many sorts and kinds, large provinces to be reclaimed from the waste, to be settled and cultivated for the use of man. Let him at least know that within a quarter of a mile of the chambers in which he sits lies the most glorious store of material for legal history that has ever been collected in one place, and it is free to all like the air and the sunlight. At least he can copy, at least he can arrange, digest, make serviceable. Not a very splendid occupation and we can not promise him much money or much fame—though let it be confessed that such humble work has before now been extravagantly rewarded. He may find his reward in the work itself:—one can not promise him even that; but the work ought to be done and the great man when he comes may fling a foot-note of gratitude to those who have smoothed his way, who have saved his eyes and his time.
At the end of this long and dismal discourse let me tell a story. It is said that long ago a certain professor of English law was also the chief justice of an ancient episcopal franchise. It is said that one of his rulings was cited in the court presided over by a chief justice of a more august kind, the Lord Chief Justice of England. “Did he rule that?” said my lord, “why he is only fit to rule a copy-book.” Well, I will not say that this pedagogic function is all that should be expected of a professor of law; but still copy-books there ought to be and I would gladly spend much time in ruling them, if I thought that they were to be filled to the greater glory of the history of English law.
Data, § 105.
Social Statics, c. 6, § I.
Social Statics, c. 4. § 4.
ibid., § 5.
ibid., § 6.
Data, § 61.
Preface to American edition of 1864, and Preface to English edition of 1868.
“Ueber den Gemeinspruch: Das mag in Theorie richtig sein,” etc. (Kant’s Werke, ed. Hartenstein, vol. VI., pp. 322–3).
Ed. cit., vol. VII., p. 27.
ibid., p. 34.
The Friend, First Section:—“On the Principles of Political Knowledge” (ed. 1863, vol. I., pp. 179 ff.).
First Section, Essay 4 (vol. I., pp. 219, 220).
ibid., p. 222.
Inquiry concerning the Principles of Morals, sec. 3, pt. I.
Of Civil Government, § 28.
Social Statics, c. 9, § I.
Social Statics, c. 9, § 2.
Social Statics, c. 9, § 4.
ibid., c. 10, § 1.
Social Statics, c. 10, § 2.
Social Statics, c. 9, § 5.
Political Institutions, § 540.
Social Statics, c. 9, § 3.
Political Institutions, § 541.
Social Statics, c. 8.
Data, § 36.
Social Statics, c. 4, § 4.
Social Statics, c. 12.
Ibid. § 3.
Social Statics, c. II.
Social Statics, c. II, § 5.
Principles of Sociology, § 341.
Social Statics, c. 17, § I.
Law Magasine and Review, August, 1883.
23 Hen. VIII., cap. I.
6 Edw. I., cap. 9; Stephen, vol. III., pp. 36-41.
13 Ric. II., stat. 2, cap. I.
14 Edw. III., stat. I, cap. 4.
52 Hen. III., cap. 25.
Vol. III., pp. 36, 41, 42.
Y. B., 21 Edw. III., p. 17b.
2nd Inst., 148.
Bracton, f. 135. Abbrev. Placit., p. 19. A certain man named Humfrey was drowned in the pond of Roger FitzEverard, at Herst; “Angleceria fuit presentata ad horam et terminum. Infortunium.”
“Dialogue of the Common Law.” (Works, ed. Molesworth, vol. VI., p. 83.)
Lib. 14, cap. 3.
f. 134 b.
Chron. T. Wykes, ann. 1270. (Rolls Series, Ann. Monast., vol. IV., pp. 233-235.)
Littré defines guet-apens thus:—“I. Embῦche dressée pour assassiner, pour dévaliser quelqu’un, pour lui faire quelque grand outrage. 2. Fig. Tout dessein prémédité de nuire.”
Will. Conq., I. (Thorpe, Ancient Laws; Schmid, Gesetze der Angelsachsen).
Canute, II. 12.
80, secs. 2, 4.
Hoveden (Rolls Series), vol. II., p. 242.
Bromton (Decem Scriptores), p. 957; cf. Fleta, p. 63.
Textus Roffensis. (Anglia Sacra, pp. 334–336; Selden’s Eadmer, p. 199.)
Littré, s.v. guet, aguets; Skeat, s.v. wait, await; Ducange, s.v. wachta.
Bracton, f. 138.
L’Ancienne Coutume de Normandie (ed. W. L. de Gruchy), cap. 74 (75).
Ed. 1583, f. 78 b.
Les Coutumes du Beauvoisis, cap. 30, secs. 3, 6 (ed. Beugnot, vol. I., p. 412).
Ann. 1245. Ordonnances des Rois de France, vol. I., pp. 56–57.
Ducange, s.v. agaitum, aguaitum, insidiæ, pensabiliter, pensamentum.
Jousse, Traité de la Justice Criminelle (ed. 1771), vol. III., pp. 481–482; Denisart, Collection de Décisions, s.v. homicide, grâce (ed. 1790); Bouteiller, Somme Rurale, ed. L. Charondas le Caron, 1611, p. 287.
Les Olim, ou Registres des Arrêts (ed. Beugnot), vol. I., p. 592.
Jousse, op. cit., vol. I., pp. 193–195.
Vol. II., p. 118; vol. III., p. 56.
S. Matth., cap. vi., v. 34 (Vulg.).
Ordonnances, vol. III., p. 129.
Acts of Parliaments of Scotland, vol. I., p. 151.
Acts of Parliaments of Scotland, vol. I., p. 184.
Ibid., vol. II., p. 96.
Exod., cap. xxi., v. 14.
Decret. Gregor. IX., lib. v., tit. 12, c. I.
Num., cap. xxxv., v. 20, seq.; Deut., cap. xix., v. 4, seq.
Law Quarterly Review, July, 1885.
Taylor dem. Atkyns v. Horde, I Burr. 107.
Roll for Michaelmas Term, 5 & 6 Hen. III. (known at the Record Office as Coram Rege Roll, Hen. III. No. 12), memb. 12. What he was seised of was a tonsura. I gather from the context that this means an instrument for clipping. See Ducange, s. v. tonsura.
Ibid. memb. 14.
Roll for Michaelmas Term, 3 & 4 Hen. III. (Coram Rege Roll, Hen. III. No. 3), memb. 15, dors.
There is a note about the seisin of stolen goods in MS. Add. 12,269, the note-book discovered by Prof. Vinogradoff; this I have copied in Pleas of the Crown, Gloucester, 1221, p. 152.
Cap. 5, sec. I, § 73
“? 1515” Cat. Brit. Mus.
Mich., 39 Hen. VI, fol. 30, pl. 43.
Ed. 1561, fol. 62 b.
The words in brackets are in some very old editions.
Henricus de Bracton, p. 59.
See Butler’s note to Co. Lit. 330 b. Dr Heusler (Die Gewere, p. 441), whose work I had not seen when I wrote the above, says that Bracton’s seisin is Besitz einfach und schlechtweg. This seems to me perfectly true. I am happy in being able to add that in the last number of this Review Mr Robert Campbell (p. 186) and Mr Justice Holmes (p. 168) have written what makes for the same end.
I have seen this case on the roll. It was heard by Bracton himself, and perhaps the romanesque tag (corpore nec animo) may come from him.
L. R., 9 Eq. 511.
Aliud est enim possidere, longe aliud in possessione esse. Ulpian, Dig. de acquir. vel amitt. possess. (41. 2) 10.
Fol. 220. Observe the words contra quoscunque dejectores. As to the later law see F. N. B. 197. The writ given by Bracton supposes a sale by the lessor to the ejector, but it seems to me that Bracton thought this only an example. It appears from F. N. B. to have been questionable whether the allegation of a sale was traversable.
Abuses of the Common Law, 72, 76, and again in the Articles on Stat. Westm. 2.
Laband, Die Vermögensrechtliche Klagen, especially pp. 158–166; Heusler, Die Gewere, especially pp. 114–144, 299–304; and a brief account by Brunner in Von Holtzendorff, Encyclopaedie, Erster Theil (4te Aufl.), p. 248.
Pasch., 6 Ric. II (Fitz. Abr. tit. Ejectione firmae, pl. 2). We are still dependent on Fitzherbert’s extracts for cases from this important reign.
Pasch., 7 Edw. IV, fol. 6, pl. 16; Mich., 21 Edw. IV, fol. II, pl. 2.
“servitutis fit, ut via vel iter,” MS. Rawl. C. 160.
“ulla pars dici,” id.
“et ejusdem tenementi unus ut de terminto, et alius ut de feodo vel libero tenemento,” MS. Rawl. C. 160.
Law Quarterly Review, October, 1886.
Co. Lit. 17 a, 153 a, 200 b.
Law Quarterly Review, July, 1885. “The Seisin of Chattels.” I am indebted to Mr M. M. Bigelow, Mr H. W. Elphinstone, and a learned critic in the Solicitors’ Journal for several new examples, both very early and very late, of the use of the word seisin in connection with chattels. (See Litt. sec. 177, also Paule v. Moodie, 2 Roll. Rep. 131.) But as to the usage of the thirteenth century, I have now, after having copied more than a thousand cases, no doubt whatever: the words possideo, possessio are extremely rare, but one can be seised of anything, even of a wife or of a husband. I have known a woman assert, in proof of her marriage, that she remained seised of her husband’s body after his death.
Bracton, f. 113, from Dig. 41. 2 (de acquir. vel amit. poss.) 12, § I.
Co. Lit. 369 a, 17 a, b.
8 & 9 Vict. c. 106, sec. 6.
Goodright v. Forrester, I Taunt, 613.
Co. Lit. 213 b; Lampet’s Case, 10 Rep. 48 a.
Stubbs, Const. Hist., § 295.
Co. Lit. 293 a.
Bracton, f. 376.
I Vic. cap. 26, sec. 3.
32 Hen. VIII, cap. I.
34 Hen. VIII, cap. 5.
The cases are collected in Jarman on Wills, 4th ed., vol. I., pp. 49, 50. Perhaps they leave open some questions which will never now be answered. But the main doctrine seems beyond dispute. See Co. 3 Rep. 35 a.
Y. B. 39 Hen. VI, f. 18 (Mich. pl. 23).
3 & 4 Will. IV, c. 106; Co. Lit. II b.
8 Ass. f. 17, pl. 27.
3 & 4 Will. IV, cap. 105.
Co. Lit. 31 a.
Co. Lit. 15 b, 29 a, 31 a, 181 a.
It may be more to the point that Mr Challis (Real Property, p. 182) has written to the same effect. See Leach v. Jay, 9 C. D. 42.
Winchester’s Case, 3 Rep. 2 b.
It may be convenient if I here collect in chronological order the main authorities as to escheat and forfeiture of rights of entry and rights of action. Reg. Brev. f. 164 (F. N. B. f. 144); 27 Ass. pl. 32, f. 136, 137; Fitz. Abr. Entre Congeable, pl. 38 (Hil. 2 Ric. II); 2 Hen. IV. f. 8 (Mich. pl. 37); 7 Hen. IV. f. 17 (Trin. pl. 10); 32 Hen. VI. f. 27 (Hil. pl. 16), comp. Litt. sec. 390; 37 Hen. VI. f. I. (Mich. pl. I); 15 Edw. IV. f. 14 (Mich. pl. 17), per Brian; 6 Hen. VII. f. 9 (Mich. pl. 4); 10 Hen. VII. f. 27 (Trin. pl. 13); 13 Hen. VII. f. 7 (Mich. pl. 3); Bro. Abr. Eschete, pl. 18; Co. Lit. 240 a, 268 a, b; 3 Inst. 19; 3 Rep. 2, 3, 35 a; 8 Rep. 42 b; Hale, P. C. Part I, ch. 23; Hawk, P. C. Bk. 2, ch. 49, sec. 5: Burgess v. Wheate, Eden, 177, 243. It will be noticed that none of these authorities, except perhaps the writ in the Register, is older than the middle of the fourteenth century.
3 Rep. 35 a; Co. Lit. 76 b.
Fitz. Abr. Garde, pl. 10.
See Asher v. Whitlock, L. R. I Q. B. I. Holmes, Common Law, p. 244.
I refer of course to Taylor v. Horde, I Burr. 60, a case which profoundly dissatisfied the great conveyancers of the last century, and which has lately put Mr Challis to his Greek (Real Property, p. 329). Butler’s note on this case (Co. Lit. 330 b) seems to me the best modern account of seisin that we have.
Holmes, Common Law, p. 241.
Coke (Co. Lit. 245 b) says that “by the ancient law” the entry of the disseisee was tolled not only by a descent cast, but by the disseisor’s feoffment followed by non-claim for year and day. There was very similar law both in France and in Germany, as may be seen at large in Laband, Die Vermögensrechtlichen Klagen and Heusler, Die Gewere. I have never been able to find definite authority for Coke’s statement, but it looks to me very probable. It deprives the descent cast of its isolated singularity, and fits in with the learning of fines.
Capiendo inde expleta; this phrase conveys a sense of manifest and successful achievement. When the possessor takes a crop from his land, he achieves, exploits his seisin; his seisin is now explicit. See Skeat, s.v. explicit, exploit. There is a great mass of information in Ducange, s.v. expletum. Coke, 6 Rep. 58, gives almost the true meaning, though his etymology is at fault; he derives the word from expleo (instead of explico) and says that the grantee of a rent hath not a perfect and explete or complete estate until he hath reaped the esplees, scilicet the profit and commodity thereof.
4 & 5 Ann. c. 16, sec. 9.
Bract. f. 81 b, 82. The writs for compelling attornment are the Quid juris clamat and the Per quae servitia.
Co. Lit. 309 a; Lit. sec. 569.
Lit. sec. 567.
Co. Lit. 48 b; Bettisworth’s Case, 2 Rep. 31, 32.
Co. Lit. 311 b.
Brediman’s Case, 6 Rep. 56b.
Orme’s Case, L. R., 8 C. P. 281; Hadfield’s Case, ibid. 306. The last Reform Act (48 Vict. c. 3, sec. 4) has, one regrets to say, made it improbable that we shall have in the future similar displays of antique learning.
Benjamin, Sales, 2nd ed., p. 132.
Farina v. Home, 16 M. & W. 119. I believe that it was Parke, B. who first introduced the term “attornment” into the discussion of cases concerning the sale of goods; but in this I may be wrong.
I have framed my Latin phrases on the model of Savigny’s possessio ad interdicta. Seisin, we may say, is “assize-possession.”
Britton, vol. II. p.303.
I am not sure that it was ever technically correct to say that the overlord is seised of the land; but in thirteenth century cases, he certainly has and holds the land, he has and holds it not in demesne, but in service. See Br. f. 432, 433. I have seen many cases to this effect; and I have seen nunquam aliquam seisinam habuit nec in dominico nec in servicio.
Bracton, f. 52 b.
Bracton, f. 54, 55, 246. See Nichols, Britton, vol, II., p. 185, note f.
Ld. Raym. 938, 953.
Stat. Westm. the Second (13 Edw. I), c. 5. The law is clearly stated by Blackstone, vol. III., p. 243.
Pollock, Principles of Contract, 4th ed., Appendix, Note G.
There is one rule of our present Common Law which, were it very old, would make much against what I have said, the rule, namely, that the ownership of movables can be transferred by mere agreement, by bargain and sale without delivery. I have not for gotten this, but it seemed impossible to discuss in a paper already too miscellaneous a question which has divided two masters of the Year Books. Serjeant Manning has maintained that the rule is quite modern. Lord Blackburn, on the other hand, has found it in the books of Edward the Fourth. He was not concerned, however, to trace it any further, and it seems to me that the law of an earlier time required a change of possession on the one side or the other, delivery or part-delivery of the goods, payment or part-payment of the price. Perhaps at some future time I may be allowed to state what I have been able to find about this matter. Since this article was in print examples (a.d. 1305) of pleadings referring to the seisin of chattels have been brought to my notice by Mr G. H. Blakesley: see Registrum Palatinum Dunelmense (ed. Hardy), vol. IV., pp. 45, 49, 63, 73.
Law Quarterly Review, April, 1886.
Report of Ecclesiastical Courts Commission, 1883, Historical Appendix, p. 52, a paper proceeding from the present Bishop of Chester.
Annales Monastici (Osney), vol. IV., p. 62.
Wilkins, Concilia, vol. I., p. 585.
See Grosstest’s protest against the appointment of the Abbot of Ramsey as a justice in eyre in 1236; Letters of Grossteste (ed. Luard), p. 105.
Cap. 40. It seems that this regulation was enforced by statute in 1275. See Flores Historiarum (“Matthew of Westminster”) for that year. In Statutes of the Realm (vol. I., p. 221) this appears as a statute of uncertain date.
The original authorities seem to be Rad. de Diceto (ed. Stubbs), vol. I., p. 318; William of Newburgh (ed. Howlett), vol. I., p. 131; Mapes de Nugis Curialium (Camden Society), p. 63; Ralph of Coggeshall (ed. Stubbs), p. 122.
Will. Newburgh, I. c.
Libre de Antiquis Legibus (Camden Society), p. 3. As to these two cases see the paper by the Bishop of Chester referred to above.
Cap. 3. This is Decretal. Gregor. lib. 5, tit. 7, cap. 13.
See the orders issued to the justices in eyre; Foedera, vol. I., p. 154. Among the justices were five bishops and one abbot.
Comment., vol. IV., pp. 344–5.
Ann. Monast. (Tewkesbury), vol. I., p. 64.
Bracton, f. 1.
Bracton, f. 123 b.
Ann. Monast., vol. II., p. 296. Dr Luard (Preface, p. xxxi) regards this as a contemporary record of events.
Ann. Monast., vol. III., p. 76.
Dr Luard’s Preface, p. x.
Ralph of Coggeshall, p. 190.
Historical Collections of Walter of Coventry. Preface by Dr Stubbs, vol. II., p. ix.
Historia Anglorum (ed. Madden), vol. II., p. 254.
See lists of Archdeacons of London and of Leicester in Hardy’s Le Neve.
Chron. Maj., vol. v., p. 284.
Et minxit super crucem.
Vol. III., p. 71.
Dr Luard’s Preface to vol. III., p. xii.
Ann. Monast., vol. IV., p. 62. See Dr Luard’s Preface, pp. x-xv.
Holinshed (ed. 1807), vol. II., p. 251. But the confusion is older; see Knighton (Twysden’s Scriptores), p. 2429: it must, I think, have originated in the clerical blunder of someone who wrote crucifixus instead of immuratus.
Law Quarterly Review, January, 1888.
5 Ric. II. Stat. I. c. 7.
Co. Lit. 237.
Glanvill, XIII. c. I.
Bract. f. 164 b.
Mirror, c. 2, § 25; 2 Inst. 24.
Brunner, Entstehung der Schwurgerichte, pp. 297–303.
Stubbs, Const. Hist., § 145; Assize of Northampton, c. 4. Madox (Hist. Exch., vol. II., p. 549) gives from a roll of 14 Hen. II. an entry to the effect that Ralf son of Huilard was amerced for a disseisin done against the king’s assize. The assize of novel disseisin seems therefore to have been in force as early as 1168.
Item est “petitoria haereditatis actio” [this means the writ of right], et competit illis, quibus jus merum descendit ab antecessoribus sicut haeredibus propinquioribus. “Possessoria” vero “haereditatis petitio” est de possessione propria, et quae dicitur “actio unde vi,” per quam restituitur spoliato, et dici poterit “assisa novae disseisinae.” Item dicitur “possessoria petitio” de possessione aliena, sicut alicujus antecessoris de aliquo tenemento de quo antecessor obiit seisitus ut de feodo, quae dicitur “actio quorum bonorum,” sive “assisa mortis antecessoris.” . . . Est etiam interdictum sive actio “quorum bonorum,” quae non oritur ex maleficio sed ex quasi contractu. Bract. f. 103 b, 104. These are learned after-thoughts. We do not suppose that the appeal of homicide was modelled on an “actio legis Aquiliae de hominibus per feloniam occisis.”
Stat. West. II. c. 25.
Bigelow, History of Procedure, p. 187.
Brunner, pp. 297–300, 328–330; see the Statuta et Consuetudines published by Warnkönig at the end of the second volume of his Französische Staats- und Rechtsgeschichte, especially p. II.
Glanv. XIII. 32–9.
Compare 2 Inst. 411; 8 Rep. 50.
Bract. f. 104, 164 b.
Bract. f. 161 b, 216 b.
Dig. de diversis regulis juris (50. 17), 153. Ut igitur nulla possessio acquiri nisi animo et corpore potest, ita nulla amittitur, nisi in qua utrumque in contrarium actum est. See Bract. f. 38 b, 39.
Bract. f. 163.
Fleta, p. 216.
Brit. vol. I. p. 294.
MS. Dd. vii. 6, at f. 34 d of the Bracton.
Bract. f. 218 b.
Bract. f. 262.
Bract. f. 23.
Bract. f. 6 b.
Bract. f. 27 b. See also Y. B., 20 & 21 Edward I. pp. 8, 82.
Albrecht, Gewere, pp. 75–78.
Laband, Vermögensrechtliche Klagen, pp. 236–244; Heusler, Gewere, pp. 167–172.
Sohm, Altdeutsche Reichs-und Gerichtsverfassung, p. 365.
L. Sal. 37. Essays in A.-S. Law, p. 210.
Æthelst. VI. 8. § 7, 8. Essays in A. S. Law, p. 206.
Mirror, “Abuses of the Common Law,” No. 4.
Browne v. Dawson (1840), 12A. & E. 624, 629; 10 L. J., Q. B. 7.
Pollock, Torts, p. 312.
Bract. f. 209 b.
Bract. f. 160 b, 161.
Brit. vol. II. p. 288.
The Common Law, p. 210.
Bract. f. 163 b.
Bract. f. 205.
Bract. f. 209 b.
Die Gewere, B. 3. c. 3.
Brit. vol. I. p. 258.
Bract. f. 33 b. Possessio est corporalis rei detentio, i.e. corporis et animi cum juris adminiculo concurrente. By these last words, which he had from Azo, Bracton only means that there are certain things of which there cannot be a legally protected possession.
Brit. vol. I. p. 309.
As I do not wish that any one should trust my account of Bracton’s theory of possession further than he can see it in Bracton’s own pages, I will here give references to the most important passages. I regard the discussion on f. 162 b–164 b as governing all that is said in other parts of the book. Here Bracton is expressly answering the question, Within what time may I eject my disseisor? Then see f. 165 b, 168 (line 8), 183 b–184 b, 195 b, 196, 205, 209–210 b, 212 b (line 23); also f. 30 b–31 b, 51 b–52 b. It seems to me clear that Bracton in speaking of time has but two sets of phrases, (a) post longum tempus, post longum intervallum, post longam et pacificam seisinam, &c., (b) statim, incontinenti, nullo intervallo, flagrante disseisina, &c.; the disseisor who is not ejected while the disseisin is “flagrant,” is not ejected until after “a long seisin.” As to excepting against a plaintiff that his possession was acquired vi; contrast what is said on f. 160, line 6 (a passage not very intelligible as it stands) with f. 210 b, lines 7–13, where Bracton quotes the Institutes “is qui dejecit cogitur ei restituere possessionem, licet is ab eo qui vi dejecit vi, clam, vel precario possidebat.” The Normans seem to have come to a different result in developing their assize, and to have refused this remedy to a plaintiff who had obtained his seisin by force used against the defendant. See Heusler, pp. 371–2.
Brit. vol. I. p. 310.
Co. Lit. 237.
3 & 4 Will. IV, c. 27, s. 39.
Smith v. Tyndal, 2 Salk, 685.
32 Hen. VIII, c. 33.
32 Hen. VIII, c. 28, s. 6.
Mr M. M. Bigelow has kindly informed me that the old rule about descents tolling entries, as modified by the statute of 32 Hen. VIII, prevailed in Massachusetts until 1836, in Vermont until 1839, in New York until 1849. I know of no book in which the outlines of the ancient law of real property are so well stated as Stearns, Real Actions, a course of lectures delivered in the University of Harvard about seventy years ago. The learning of real actions was much better preserved in America than here, because some at least of the States had the good sense to reject our action of ejectment with its intricate fictions, and to renovate the old direct remedies.
Stubbs, Const. Hist. vol. III. p. 270.
Fortescue on the Governance of England, Introduction, p. 21. Mr Plummer, I imagine, intends to refer rather to the assize of novel disseisin than to the grand assize.
5 Ric. II, stat. I. c. 7; 15 Ric. II, c. 2; 4 Hen. IV, c. 8; 8 Hen. VI, c. 9; 23 Hen. VIII, c. 14; 31 Eliz. c. II; 21 Jac. I, c. 15.
Y. B. 9 Hen. VI, f. 19 (Pasch. pl. 12) decided the year after the statute was passed. Bro. Abr. Forcible Entrie, pl. 27.
Heusler, p. 373; Brunner, p. 329.
Glanv. lib. 13, cap. 32.
Stat. Merton, cap. 8; Ann Burton, p. 252; Bracton, f. 179.
Stat. 32 Hen. VIII, c. 2.
f. 164 b.
f. 284 b.
Lit. s. 492 and Coke’s comment.
The writ of covenant real, whereon fines were usually levied, was abolished in 1833 along with other “real and mixed actions.” See Bl. Com., vol. III. p. 157.
Bract. f. 103 b, 104, 164 b.
See Coke’s Preface to 8 Rep.
See especially f. 52.
Stat. West. II. c. 25.
2 Inst. 412; compared with ibid. 154.
Since this article was in print, Mr H. W. Elphinstone has suggested that the curious rule of Norman law which makes the last harvest a term of limitation is very intelligible if a system of common fields and common agriculture was prevalent: it is only at harvest time that an owner does any act which manifests an exclusive ownership.
English Historical Review, July 1888.
Rotuli Hundredorum, II. 488.
R. H. II. 499.
R. H. II. 508, 509.
R. H. II. 640.
R. H. II. 504.
E.g. R. H. II. 434, 559, 627–8–9.
R. H. II. 659.
R. H. II. 701.
R. H. II. 733, another case on p. 743.
R. H. I. 382.
R. H. I. 491.
R. H. I. 296.
R. H. I. 333.
R. H. II. 656.
R. H. I. 386.
R. H. III. 49.
R. H. III. 180.
Cart. Rams. I. 438, 439.
R. H. II. 488.
R. H. I. 455.
R. H. I. 477.
R. H. I. 498.
R. H. II. 318.
R. H. II. 28.
Leg. Hen. Prim. c. 7.
The Reflector, February 1888.
An Inaugural Lecture delivered in the Arts School at Cambridge on 13 October, 1888.