The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• A Historical Sketch of Liberty and Equality As Ideals of English Political Philosophy From the Time of Hobbes to the Time of Coleridge 1 .
• ( a ): Liberty
• ( B ): Equality.
• The Law of Real Property 1
• The Laws of Wales.—the Kindred and the Blood Feud 1 .
• The Criminal Liability of the Hundred 1 .
• Mr Herbert Spencer’s Theory of Society 1 .
• I.: The Ideal State.
• II.: The Law of Equal Liberty.
• The Early History of Malice Aforethought 1
• The Seisin of Chattels 1 .
• The Mystery of Seisin 1 .
• The Deacon and the Jewess; Or, Apostasy At Common Law 1 .
• The Beatitude of Seisin 1
• The Suitors of the County Court 1
• The Shallows and Silences of Real Life 1
• Why the History of English Law Is Not Written 1

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.

[1]Law Quarterly Review, July, 1885.

[2]Taylor dem. Atkyns v. Horde, I Burr. 107.

[1]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.

[2]Ibid. memb. 14.

[3]Roll for Michaelmas Term, 3 & 4 Hen. III. (Coram Rege Roll, Hen. III. No. 3), memb. 15, dors.

[1]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.

[1]Cap. 5, sec. I, § 73

[1]“? 1515” Cat. Brit. Mus.

[1]Mich., 39 Hen. VI, fol. 30, pl. 43.

[2]Ed. 1561, fol. 62 b.

[3]Fol. 68.

[1]The words in brackets are in some very old editions.

[1]Henricus de Bracton, p. 59.

[1]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.

[1]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.

[1]L. R., 9 Eq. 511.

[2]Aliud est enim possidere, longe aliud in possessione esse. Ulpian, Dig. de acquir. vel amitt. possess. (41. 2) 10.

[1]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.

[1]Abuses of the Common Law, 72, 76, and again in the Articles on Stat. Westm. 2.

[1]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.

[1]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.

[2]Pasch., 7 Edw. IV, fol. 6, pl. 16; Mich., 21 Edw. IV, fol. II, pl. 2.

[1]“servitutis fit, ut via vel iter,” MS. Rawl. C. 160.

[2]“ulla pars dici,” id.

[3]“et ejusdem tenementi unus ut de terminto, et alius ut de feodo vel libero tenemento,” MS. Rawl. C. 160.