Front Page Titles (by Subject) THE BEATITUDE OF SEISIN 1 - The Collected Papers of Frederic William Maitland, vol. 1
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THE BEATITUDE OF SEISIN 1 - 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 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 .
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.