Front Page Titles (by Subject) POSSESSION FOR YEAR AND DAY 1 - The Collected Papers of Frederic William Maitland, vol. 2
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POSSESSION FOR YEAR AND DAY 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 2 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 2.
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POSSESSION FOR YEAR AND DAY1
The respect paid by mediaeval law, French and German, to a possession which has been continued without interruption for year and day has become the centre of a considerable mass of learning and of theories. Here it will be sufficient to refer to two main doctrines2 . On the one hand it has been asserted that the law of the German tribes which overwhelmed the Roman Empire knew an annual usucapio for land, admitted that the ownership of land could be acquired by peaceful seisin for year and day, with perhaps some saving for the rights of those who were under disability. “At the time when the Salian Franks invaded Gaul they still admitted that a possession prolonged for year and day would suffice to give ownership3 .” When French law becomes articulate in the twelfth and thirteenth centuries this brief prescription has perished; but it has left many traces of itself. In the twelfth century there are many towns in which possession, or at all events titled possession, for year and day will still bar all adverse claims. A little later we find that according to a very general custom the French possessory remedy, the plaint of novel disseisin (for this term is as well known in France as in England) will only serve to protect a possession that has endured for year and day; possession for year and day will no longer give ownership, but it is required for that seisin which the law protects; a shorter possession if protected at all is only protected by remedies which have their origin in Roman or Canon Law.
There is no need to point out how interesting this theory is that the Germans, or at all events the Franks, started with an annual prescription. Any supposition of their having borrowed it from the ancient Roman usucapio might for several reasons be dismissed, and we should seemingly be brought face to face with a striking similarity between the earliest stages of the two great bodies of law that have ruled the modern world.
On the other hand this theory has been strenuously denied. The barbarians knew no prescription. In course of time they borrowed from Roman Law the prescriptive terms of ten, twenty, thirty years; but it is in another quarter that we must look for the origin of that respect for year and day which was prevalent during the later middle ages. To explain this it is necessary to say that the German conveyance of the later middle ages was an “Auflassung,” or “surrender’ effected in court, a proceeding closely analogous to our own “fine of lands.” The person who obtained land under such a conveyance was there as here protected after he had quietly possessed the land for year and day. In some customs the protection amounted, as with us, to an extinction of all adverse claims, though there as here there was a saving for the rights of those who were under disability. In other customs after year and day the possessor, though not absolutely safe, had the enormous procedural advantage of being allowed to establish his title by his own oath without oath-helpers. The “Auflassung” seems even to have become the one and only means of conveying land, and the fiction of litigation having gradually dropped away it gave to Germany a system of registered titles such as we shall never obtain without stringent legislation.
Now this in Germany is the most important context of “year and day”; there is no trace of any such general rule as that possession for year and day will give ownership, or that possession not yet continued for that period is unprotected. It takes the action of a court of law to set this term running; the person in whose favour the “Auflassung” is made is put in seisin by the officer of the court and the peace of the court is solemnly conferred upon him and his possession.
That the requirement of litigious proceedings for the purpose of passing the ownership of land was not primitive, seems quite certain. It has been traced to two main causes. In the first place the rights of expectant heirs had to be precluded. Our own classical common law seems to stand alone among the sister systems as regards what may be called its individualism, its refusal to admit that the family has rights, its assertion that the house-father's land is just his land and that he may do what he likes with it, that he may bequeath all his moveables to a stranger and leave his children penniless, that there is no community of goods between him and his wife. Practically similar results may have been obtained in all countries at least so far as the richer classes were concerned; but what in England was done by means of private settlements, by estates tail, remainders and so forth, was done elsewhere by general rules of law forbidding a man to alienate his land without the consent of his expectant heirs or enabling members of his family to compel a purchaser to resell the land at the price given for it. To get rid of these family rights one needs litigation real or pretended. Then in the second place it seems that in Germany the lords of jurisdiction were more thoroughly successful than they were in England in the endeavour to establish the rule that land within their jurisdiction could not be alienated without their leave, and this even when (to take a distinction which hardly appears in England) they were not lords of the land but merely lords of the jurisdiction. These two causes converted the safest mode of conveyance, an “Auflassung” before the court, into the only mode of conveyance. In England their power was less and, perhaps unfortunately, the extra-judicial feoffment lived on by the side of the judicial fine; but let us notice that during the middle ages one very great mass of English landholders conveyed their lands in court by surrender into the hands of the lord of the court; now the German for “surrender” is “Auflassung1 .”
The phrase invariably used to describe the space of time which has legal results seems to point to an origin in judicial proceedings. It is not a year but “year and day,” “an et jour,” “Jahr und Tag.” Now in German books this is glossed as meaning one year, six weeks and three days. Various explanations have been given of this, but all seem to point to the fact that the “day” is a “court day.” One of the best accredited explanations is that the court is adjourned from six weeks to six weeks and that it sits for three days; the claimant is bound to make his claim at latest at the next session after the lapse of the year; thus as a maximum term he has a year, six weeks and three days2 . Be this as it may, it is in connection with judicial proceedings that we first hear of year and day; in particular when a defendant in an action of land will not appear the land is seized into the king's hands, and if the contumacy continues for year and day the land is then adjudged to the plaintiff; during the year and day it lies under the king's ban1 . Now the suggestion is that in this contumacial procedure men saw the possibility of stable and effectual conveyances:—let the purchaser sue the vendor, let the land lie in the king's ban for year and day, then let it be adjudged to the purchaser, let him be put in seisin under the king's peace. According to this theory the reverence paid in the later middle ages to possession prolonged for year and day has its root not in a primitive usucapio, but in the king's ban.
And now let us turn to England and ask whether we have any evidence which bears upon these conflicting theories.
In the first place we have some negative evidence. In all the dooms and land books that come to us from the time before the Norman Conquest there is I believe not only no mention of year and day, but no proof of any limitation or prescription2 . It seems highly improbable that there was any term, at least any short term, of prescription, otherwise we should surely find some impleaded church relying upon it. Then, to come to later times, the only terms of prescription or limitation that our common law admits (if indeed our “common law” can be said to admit any) are extremely long terms; it is thought no absurdity that an ousted owner and his heirs should have a century or thereabouts within which to recover their land1 , or that the claimant of a prescriptive right in Henry III's time should be expected to assert that he has exercised it ever since the Norman Conquest. Then again these terms never seem to be the outcome of any general notion; they are imposed from time to time by statute or in earlier days by royal ordinance. Then again we never obtain any real acquisitive prescription for land or moveables; the true owner may be deprived of his remedies, but “it is commonly said that a right cannot die2 .” Certainly this does not look as though our law had at any time, however remote, contained the principle that quiet seisin for year and day will give ownership or bar claims. Lastly, when in Henry II's day we get a definitely possessory action for land it protects possession that has not endured for year and day, it will protect the very disseisor himself when he has been on the land for four days3 . Thus in the main stream of the common law about possession and property there seems no place for year and day.
Still year and day is respected. Twice over Coke has given us a string of rules to illustrate the proposition that the common law has often limited year and day as a convenient time4 . We will attempt to arrange his instances together with a few that he has omitted.
Instances relating to rights of ownership or possession in which there has been no exercise of royal or judicial power
Instances in which there has been an exercise of royal or judicial power or in which the king's rights are involved
Now looking at this medley of rules we shall probably agree that they afford few, if any, materials for the history of the ordinary law about ownership and possession. Our first class of rules is small and does not look ancient; two of the three rules in it are not as old as Bracton, the remaining rule was uncertain in his day.
The rule again which gives claimants a year and a day for asserting their rights after a final judgment or a fine does not seem to be ancient. Bracton very distinctly says that all who are not under disability are bound so soon as the indenture of the fine is delivered to the parties. And he argues that this gives them long enough for the assertion of their rights:—the indenture is not delivered until fifteen days after the compromise has been made in court, so there are fifteen days within which claims can be made, and fifteen days is the time usually allowed for the appearance in court of a defendant who has been summoned. We thus see that the levying of a fine is regarded as a summons to all whom it may concern, and we are enabled to connect this judicial conveyance with the procedure against contumacious defendants. When a tenant in a real action will not appear the land is seized into the king's hand, and, unless the tenant replevies it within fifteen days, then it will be adjudged to the demandant. So in case of the fine, the true owner has but fifteen days in which to come forward and make his protest. How this time was enlarged from fifteen days to year and day I cannot say; but this happened in the interval between Bracton and Fleta1 . In one way and another therefore the term of year and day seems to have become more and more popular as a term to be set to claims of various sorts and kinds. The further back we look the more restricted is its operation, the more closely does it seem connected with prerogatival rights, or with exercises of royal or judicial power.
It must be confessed however that a very different inference has been drawn by some foreign writers from materials very similar to those that have come before us. Some remains of the old prescription, they argue, are preserved, those chiefly which interest the king or other powerful persons. Thus the rule about estrays is a relic of the old general rule. Once there was no claim for goods which for year and day had remained in the possession of a finder. The king or the lord with regalities set up a claim to the custody of stray cattle and in his favour the rule was still operative; after year and day they were his own. Now we ourselves have texts of the twelfth century which seem to take us back to a time when the king's claim to estrays had not yet reached its full dimensions, and yet they mention year and day as a term which bars claims1 . But according to my comprehension of them they neither lay down nor even suggest the general rule that the loser of goods has no action for them after year and day. The person who after the lapse of that time is to be protected against claims is a person who has claimed goods and had them delivered up to him upon giving security that he will produce them in court if some other demands them. It seems presupposed that the delivery is made to him by a lord who has a court; thus he is not merely a possessor but a possessor who has obtained possession under an exercise of jurisdiction.
So again, to touch for one moment the most controverted point, there are many who would connect the safety of the villein who for year and day has dwelt in a chartered town, with the famous title De Migrantibus2 , and there are some who would see in that provision of the Lex Salica a direct proof of the primitive German prescription. The “migrans” who has settled in a township contrary to the wish of any of its members becomes safe against them after lapse of a year. In one way or another a rule which had once compelled the folk of the township to put up with the presence of an intruder was twisted so as to give personal freedom to all who maintained themselves in the town for year and day. But whatever may have been the case in France, in England this rule has a very royal look; it is essentially a privilegium; the places in which it holds good are loca privilegiata, boroughs on which the king has conferred a special boon, or in later times all the manors of the royal demesne; it is much to the king's interest that his towns and his manors should be peopled1 .
On the whole, then, if we regarded only our common law the thought would probably never strike us that it contained the scattered fragments of an ancient rule under which possession continued for year and day ripened into ownership, or barred the claims of all who were not under disability.
Such is the case in the common law. But we have now to state some early evidence which has hitherto escaped attention. In the first place, there is a passage in the Leges Henrici Primi which may seem to imply some general rule to the effect that a person will to some extent or another be prejudiced by suffering year and day to go by without urging his proprietary claims2 . Then again in the twelfth century and the first part of the thirteenth some of the English boroughs, and those the most important, had charters which conferred some degree of protection upon a possession of land continued for year and day: at least if that possession had been obtained under a conveyance perfected in the borough court. Proof of this shall be given:—
Newcastle-upon-Tyne. Customs of the reign of Henry I as reported under Henry II.
Si quis terram in burgagio uno anno et una die juste et sine calumnia tenuerit non respondeat calumnianti, nisi calumnians extra regnum Angliae fuerit, vel ubi sit puer non habens potestatem loquendi. (Acts of Parliament of Scotland, 1. pp. 33, 34; Stubbs, Select Charters, pt. III.)
Lincoln. Charter of Henry II.
Concedo etiam eis [civibus meis Lincolniae] quod si aliquis emerit aliquam terram infra civitatem de burgagio Lincolniae, et eam tenuerit per annum et unum diem sine calumnia, et ille qui eam emerit, possit monstrare quod calumniator extiterit in regno Angliae infra annum et non calumniatus est eam, extunc ut in antea bene et in pace teneat eam et sine placito. (Foedera, 1. 40; Stubbs, Select Charters, pt. IV.)
Nottingham. Charter of Henry II.
Et quicunque burgensium terram vicini sui emerit et possederit per annum integrum et diem unum absque calumnia parentum vendentis, si in Anglia fuerint, postea eam quiete possidebit. (Foedera, 1. 41; Stubbs, Select Charters, pt. IV.)
Bury St Edmunds. Statement by the burgesses of their custom in 1192 according to a chronicler of the time.
Burgenses vero summoniti responderunt se esse in assisa regis, nec de tenementis, que illi et patres eorum tenuerunt, bene et in pace, uno anno et uno die, sine calumpnia, se velle respondere contra libertatem villae et cartas suas. (Chron. Joc. de Brakel. p. 56. Cam. Soc.)
London. Statement of custom, probably of the twelfth century.
Item si civis Londoniae terram aliquam per annum et diem sine calumpnia tenuerit, alicui in civitate manenti respondere non debet, nisi qui terram illam post calumpniatus fuerit talis aetatis tunc fuerit quod calumpniari eam nescierit, vel nisi longor [corr. languor?] impediat, aut in patria hac non fuerit. (Libertas Civitatum, Schmid, Gesetze, Anh. XXIII.)
Nottingham. Charter of John. 1200.
Et quicunque burgensium terram vicini sui emerit et possederit per annum integrum et diem unum absque calumpnia parentum vendentis si in Anglia fuerint, postea eam quiete possidebit. (Rot. Cart. p. 39.)
Derby. Charter of John. 1204.
The same words as in the charter of Nottingham last cited. (Rot. Cart. p. 138 b.)
In a writ of right for lands in Northampton the tenant pleads that he has held the land for year and day, “et consuetudo ville est quod qui its tenuerit non ponatur de cetero in placitum inde, et inde profert cartam domini regis per quam confirmat hominibus de Northantona quod nullus ponatur in placito de tenemento quod teneat infra burgum Northantone nisi secundum consuetudinem ville et ipse tenuit per unum annum et unum diem sine clamio quod ipsi apposuerunt.” No judgment. (Placit. Abbrev. p. 76.)
York. Bracton's Treatise. 1250–60.
Item consuetudo est in comitatu (?) Eborum quod mulier infra annum a die mortis viri sui petere debet dotem suam, alioquin postmodum non audiretur. (f. 309.)
Action for dower before justices in eyre. The tenant successfully pleads the following custom;—“et consuetudo civitatis est quod non debet ad tale breve respondere nisi calumpnia inde facta fuit infra annum.” (Bracton's Note Book, pl. 1889.)
Leges Quatuor Burgorum.
Quicunque tenuerit terram suam per unum annum et unum diem quam fideliter emerit per testimonium vicinorum suorum xii in pace et sine calumpnia qui eam calumpniaverit post unum annum et diem et si fuerit in eadem regione et de etate et ipse infra dictum terminum clamium non moverit super hoc nunquam audietur. Sed si fuerit infra etatem vel extra regnum non debet amittere jus suum cum venerit ad etatem vel repatriaverit. (Acts of Parliament of Scotland, 1. 22, 23.)
Now a rule which we find in London, York, Lincoln, Nottingham, Derby, Newcastle and the four great Scottish boroughs is a very important rule. I have not been able to find it in municipal charters later than those here cited, and I suspect that it went out of use in the course of the thirteenth century, oppressed by the common law. The Assize of Novel Disseisin in Bracton's day protected even untitled possession against extrajudicial force, so there was no great need for giving special protection to possession continued for year and day.
But what did these civic customs protect and what measure of protection did they give? To take the last point first, it seems fairly clear that they were bars not only to self-help but to judicial proceedings; they acted not as interdicts but as statutes of limitation, they conferred a final and not merely a provisional protection. But did they protect untitled possession if continued for year and day or did they merely protect titled possession? The language in which they are stated is unfortunately vague; and we may not assume that the custom was the same in all places. But the Newcastle custom requires that the possessor shall possess “juste,” the Lincoln, Nottingham and Derby customs suppose that he has come to his possession by purchase; the Scottish custom supposes that he has come to his possession by purchase duly perfected in the presence of twelve of his neighbours. Having regard to the common law and to the practice prevalent in the boroughs of conveying tenements in the borough courts, we should not, I think, be unwarranted in believing that a conveyance so perfected was or had been a condition requisite to start the term of limitation, the lapse of which would bar all claims adverse to the possessor. In that case the conveyance before the borough court would be the civic counterpart of the fine levied in the king's court.
In this context we may notice that in 1200 the burgesses of Leicester obtained from the king a charter sanctioning conveyances made in their port-manmoot without any reference to year and day:—all purchases and sales of land in the town of Leicester duly made in the portmanmoot of the said town are to be firm and stable1 . Probably this did not give a mere licence to the Leicester folk to make their conveyances in court if they chose to do so, but gave to conveyances so perfected a special sanctity. Probably the main object of such a provision was to preclude the claims of expectant heirs. In the Scottish burghs the rule about year and day seems to have been closely connected with the vendor's obligation of first giving an option of purchase to the members of his family before he sought for a buyer outside the family circle2 , and it is certain that in England at the beginning of the thirteenth century it was still very doubtful how far our law would enable the socager to alienate his land to the disherison of his kinsmen. In the process which made the law of Bracton's day so very different from the law of Glanvill's day, the practice of conveying land in court, here by fine, there by surrender, probably played a large part; the desire for freely alienable land found vent in the use of judicial and quasi-judicial modes of conveyance.
Now it would not be an unheard-of thing for very ancient law to go on lurking in the chartered boroughs after it had been improved away from the country at large. The citizens of London, for example, went on purging themselves with oath-helpers in criminal cases long after less privileged persons had been forced to submit to trial by jury. Still in the face of what I have called the negative evidence it is hard to believe that we have here the scattered fragments of a primitive English usucapio. I say “English,” for the clauses that I have cited are so very similar even in their provoking reticence to clauses contained in many contemporary charters of French towns1 that quite possibly they are of French parentage. It is indubitable that the privileges of French towns were known and envied in the English boroughs, and from France they may have borrowed this “possession annale.” Thus the venue of the problem would be changed from England to France.
The problem is one in which three great countries are concerned and is not to be decided off-hand. But so far as regards our common law the English evidence seems decidedly against the supposition of a primitive prescription or usucapio effected by peaceful possession for year and day, and in favour of the supposition that the effectiveness of this brief term had its origin in exercises of jurisdictional power, in the king's ban or the court's ban. The statements that we get of civic customs are, it must be confessed, vaguer than we could wish; and what is said in the Leges Henrici is just enough to stimulate our curiosity. An investigation of the prevalence of the custom of conveying land in the borough courts, or of having conveyances registered in the municipal archives might throw much light on the question. At present we may conjecture that originally the only possession that could become ownership by the lapse of year and day was a possession sanctioned by real or fictitious litigation1 .
Law Quarterly Review, 1889.
Among the books which deal with the matter are the following:—Alauzet, Histoire de la Possession en droit Français; Esquirou de Parieu, Études sur les Actions Possessoires; Viollet, Établissements de Saint Louis, 1. 110; Viollet, Précis de l’Histoire du Droit Français, 484; Bruns, Recht des Besitzes, 352–367; Albrecht, Die Gewere; Laband, Die Vermögensrechtlichen Klagen; Heusler, Die Gewere; Heusler, Institutionen des Deutschen Privatrechts, 1. 56, II. 66–117.
Viollet, Précis, p. 484.
Dr Brunner, Zur Rechtsgeschichte der Römischen und Germanischen Urkunde, p. 286, has drawn attention to the importance of our fines and recoveries in the general history of law. Much that is interesting about the “Auflassung” will be found in Bewer, Sala, Traditio, Vestitura.
Heusler, Institutionen, 1. 57. In Leg. Will. Conq. 1. 3, we have a period of month and day given. It will be remembered also that a defendant summoned to the king's court had to be waited for during three days—per tres dies expectabitur, Glanv. lib. 1. cap. 7. Already in the thirteenth century the prolonged sittings of our king's courts must have made the original meaning of the additional day unintelligible.
In England the land remained in the king's hand for but fifteen days; Glanv. lib. 1. cap. 7.
See the Harvard Essays in A.-S. law, p. 253. It is just possible that among ecclesiastics the Roman prescription of thirty years was respected.
Ordinance of 1237 in Bracton's Note Book, pl. 1217.
Littleton, sec. 478.
L. Q. R. IV. 29.
Co. Lit. 254 b; 5 Rep. 218.
Bracton, f. 160 b, 161; L. Q. R. IV. 34.
Co. Lit. 237, 254 b; L. Q. R. IV. 289.
Quiet possession for year and day played a part in the custom of the Cornish miners. Such possession gave the “bounder” a provisional protection. But whether this is very ancient I do not know. See the various Acts of the Stannary Parliaments.
Stat. Glouc. c. 9.
See 4 Rep. 42 a; 2nd Inst. 320.
Bracton, f. 436; Fleta, f. 443. See the so-called “Statute” Modus Levandi Finis, Statutes of the Realm, 1. 214. It is noteworthy that Glanvill does not say that a fine has any effect on the rights of strangers. We may suspect that the law about this was evolved between his time and Bracton's.
Leg. Will. Conq. 1. 5. 6. On this see Jobbé-Duval, Revendication des Meubles, 21.
L. Sal. 45.
Glanv. lib. v. cap. 5; Bract. 190 b; Brit. 1. 200; Stubbs, Introduction to Hoveden, II. xxviii.
Pueri autem ante xv. annos plenos nec causam prosequantur, nec in judicio resideant. De rebus hereditatis suae interpellatus post xv. annos defensorem habeat, vel idem respondeat, et calumpniam mittat in rebus suis ut nullus eos teneat uno anno et uno die sine contradictione, dum sanus sit et patriae pax. (Leg. Hen. 59, § 9.) The meaning of this seems to be that he who abates upon an infant heir gains none of the advantages of possession until a year and day after the heir has attained full age.
Rot. Cart. 32.
Acts of Parliament of Scotland, 1. 356.
Alauzet, op. cit. 47; Parieu, op. cit. 56.
In this context allusion has sometimes been made to the Welsh laws, a legal literature of very great interest which is crying aloud for a competent expositor. Now in the later versions of these laws we frequently meet with the term of year and day, and this term seems to serve as a term of limitation for claims of many different kinds, in particular for claims arising out of delicts. But, though I am utterly dependent on Mr Owen's translation, it seems to me fairly clear that the undisturbed possession of land for year and day was no bar to proprietary claims. On the contrary for such claims an enormously long time was open. No man holds his land in safety unless his father, grandfather and great-grandfather held it before him, and even then his safety is not perfect; he may have to share the land with a claimant who has yet older rights, for the right of an owner does not become utterly extinct until eight generations of his descendants have passed away. On the other hand we see that when litigated land has been adjudged to a demandant the lapse of year and day has the effect of barring the rights of the family of his vanquished opponent. (See the passages referred to by Mr Owen in his Index under “Year” and “Day,” and then see such passages as Cod. Ven., bk. 2. c. 14, Cod. Gwent., bk. 2. c. 30, §§ 10, 11; Miscellaneous Laws, bk. 9. ch. 27, § 18; bk. 14. ch. 23, §§ 2, 3.)