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Sir Frederick Pollock, The History of English Law before the Time of Edward I, vol. 2 [1898]

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Sir Frederick Pollock, The History of English Law before the Time of Edward I. Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). Vol. 2.

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About this Title:

First published in 1895, Sir Frederick Pollock and Frederic William Maitland’s legal classic The History of English Law before the Time of Edward I expanded the work of Sir Edward Coke and William Blackstone by exploring the origins of key aspects of English common law and society and with them the development of individual rights as these were gradually carved out from the authority of the Crown and the Church. Although it has been more than a century since its initial publication, Pollock and Maitland’s work is still considered an accessible and useful foundational reference for scholars of medieval English law. Volume two takes up different areas of English law topic by topic, or as its authors labeled it, “The Doctrines of English Law in the Early Middle Ages.” They consider land tenure, marriage and wardship, fealty, the ranks of men both free and unfree, aliens, Jews, excommunicates, women, and the churches and the King, before turning to the various jurisdictions of that decentralized era.

Copyright information:

Select bibliography and notes by Professor S. F. C. Milsom, published here as an appendix, was originally published in Cambridge University Press’s 1968 reissue of The History of English Law before the Time of Edward I. Reprinted by permission of Cambridge University Press.

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This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Table of Contents:

Edition: current; Page: [i]
Edition: current; Page: [ii]

Sir Frederick Pollock


Frederic William Maitland

Edition: current; Page: [iii]
Volume II
By Sir Frederick Pollock and Frederic William Maitland
liberty fund
Edition: current; Page: [iv]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.


The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 bc in the Sumerian city-state of Lagash.

This is the second edition of The History of English Law before the Time of Edward I, which was first published in 1898 by Cambridge University Press. The first edition was published in 1895 by Cambridge University Press.

Select bibliography and notes by Professor S. F. C. Milsom, published here as an appendix, was originally published in Cambridge University Press’s 1968 reissue of The History of English Law before the Time of Edward I. Reprinted by permission of Cambridge University Press.

Portrait of Sir Frederick Pollock, by Reginald Grenville Eves,

National Portrait Gallery, London

Portrait of Frederic William Maitland, by Beatrice Lock,

National Portrait Gallery, London

Printed in the United States of America

All rights reserved

c 1 2 3 4 5 6 7 8 9 10

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Library of Congress Cataloging-in-Publication Data

Pollock, Frederick, Sir, 1845-1937.

The history of English law before the time of Edward I/by Sir Frederick Pollock and Frederic William Maitland.—2nd ed.

p. cm

Originally published: 2nd ed. Cambridge: Cambridge University Press, 1898.

Includes bibliographical references and index.

isbn 978-0-86597-749-5 (hardcover: alk. paper)

isbn 978-0-86597-752-5 (pbk.: alk. paper)

1. Law—England—History. I. Maitland, Frederic William, 1850-1906. II. Title.

kd532.p64 2010



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Edition: current; Page: [v]


  • Book II
    • Chapter IV. Ownership and Possession, pp. 1-191
      • § 1. Rights in land, pp. 2-30

        Distinction between movables and immovables, 2 Is land owned? 3

        Ownership and lordship, 3 Ownership and feudal theory, 4

        Tenancy in fee and life tenancy, 6 The tenant in fee, 7 The life tenant, 7 Position of the life tenant, 8 Tenant for life and the law of waste, 9 Tenant for life and public law, 9 Seisin of tenant for life, 10 Tenants for life in litigation, 10

        The doctrine of estates, 11 The estate and the forma doni, 11 The power of the gift, 12 The form of the gift a law for the land, 13 The gift to a man and his heirs, 13 Duration of a fee, 14 Limited gifts, 15

        The maritagium, 15 Gift to a man and the heirs of his body, 17 The conditional fee, 17 History of the conditional fee, 18 Statutory protection of conditional gifts, 19

        Settlements in the thirteenth century, 20 Joint tenancies, 21 Reversion and remainder, 21 Remainders after life estates, 22 Reversion and escheat, 23 Remainders after conditional fees, 24

        Gifts upon condition, 26 The form of the gift and testamentary power, 27 Influence of the forma doni, 28

        Note on the conditional fee, 29

        Edition: current; Page: [vi]
      • § 2. Seisin, pp. 30-83

        Seisin, 30 Seisin and possession, 31 Sitting on land, 31 Technicalities of seisin, 32 Seisin and remedies, 32 Seisin of chattels, 33 Contrast between seisin and proprietary rights, 34 Seisin and enjoyment, 35.

        Who is seised? 36 Case of tenant in villeinage, 37 Case of termor, 38 Case of guardian, 38 Case of tenant for life, 39 Case of the lord, 39 Case of reversioner, 41 Infants and communities, 41 General doctrine of seisin, 41

        Protection of possession, 42 Modern theories, 42 Possession and criminal law, 43 Possession and the law of tort, 43 Possession as a bulwark of property, 44 Possession as a kind of right, 44 Contrast between various principles, 45 The various principles in English law, 45 Disseisin as an offence, 46 Disseisin as a tort, 46 Possessory action against the third hand, 47 Proof of seisin and proof of ownership, 47 Seisin as a root of title, 48

        Introduction of possessory actions, 48 The novel disseisin, 50 Protection of wrongful seisin, 51 Relativity of seisin, 53 Novelty of the disseisin, 53 “Unjustly and without judgment,” 54 Rigorous prohibition of self-help, 55 Trespass and disseisin, 55 Disseisin of absent possessor, 56 Scope of the assize, 57 The assize and the third hand, 58

        The mort d’ancestor, 59 A summary action, 59 A possessory action, 59 Seisin as of fee, 60 Exclusion of proprietary pleas, 61 Principle of the assize, 62 Is seisin heritable? 62 Seisin in law, 63 Acquisition of seisin by an abator, 64 Scope of the assize, 64

        The writs of entry, 65 The writ of right, 65 Invention of writs of entry, 66 Writs sur disseisin, 67 Scope of the action, 67 The English possessorium and the canon law, 69 Other writs of entry, 71 Historical evolution of these writs, 72 Their principle, 73 Active and passive transmission, 73, 74 The doctrine of degrees, 74 Are these writs possessory? 75

        The hierarchy of actions and of seisins, 78 Is the writ of right possessory? 79 Relativity of ownership, 80 Ancient history of ownership and possession, 81 Seisin and “estates,” 82 Seisin and title, 83

        Edition: current; Page: [vii]
      • § 3. Conveyance, pp. 84-110

        Modes of acquiring rights in land, 84 No title by occupation, 84

        No acquisitive prescription, 85 Alluvion etc., 85 Escheat, forfeiture, reversion, 85

        The gift of land, 86 Feoffment, 86 Expression of the donor’s will, 86 Livery of seisin, 87 The ancient German conveyance, 88 Symbolic livery, 89 Anglo-Saxon land-books, 91 Law in the Norman age, 91 Demand for a real livery, 92 Practice in the thirteenth century, 94

        Royal conveyances, 94

        The release, 94 The quit-claim, 95 The surrender, 96 The change of estate, 96 Gifts when the donor is not in occupation, 97 Attornment, 97 Feoffments with remainders, 98 Charters of feoffment, 98

        The fine, 98 Origin of fines, 99 Practice in the Norman age, 100 Possession under a fine, 100 Fines in the Angevin age, 101 Procedure for levying a fine, 102 Form of the fine, 103 Advantages of a fine, 104 Evidence secured, 104 Action on a fine, 105 The preclusive bar, 105 The year and day, 106 Value of the bar, 107 The married woman’s fine, 107 Conveyance of reversions, 107 Family settlements, 107

        The fine and seisin, 108 A judgment gives no seisin, 108 A fine gives none, 108 The fine does not convey land, 109 Return to seisin, 110

      • § 4. The Term of Years, pp. 110-122

        The term of years, 110 Attempts to treat it as ius in personam, 111 Insecurity of the termor, 112 Failure of the old doctrine, 112 The termor and the writ of trespass, 113 Further protection of the termor, 114 Seisin and possession, 115 Explanation of the termor’s history, 115 Early leases for years, 116 Why the termor has no freehold, 118 The termor and the farmer, 118 Influence of Roman theory, 119 The term as a chattel, 120 Chattels real, 121

      • § 5. The Gage of Land, pp. 123-29

        Gage and wed, 123 Antiquity of gages, 123 Mortgage and vifgage, 124

        Glanvill’s gage, 125 Disappearance of the Glanvillian gage, 126 The gage and the beneficial lease, 127 The Bractonian gage, 127 The classical mortgage, 128 The mortgagee in possession, 128

        Edition: current; Page: [viii]
      • § 6. Incorporeal Things, pp. 130-56

        Incorporeal things, 130 Their thinglikeness, 130 The seignory as a thing, 130 Rights of lord against tenant, 131 Contract and thing, 132 Rights of lord against the world, 133 Seisin of services, 134 Conveyance of seignory, 134 Rents as things, 134 Various kinds of rents, 135 Non-tenurial rents, 135 Rents charge as things, 136 Rents owed by land, 136 The rent-owner and the world, 137 Creation and transfer of rents, 138 Annuities as things, 139 Corodies as things, 140 Offices as things, 141 Advowsons as things, 142 Actions for advowsons, 143 Conveyance of advowsons, 144 Seisin of advowsons, 146 Rights of common as things, 146 Possessory protection of rights of common, 147 Law of prescription, 147 Incorporeals acquired by prescription, 148 Possessory protection of inchoate rights, 149 Prescription for annuities, 149 Prescription for franchises, 150 Appurtenances and grosses, 151 Easements and profits, 152 Liberty and serfage as things, 153 Marital rights and possession, 154 Wardships as things, 154 Landlikeness of the incorporeals, 155

      • § 7. Movable Goods, pp. 156-91

        Ownership and possession of chattels, 156 Obscurity of the subject, 157 Chattel and cattle, 157 Pecuniary character of chattels, 158 Possession of chattels, 159 Is there any ownership of movables? 160 Specific recovery of goods in England, 161 Foreign law: Mobilia non habent sequelam, 162 Explanations of this rule, 163

        The pursuit of thieves, 164 The bailee pursues the thief, 166 The bailor’s action against the bailee, 166 Bracton’s actio furti, 166 Procedure in the action, 167 Scope of the action, 168 Defences to the action, 170 Defence of birth and rearing, 170 Defence by voucher, 170 Defence of honest purchase, 171 Stolen goods recovered from the honest purchaser, 172 Transformation of the action, 172 Action of trespass de bonis asportatis, 173 Scope of this action, 174 No action of trespass against the third hand, 174 Limitation of self-help, 176.

        The bailment, 177 The bailee and the wrong-doer, 178 Liability of bailees, 178 The bailor and the third hand, 180 Action of Edition: current; Page: [ix] detinue, 180 Scope of detinue, 182 No real action for movables, 183 Has the bailor property? 184 Evolution of ownership, 185 Pecuniary character of chattels, 186 Uncertainty of legal theory, 188 Conveyance of movables, 188 Real and personal property, 189

    • chapter V. Contract, pp. 192-251

      Late development of a law of contract, 192 The real and the formal contract, 193 Fides facta: the formal contract, 194 The hand-grasp, 195 The church and the fides facta, 197 Oath and faith, 198 The written document as a form, 200 English law in the twelfth century, 201 Medieval Roman law, 202 The canon law, 203 Evolution of a law of contract on the Continent, 204 Influence of Roman and canon law in England, 205 English law in the thirteenth century, 205

      The pledge of faith, 206 Fidei laesio and the church courts, 207 Struggle between church and state, 207 Pledged faith in ecclesiastical law, 210 The king’s court and the pledge of faith, 211

      The action of debt, 212 The recognizance, 213 The action of debt in Glanvill, 213 Rarity of actions of debt, 214 Proprietary character of the action, 215 Debt and sale, 216 Earnest and God’s penny, 217 Law of sale, 218 Scope of the action of debt, 219 Doctrine of quid pro quo, 221 Gratuitous gifts and promises in early law, 222 Proof of debts, 223 Damages in debt, 225 Limit to the action, 225

      The action of covenant, 225 Covenants and leases, 226 Scope of the action, 227 Requirement of writing, 228 Action of account, 230 Covenants in the local courts, 231 Sealed documents, 232 History of documents, 233 The single bond, 234 Mercantile documents, 235

      Assignment of debts, 236 Agency in contract, 237 Agency and “uses,” 238 Chattels held to the use of another, 239 Lands held to the use of another, 240 The use of lands, 241 Feudalism and contract, 242

      Note on the early history of the use, 243

    • chapter VI. Inheritance, pp. 252-381
      • § 1. Antiquities , pp. 252-73

        The history of the family: a controversial theme, 252 The family as a unit, 252 No clans in England, 253 No permanent organization of the Edition: current; Page: [x] blood-feud group, 254 That group not a permanent legal unit, 255 The kindred as a local group, 255 Landowning groups, 256 The kindred no corporation, 256

        The household and landownership, 257 Forms of co-ownership, 258 Relative antiquity of co-ownership and ownership in severalty, 259 Co-ownership and aliquot shares, 260 Birth-rights, 260 History of birth-rights, 261 Birth-rights and inheritance, 261 Inheritance older than birth-rights, 261 Antiquity of inheritance, 263 Family ownership in England, 264 Birth-rights in England, 264 The restraint of alienation, 266 Partition of inheritances, 266 Appointment of heirs, 267 Restraint of alienation before the Conquest, 267 Last words on family ownership, 267

        Nature of inheritance, 268 Inheritance and representation of the dead, 268 Representation in modern law, 269 Representation in ancient times, 270 Representation and religion, 270 Inheritance of debts and credits, 270 The inheritance need not descend in one mass, 272 Transition to later law, 272

      • § 2. The Law of Descent, pp. 273-329

        Primary rules, 273 Preference of descendants, 273 Preference of males, 274 Influence of feudalism, 274 Primogeniture, 275 Primogeniture before the Conquest, 276 Primogeniture in Normandy, 278 In later Norman law, 279 In English law of the Norman age, 279 The Anglo-Norman Leges, 280 Primogeniture under the Angevins, 281 In Glanvill and Bracton, 282 Partible lands, 283 Gavelkind, 284 Disgavelling, 286 Spread of primogeniture, 287 Inheritance by co-heiresses, 288 Co-heirs and parage, 289 The law of parage, 290 The lord’s interest in primogeniture, 291 Inheritance of villein lands, 292 Ultimogeniture, 293 Origin of ultimogeniture, 294 Impartible peasant holdings, 294 The peasant’s one child, 296

        Representation in inheritance, 297 Influence of John’s accession, 298 Casus Regis, 298

        The exclusion of ascendants, 300 The rule about lord and heir, 303 The question in Glanvill, 303 Effect of homage on inheritance, 305 Why may not the lord inherit? 306 The leaning towards equality, 307 Exclusion of the lord and exclusion of ascendants, 307 The ascendants in Scottish law, 309

        Edition: current; Page: [xi]

        Inheritance among collaterals, 309 The parentelic system, 311 Rules for collaterals of the same parentela, 313 Choice among ascending lines, 313 Paterna paternis, materna maternis, 314 Choice among admissible stocks, 315 Worthiness of blood, 316 The half-blood, 316 Exclusion of the half-blood in modern law, 319 Co-parcenery and partition, 321 Limits of inheritance, 322

        Restraint of alienation in favour of expectant heirs, 323 Glanvill’s rules, 323 The heir’s consent to conveyances, 324 Disappearance of the restraint, 326 Causes of the change, 327 Rebutting effect of a warranty, 327 Suddenness of the change, 328

      • § 3. The Last Will, pp. 329-72

        Germs of the last will, 329 What is a will? 330 Ambulatory character of a will, 330 Hereditative character of a will, 331

        The Anglo-Saxon cwiðe, 332 The post obit gift, 332 The post obit gift and the royal land-book, 333 The death-bed distribution, 334 The written cwiðe, 335 The right to bequeath, 336 Wills and death-bed gifts, 336 Intestacy in Cnut’s day, 337 The lord and the cwiðe, 338

        Norman law, 338 The will under the Norman kings, 339 Post obit gifts of chattels, 339 Evolution of definite law, 341

        Feudalism and wills of land, 341 Post obit gifts in the Norman age, 342 Post obit gifts of land condemned, 342 The law in Glanvill, 343 Testamentary power abolished in the interest of the heir, 344 Attempts to devise land, 345 Devisable burgages, 345 Probate of burgage wills, 346 Devises of chattels real, 347

        The church and the testament, 347 Progress of ecclesiastical claims, 348 The church victorious, 349 The lay courts and the last will, 349 The will with executors, 350 Origin of the executor, 351 The executor in England and elsewhere, 352 The medieval will, 353 Its form, 353 Its substance, 354 The testator’s care for his soul, 355 Usual clauses, 356 Probate, 357 Prerogative probate, 358

        Control over executors, 359 The executor in temporal courts, 360 Executor and heir in Glanvill, 361 Executor and heir in Bracton, 361 The collection of debts, 362 The executor as personal representative, 363

        Limits of testamentary power, 365 Legitim in the twelfth and thirteenth centuries, 365 Legitim in Glanvill, 366 Legitim in Edition: current; Page: [xii] Bracton, 367 Later history of legitim, 368 The king’s court and legitim, 368 The church courts and legitim, 369 Legitim in wills, 370 Review of the history of legitim, 371

      • § 4. Intestacy, pp. 373-81

        Horror of intestacy, 373 Bracton on intestacy, 374 Stories of intestacy, 374 Desperation in Normandy, 376 The bishop and the kinsfolk, 377 Intestate succession, 377 The administrator, 378 The next of kin, 378 Letters of administration, 379 Separation of chattels from land, 380 Heirlooms, 380 Reviews, 380

    • chapter VII. Family Law, pp. 382-469
      • § 1. Marriage, pp. 382-418

        Antiquities, 382 The act of marriage, 383 Growth of ecclesiastical jurisdiction, 384 Victory of the church courts, 385 Canonical doctrine of marriage, 386 No ceremony requisite, 387 Application of canon law in England, 389 The Queen v. Millis, 390 Law of the English church courts, 391 The temporal law and marriage, 392 Marriage and dower, 393 Marriage and inheritance, 394 Putative marriages, 395 Recognition of de facto marriages, 398 The marital possessorium, 399 Reluctance to bastardize the dead, 400 Possessory marriage in the temporal courts, 401 Solemnization and possessory protection, 403 Unprovable marriages, 403

        The idea of marriage, 404 Impediments to marriage, 404

        Consanguinity, 404 Prohibited degrees, 406 Affinity, 407 Marriage of infants, 408 Age of the parties, 409 Marriage of young children, 411

        Divorce and nullity, 412 Divorce from bed and board, 412 Divorce and temporal law, 414 A wife conveyed, 415

        Bastardy, 416 Mantle children, 417 Presumptive paternity, 417

      • § 2 Husband and Wife, pp. 419-581

        Variety in the law of husband and wife, 419 Community of goods, 420 No community in England, 421 English peculiarities, 422 Community and equality, 422

        Final form of the common law, 423 (1) Wife’s land, 423 (2) Husband’s land, 424 (3) Wife’s chattels, 424 (4) Husband’s chattels, 425 (5) Husband’s liability, 425 (6) Wife’s contracts, 425

        Edition: current; Page: [xiii]

        Law in the thirteenth century; its general idea, 425 Divorce of realty from personalty, 427

        The wife’s land, 427 Husband and wife in court, 428 Husband’s rights in wife’s land, 429 Alienation of wife’s land, 430 The wife’s fine, 431 The husband as guardian, 434 Tenancy by the curtesy, 434 Tenancy per legem Angliae, 436 The law of England a courteous law, 437 The widower’s free-bench, 439 Feudalism and curtesy, 440

        Dower, 441 The maximum dower, 441 Assignment of dower, 443 Wife’s rights during marriage, 443 Alienation by husband, 444 The husband in litigation, 446 Dower as a gift, 446 Dower and the church, 4 47 The villein’s widow, 448

        Chattels of husband and wife, 448 Germs of a community, 449 Husband’s death, 449 Wife’s death, 449 Wife’s testament, 450 The husband’s intestacy, 451 Rejection of community, 453 English law and separation of goods, 454

        Payments to husband and wife, 455 Conveyances to husband and wife, 455 The wife’s contracts, 456 The influence of seisin, 457 The personal relationship, 457 Civil death of husband, 458

      • § 3. Infancy and Guardianship, pp. 458-691

        Paternal power in ancient times, 458 The tutelage of women, 458 Paternal power in the thirteenth century, 459 Infancy and majority, 460 Proprietary rights of infants, 461 Infants in seisin, 461 Infants as plaintiffs, 462 Infants as defendants, 463 Demurrer of the parol, 464 Law of guardianship, 465 The guardian no curator, 467 The king’s guardianship, 467

        Review of English private law, 467

    • chapter VIII. Crime and Tort, pp. 470-584
      • § 1. The Ancient Law, pp. 471-841

        Crime and wrong in old law, 471 Outlawry in old law, 471 Blood-feud, 472 The system of wíte and bót, 473 True punishment, 473 Kinds of punishment, 475 Crime and revenue, 475 Cnut’s pleas of the crown, 475 Pleas of the crown in Domesday Book, 476 Norman pleas of the sword, 477 Pleas of the crown in the Norman age, 478 Crime and punishment in Domesday Book, 479 Criminal law in the Leges, 480 Changes in the twelfth century, 481 Disappearance of wíte and bót, 481 Edition: current; Page: [xiv] Oppressive character of the old system, 482 Arbitrary element in the old system, 483

      • § 2. Felony and Treason, pp. 484-535

        Causes of the change, 484 The king’s peace, 485 Felony, 487 Import of felony, 490 Premeditated assault, 490 Malice aforethought, 491 The group of felonies, 492

        Culpability in ancient law, 492 Causation in ancient law, 493 Absolute liability for harm done, 494 Liability for the acts of slaves and beasts, 495 The deodand, 496 Restriction of culpability, 497 Mens rea, 499 Roman influence, 500

        The felonies, 501 Homicide, 501 Justifiable homicide, 501 Misadventure and self-defence, 502 Pardons for excusable homicide, 503 Practice in cases of excusable homicide, 504 Liability and misadventure, 505 The pardon and the offended kin, 506 History of misadventure, 506 Homicide by young children, 507 Limits of misadventure and self-defence, 507 Homicide unemendable, 508 Murder, 508 The murder fine, 510 Suicide, 511

        Wounding etc., 512 Rape, 513 Arson, 515 Burglar y, 516 Robbery, 517 Larceny, 518 Manifest theft, 520 Petty larceny, 521 Definition of larceny, 521

        Treason contrasted with felony, 523 Treason and the statute of 1352, 526 Early history of treason, 526 Elements of treason, 528 Treason by levying war, 529 Compass of treason in the thirteenth century, 530 .

        Accessories before the fact, 532 Accessories after the fact, 534 Review of the felonies, 535

      • § 3. The Trespasses, pp. 535-68

        Classification of offences, 535 Trespass in the wide sense, 536 Minor punishments, 537 Amercements, 537 Imprisonment, 540 Fines, 541 Other minor punishments, 542

        Procedure against minor offences, 543 Civil actions, 543 Presentments in local courts, 544 Presentments in the eyre, 545 Misdemeanours, 546

        Penal damages, 547 Novelty of actions for damages, 547 Damages and specific relief, 547 Growth of actions for damages, 549 The days Edition: current; Page: [xv] before damages, 550 Actions of trespass, 551 Limits of trespass, 552 Master’s liability, 553 Recent history of master’s liability, 555 Liability of slave-owner and house-father in old law, 554 House-father’s liability in Bracton’s day, 555 Tort, crime and master’s liability, 555 Identification of master and servant, 556 Respondeat superior, 558 Damage and injury, 559 Deceit, 560 Fraud as a defence, 560 Defamation, 561 Wrongful prosecution, 564 Forgery, 565 Perjury, 566

      • § 4. Ecclesiastical Offences, pp. 569-84

        The sexual sins, 569 Heresy, 570 Heresy on the Continent, 570 England and continental heresy, 572 Heresy in England, 573 Heresy in the text-books, 575 Later cases of heresy, 575 Was heresy criminal? 577 The writ for burning heretics, 578 Sorcery, 579 History of sorcery, 579 Sorcery in the text-books, 580 Cases of sorcery, 580 Sorcery in later times, 581 Unnatural crime, 582

        Inefficiency of the criminal law, 583

    • chapter IX. Procedure, pp. 585-705
      • § 1. The Forms of Action, pp. 585-602

        Our formulary system, 585 An English peculiarity, 585 Growth of the forms, 586 The formulary system not of Roman origin, 586 Roman and English formulas, 587 Life of the forms, 588 Choice between the forms, 588 Little law for actions in general, 589 Modern and medieval procedure, 589 Formalism and liberty, 590 The golden age of the forms, 591 Number of the forms, 592 Statistics, 592 Differences between the forms, 595 Classification of the forms, 596 Affinities between the forms, 597 Attempts to apply the Roman classification, 598 Roman and English lines, 599 Civil and criminal procedure, 600

      • § 2. Self-help, pp. 602-7

        Self-help in medieval law, 602 Distress, 603 Distress for rent, 604 Replevin, 605 Distress and seisin, 606

      • § 3. Process, pp. 607-627

        Process, 607 Summary justice, 607 The hand-having thief, 608 Summary justice in the king’s court, 608 Summary justice and outlawry, 609 Outlawry as process, 609 Arrest, 610 Summary Edition: current; Page: [xvi] arrest, 611 Arrest after accusation, 612 Mainprise, 613 Replevisable prisoners, 613 The king’s court and arrest, 615 Royal control over justice, 616 The writ de odio et atia, 616 Origin of the writ, 616

        Effect of the writ, 617 Later history of the writ, 617 Mainprise and bail, 618 Sanctuary and abjuration, 619 Civil process, 620 Forbearance of medieval law, 620 Process in real actions, 621 Process in personal actions, 622 Outlawry as civil process, 623 No judgment against the absent, 623 Specific relief, 624 Final process, 625 Costs, 626

      • § 4. Pleading and Proof, pp. 627-705

        Ancient modes of proof, 627 The ordeal, 628 Proof by battle, 629 Proof by oath, 629 Oaths of witnesses, 630 Allotment of proof, 631 Proof in the thirteenth century, 633

        The plaintiff’s count, 634 The offer of proof, 635 The suit, 636 Function of the suitors, 636 Number of the suitors, 636 The defence, 637 Thwert-ut-nay, 638 Examination of the plaintiff’s suit, 638 The defendant’s offer of proof, 639 Special pleading, 640 The exception, 641 Exceptions in assizes, 641 Spread of the exception, 643 Laxity of pleading, 645 The exception and the jury, 646 Proof of exceptions, 646 Assize and jury, 646 The jury and the appeal, 647 Exception and denial, 648 The jury and the general issue, 649

        Composition of the jury, 651 The jurors as witnesses, 651 Arbitral element in the jury, 652 Communal element in the jury, 654 Quasi-judicial element, 654 Unanimity of the jury, 655 Verdict and evidence, 657 Fact and law, 659 Special verdicts, 660 Justices and jurors, 661 Popularity of the jury, 661 Fate of the older proofs, 662 Trial by battle, 662 Wager of law, 664 The decisory oath, 667 Trial by witnesses, 667 Other trials, 670 Questions of law, 670 Victory of the jury, 671

        The presenting jury, 672 Fama publica, 672 Composition of the jury, 673 The coroner’s inquest, 674 Presentments and ordeal, 674 Practice of the eyres, 675 Indictments for felony, 677 The second jury, 679 Refusal of trial, 680 Peine forte et dure, 681 Presentments of minor offences, 682 The trial, 683 The collection of evidence, 686 Edition: current; Page: [xvii] The canonical inquisition, 687 English and foreign inquisitions, 688 Torture and the law of evidence, 690

        Miscellaneous points, 692 The king in litigation, 692 Criminal informations, 692 Voucher to warranty, 693 Appellate proceedings, 695 Attaint, 695 Certification, 696 Prohibition, 696 Removal of actions, 696 False judgment, 697 Error, 698 Records and courts of record, 699 Function of the judges, 701 Considérants of judgments, 702 Last words, 703

  • Appendix: Select Bibliography and Notes, by S. F. C. Milsom, 707
  • Index, 723
Edition: current; Page: [xviii] Edition: current; Page: [xix]

Additions and Corrections

Edition: current; Page: [xx]
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Chapter IV: Ownership and Possession

The law of property.We have already spoken at great length of proprietary rights inEdition: orig; Page: [1] land. But as yet we have been examining them only from one point of view. It may be called—though this distinction is one that we make, rather than one that we find made for us—the stand-point of public law. We have been looking at the system of land tenure as the framework of the state. We have yet to consider it as a mesh of private rights and duties. Another change we must make in the direction of our gaze. When, placing ourselves in the last quarter of the thirteenth century, we investigate the public elements or the public side of our land law, we find our interest chiefly in a yet remoter past. We are dealing with institutions that are already decadent. The feudal scheme of public law has seen its best or worst days; homage and fealty and seignorial justice no longer mean what they once meant. But just at this time a law of property in land is being evolved, which has before it an illustrious future, which will keep the shape that it is now taking long after feudalism has become a theme for the antiquary, and will spread itself over continents in which homage was never done. Our interest in the land law of Henry III.’s day, when we regard it as private law, will lie in this, that it is capable of becoming the land law of the England, the America, the Australia of the twentieth century.

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Edition: orig; Page: [2]§ 1.: Rights in Land

Distinction between movables and immovables.One of the main outlines of our medieval law is that which divides material things into two classes. Legal theory speaks of the distinction as being that between “movables” and “immovables”; the ordinary language of the courts seldom uses such abstract terms, but is content with contrasting “lands and tenements” with “goods and chattels.”1 We have every reason to believe that in very remote times our law saw differences between these two classes of things; but the gulf between them has been widened and deepened both by feudalism and by the evolution of the ecclesiastical jurisdiction. We shall be better able to explore this gulf when, having spoken of lands, we turn to speak of chattels; but even at the outset we shall do well to observe, that if in the thirteenth century the chasm is already as wide as it will ever be, its depth has yet to be increased by the operation of legal theory. The facts to which the lawyers of a later day will point when they use the word “hereditaments” and when they contrast “real” with “personal property” are already in existence, though some of them are new; but these terms are not yet in use. Still more important is it to observe that Glanvill and Bracton—at the suggestion, it may be, of foreign jurisprudence— can pass from movables to immovables and then back to movables with an ease which their successors may envy.2 Bracton discourses at length about the ownership of things (rerum), and though now and again he has to distinguish between res mobiles and res immobiles, and though when he speaks of a res without any qualifying adjective, he is thinking chiefly of land, still he finds a great deal to say about things and the ownership of things which is to hold good whatever be the nature of the things in question. The tenant in fee who holds land in demesne, is, like the owner of a chattel, dominus rei; he is proprietarius; he has dominium et proprietatem rei. That the law of England knows no ownership of land, or will concede such Edition: current; Page: [3] ownership only to the king, is a dogma that has never entered the head of Glanvill or of Bracton.

Is land owned?We may well doubt whether had this dogma been set beforeEdition: orig; Page: [3] them, they would have accepted it without demur. It must be admitted that medieval law was not prepared to draw the hard line that we draw between ownership and rulership, between private right and public power; and it were needless to say that the facts and rules which the theorists of a later day have endeavoured to explain by a denial of the existence of landownership, were more patent and more important in the days of Glanvill and Bracton than they were at any subsequent time. But those facts and rules did not cry aloud for a doctrine which would divorce the tenancy of land from the ownership of chattels, or raise an insuperable barrier between the English and the Roman ius quod ad res pertinet. This cry will only be audible by those who sharply distinguish between the governmental powers of a sovereign state on the one hand, and the proprietary rights of a supreme landlord on the other: by those who, to take a particular example, perceive a vast difference between a tax and a rent, and while in the heaviest land-tax they see no negation or diminution of the tax-payer’s ownership, will deny that a man is an owner if he holds his land at a rent, albeit that rent goes into the royal treasury. In the really feudal centuries it was hard to draw this line; had it always been drawn, feudalism would have been impossible. The lawyers of those centuries when they are placing themselves at the stand-point of private law, when they are debating whether Ralph or Roger is the better entitled to hold Blackacre in demesne, can regard seignorial rights (for example the rights of that Earl Gilbert of whom the successful litigant will hold the debatable tenement) as bearing a political rather than a proprietary character. Such rights have nothing to do with the dispute between the two would-be landowners; like the “eminent domain” of the modern state, they detract nothing from ownership. All land in England must be held of the king of England, otherwise he would not be king of all England. To wish for an ownership of land that shall not be subject to royal rights is to wish for the state of nature.

OwnershipAnd again, any difficulty that there is can be shrouded from Edition: current; Page: [4] view by a favourite device of medieval law. As we shall see hereafter, it is fertile of “incorporeal things.” Any right or group of rights that is of a permanent kind can be thought of as a thing. The lord’s rights can be treated thus; they can be converted into “a seignory” which is a thing, and a thing quite distinct from the land over which it hovers. The tenant in demesne owns the land; his immediateEdition: orig; Page: [4] lord owns a seignory; there may be other lords with other seignories; ultimately there is the king with his seignory; but we have not here many ownerships of one thing, we have many things each with its owner. Thus the seignory, if need be, can be placed in the category that comprises tithes and similar rights. The tithe-owner’s ownership of his incorporeal thing detracts nothing from the landowner’s ownership of his corporeal thing.3

Ownership and feudal theory.By some such arguments as these Bracton might endeavour to defend himself against those severe feudalists of the seventeenth and later centuries, who would blame him for never having stated the most elementary rule of English land law, and for having ascribed proprietas and dominium rei to the tenant in demesne. Perhaps as a matter of terminology and of legal metaphysics the defence would not be very neat or consistent. The one word dominium has to assume so many shades of meaning. The tenant qui tenet terram in dominico, is dominus rei and has dominium rei; but then he has above him one who is his dominus, and for the rights of this lord over him and over his land there is no other name than dominium. When we consider the past history of the feodum, and the manner in which all rights in land have been forced within the limits of a single formula, we shall not be surprised at finding some inelegances and technical faults in the legal theory which sums up the results of this protracted and complex process. But we ought to hesitate long before we condemn Bracton, and those founders of the common law whose spokesman he was, for calling the tenant in demesne an owner and proprietor of an immovable thing.4 Only three courses Edition: current; Page: [5] were open to them: (1) to deny that any land in England is owned:Edition: orig; Page: [5] (2) to ascribe the ownership of the whole country to the king: (3) to hold that an owner is none the less an owner because he and his land owe services to the king or to some other lord. We can hardly doubt that they were right in choosing the third path; the second plunges into obvious falsehood; the first leads to a barren paradox. We must remember that they were smoothing their chosen path for themselves, and that social and economic movements were smoothing it for them. As a matter of fact, the services that the tenant in fee owed for his land were seldom very onerous; often they were nominal; often, as in the case of military service, scutage and suit of court, they fell within what we should regard as the limits of public law. Again, it could hardly be said that the tenant’s rights were conditioned by the performance of these services, for the lord, unless he kept up an efficient court of his own, could not recover possession of the land though the services were in arrear.5 The tenant, again, might use or abuse or waste the land as pleased him best. If the lord entered on the land, unless it were to distrain—and distress was a risky process—he was trespassing on another man’s soil; if he ejected the tenant “without a judgment,” he was guilty of a disseisin.6 As against all third persons it was the tenant in demesne who represented the land; if a stranger trespassed on it or filched part of it away, he wronged the tenant, not the lord. And then the king’s court had been securing to the tenant a wide liberty of alienation—for an owner must be able to alienate what he owns.7 The feudal casualties might indeed press heavily upon the tenant, but they need not be regarded as restrictions on ownership. An infant landowner must be in ward to some one, and to some one who Edition: current; Page: [6] as a matter of course will be entitled to make a profit of the ward-ship;8 but if a boy’s ownership of his land would not be impaired by his being in ward to an uncle, why should it be impaired by his being in ward to his lord? If the tenant commits felony, his lands will escheat to his lord; but his chattels also will be forfeited, and it may well be that this same lord (since he enjoys the franchise known as catalla felonum) will take them. It is very possible that Bracton saw the Roman landowner of the classical age holding his land “of”Edition: orig; Page: [6] the emperor by homage and service; it was common knowledge that the modern Roman emperor was surrounded by feudatories; but at any rate there was no unfathomable chasm between the English tenancy in fee and that dominium of which the Institutes speak. On the whole, so it seems to us, had Bracton refused to speak of the tenant in demesne as the owner of a thing, or refused to treat his rights as essentially similar to the ownership of a movable, he would have been guilty of a pedantry far worse than any that can fairly be laid to his charge, a retrograde pedantry. But, be this as it may, the important fact that we have here to observe is that he and his contemporaries ascribed to the tenant in demesne ownership and nothing less than ownership. Whether he would have ascribed “absolute ownership,” we do not know. Might he not have asked whether in such a context “absolute” is anything better than an un-meaning expletive?9

Tenancy in fee and life tenancy.And now, taking no further notice of the rights of the lord, we may look for a while at those persons who are entitled to enjoy the land. For a while also we will leave out of account those who hold for terms of years and those who hold at the will of another, remembering that into this last class there fall, in the estimation of Edition: current; Page: [7] the king’s court and of the common law, the numerous holders in villeinage. This subtraction made, those who remain are divisible into two classes: some of them are entitled to hold in fee, others are entitled to hold for life. As already said, “to hold in fee” now means to hold heritably. The tenant in fee “has and holds the land to himself and his heirs” or to himself and some limited class of heirs. This last qualification we are obliged to add, because, owing to “the form of the gift” under which he takes his land, the rights of the tenant in fee may be such that they can be inherited only by heirs of a certain class, in particular, only by his descendants, “the heirs ofEdition: orig; Page: [7] his body,” so that no collateral kinsman will be able to inherit that land from him. A donor of land enjoys a wide power of impressing upon the land an abiding destiny which will cause it to descend in this way or in that and to stop descending at a particular point. But this does not at present concern us. We may even for a while speak as though the only “kind of fee” that was known in Bracton’s day—and it was certainly by far the commonest—was the “fee simple absolute” of later law, which, if it were not alienated, would go on descending among the heirs of the original donee, from heir to heir, so long as any heir, whether lineal or collateral, existed; if at any time an heir failed, there would be an escheat.

The tenant in fee.A person who is entitled to hold land in fee and demesne may be spoken of as owner of the land. When in possession of it he has a full right to use and abuse it and to keep others from meddling with it; his possession of it is a “seisin” protected by law. If, though he is entitled to possession, this is being withheld from him, the law will aid him to obtain it; his remedy by self-help may somewhat easily be lost, but he will often have a possessory action, he will always have a proprietary action.

The life tenant.The rights of a person who is entitled to hold land for his life are of course different from those just described. But they are not so different as one, who knew nothing of our land law and something of foreign systems, might expect them to be. The difference is rather of degree than of kind; nay, it is rather in quantity than in quality. Before saying more, we must observe that when there is a tenant for life there is always a tenant in fee of the same land. In the Edition: current; Page: [8] thirteenth century life-tenancies are common. Very often they have come into being thus—one man A, who is tenant in fee, has given land to another man B for his, B’s, life; or he has simply given land “to B” and said nothing about B’s heirs, and it is a well-settled rule that in such a case B will hold only for his life, or in other words, that in order to create or transfer a fee, some “words of inheritance” must be employed.10 Then on B’s death, the land will “go back” or “revert” to A. Very possibly an express clause in the charter of gift will provide for this “reversion”; but this is unnecessary. Despite the gift, A will still be tenant in fee of the land; he will also be B’sEdition: orig; Page: [8] lord; B will hold the land of A; an oath of fealty can be exacted from B, and he and the land in his hand may be bound to render rent or other services to A. These services may be light or heavy; sometimes we may find what we should call a lease for life at a substantial rent; often a provision is being made for a retainer or a kinsman, and then the service will be nominal; but in any case, as between him and his lord, the tenant for life will probably be bound to do the “forinsec service.”11 But more complicated cases than this may arise:—for example, A who is tenant in fee may give the land to B for his life, declaring at the same time that after B’s death the land is to “remain” to C and his heirs. Here B will be tenant for life, and C will be tenant in fee; but B will not hold of C; there will be no tenure between the tenant for life and the “remainderman”; both of them will hold of A. Or again, we may find that two or three successive life-tenancies are created at the same moment: thus—to B for life, and after his death to C for life, and after his death to D and his heirs. But in every case there will be some tenant in fee. Lastly, we may notice that family law gives rise to life-tenancies; we shall find a widower holding for his life the lands of his dead wife, while her heir will be entitled to them in fee; and so the widow will be holding for her life a third part of her husband’s land as her dower, while the fee of it belongs to his heir.

Position of the tenant for life.Now any one who had been looking at Roman law-books must Edition: current; Page: [9] have been under some temptation to regard the tenant for life as an “usufructuary,” and to say that, while the tenant in fee is owner of the land, the tenant for life has a ius in re aliena which is no part of the dominium but a servitude imposed upon it. Bracton once or twice trifled with this temptation;12 but it was resisted, and there can be little doubt that it was counteracted by some ancient and deeply seated ideas against which it could not prevail. Let us notice some of these ideas and the practical fruit that they bear.

Tenant for life and the law of waste.In the first place, it seems probable that in the past a tenant for life has been free to use and abuse the tenement as pleased him best: in other words, that he has not been liable for waste. The orthodox doctrine of later days went so far as to hold that, before the Statute of Marlborough (1267), the ordinary tenant for life—as distinguished from tenant in dower and tenant by the curtesy—might lawfully waste the land unless he was expressly debarred from so doing by his bargain.13 This opinion seems too definite. For some little time before theEdition: orig; Page: [9] statute actions for waste had occasionally been brought against tenants for life.14 Still the action shows strong signs of being new. The alleged wrong is not that of committing waste, but that of committing waste after receipt of a royal prohibition. Breach of such a prohibition seems to have been deemed necessary, if the king’s court was to take cognizance of the matter.15 At any rate, repeated legislation was required to make it clear that the tenant for life must behave quasi bonus pater familias.

Tenant for life and public law.Secondly, for all the purposes of public law, the tenant for life in possession of the land seems to have been treated much as though he were tenant in fee. He was a freeholder, and indeed the free-holder Edition: current; Page: [10] of that land, and as such he was subject to all those public duties that were incumbent upon freeholders.

Seisin of tenant for life.Thirdly, his possession of the land was a legally protected seisin. Not merely was it protected, but it was protected by precisely the same action—the assize of novel disseisin—that sanctioned the seisin of the tenant in fee. His was no iuris quasi possessio; it was a seisin of the land. He was a freeholder of the land:—so plain was this, that in some contexts to say of a man that he has a freehold is as much as to say that he is tenant for life and not tenant in fee.16

Tenants for life in litigation.Fourthly, in litigation the tenant for life represents the land. Suppose, for example, that A is holding the land as tenant for life by some title under which on his death the land will revert or remainEdition: orig; Page: [10] to B in fee. Now if X sets up an adverse title, it is A, not B, whom he must attack. When A is sued, it will be his duty to “pray aid” of B, to get B made a party to the action, and B in his own interest will take upon himself the defence of his rights. Indeed if B hears of the action he can intervene of his own motion.17 But A had it in his power to neglect this duty, to defend the action without aid, to make default or to put himself upon battle or the grand assize, and thus to lose the land by judgment. We cannot here discuss at any length the effect which in the various possible cases such a recovery of the land by X would have upon the rights of B; it must be enough to say that in some of them he had thenceforth no action that would give him the land, while in others he had no action save the petitory and hazardous writ of right:—so completely did the tenant for life represent the land in relation to adverse claimants.18

We see then very clearly that a tenant for life is not thought of as Edition: current; Page: [11] one who has a servitude over another man’s soil; he appears from the first to be in effect what our modern statutes call him, “a limited owner,” or a temporary owner.

The doctrine of estates.We thus come upon a characteristic which, at all events for six centuries and perhaps for many centuries more, will be the most salient trait of our English land law. Proprietary rights in land are, we may say, projected upon the plane of time. The category of quantity, of duration, is applied to them. The life-tenant’s rights are a finite quantity; the fee-tenant’s rights are an infinite, or potentially infinite, quantity; we see a difference in respect of duration, and this is the one fundamental difference. In short, to use a term that we have as yet carefully eschewed, we are coming by a law of “estates in land.” We have as yet, though not without a conscious effort, refrained from using that term, and this because, so far as we can see, it does not belong to the age of Bracton. On the other hand,Edition: orig; Page: [11] so soon as we begin to get Year Books, we find it in use among lawyers.19 As already said,20 it is the Latin word status; an estate for life is, in the language of our records, status ad terminum vitae, an estate in fee simple is status in feodo simplici; but a very curious twist has been given to that word. The process of contortion cannot at this moment be fully explained, since, unless we are mistaken, it is the outcome of a doctrine of possession; but when once it has been accomplished, our lawyers have found a term for which they have long been to seek, a term which will serve to bring the various proprietary rights in land under one category, that of duration. The estate for life is finite, quia nihil certius morte; the estate in fee is infinite, for a man may have an heir until the end of time. The estate for life is smaller than the estate in fee; it is infinitely smaller; so that if the tenant in fee breaks off and gives away a life estate, or twenty life estates, he still has a fee. Thus are established the first elements of that wonderful calculus of estates which, even in our own day, is perhaps the most distinctive feature of English private law.

The estate and the forma doni.In the second half of the thirteenth century this calculus is just Edition: current; Page: [12] beginning to take a definite shape; but in all probability some of the ideas which have suggested it and which it employs are very ancient. One of them is that which attributes to the alienator of land a large power of controlling the destiny of the land that he is alienating. By a declaration of his will expressed at the moment of alienation—in other words, by the forma doni—he can make that land descend in this way or in that, make it “remain,” that is, stay out, for this person or for that, make it “revert” or come back to himself or his heirs upon the happening of this or that event. His alienation, if such we may call it, need not be a simple transfer of the rights that he has enjoyed; it is the creation of new rights, and the office of the law is to say what he may not do, rather than what he may do in this matter; it has to limit his powers, rather than to endow him with them, for almost boundless powers of this kind seem to be implied in its notion of ownership. Not that land has been easily alienable; seignorial and family claims must be satisfiedEdition: orig; Page: [12] before there can be any alienation at all; but when a man is free to give away his land, he is free to do much more than this; he can impose his will on that land as a law that it must obey.21

The power of the gift.In this context we ought to remember that the power to alienate land is one that has descended from above. From all time the king has been the great land-giver. The model gift of land has been a governmental act; and who is to define what may or may not be done by a royal land-book, which, if it is a deed of gift, is also a privilegium sanctioned by all the powers of state and church? The king’s example is a mighty force; his charters are models for all charters. The earl, the baron, the abbot, when he makes a gift of land will consult, or profess that he has consulted, his barons or his men.22 This influence of royal privilegia goes far, so we think, to explain the power of the forma doni. Still it would not be adequate, were we not to think of the hazy atmosphere in which it has operated. The gift of land has shaded off into the loan of land, the loan into the gift; the old land-loan was a temporary gift, the gift was a permanent Edition: current; Page: [13] loan; and if the donee’s heirs were to inherit the land, this was because it had been given not only to him, but also to them.23 This haze we believe to be very old; it is not exhaled by feudalism but is the environment into which feudalism is born. And so in the thirteenth century every sort and kind of alienation (that word being here used in its very largest sense) is a “gift,” and yet it is a gift which always, or nearly always, leaves some rights in the giver.24 In our eyes the transaction may be really a gift, for a religious house is to hold the land for ever and ever, and the only service to be done to the giver is one which he and his will receive in another world; or it may in substance be a sale or an exchange, since the so-called donee has given money or land in return for the so-called gift; or it may be what we should call an onerous lease for life, the donee taking the land at a heavy rent:—but in all these cases there will be a “gift,” and precisely the same two verbs will be used to describeEdition: orig; Page: [13] the transaction; the donor will say “I have given and granted (sciatis me dedisse et concessisse).”25

The form of the gift a law for the land.If then “the form of the gift” can decide whether the donee is to hold in fee or for life, whether he is to be a heavily burdened lessee, or whether we must have recourse to something very like a fiction in order to discover his services, we can easily imagine that the form of the gift can do many other things as well. Why should it not provide that one man after another man shall enjoy the land, and can it not mark out a course of descent that the land must follow? The law, if we may so put it, is challenged to say what the gift cannot do; for the gift can do whatever is not forbidden.

The gift to a man and his heirs.One of the first points about which the law has to make up its mind is as to the meaning of a gift to a man “and his heirs.” The Edition: current; Page: [14] growing power of alienation has here raised a question. Down to the end of the twelfth century the tenant in fee who wished to alienate had very commonly to seek the consent of his apparent or presumptive heirs.26 While this was so, it mattered not very greatly whether this restraint was found in some common-law rule forbidding disherison, or in the form of a gift which seemed to declare that after the donee’s death the land was to be enjoyed by his heir and by none other. But early in the next century this restraint silently disappeared. The tenant in fee could alienate the land away from his heir. This having been decided, it became plain that the words “and his heirs” did not give the heir any rights, did not decree that the heir must have the land. They merely showed that the donee had “an estate” that would endure at least so long as any heir of his was living. If on his death his heir got the land, he got it by inheritance and not as a person appointed to take it by the form of the gift.27

Edition: orig; Page: [14]Duration of a fee.This left open the question whether the donee’s estate was one which might possibly endure even if he had no heir. Of course if the estate was not alienated, then if at any time an heir failed, the land escheated to the lord. But suppose that it is alienated: then will it come to an end on the failure of the heirs of the original donee? We seem to find in Bracton’s text many traces of the opinion that it will. Early in the century it became a common practice to make the gift in fee, not merely to the donee “and his heirs,” but to the donee, “his heirs and assigns.”28 What is more, we learn that if the donee is a bastard, and consequently a person who can never have any heirs save heirs of his body, and the gift is to him “and his heirs” without mention of “assigns,” it is considered that he has an estate which, whether alienated or no, must come to an end so soon as he is dead and has no heir.29 However, this special rule for gifts to bastards Edition: current; Page: [15] looks like a survival; and the general law of Bracton’s time seems to be that the estate in fee created by a gift made to a man “and his heirs” will endure until the person entitled to it for the time being—be he the original donee, be he an alienee—dies and leaves no heir. This was certainly the law at a somewhat later time.30

Limited gifts. Limited gifts.Another matter that required definition was the effect of attempts to limit the descent of the land to a special class of heirs, to the descendants of the original donee, “the heirs of his body.” It isEdition: orig; Page: [15] possible that the process which made beneficia or feoda hereditary had for a while been arrested at a point at which the issue of the beneficed vassal, but no remoter heirs of his, could claim to succeed him; but this belongs rather to French or Frankish than to English history. So far as we can see, from the Conquest onwards, collateral heirs, remote kinsmen, can claim the ordinary feodum, if no descendants be forthcoming. But a peculiar rule arose concerning the marriage portions of women.

The maritagium.It is necessary here to make a slight digression. Our English law in its canons of inheritance postponed the daughter to the son; it allowed her no part of her dead father’s land if at his death he left a son or the issue of a dead son. In such a case the less rigorous Norman law gave her a claim against her brothers; she could demand a reasonable marriage portion, if her father had not given her one in his lifetime.31 Even in England her father was entitled to give her one, and this at a time when as a general rule he could Edition: current; Page: [16] not alienate his fee without the consent of his expectant heirs, who in the common case would be his sons. Whether the Norman rule that he could give but one-third of his land away in maritagia ever prevailed in this country, we do not know. But we must further observe that in this case he might make a free, an unrequited gift. Of course a free gift was far more objectionable than a gift which obliged the donee to an adequate return in the shape of services; for in the latter case the donor’s heir, though he would not inherit the land in demesne, might inherit an equivalent for it. To this state of things it apparently is that the term “frank-marriage” (liberum maritagium) takes us back. A father may provide his daughter, not merely with a maritagium, but with a liberum maritagium:—his sons cannot object to this. If land is given in frank-marriage it will be free from all service; as between donor and donee it will even be free from the forinsec service until it has been thrice inherited by the heirs of the body of the donee.32 When that degree has beenEdition: orig; Page: [16] passed, the tenant will be bound to do homage to the donor’s heir and perform the forinsec service. Probably under twelfth century law the estate of the donee was deemed inalienable, at all events until this degree had been passed. The maritagium was a provision for a daughter—or perhaps some other near kinswoman—and her issue. On failure of her issue, the land was to go back to the donor or his heirs.33

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Gifts to a man and the heirs of his body.Meanwhile about the year 1200 gifts expressly limited to the donee “and the heirs of his body” and gifts made to a husband and wife “and the heirs of their bodies” begin to grow frequent.34 Before the end of Henry III.’s reign they are common. An examination of numerous fines levied during the first years of Edward I. and the last of his father brings us to the conclusion that every tenth fine or thereabouts contained a limitation of this character. The commonest form of such gifts seems to have been that which designated as itsEdition: orig; Page: [17] objects a husband and wife and the heirs springing from their marriage; but a gift to a man and the heirs of his body, or to a woman and the heirs of her body, was by no means unusual. On the other hand, a form which excludes female descendants, any such form as created the “estate in tail male” of later days, was, if we are not mistaken, rare.35 These expressly limited gifts begin to be fashionable just at the time when the man who holds “to himself and his heirs” is gaining a full liberty of alienation both as against his lord and as against his apparent or presumptive heirs. No doubt the two phenomena are connected. It has become evident that if a provision is to be made for the children of a marriage, or if the donor is to get back his land in case there be no near kinsman of the donee to claim the bounty, these matters must be expressly provided for.

The conditional fee.Now before the end of Henry III.’s reign the judges seem to have adopted a very curious method of interpreting these gifts. They Edition: current; Page: [18] held that they were “conditional gifts.” We may take as an example the simplest, the gift “to X and the heirs of his body.” They held that so soon as X had a child, he had fulfilled a condition imposed upon him by the donor, could alienate the land, could give to the alienee an estate which would hold good against any claim on the part of his (X’s) issue, and an estate which would endure even though such issue became extinct. Even before the birth of a child, X could give to an alienee an estate which would endure so long as X or any descendant of X was living. On the other hand, they stopped short of holding that, so soon as a child was born, X was just in the position of one holding “to himself and his heirs”; for if he afterwards died without leaving issue and without having alienated the land, his heir (who of course would not be an “heir of his body”) had no right in the land, and it reverted to the donor.36

Edition: orig; Page: [18]History of the conditional fee.How the lawyers arrived at this odd result we do not know; but a guess may be allowable. When men were making their first attempts to devise these restricted gifts, they seem to have not unfrequently adopted a form of words which might reasonably be construed as the creation of a “conditional fee.” In the first years of the century a gift “to X and his heirs if he shall have an heir of his body” seems to have been almost as common as the gift “to X and the heirs of his body.”37 At first little difference would be seen between these two forms. In either case the donor, with no precedents before him, might well suppose that he had shown an intention that the land should descend to the issue, if any, of X, but to no other heirs. But without doing much violence to the former of these clauses (“to X and his heirs if he shall have an heir of his body”) we can make it mean “to X and his heirs” upon condition that he shall have a child Edition: current; Page: [19] born to him. If then X has a child, the condition is fulfilled for good and all; X is holding the land simply to himself and his heirs.38 A mode of interpretation established for the one form of gift may then have extended itself to the other, namely, “to X and the heirs of his body”: intermediate and ambiguous forms were possible.39

The leaning in favour of alienability.But explain the matter how we will, we cannot explain it sufficiently unless we attribute to the king’s court a strong bias in favour of free alienation. Bracton apparently would have held that if the gift is “to X and the heirs of his body,” the rights, if rights they can be called, of his issue are utterly at his mercy. An heir is one who claims by descent what has been left undisposed of by his ancestor;Edition: orig; Page: [19] what his ancestor has alienated he cannot claim. Others may think differently, may hold that the issue are enfeoffed along with their ancestor; but this, says Bracton, is false doctrine.40 Whether he would have taken the further step of holding that X, so soon as he has a child, can make an alienation which, even when his issue have failed, will defeat the claim of the donor—that is, to say the least, very doubtful.41 But that step also was taken at the latest in the early years of Edward I.42 Gifts in “marriage” and gifts to the donee and the heirs of his body were to be treated as creating “conditional fees.”

Statutory protection of conditional gifts.But this doctrine was not popular; it ran counter to the intentions of settlors; “it seemed very hard to the givers that their expressed Edition: current; Page: [20] will should not be observed.” Already in 1258 there was an outcry.43 In 1285 the first chapter of the Second Statute of Westminster, the famous De donis conditionalibus, laid down a new rule.44 The “conditional fee” of former times became known as a fee tail (Lat. feodum talliatum, Fr. fee taillé), a fee that has been carved or cut down, and about the same time the term fee simple was adopted to describe the estate which a man has who holds “to him and his heirs.” But the effect of this celebrated law cannot be discussed here.45

Edition: orig; Page: [20]Settlements in the thirteenth century.These are the three principal elements which the settlors of the thirteenth century have in their hands. To give them their modern names they are (1) the fee simple absolute, given to a person and his heirs, (2) the fee simple conditional, given to a person and the heirs, or some class of the heirs, of his body, and (3) the estate for life. Already there are settlors. As the old restraints which tended to keep land in a family dropped off, men became more and more desirous of imposing their will upon land and making family settlements. Such settlements seem to have been made for the more part by fines levied in the king’s court or by a process of feoffment and refeoffment. How much could be done by these means may Edition: current; Page: [21] for a long time have been doubtful, but we can see that a good deal could be done.

Joint tenancies.Something could be done by the creation of co-ownership or cotenancy. About this there is not much to be said, except that the form known in later days as “joint tenancy” seems decidedly older than that known as “tenancy in common.” If land is given to two men and their heirs, there is a ius accrescendi between them: when one dies, the survivor takes the whole. The conditional fee given to the husband and wife and the heirs of their marriage is not uncommon. Also we may sometimes find land settled upon a father, a mother, a son, and the heirs of the son. The object thereby gained seems to have been that of defeating the lord’s claim to the wardship of an infant heir or to a relief from an heir of full age.46 Already conveyancers had hopes of circumventing the lord; already the legislator had set himself to defeat their schemes.47 But we must pass to more ambitious enterprises, devices for making one estate follow upon another.

Edition: orig; Page: [21]Reversion and remainder.Two technical terms are becoming prominent, namely, “revert” and “remain.” For a long time past the word reverti, alternating with redire, has been in use both in England and on the mainland to describe what will happen when a lease of land expires:—the land will “come back” to the lessor. We find this phrase in those “three life leases” which Bishop Oswald of Worcester granted in King Edgar’s day.48 We find it also in a constitution issued by Justinian, which is the probable origin of those “three life leases” that were granted by the Anglo-Saxon churches.49 But occasionally in yet remote times men would endeavour to provide that when one person’s enjoyment of the land had come to an end, the land should Edition: current; Page: [22] not “come back” to the donor or lessor, but should “remain,” that is, stay out for, some third person.50 The verb remanere was a natural contrast to the verb reverti or redire;51 the land is to stay out instead of coming back. Both terms were in common use in the England of the thirteenth century, and though we may occasionally see the one where we should expect the other,52 they are in general used with precision. Land can only “revert” to the donor or to those who represent him as his heirs or assigns: if after the expiration of one estate the land is not to come back to the donor, but is to stay out for the benefit of another, then it “remains” to that other. Gradually the terms “reversion” and “remainder,” which appear already in Edward I.’s day,53 are coined and become technical; at a yet later date we have “reversioner” and “remainderman.”54

Remainders after life estates.When creating a life estate, it was usual for the donor to say expressly that on the tenant’s death the land was to revert. But there was no need to say this: if nothing was said the land went back to the donor who had all along been its lord. But the donor when making the gift was free to say that on the death of the life tenant the land should remain to some third person for life or in fee. As a matter of fact this does not seem to have been very common; Edition: current; Page: [23] but in all probability the law would have permitted the creation of any number of successive life estates, each of course being given to some person living at the time of the gift.55

Reversion and escheat.If an estate in “fee conditional” came to an end, then the land would go back to the donor. We have seen that the king’s court did something towards making this an uncommon event, for the tenant so soon as issue of the prescribed class had been born to him, might if he pleased defeat the donor’s claim by an alienation. Still even when this rule had been established, such an estate would sometimes expire and then the land would return to the donor; it would “revert” or “escheat” to the donor and lord. Now in later days when the great statutes of Edward I. had stopped subinfeudation and defined the nature of an estate tail, no blunder could have been worse than that of confusing a reversion with an escheat. These two terms had undergone specification:—land “escheated” to the lord propter defectum tenentis when a tenant in fee simple died without heirs, and the lord in this case could hardly ever be the donor from whom that tenant acquired his estate;56 while, on the other hand, on the death of a tenant for life, or the death without issue of a tenant in tail, land “reverted” to the donor who had created that tenant’s estate. But at an earlier time there was not this striking contrast. In the common case, so long as subinfeudation was permissible, the tenant in “fee simple absolute” just like the tenant in “fee conditional” held of his donor. If the heirs of the one or the heirs of the body of the other fail, the land goes back to one whoEdition: orig; Page: [23] is both lord and giver. The two cases have very much in common, and the words “revert” and “escheat” are sometimes indiscriminately used to cover both.57

Edition: current; Page: [24]

According to the orthodoxy of a later age what the donor has when he has created a conditional fee is not a reversion but a “possibility of reverter.” Whether the lawyers of 1285 had come in sight of this subtle distinction we may doubt, without hinting for a moment that it is not now-a-days well established. As a matter of fact the land reverts to the donor. So early as 1220 it is possible for the donor to get a writ which will bring the land back to him,58 and before the end of Henry’s reign a writ for this purpose seems to have taken its place among the writs of course.59 But it is further said that after the conditional fee there could be no remainder. To this, without the slightest wish to disturb the well settled law of later days,60 we cannot unreservedly assent. In the first place, such a remainder had come before the court as early as 1220 and to allEdition: orig; Page: [24] appearance had not shocked it.61 In the second place, Bracton distinctly says that land can be given to A and the heirs of his body, and on failure of such heirs to B and the heirs of his body, and on failure of such heirs to C and the heirs of his body.62 In the third place, during the first years of Edward and the last of Henry such gifts were common. So far as we can see, about one out of every two fines that create a conditional fee will in plain language create a remainder after Edition: current; Page: [25] that estate. To judge by these fines, of which many hundreds are preserved, a remainder on a conditional fee was commoner than a remainder on a life estate. In the fourth place, directly the Year Books begin—and they begin about seven years after the statute De donis—the lawyers are treating a remainder after a conditional fee or estate tail as a very natural thing.63 Fifthly, though that statute did not by any express words take notice of the remainderman or do anything for him, we find that while Edward was still alive the remainderman was enjoying that full protection which the statute had conferred on the reversioner.64 Lastly, Bracton distinctly says that the remainderman has an action to obtain the land when the previous estate has expired. This action, he says, cannot be an assize of mort d’ancestor, nor can it be a writ of right, for the remainderman claims nothing by way of inheritance; but ut res magis valeat quam pereat the remainderman will have an “exception” if he is in possession, while if he is out of possession he will have a writ founded on the “form of the gift.”65

Their validity questionable.However, it must be confessed that though Bracton says that he is going to give us the words of this writ,66 he does not fulfil this promise, also that we have looked through a good many plea rolls without finding any instance of such a writ being brought into court before the statute of 1285. On the whole we must leave it a doubtful question whether before that statute the remaindermanEdition: orig; Page: [25] had any writ adapted to his case. But the want of an appropriate writ is one thing, the want of right another. Such certainly was the case in the thirteenth century. New writs could be made when they were wanted; lawyers were not yet compelled to argue always from writ to right, never from right to writ. For some forty years past such remainders as we have in view had been frequently created Edition: current; Page: [26] by instruments drawn up by officers of the court. Bracton had expressed his approval of them, had said that defences (“exceptions”) could be founded upon them, had said that an action could be given for their protection. Whether that action was first given a few years after or a few years before the statute is a small question; the action was not given by the statute, but was the outcome of pure common law doctrine and the practice of conveyancers. It is quite as difficult to prove that the remainderman whose estate was preceded by an estate for life had any action, as to prove that there was a writ for the remainderman whose estate was preceded by a conditional fee; yet no one doubts that the common law of the thirteenth century allowed the creation of a remainder after a life estate.67

Gifts upon condition.But—to leave this disputable point—the creation of remainders is only one illustration of the power of the forma doni. The gage of land, the transaction which makes land a security for money lent, was being brought under the rubric “Conditional Gifts” or “Gifts upon Condition.” A creditor might be given a term of years in the land, which upon the happening of a specified event, to wit, the non-payment of the debt at a certain date, would swell into a fee.68 Again, it was becoming a common practice for a feoffor or a lessor to stipulate that if the services due to him were in arrear for a certain time, he might reenter on the land and hold it as of old:—he made his gift subject to the express condition that rent should be duly paid. Again, the liberty of disposition which the king’s courts had conceded to landholders was so large that it sometimes gave rise to new forms of restraint. As the common law about alienation became definite, feoffors sought to place themselves outside of it by express bargains. Sometimes the stipulation is that the lord shall have a right of preemption,69 sometimes that the land shall not be conveyed to men of religion,70 sometimes that it shall not beEdition: orig; Page: [26] conveyed at all. A man who took land from the Abbot of Gloucester had, as a matter of common form, to swear that he would neither Edition: current; Page: [27] sell, nor exchange, nor mortgage the land, nor transfer it to any religious house without the consent of the monks.71 Bracton regarded such conventions as binding on the land: a purchaser can be evicted on the ground that he has purchased land which the vendor had covenanted not to sell.72 The danger of the time was not that too little, but that too much, respect would be paid to the expressed wills of feoffors and feoffees, so that the newly acquired power of free alienation would involve a power of making land absolutely inalienable.

The form of the gift and testamentary power.On the other hand, the form of the gift, if it could restrain alienation, might give to the donee powers of alienation that he would not otherwise have enjoyed. We have already noticed that the introduction of the word “assigns” had at one time been of importance. But just about the middle of the century we find for a short while a more ambitious clause in charters of feoffment. It strives to give the feoffee that testamentary power which the common law denies him. The gift is made not merely to him, his heirs and assigns, but to him, his heirs, assigns and legatees.73 Whether any writ was ever penned which would enable the legatee—or as we should now call him “devisee”—to recover the land from the heir, we may doubt. Bracton’s opinion as to the validity of such clauses seems to have fluctuated. At one time he thought them good and was prepared to draw up the writ which would have sanctioned them. At another he thought them ineffectual, and we may guess that this was hisEdition: orig; Page: [27] final doctrine.74 However, just in his time a famous case occurred Edition: current; Page: [28] in which an enormous tract of land was effectually devised. In 1241 Henry III. gave the honour of Richmond to Peter of Savoy “to hold to him and his heirs or to whomsoever among his brothers or cousins he should give, assign, or bequeath it.” In 1262 the king amplified this power of bequest; he declared by charter that Peter might bequeath the honour to whomsoever he would. A few years afterwards Peter died and the honour passed under his will to Queen Eleanor.75 It is possible that the discussion of this famous case convinced the king and the great feudatories that they would lose many wardships and marriages if land became devisable per formam doni. At any rate, so far as we have observed, it is just about the moment when the honour of Richmond actually passed under a will, that the attempt to create a testamentary power was abandoned.76 But that men were within an ace of obtaining such a power in the middle of the thirteenth century is memorable; it will help to explain those devisable “uses” which appear in the next century.

Influence of the forma doni.We have dwelt for some while on the potency of the forma doni. To our minds it is a mistake to suppose that our common law starts with rigid, narrow rules about this matter, knows only a few precisely defined forms of gift and rejects everything that deviates by a hair’s-breadth from the established models. On the contrary, in the thirteenth century it is elastic and liberal, loose and vague. It has a deep reverence for the expressed wish of the giver, and is fully prepared to accept any new writs which will carry that wish into effect. From Henry III.’s day onwards, for a long time to come, its main duty in this province will be that of establishing some certain barriers against which the forma doni will beat in vain.77

Edition: orig; Page: [28]We have now taken a brief survey of those “estates,” those modes of ownership, which were known to the law. Much yet remains to Edition: current; Page: [29] be said, but we can make no further progress without introducing a new idea, that of “seisin.” In order to understand our English ownership, we must understand our English possession.

Additional Note

The conditional fee

We will here state shortly the results obtained by a search among the unprinted plea rolls for writs of formedon. (1) Writs of formedon in the reverter after a conditional fee are quite common a few years before the statute. We have seen five in one eyre of 9 Edw. I. Late in Henry’s reign such writs appear rarely and still speak of the land as “escheating” for want of heirs of the prescribed class. (2) We have seen no writ of formedon in the descender before the statute. It has been a matter of controversy whether such a writ existed. See Challis, Real Property, ed. 2, p. 74. It is, we think, fairly certain that the issue in tail (it is convenient to give him this name, even if we are guilty of an anachronism) could use the mort d’ancestor if he was also heir general and if his ancestor died seised. It is also clear from Bracton, f. 277 b, 278, that as early as 1227 Pateshull had given the issue in tail an “exception” against a mort d’ancestor brought by the heir general. In the case stated at the end of the present note we see the issue in tail, who is not heir general, recovering in a mort d’ancestor against the heir general; but whether he could have done this if the heir general wisely abstained from special pleading seems to us very doubtful. We have seen no direct proof that the issue in tail had any other writ than the mort d’ancestor. (3) As said above, we have seen no instance of formedon in the remainder where the remainder follows a conditional fee. (4) We have seen no instance of formedon in the remainder where the remainder follows a life estate, earlier than the clear case in Y. B. 33-35 Edw. I. p. 21. The position of any and every remainderman if he has not yet been seised, is for a long time precarious, because the oldest actions, in particular, the writ of right and the mort d’ancestor, are competent only to one who can allege a seisin in himself or in some ancestor Edition: current; Page: [30] from whom he claims by hereditary right. Lastly, we must confess that we have but glided over the surface of a few of the many plea rolls. All our conclusions therefore are at the mercy of any one who will read the records thoroughly.

About one small point we are able to quote a case which runs counter to the received doctrine as to what was law before the statute De donis. If land was given to husband and wife “and the heirs of their bodies,” and after her husband’s death the wife married again, the issue of the second marriage could not inherit, nor could the second husband have an estate by the curtesy, although the “condition” had been fulfilled by the birth of issue of the first marriage.Edition: orig; Page: [29] Such is the law that is laid down very positively in 7 Edw. I. (Assize Rolls, No. 1066, m. 20). We have this pedigree:—


Ingeram enfeoffed Robert and Alice and the heirs of their bodies. In an assize of mort d’ancestor brought by Mabel, Joan and William fitz Nicholas against William Malecake, to which Alan was also made a party, it is adjudged that Alan cannot inherit, nor can William Malecake have curtesy. When the statute speaks of the curtesy of the second husband, it probably has in view a gift to the wife and the heirs of her body begotten by her first husband, but it speaks largely, and was soon supposed to have had that wider meaning which is attributed to it now-a-days.

§ 2.: Seisin

In the history of our law there is no idea more cardinal than that of seisin. Even in the law of the present day it plays a part which must be studied by every lawyer; but in the past it was so important that Edition: current; Page: [31] we may almost say that the whole system of our land law was law about seisin and its consequences.78

Seisin and possession.Seisin is possession. A few, but only a few words about etymology may be ventured. The inference has been too hastily drawn that this word speaks to us of a time of violence, when he who seized land was seised of it, when seizing land was the normal mode of acquiring possession. Now doubtless there is an etymological connexion between “seizing” and being “seised,” but the nature of that connexion is not very certain. If on the one hand “seisin” is connected with “to seize,” on the other hand it is connected with “to sit” and “to set”:—the man who is seised is the man who is sitting on land; when he was put in seisin he was set there and made toEdition: orig; Page: [30] sit there. Thus seisin seems to have the same root as the German Besitz and the Latin possessio. To our medieval lawyers the word seisina suggested the very opposite of violence; it suggested peace and quiet. It did so to Coke. “And so it was said as possessio is derived a pos et sedeo, because he who is in possession may sit down in rest and quiet; so seisina also is derived a sedendo, for till he hath seisin all is labor et dolor et vexatio spiritus; but when he has obtained seisin, he may sedere et acquiescere.79

Sitting on land.The would-be Latin words seisina, seisire, came in with the Conqueror; but in all probability they did but translate cognate English Edition: current; Page: [32] terms. When in a famous passage the Saxon Chronicle tells us that “ealle tha landsittende men” swore fealty to William,80 it tells what was done by all who were seised of land. “To sit upon land” had been a common phrase, meaning to possess land; in the cartularies we read of landseti, cotseti, ferlingseti, undersetles, as of various classes of tenants. To this day we call the person who takes possession of land without having title to it a “mere squatter”; we speak of “the sitting tenant,” and such a phrase as “a country seat” puts us at the right point of view. The seated man is in quiet enjoyment. We reverence the throne, the bishop’s see, “the Right Reverend Bench,” the bench of judges, we obey the orders of the chair; the powers that be are seated.

Technicalities of seisin.Now in course of time seisin becomes a highly technical word; but we must not think of it having been so always. Few, if any, of the terms in our legal vocabulary have always been technical terms. The licence that the man of science can allow himself of coiningEdition: orig; Page: [31] new words is one which by the nature of the case is denied to lawyers. They have to take their terms out of the popular speech; gradually the words so taken are defined; sometimes a word continues to have both a technical meaning for lawyers and a different and vaguer meaning for laymen; sometimes the word that lawyers have adopted is abandoned by the laity. Such for a long time past has been the fate of seisin.

Seisin and remedies.The process by which words are specified, by which their technical meaning is determined, is to a first glance a curious, illogical process. Legal reasoning seems circular:—for example, it is argued in one case that a man has an action of trespass because he has possession, in the next case that he has possession because he has an action of trespass; and so we seem to be running round from right to remedy and then from remedy to right. All the while, however, our law of possession and trespass is being more perfectly defined. Its course is not circular but spiral; it never comes back to quite the same point as that from which it started. This play of reasoning between right and remedy fixes the use of words. A remedy, called an Edition: current; Page: [33] assize, is given to any one who is disseised of his free tenement:— in a few years lawyers will be arguing that X has been “disseised of his free tenement,” because it is an established point that a person in his position can bring an assize. The word seisin becomes specified by its relation to certain particular remedies.

Possession.What those remedies were it will be our duty to consider. But first we may satisfy ourselves that, to begin with, seisin simply meant possession. Of this we may be convinced by two observations. In the first place, it would seem that for at least three centuries after the Norman Conquest our lawyers had no other word whereby to describe possession. In their theoretical discussions, they, or such of them as looked to the Roman books as models of jurisprudence, could use the words possessio and possidere; but these words are rarely employed in the formal records of litigation, save in one particular context. The parson of a church is “in possession” of the church:—but then this is no matter for our English law or our temporal courts; it is matter for the canon law and the courts Christian; and it is all the more expedient to find some other term than “seised” for the parson, since it may be necessary to contrast the rights of the parson who is possessed of the church with thoseEdition: orig; Page: [32] of the patron who is seised of the advowson.81

Seisin of chattels.In the second place, this word “seisin” was used of all manner of things and all manner of permanent rights that could be regarded as things. At a later date to speak of a person as being seised, or in seisin of, a chattel would have been a gross solecism. But throughout the thirteenth century and in the most technical documents men are seised of chattels and in seisin of them, of a fleece of wool, of a gammon of bacon, of a penny. People were possessed of these things; law had to recognize and protect their possession; it had no other word than “seisin” and therefore used it freely.82 It may well be, as some think, that the ideas of seisin and possession are first Edition: current; Page: [34] developed in relation to land; one sits, settles, squats on land, and in early ages, preeminently during the feudal time, the seisin of chattels was commonly interwoven with the seisin of land. Flocks and herds were the valuable chattels; “chattel” and “cattle” are the same word; and normally cattle are possessed by him who possesses the land on which they are levant and couchant. Still when the possession of chattels was severed from the possession of land, when the oxen were stolen or were sold to a chapman, there was no word to describe the possession of this new possessor, this thief or purchaser, save seisin.83 Sometimes we meet with the phrase “vested and seised,” which was common in France; this however seems to mean no more than “seised,” and though we may now and then read of “investiture,” chiefly in relation to ecclesiastical offices, this does not become one of the technical terms of the common law.84

Edition: orig; Page: [33]Contrast between seisin and proprietary rights.When we say that seisin is possession, we use the latter term in the sense in which lawyers use it, a sense in which possession is quite distinct from, and may be sharply opposed to, proprietary right. In common talk we constantly speak as though possession were much the same as ownership. When a man says “I possess a watch,” he generally means “I own a watch.” Suppose that he has left his watch with a watchmaker for repair, and is asked whether he still possesses a watch, whether the watch is not in the watchmaker’s possession, and if so whether both he and the watchmaker have possession of the same watch at the same time, he is perhaps a little puzzled and resents our questions as lawyers’ impertinences. Even if the watch has been stolen, he is not very willing to admit that he no longer possesses a watch. This is instructive:—in our Edition: current; Page: [35] non-professional moments possession seems much nearer to our lips than ownership. Often however we slur over the gulf by means of the conveniently ambiguous verbs “have” and “have got”—I have a watch, the watchmaker has it—I have a watch, but some one else has got it. But so soon as there is any law worthy of the name, right and possession must emerge and be contrasted:—so soon as any one has said “You have got what belongs to me,” the germs of these two notions have appeared and can be opposed to each other. Bracton is never tired of emphasizing the contrast. In so doing he constantly makes use of the Roman terms, possessio on the one hand, proprietas or dominium on the other. These are not the technical terms of English law; but it has terms which answer a like purpose, seisina on the one hand, ius on the other. The person who has right may not be seised, the person who is seised may not be seised of right.85

Seisin and enjoyment.The idea of seisin seems to be closely connected in our ancestors’ minds with the idea of enjoyment. A man is in seisin of land when he is enjoying it or in a position to enjoy it; he is seised of an advowson (for of “incorporeal things” there may be seisin) when he presents a parson who is admitted to the church; he is seised ofEdition: orig; Page: [34] freedom from toll when he successfully resists a demand for payment. This connexion is brought out by the interesting word esplees (expleta). In a proprietary action for land the demandant will assert that he, or some ancestor of his, was “seised of the land in his demesne as of fee and of right, by taking thence esplees to the value of five shillings, as in corn and other issues of the land.” The man who takes and enjoys the fruits of the earth thereby “exploits” his seisin, that is to say, he makes his seisin “explicit,” visible to the eyes of his neighbours.86 In order that a seisin may have all its legal effects it Edition: current; Page: [36] must be thus exploited. Still a man must have seisin before he can exploit it, and therefore in a possessory action it is unnecessary for the plaintiff to allege this taking of esplees. The moment at which he acquires his seisin may not be the right moment for mowing hay or reaping corn. Seisin of land therefore is not the enjoyment of the fruits of the earth; it is rather that state of things which in due time will render such an enjoyment possible.87

Who is seised?Law must define this vague idea, and it cannot find the whole essence of possession in visible facts. It is so now-a-days.88 We see a man in the street carrying an umbrella; we cannot at once tell whether or no he possesses it. Is he its owner, is he a thief, is he a borrower, a hirer, is he the owner’s servant? If he is the owner, he possesses it; if he is a thief, he possesses it. If he is the owner’s servant, we shall probably deny his possession. If he is a borrower, we may have our doubts; the language of every-day life may hesitate about the matter; law must make up its mind. Before we attribute possession to a man, we must apparently know something about the intentions that he has in regard to the thing, or rather about the intentions that he must be supposed to have when the manner in which he came by the thing has been taken into consideration. Probably the better way of stating the matter is not to speak of his real intentions, which are often beside the mark, nor of the intentions that he must be supposed to have, which are fictions, but toEdition: orig; Page: [35] say at once that we require to know how he came by the thing.89 This being known, problems await us. If the carrier of the umbrella is its owner, he possesses it; if he is a thief making off with a stolen chattel, he possesses it; if he has by mistake taken what he believes to be his own, he probably possesses it; if he has borrowed it or hired it, the case is not so plain; law must decide—and various systems of law will decide differently—whether possession shall be attributed to the borrower or to the lender, to the letter or the hirer.

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Seisin and medieval land law.When deciding to whom it would attribute a seisin, our medieval law had to contemplate a complex mass of facts and rights. In the first place, the actual occupant of the soil, who was cultivating it and taking its fruits, might be so doing in exercise, or professed exercise, of any one of many different rights. He might be there as tenant at will, tenant for term of years, tenant in villeinage, tenant for life, tenant in dower, tenant by the curtesy, tenant in fee simple, guardian of an infant, and so forth. But further, at the same moment many persons might have and be actually enjoying rights of a proprietary kind in the same plot of ground. Giles would be holding in villeinage of Ralph, who held in free socage of the abbot, who held in frankalmoin of the earl, who held by knight’s service of the king. There would be the case of the reversioner to be considered and the case of the remainderman.

Case of tenant in villeinage.In the thirteenth century certain lines have been firmly drawn. The royal remedies for the protection of seisin given by Henry II. were given only to those who were seised “of a free tenement:” the novel disseisin lies when a man has been disseised de libero tenemento suo. Doubtless these words were intended to exclude those who held in villeinage. This is well brought out by a change in the language of Magna Carta. The original charter of 1215 by its most famous clause declares that no freeman is to be disseised, unless it be by the lawful judgment of his peers or the law of the land. The charter of 1217 inserts the words “de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis.”90 It is not intended, it would not be suffered, that a man holding in villeinage, evenEdition: orig; Page: [36] though personally liber homo, should have a possession protected by the king’s court. Such a tenant is not seised of free tenement, and, as royal justice is now beginning to supplant all other justice, it is said that he has no seisin recognized by the common law. The lord of whom he holds is the person protected by the common law, and is seised de libero tenemento; if you eject the villein tenant, you disseise the lord. But within the sphere of manorial justice this tenant is seised—seisin has been delivered to him by the rod according Edition: current; Page: [38] to the custom of the manor—and when he pleads in the manorial court he will say that he is seised according to the custom of the manor. Here then already we have a dual seisin:—the lord seised quoad the king’s courts and the common law, the tenant seised quoad the lord’s court and the manorial custom.

Case of the termor.In the past the tenant for term of years, though he was in occupation of the soil, had not been considered to be seised of it. In the days of Henry II. when the great possessory remedy, the assize of novel disseisin, was being invented, tenancies for terms of years seem to have been novelties, and the lawyers were endeavouring to treat the “termor”—this is a conveniently brief name for the tenant for term of years—as one who had no right in the land, but merely the benefit of a contract. His lessor was seised; eject the lessee, and you disseise the lessor. Already in Bracton’s day, however, this doctrine was losing its foundation; the termor was acquiring a remedy against ejectors. But this remedy was a new action and one which in no wise affected the old assize of novel disseisin. For a while men had to content themselves with ascribing a seisin of a certain sort to both the termor and his lessor.91 Eject the termor, you lay yourself open to two actions, a Quare eiecit infra terminum brought by him, an assize of novel disseisin brought by his lessor. The lessor still has the assize; despite the termor’s occupation, he is seised, and seised in demesne, of the land; and he is seised, while the termor is not seised, “of a free tenement”—this is proved by his having the assize. Thus the term “free tenement” is getting a new edge; the termor has no free tenement, no freehold, no seisin of the freehold. At a later date lawyers will meet this difficulty by the introductionEdition: orig; Page: [37] of “possession” as a new technical term; they will deny “seisin” of any sort or kind to the termor, and, on the other hand, will allow him possession. But of tenancies for years we shall have more to say hereafter.

Case of the guardian.An infant’s guardian, though the wardship was a profitable, vendible right, was not seised of the infant’s land; his occupation of the land was the infant’s seisin.92 It is true that about this matter Edition: current; Page: [39] language might hesitate and fluctuate.93 It is, for example, common enough to speak of the lord and guardian putting the ward into seisin of the land when he has attained his majority; but for the main purposes of the law the guardian’s own right, the custodia, is converted into an incorporeal thing, an incorporeal chattel, of which there may be a seisin or possession, and for the protection of such a seisin there is a special possessory action. If a person who is in occupation of the land as guardian is ejected from the land, and wishes to make good his own rights, he will complain, not of having been disseised of the land, but of having been ejected from the wardship.94

Case of tenant for life.As to the tenant for life—including under that term tenant in dower and tenant by the curtesy—our law seems never to have had any doubt. The tenant for life, if he is in occupation of the land by himself, his servants, his villein tenants or his termors, is seised, seised of the land, seised in demesne, seised of a free tenement. If ejected, he will bring exactly the same possessory action that he would have brought had he been a tenant in fee.

Case of the lord.Then we must consider the ascending series of lords and tenants. Let us suppose that Ralph holds in fee and in free socage of the earl, who holds in fee by knight’s service of the king. If all is as it should be, then both Ralph and the earl may be said to be seisedEdition: orig; Page: [38] of the land. Ralph, who is occupying the land by himself, his servants, his villein tenants or his termors, is seised in demesne. The earl, to whom Ralph is paying rent, also is seised; he is seised of the land, not in demesne but in service.95 We have here to remember that if the feudal idea of seignorial justice had been permitted Edition: current; Page: [40] to develop itself freely, this ascending series of seisins would have had as its counterpart an ascending series of courts. The king’s court would have known of no seisin save that of the earl, the tenant in chief. The seisin of Ralph, the earl’s immediate tenant, would have found protection—at least in the first instance—only in the earl’s court; and so downwards, each seisin being protected by a different court. The seisin of the tenant in villeinage protected only in the manorial court is an illustration of this principle.96 But then Henry II. had restrained and crippled this principle; he had given a remedy in his own court to every one who could say that he had been disseised of a free tenement. The result of this is for a while a perplexing use of terms. Ralph, the tenant in demesne, he who has no freeholder below him, is indubitably seised of the land, however distant he may be in the feudal scale from the king. Eject him, and he will bring against you the assize of novel disseisin; indeed if his lord, the earl, ejects him or even distrains him outrageously, he will bring the assize against his lord, thus showing that as between him and his lord the seisin of the land is with him.97 It is possible that at one time by ejecting Ralph, a stranger would have disseised both Ralph and his lord and exposed himself to two actions; but this does not seem to have been the law of Bracton’s day. The lord was ceasing to have any interest in what we may call the personality of his tenant. If Ralph is ejected by Roger, the earl cannot complain of this; he is in no way bound to accept Roger as a tenant; he can distrain the tenement for the services due to him from Ralph; he is entitled to those services but to nothing else.98 More and more an incorporeal thing or group of incorporeal things supplants theEdition: orig; Page: [39] land as the subject matter of the lord’s right and the lord’s seisin. He is entitled to and seised of, not the land itself, but a seignory, the services, fealty, homage of a tenant. As the earl can be guilty of disseising Ralph of the land, so Ralph can be guilty of disseising Edition: current; Page: [41] the earl of the rent or other service that the earl has heretofore received, and an assize of novel disseisin lies for such incorporeals; he disseises the earl if he resists a lawful distress for services in arrear.99 So a stranger by compelling Ralph to pay rent to him instead of to the earl, can be guilty of disseising the earl.100 The existence as legal entities of those complex units known as “manors,” a seisin of which when analyzed consists in part of the actual occupation by oneself or one’s villein tenants of certain parcels of land, and in part of the receipt of rents or other services from freehold tenants, sadly complicates the matter; but on the whole the “seisin of land in service” is ceasing to be spoken of as a seisin of the land, and is being regarded more and more as the seisin of the service, an incorporeal thing.

Case of the reversioner.This sort of seisin could be attributed to a “reversioner,” for in truth a reversioner was a lord with a tenant below him. The tenant for life was seised, but he was capable of disseising the reversioner; he would, for example, be guilty of this, if he made a feoffment in fee, an act incompatible with his lawful position and injurious to the reversioner.101 On the other hand, we cannot find that any sort or kind of seisin was as yet attributed to the remainderman. He was not seised of the land in demesne, and he was not, like the reversioner, seised of it “in service,” for no service was due to him.

Infants etc.We cannot find that our law ever saw the slightest difficulty in an attribution of seisin to infants or to communitates. It is common also to speak of a church as being seised.

General doctrine.On the whole we may say that the possession of land which the law protects under the name of a “seisin of freehold,” is the occupation of land by one who has come to it otherwise than as tenant in villeinage, tenant at will, tenant for term of years or guardian, that occupation being exercised by himself, his servants, guardians, tenants in villeinage, tenants at will or tenants for term of years. This seems the best statement of the matter:—occupation of land is seisin of free tenement unless it has been obtained in one of certainEdition: orig; Page: [40] Edition: current; Page: [42] particular ways. If, however, we prefer to look at the other side of the principle, we may say that the animus required of the person who is “seised of free tenement” is the intent to hold that land as though he were tenant for life or tenant in fee holding by some free tenure.

Protection of possession.More remains to be said of the nature of seisin, especially of that element in it which we have spoken of as occupation; but this can best be said if we turn to speak of the effects of seisin, its protection by law, its relation to proprietary rights.

Modern theories.We may make our task the lighter if for one moment we glance at controversies which have divided the legal theorists of our own day. Why does our law protect possession? Several different answers have been, or may be, given to this question. There is something in it that attracts the speculative lawyer, for there is something that can be made to look like a paradox. Why should law, when it has on its hands the difficult work of protecting ownership and other rights in things, prepare puzzles for itself by undertaking to protect something that is not ownership, something that will from time to time come into sharp collision with ownership? Is it not a main object of law that every one should enjoy what is his own de iure, and if so why are we to consecrate that de facto enjoyment which is signified by the term possession, and why, above all, are we to protect the possessor even against the owner?

It is chiefly, though not solely, in relation to the classical Roman law that these questions have been discussed, and, if any profitable discussion of them is to be had, it seems essential that some definite body of law should be examined with an accurate heed of dates and successive stages of development. If, scorning all relations of space and time, we ask why law protects possession, the only true answer that we are likely to get is that the law of different peoples at different times has protected possession for many different reasons. Nor can we utterly leave out of account motives and aims of which an abstract jurisprudence knows nothing. That simple justice may be done between man and man has seldom been the sole object of legislators; political have interfered with juristic interests. An illustration may make this plainer. We may well believe Edition: current; Page: [43] that Henry II. when he instituted the possessory assizes was not without thought of the additional strength that would accrue to him and his successors, could he make his subjects feel that theyEdition: orig; Page: [41] owed the beatitude of possession to his ordinance and the action of his court. Still, whatever may be the legislator’s motive, judges must find some rational principle which shall guide them in the administration of possessory remedies; and they have a choice between different principles. These may perhaps be reduced in number to four, or may be said to cluster round four types.

Possession and criminal law.In the first place, the protection given to possession may be merely a provision for the better maintenance of peace and quiet. It is a prohibition of self-help in the interest of public order. The possessor is protected, not on account of any merits of his, but because the peace must be kept; to allow men to make forcible entries on land, or to seize goods without form of law, is to invite violence. Just so the murderer, whose life is forfeited to law, may not be slain, save in due form of law; in a civilized state he is protected against irregular vengeance, not because he deserves to live, for he deserves to die, but because the permission of revenge would certainly do more harm than good to the community. Were this then the only principle at work, we should naturally expect to find the protection of possession in some chapter of the criminal law dealing with offences against public order, riots, affrays, and the like.

Possession and the law of tort.Others would look for it, not in the law of crimes, but in the law of torts or civil injuries. The possessor’s possession is protected, not indeed because he has any sort of right in the thing, but because in general one cannot disturb his possession without being guilty, or almost guilty, of some injury to his person, some act which, if it does not amount to an assault, still comes so dangerously near to an assault that it can be regarded as an invasion of that sphere of peace and quiet which the law should guarantee to every one of its subjects. This doctrine which found expression in Savigny’s famous essay has before now raised an echo in an English court:—“These rights of action are given in respect of the immediate and present violation of possession, independently of rights of property. They Edition: current; Page: [44] are an extension of that protection which the law throws around the person.”102

Possession as a bulwark of property.Edition: orig; Page: [42] A very different theory, that of the great Ihering, has gained ground in our own time. In order to give an adequate protection to ownership, it has been found necessary to protect possession. To prove ownership is difficult, to prove possession comparatively easy. Suppose a landowner ejected from possession; to require of him to prove his ownership before he can be reinstated, is to require too much; thieves and land-grabbers will presume upon the difficulty that a rightful owner will have in making out a flawless title. It must be enough then that the ejected owner should prove that he was in possession and was ejected; the ejector must be precluded from pleading that the possession which he disturbed was not possession under good title. Possession then is an outwork of property. But though the object of the law in protecting possession is to protect the possession of those who have a right to possess, that object can only be obtained by protecting every possessor. Once allow any question about property to be raised, and the whole plan of affording easy remedies to ousted owners will break down. In order that right may be triumphant, the possessory action must be open to the evil and to the good, it must draw no distinction between the just and the unjust possessor. The protection of wrongful possessors is an unfortunate but unavoidable consequence of the attempt to protect rightful possessors. This theory would make us look for the law of possession, not in the law of crimes, nor in the law of torts, but in very close connexion with the law of property.

Possession as a kind of right.There is yet another opinion, which differs from the last, though both make a close connexion between possession and proprietary rights. Possession as such deserves protection, and really there is little more to be said, at least by the lawyer. He who possesses has by the mere fact of his possession more right in the thing than the non-possessor has; he of all men has most right in the thing until someone has asserted and proved a greater right. When a thing belongs to no one and is capable of appropriation, the mere act of taking Edition: current; Page: [45] possession of it gives right against all the world; when a thing belongs to A, the mere fact that B takes possession of it still gives B a right which is good against all who have no better.

Contrast between various principles.An attempt might be made, and it would be in harmony with our English modes of thought, to evade any choice between these various “abstract principles” by a frank profession of the utilitarian character of law. But the success which awaits such an attempt seems very doubtful; for, granted that in some way or another theEdition: orig; Page: [43] protection of possession promotes the welfare of the community, the question still arises, why and in what measure this is so. Under what sub-head of “utility” shall we bring this protection? Shall we lay stress on the public disorder which would be occasioned by unrestricted “self-help,” on the probability that personal injuries will be done to individuals, on the necessity of providing ready remedies for ousted owners, on the natural expectation that what a man possesses he will be allowed to possess until some one has proved a better title? This is no idle question, for on the answer to it must depend the extent to which and the mode in which possession ought to be consecrated. Measures, which would be quite adequate to prevent any serious danger of general disorder, would be quite inadequate to give the ejected owner an easy action for recovering what is his. If all that we want is peace and quiet, it may be enough to punish ejectors by fine or imprisonment; but this does nothing for ejected possessors, gives them no recovery of the possession that they have lost. Again, let us grant that the ejected possessor should be able to recover the land from the ejector if the latter is still in possession; but suppose that the land has already passed into a third hand; shall the ejected possessor be able to recover it from him to whom the ejector has given or sold it? If to this question we say Yes, we shall hardly be able to justify our answer by any theory which regards injury to the person, or something very like injury to the person, as the gist of the possessory action, for here we shall be taking possession away from one who has come to it without violence.

The various principles in English law.Now we ought—so it seems to us—to see that there well may be a certain truth in all these theories. That the German jurists in their Edition: current; Page: [46] attempts to pin the Roman lawyers down to some one neat doctrine of possession and of the reasons for protecting it, may have been engaged on an impossible task, it is not for us to suggest in this place; but so far as concerns our own English law we make no doubt that at different times and in different measures every conceivable reason for protecting possession has been felt as a weighty argument and has had its influence on rights and remedies. At first we find the several principles working together in harmonious concert; they will work together because as yet they are not sharply defined. Gradually their outlines become clearer; discrepancies between them begin to appear; and, as the result of long continuedEdition: orig; Page: [44] conflict, some of them are victorious at the expense of others.

Disseisin as an offence.A glance at the law books of the thirteenth century is sufficient to tell us that this is so. The necessity of keeping the peace is often insisted on by those who are describing the great possessory action, the assize of novel disseisin. Every disseisin is a breach of the peace; a disseisin perpetrated with violence is a serious breach. In any case the disseisor is to be amerced, and the amount of the amercement is never to be less than the amount of the damages. But the justices will inquire whether he came with force and arms, and, if he did so, he will be sent to prison and fined. Besides this he has to give the sheriff an ox, “the disseisin ox” or five shillings.103 If he repeats his offence, if he disseises one who has already recovered seisin from him by the assize, this of course is a still graver affair; he must go to prison because he has broken the king’s peace, and because he has contemned the king’s court.104 The necessity for a statute against these “redisseisors” shows us how serious a danger to the state was the practice of “land-grabbing”; men did not scruple to eject those who had been put in seisin by the king’s court.

Disseisin as a tort.In the second place, the disseisor can be condemned to pay damages to the disseisee. This is a notable point, for in the first quarter of the thirteenth century the assize of novel disseisin was the only action in which both land and damages could be recovered. The Edition: current; Page: [47] man who merely possessed land without having any right to possess it did not incur any liability for damages, and it would seem that he was entitled to the fruits of the land taken by him before judgment; but the disseisor was guilty of an iniuria, of a tort, for which he had to pay damages. Bracton is very clear that a disseisin is an iniuria; the assize of novel disseisin, when it is brought against the disseisor himself, is a personal action founded on tort; and this is the reason why if the disseisor dies there can be no assize against his heir; that heir in taking possession of what his ancestor possessed is guilty of no tort; the tort dies with the person who committed it.105

Edition: orig; Page: [45]Possessory action against the third hand.But in the third place, the possessory assizes extend far beyond what is necessary for the conservation of the peace and the reparation of the wrong done by violent ejectment. Suppose that A is seised; B disseises A and enfeoffs C; A can bring the assize of novel disseisin against B and C jointly; against B it is an action for damages founded on tort; against C it is an action for the recovery of the land; C will not have to pay damages, for he has not been guilty of any iniuria, unless indeed the feoffment followed so close on the disseisin that C must be treated as a participator in B’s guilt; but in any case C will have to give up the land.106 It is obvious that a doctrine which treats the possessory action as an action founded on delict, will hardly account for this; still less, as we shall see hereafter, will it account for the assize of mort d’ancestor.

Proof of seisin and proof of ownership.There is a great deal in our ancient law that countenances a different theory, namely, that which looks upon possession as “an out-work of property.” In the thirteenth century the proprietary action for land is regarded as cumbrous and risky. It has been urged107 Edition: current; Page: [48] against this theory that “in ninety-nine cases out of a hundred, it is about as easy and cheap to prove at least a prima facie title as it is to prove possession.” That may be so in modern times; but our ancestors would not have accepted the saying. The procedure in an assize of novel disseisin was incomparably more speedy than the procedure in a writ of right, and in the latter the tenant could always refuse the foreknowable verdict of men and put himself upon the unforeknowable judgment of God. But further, it seems constantly assumed in our books that the possessory remedy exists chiefly for the benefit of those who have good title: that normally the possessor is one who has a right to possess. If he is disseised, he can bring a writ of right; but he will not do so, because he has a far more expeditious and certain remedy.108

Edition: orig; Page: [46]Seisin as a root of title.But in the fourth place, the protection of seisin and of rights begotten by seisin seems to be carried far beyond what is necessary for the adequate protection of ownership. Seisin, we may say, generates a title to the land, a title good against all who have no better because older title. Suppose that A, who of all men has best right, is seised; B disseises him; B has a title good against all but A; C disseises B; C has a title good against all but A and B; and so on; Z the last of a series of disseisors will have a title good against all, save those signified by the other letters of the alphabet. And these titles are descendible; B’s heir will have a worse title than A’s heir but a better title than C’s heir. English law both medieval and modern seems to accept to the full this theory:—Every title to land has its root in seisin; the title which has its root in the oldest seisin is the best title. We have not to deal with two persons and no more, one of whom has dominium while the other has possessio; we may have to deal with an indefinitely large number of titles relatively good and relatively bad.

Introduction of possessory actions.This by way of preface. We must now trace the growth of a set of Edition: current; Page: [49] definitely possessory actions, actions for the protection of seisin or of that sort of title which is begotten by seisin. We can hardly pursue this matter beyond the assizes of Henry II. We are told, however, by German historians that a distinctly possessory action is not native in the law of our race.109 Where ever it appears, whether in France or Germany or England, it bears witness to the influence of Roman law, acting either immediately, or through the medium of canon law. Of course under the old formal procedure the position of a defendant in an action must as a general rule have been preferable to that of a plaintiff. It is so now-a-days; but while we describe the defendant’s beatitude by saying that the burden of the proof lies on the plaintiff, our remote ancestors would have said that the benefit of the proof is enjoyed by the defendant. And the benefit of the proof was often enormous; the party to whom it is adjudged may have merely to swear to his right and find others who will swear formally and in set phrase that his oath is true. Therefore when there is to be litigation every one would wish to be defendant. Normally the possessor of the thing must be the defendant; but it must soon have been apparent that the unqualified action of this rule would lead to gross injustice. Both A and B assert a title toEdition: orig; Page: [47] land; A is in possession; B turns A out in order that he (B) may play the easy part of defendant in the forthcoming action. To prevent this flagrant wrong it might become necessary to inquire whether the defendant in the action was really entitled to the advantages normally given to defendants, to inquire whether B had ejected A, as a preliminary to deciding whether A or B had the better right. The possessory question would here appear as a mere preliminary to the proprietary question. It is said that German law without foreign help got as far as this, and there are passages in the Leges Henrici which suggest that this is true of English law also.110 Even Edition: current; Page: [50] the definitely possessory actions which Henry II. made general both in Normandy and in England may have had forerunners.111

The novel disseisin.Be this as it may, in Henry II.’s day, and seemingly in the year 1166,112 we came by a distinctly possessory action, the assize of novel disseisin. There can we think be no doubt that this action was suggested by the canonist’s actio spolii, which itself had its origin in the Roman interdict unde vi.113 But when once adopted, English law very speedily made it her own. It soon became an exceedingly popular action. The plea rolls of Richard’s reign and John’s are covered with assizes of novel disseisin, many of which are brought by very humble persons and deal with minute parcels of land.

Edition: orig; Page: [48]A summary action.It was, according to the notions of the time, and it would be even according to our own notions, a summary action. At every point it was sharply contrasted with the proprietary action for land, the writ of right. The writ by which the plaintiff begins his action bids the sheriff summon twelve men to declare (recognoscere) whether since some recent date, for instance, the king’s last voyage to Normandy, the defendant has unjustly and without judgment disseised the plaintiff of “his free tenement” in a certain vill.114 We need not here speak of the expeditious procedure, the exclusion of essoins, of vouchers to warranty and so forth; but must notice that if the defendant does not appear, the assize will be taken by default, and that if he does appear there need be no pleading between the parties. There is properly speaking no pleading to issue.115 The question Edition: current; Page: [51] to be addressed to the jurors has been formulated before the defendant appeared. On the earliest rolls we seldom see any pleadings in this action. The question is put to the jurors. They answer with a monosyllable, Yes or No, and judgment is given; in the one case the plaintiff recovers his seisin with damages, in the other his action is dismissed. Sometimes, however, the defendant will plead some exceptio, some special plea: that is, he will allege some reason why the assize should not be taken, why the formulated question should not be answered; and this grows more frequent in course of time. Also—and this is the practice of Bracton’s day—the justices begin to require that the plaintiff shall explain his case, explain how he came to be seised.116 Sometimes again a special plea (exceptio) will lead the litigants down a bye path, and they will come to issue about some question which is not that which was formulated in the writ. Thus the assize may be converted into a jury (assisa vertitur in iuratam); the verdict of the twelve men who have been summoned, or it may be of another twelve, will be taken about the new question which has arisen out of the pleadings.117 In all these ways what were by this time regarded as questions of law, were beingEdition: orig; Page: [49] withdrawn from the jurors; they were often questions about the nature of “seisin,” “disseisin,” “free tenement.” A great deal of law was growing up around these matters. Still even in Edward I.’s day the question stated in the writ was often left to the jurors, and they answered it as of old by a monosyllable.

Protection of wrongful seisin.But the most important point for us to observe is that in Bracton’s day this assize protects a thoroughly wrongful, untitled and vicious possession. Any special pleas that are regarded as pleas of proprietary right are strictly excluded.118 It is perfectly possible that a true owner should be guilty of having disseised “unjustly and without a judgment” one who not merely was a wrongful possessor, but obtained his possession by unlawful force, and unlawful force Edition: current; Page: [52] directed against the true owner. We will suppose that A, the lawful tenant in fee, or for life, is ejected by X, who has no right whatever; the assize sets a strict limit to A’s right of self-help. He must re-eject X at once or not at all; if he does this after a brief delay, then he is guilty of disseising X unjustly and without a judgment from his (X’s) free tenement; X will bring an assize against him; A will not be permitted to plead his better right; A will lose the land and will be amerced; if he has come with force and arms, he will be imprisoned. Now Bracton seems to have inherited an ancient set of rules as to the time within which a re-ejectment is a lawful act and no disseisin. If A in person was expelled from the land, he has but four days for the re-ejectment. We are elsewhere told that he may ride one day east, another west, another north, another south, to collect friends and arms, and must perpetrate the re-ejectment on the fifth day at the latest.119 If he was away from the land when the disseisin was done, then he has a somewhat longer time, which is reckoned from the moment when he hears of the disseisin. A reasonable time must be allowed him for hastening to the tenement, and then he will have his four days. Bracton, however, seems inclined to make light of these rules, which look old, and to explain them away in terms that he has learned from the glossators. The ejected AEdition: orig; Page: [50] so soon as he is ejected has ceased to possess corpore, but he has not ceased to possess animo; he has lost the possessio naturalis, but not the possessio civilis. This “possession in law” he does not lose until in some mode or another he has acquiesced in the fact of the disseisin. This thought, that the disseisor gets his seisin by the acquiescence or negligence of the ousted possessor, becomes prominent in after times. Under its influence the justices begin to require that a plaintiff shall show something more than mere possession, that he shall show either that he came to the land by title, for example, by a feoffment, or else that he has been in possession for some little time. But there seems no doubt that in Edward I.’s day, though the old rule about the four days may have been disregarded in practice, the disseisor, and the disseisor who had no title whatever, could Edition: current; Page: [53] still somewhat easily acquire a “seisin of free tenement,” a seisin protected by the assize, even as against the ejected owner.120

Relativity of seisin.Protected even as against the ejected owner—this we say, for in the very moment of the disseisin, the disseisor, so soon as de facto he has the land to himself, is protected against all others. As against them he is seised of free tenement, and it is nothing to them, says Bracton, that his seisin is slight (tenera) and wrongfully acquired.121 Here we come upon a very curious idea, but one which is to become of great importance hereafter, the relativity of seisin. One may be seised as regards the world at large, and yet not seised as regards him whom one has ejected.

Novelty of the disseisin.The disseisin must be “novel.” In Normandy the action must be brought within a year after the wrongful act. The question for the jurors is whether the defendant has disseised the plaintiff since the last harvest.122 Harvest is the time when a man exploits his seisin in a very obvious fashion under the eyes of all his neighbours. Every one knows who it was that garnered the last crop. In England— unfortunately, as we well may think,—the matter was otherwise settled. From time to time a royal ordinance set a limit to the action. When Glanvill was writing, the king’s last passage to Normandy fixed the boundary; and this can hardly have given the disseised even a year for his action.123 But kings forget to make suchEdition: orig; Page: [51] ordinances and the action is showing itself to be useful. When our plea rolls begin in 1194, the limiting date is that of Richard’s first coronation in 1189. In 1236 a period of near twenty years, that which has elapsed since Henry III.’s first coronation, has been open to plaintiffs. In 1236 or 1237 a statute or ordinance gave them a term of some six or seven years by confining them to the time that had passed since the king’s voyage to Britanny in 1230.124 No change was made until 1275, when a day in 1242 was chosen, and that day Edition: current; Page: [54] limited the assize of novel disseisin until the reign of Henry VIII.125 Somewhat the same fate had befallen the mort d’ancestor. In Normandy it was an annual action.126 In England it was never so straitly limited. When Glanvill wrote, a plaintiff could still go back to 1154.127 In 1236 or 1237 he was allowed to go back to 1210.128 In 1275 he was allowed to go back to 1216, and this he might do until 1540.129 These are not uninteresting details. A possessory action is likely to lose some of its possessory characteristics if the plaintiff is suffered to rely on ancient facts.

“Unjustly and without judgment.”The words of the writ charge the defendant not merely with a disseisin, but with a disseisin perpetrated “unjustly and without a judgment.” We might think perhaps that the word iniuste left open a door for pleas of proprietary right, and that though a man has done a disseisin, he has not done it unjustly if he has but ejected from possession a man who acquired it by unlawful force. But it is very doubtful whether the word was intended to have this effect. The model for possessory actions was the interdict unde vi of Justinian’s day, which would protect one who had acquired his possession by force and by force used against the true owner.130 AtEdition: orig; Page: [52] any rate, in Bracton’s day the construction put upon this term left no room for proprietary pleas. He who disseises another without judgment—unless he is but re-ejecting an ejector who has not as yet acquired seisin as against him—does this unjustly; in one sense he may have ius, proprietary right, on his side, but he infringes a right given by possession.131 As to the words sine iudicio, which are Edition: current; Page: [55] equivalent to the absque ordine iudiciario of the canonists, we may translate them by “without process of law,” noticing, however, that a disseisin done “by judgment” may still be an unjust and an actionable disseisin.132

Rigorous prohibition of self-help.The maintenance of a possessory action as rigorous as that which we are considering requires of those who control it a high degree of that quality which we may call lawyerly courage. They will often be called upon to do evil that good may come, to protect the land-grabber against his victim in order that land may not be grabbed. They must harden their hearts and enforce the rule. We cannot say that the judges of Bracton’s age, or Bracton himself, always hardened their hearts sufficiently, always closed their ears to the claims of “better right”; they would sometimes lean towards “substantial justice.” Still it seems to us that they had no other theory of the novel disseisin than that which we are endeavouring to explain, and the thought that violent self-help is a contempt of the king’s court helped to prevent any wide aberrations from this theory.133

Trespass and disseisin.A few other traits of this action deserve notice. Besides serving as “an interdict for the recovery of possession,” it will often serve as “an interdict for the retention of possession.” To constitute an actionable disseisin, a successful ejectment of the possessor is not indispensable; an unsuccessful attempt, a repelled invasion, will be enough. But further, if without attempting to eject, one troubles theEdition: orig; Page: [53] possessor in his possession, this will often be disseisin enough, if he chooses to treat it as such.134 An action in the king’s courts founded on mere trespass and aiming merely at the exaction of damages is a comparatively new phenomenon; such actions only become common late in the reign of Henry III. Many mere trespasses, as we should think them, have been treated as disseisins; at all events Edition: current; Page: [56] repeated trespassing can be so treated, if the possessor elects to consider himself disseised.135 To meet that troubling of possession which is caused by nuisances as distinguished from trespasses, that is, by things that are erected, made, or done, not on the soil possessed by the complainant but on neighbouring soil, there has all along been an “assize of nuisance” which is a supplement for the novel disseisin.136 Law endeavours to protect the person who is seised of land, not merely in the possession of the land, but in the enjoyment of those rights against his neighbours which he would be entitled to were he seised under a good title.

Disseisin of an absent possessor.In the first age of its operation the novel disseisin seems to have been directed against acts which could be called ejectments in the strictest sense of the word, though, as just said, any persistent interference with possession might fall within it. English law was perfectly ready to say with the Roman text that, if a man goes to market and returns to find on his land an interloper who resists his entry, he has been ejected.137 Probably it was prepared to hold that a person who has once acquired seisin always retains seisin until he dies, or is disseised, or in some formal manner gives up his seisin, and that for another to take to himself the land of which seisin is being thus retained is a disseisin.138 But it had to consider other cases, cases in which some person who is in occupation of theEdition: orig; Page: [54] land, but who is not seised of it, takes upon himself to deliver seisin to another. For example, the land is occupied by a bailiff, by a villein tenant, by a termor or by a guardian, who takes upon himself to sell the land and enfeoff a stranger. This feoffee is now seised; but is there here a disseisin; is the feoffee a disseisor? The answer that our law gives to this question in later days is, “Yes; there is a Edition: current; Page: [57] disseisin; both feoffor and feoffee are disseisors.” A statute of 1285 was needed to make the matter plain, but the law of Bracton’s day seems to have been inclining towards this answer. This however was, to all seeming, an extension of the original notion of disseisin, and it was one that was likely to occasion many a difficulty in the future.139

The scope of the assize.A still more momentous matter is the treatment of those who have come to the possession of the land after the perpetration of the disseisin. Suppose that M disseises A and enfeoffs X; or that M disseises A and that X disseises M. Can A in either of these cases recover the land by this assize from X? The answer to this question is very instructive. The writ must say of the plaintiff that he has been disseised by the defendant or defendants. These words are to be construed with some strictness. The action lies for the disseisee against the disseisor. It does not lie for the heir of the disseisee; it does not lie against the heir of the disseisor; nor, if the disseisor is dead, does it lie against the feoffee of the disseisor, or against the disseisor of the disseisor. But suppose the disseisor still alive, then this action can be brought by the disseisee against the disseisor and any person who has come to the land through or under the disseisor or by disseising the disseisor. In the cases that we have just now put, if M is still alive, A can, and indeed, if he would succeed, must bring the assize against M and X jointly. He will say in his writ that M and X have disseised him. Upon M will fall the punishment due to disseisors. Whether X also has laid himself openEdition: orig; Page: [55] to that punishment, is a question as to the time that had elapsed after the disseisin and before X came to the land. If, for example, M enfeoffed X during the time allowed to A for self-help—normally, Edition: current; Page: [58] as we have seen, four days—then X is treated as a participator in the disseisin; A might have ejected him by force, and if A sues both M and X both can be punished. If, on the other hand, the feoffment to X was made after the interval which debarred A from self-help, then X cannot be punished. But—and this is what chiefly concerns us—in any case if X is sued along with M, he can be compelled to restore the tenement to A.140

A possessory action against the third hand.Now here our law is answering a vital question. It is decreeing that a person who has come to the possession of land fairly and honestly and by feoffment, one who, as it admits, is no disseisor,141 can be compelled to give up the land merely because he acquired the land—it may be at a distant remove—from one who was guilty of a disseisin; and no opportunity will be allowed him of pleading any proprietary right that he may have. It is very possible that when the assize was first instituted this result was not intended or not foreseen. The writ which brings this feoffee before the court will accuse him of having perpetrated or joined in the perpetration of a disseisin. Practice has been extending the scope of the assize. The outcome is capricious. Whether the assize will lie against the feoffee (X) is a question that is made to depend on the, to our minds, irrelevant question, whether the original disseisor (M) is yet alive and is comprehended in the writ; for it is absolutely essential to the success of the assize that the original disseisor should be a defendant.142 This caprice, however, is becoming more apparent than real, for if the original disseisor is dead, and the feoffee can no longer be hit by the assize, he can be hit by a newer action, called a “writ of entry sur disseisin.” Of that writ we shall have to speak hereafter, and shall then be in a position to consider the whole policy of our law in giving possessory actions againstEdition: orig; Page: [56] those who have been guilty of no disseisin. Meanwhile we will follow the chronological order of development and speak of the second possessory assize.

Edition: current; Page: [59]

The assize of mort d’ancestor.The mort d’ancestor is a few years younger than the novel disseisin143 and is a much more distinctive product of Norman and English law.144 Its formula runs as follows:

Whether M the father [mother, uncle, aunt, brother, sister] of A (the plaintiff) was seised in his demesne as of fee of so much land [rent, or the like] in such a vill on the day on which he died; and whether he died since the period of limitation; and whether A is his next heir; which land X (the defendant) holds.145

If all these questions are answered in the plaintiff’s favour he recovers the land.

A summary action.The action is summary; not indeed so summary as the novel disseisin; there may be more essoining and the defendant may vouch a warrantor who is not named in the writ; but still it is summary when compared with the proprietary action begun by writ of right. Before there has been any pleading, before the defendant has appeared, twelve recognitors are summoned to answer the formulated question; the assize can be taken and the plaintiff can get judgment even though the defendant does not appear.

The mort d’ancestor possessory.It is regarded as a strictly possessory action. The plaintiff asserts that, within some recent time fixed by ordinance, one, whose next heir he is, died seised of the tenement in question. He has to make out not merely that he is this ancestor’s next heir, but that there was a very near relationship between them. The plaintiff must be son, daughter, brother, sister, nephew or niece of this ancestor. This restriction of the assize is curious. There can be no principle of jurisprudence involved in the denial of this action to one who is grandson or cousin of the ancestor; a next heir is a next heir however remote he may be. But in the history of our forms ofEdition: orig; Page: [57] Edition: current; Page: [60] action we have frequently to notice that law begins by providing for common cases, and will often leave uncommon cases unprovided for, even though they fall within an established principle. In this particular instance, however, there is more to be said. The mort d’ancestor is a blow aimed at feudalism by a high-handed king. Not only does it draw away business from the seignorial courts, but it strikes directly at those lords who, for one reason or another, are apt to seize the land that is left vacant by the death of a tenant.146 But even a high-handed king must, as the phrase goes, draw the line somewhere, and may have to draw it without much regard for legal logic. Besides if the plaintiff must rely on remote kinship, we cannot urge that, since the relevant facts must be known to the neighbours, there is no place for trial by battle. About half-a-century later, after a dispute between the justices and the magnates, the former succeeded in instituting the actions of aiel, besaiel, tresaiel and cosinage (de avo, de proavo, de tritavo, de consanguinitate) as supplements for the assize of mort d’ancestor.147

Seisin as of fee.The action, we say, was possessory; but of course in this case the heir had to allege something more than a seisin, a seisin in demesne, or a seisin of free tenement, on the part of his ancestor. He had to allege a seisin “as of fee” (ut de feodo). On the other hand, he had not to assert, as the demandant in a writ of right always had to assert, a seisin “as of right” (ut de iure). A man may well be seised “as of fee” though he be not seised “as of right.” Seemingly we may put the matter thus:—every person who is seised is seised as of fee, Edition: current; Page: [61] unless he has come to his seisin by some title which gives him no more than an estate for life. A disseisor who has, and knows that he has, no right whatever, becomes seised in fee.148

Exclusion of proprietary pleas.Consequently the defendant is not suffered to urge pleas (exceptiones)Edition: orig; Page: [58] of a proprietary character. To insist on this is the more necessary, for at a yet early time this assize gives occasion for a good deal of special pleading.149 In the first place, the defendant may wish to plead and establish some fact inconsistent with the plaintiff’s possessory case. Thus, for example, instead of saying, “I deny that you are next heir of the ancestor named in your writ,” he may well wish to say, “You have an elder brother living,” and thus concentrate the attention of the jurors on this fact. But this of course is not a proprietary plea. Then, again, he may admit that the plaintiff’s case is true and yet may have a possessory defence to urge. Thus he may say, “True your ancestor died seised as of fee; true also that you are now his next heir; but he left at his death a nearer heir, who by means of a release conveyed his rights to me, and in whose shoes I now stand.”150 In this last case if the assize were taken by default or without special pleading, the defendant would succumb; but he has a perfectly good defence if he pleads it properly. It has already become apparent, as this case shows, that the formula of the assize does not fully state all those positive and negative conditions, a fulfilment of which will of necessity entitle the plaintiff to recover the land.151 But here there is no proprietary pleading; the defendant does not seek to go behind the “seisin as of fee” of the ancestor. Edition: current; Page: [62] He would not be allowed to do that. He would not be allowed to say, “Yes, your ancestor was seised as of fee when he died; but I, or some third person, had a better right to the land than he had.”152

Edition: orig; Page: [59]Principle of this assize.The principle then which is the foundation for this assize seems to be this, that whenever a man dies seised and did not come to his seisin by some title which would make him only a life-tenant, his heir is of all the world the person best entitled to be put into seisin. If any other person, no matter that he had better right than the dead man, forestalls the heir and acquires seisin, he shall be turned out in favour of the heir, be told to bring some action against the heir, be told that he ought not to have helped himself. On the whole this principle seems to be well maintained throughout the enormous number of actions which are brought in the thirteenth century. The “dying seised” is strictly insisted upon, and the physical element of seisin is brought prominently forward. For a short period after the de facto ejectment an ejected possessor is, we have seen, allowed recourse to self-help, and if he dies within this period then his heir can say that he died seised. But this period is very short in our eyes; according to Bracton it should be in the commonest case but four days.153

Is seisin heritable?Now how are we to explain this matter? Are we to say that seisin can be transmitted from ancestor to heir; that the heir is seised so soon as the ancestor dies; that the defendant who succumbs in an assize of mort d’ancestor has been found guilty of disseising the heir? Such is not the theory, and of this we may be easily convinced. For one thing, were seisin itself a heritable right there could be no place for the mort d’ancestor, since its whole province would Edition: current; Page: [63] be covered by the novel disseisin. The stranger who entered on the ancestor’s death would always be a disseisor. But this he was not if he entered before the heir entered; and throughout the first half of the thirteenth century it was a matter of much importance to him that this distinction should be observed. In the novel disseisin he could be compelled to pay damages; it was not until 1259 that damages could be given in the mort d’ancestor, and to all appearance until that date the man who forestalled the heir and entered on aEdition: orig; Page: [60] vacant tenement, the “abator” of later law, could not by any procedure be forced to make compensation in money for what he had done.154 Secondly, in an assize of mort d’ancestor the objection that the plaintiff heir has himself been seised since his ancestor’s death is an objection that is often urged and that can sometimes be urged successfully. If he himself has been seised of free tenement since his ancestor’s death, he should be bringing the novel disseisin and not the mort d’ancestor.155

Seisin in law. Seisin in law.The law of a later age ascribes to the heir at the moment of his ancestor’s death a certain “seisin in law” which it contrasts with that “seisin in deed” which he will not acquire until he has entered on the land; and this seisin in law is good enough seisin for a few, but only a few purposes.156 We cannot find that the law of Bracton’s day held this language.157 It knew such a thing as vacant seisin. So soon as the ancestor died, or, at all events, so soon as his corpse was carried from the house, seisin was vacant until some one assumed it—unless indeed the heir had been dwelling along with his ancestor, in which case seisin would not be vacant for a moment. We have said that the vacancy began at latest as soon as the dead man’s body was carried out for burial. Bracton has some curious words Edition: current; Page: [64] about this matter.158 He thinks himself bound by the authority of Paulus159 to hold that a man cannot lose possession until he has given it up both animo and corpore; but it is not impossible that his ascription of possession to a corpse, grotesque though it may seem to us, had a real foundation, and that until the funeral no stranger could acquire a seisin:—this might prevent unseemly struggles in the house of mourning and give the heir an opportunity of entering.160 The heir again acquires seisin with great ease; so soon as heEdition: orig; Page: [61] sets foot on the land he is seised; still he must enter.161 Seisin is not heritable; but the man who dies seised as of fee transmits a heri-table right to his heir; his seisin generates this heritable right. The substance of a famous French maxim, “le mort saisit le vif,” we accept, though the phrase is not quite that which is sanctioned by our books.162

Acquisition of seisin by an abator.The “abator”—that is, the person who excludes the heir—does not very easily acquire a seisin that is protected against the heir’s self-help. An occupation for four days which will protect the disseisor seems not long enough to protect this interloper. The reason for this distinction may be that, though disseisin is a more serious offence and a graver wrong than an abatement, the heir must be allowed some reasonable time for hearing of his ancestor’s death and of the interloper’s entry. An opinion current in Bracton’s day would have given him a year for self-help, but some would have given less.163

Against whom does the assize lie?This assize can be brought against any person who is holding the land, however remote he may be from the original “abator.” He is not accused of having been guilty of an unlawful act; he may Edition: current; Page: [65] have come to his seisin by inheritance, or by feoffment and purchase in good faith, and none the less he may be turned out by this action. In this direction the scope of the assize is unlimited. On the other hand, it will not serve to decide disputes between two would-be heirs. If both parties claim the land as heir to the ancestor named in the writ, the procedure by way of assize is out of place.164 One reason for this limitation may be found in the existence of another remedy adapted for the settlement of such controversies. In a writ of right between kinsmen, if both litigants claim as heirs of the same man and their pedigrees are not disputed, then there will be neither duel nor grand assize; the question will be decided on the pleadings, or, as the phrase goes, “by count counted and plea pleaded”: the question must be one of pure law. But also, as will appear more fully when we speak of the law of inheritance, our courts, influenced, so it seems, by King John’s usurpation of theEdition: orig; Page: [62] throne, were in some cases very unwilling to turn out of possession a would-be heir at the suit of a kinsman who had a better, but only a slightly better, right.165

The writs of entry.We see then our common law starting on its career with two possessory actions for land. In sharp contrast to these it keeps a definitely proprietary action, that begun by writ of right. Had the development of forms stopped here, we should have had a story to tell far simpler than that which lies before us. It is to be regretted that we cannot state the law about seisin and proprietary right without speaking at length of what we would fain call mere matters of procedure; but we have no choice; unless we can understand the writs of entry we cannot understand seisin.

The writ of right.Let us cast one glance at the proprietary action. It is begun either in a seignorial court by a breve de recto tenendo or in the king’s court by a Praecipe. Both of these writs are often spoken of as “writs of right.” They deal not merely with seisina but with ius. The demandant will appear and claim the land as his right and inheritance. He will go on to assert that either he or some ancestor of his Edition: current; Page: [66] has been seised not merely “as of fee” but also “as of right.” He will offer battle by the body of a champion who theoretically is also a witness, a witness who testifies this seisin either of his own knowledge or in obedience to the injunction of his dead father. The person attacked in the action (he is called the tenant) may be able to plead some special plea (exceptio), but he always has it in his power to deny the demandant’s case and to put himself on battle or the grand assize.166 If he chooses the grand assize, the recognitors will swear in answer to a question which leaves the whole matter of fact and of law to them—namely, whether the demandant has greater right to demand the land than the tenant has to hold it. As a result of the trial a very solemn judgment is pronounced. The land is adjudged to the one party and his heirs, and abjudged (abiudicata)Edition: orig; Page: [63] from the other party and his heirs for ever. Nothing could be more conclusive. We may notice in passing that such an action is a tedious affair, that it may drag on its slow length for many years; men are not lightly to be abjudged for ever, they and their heirs, from their seisin. But it is more important to observe that, even if all goes swiftly, the tenant has great advantages. He can choose between two modes of trial. He can insist that the whole question of better right, involving, as it may, the nicest questions of law, shall be left all in one piece to the knights of the neighbourhood; and then, if he fears their verdict, he can trust to the God of battles; he can force the demandant to a probatio divina, which is as much to be dreaded as any probatio diabolica of the canonists.

Invention of writs of entry.The law is too hard upon a demandant, who, it may well be, has recent and well-known facts in his favour. This is keenly felt and a remedy is provided. The change, however, is effected not by any express legislation, but by the gradual invention of a whole group of writs which shall, as it were, stand mid-way between the indubitably possessory assizes and the indubitably proprietary writ of right. The basis for this superstructure is found in the simple writ Edition: current; Page: [67] of Praecipe quod reddat, which is the commencement of a proprietary action. That writ bids the tenant give up the land which the demandant claims, or appear in the king’s court to answer why he has not done so. All the new writs have this in common that they add some definite suggestion of a recent flaw in the tenant’s title. This they do by the phrase:—

“in quam [terram] non habuit ingressum nisi . . .”

The tenant, it is alleged, had no entry into the land except in a certain mode, which mode will be described in the writ and is one incapable of giving him a good title. The object of this formula is to preclude the tenant from that mere general denial of the demandant’s title which would be appropriate in a writ of right, and to force him to answer a certain question about his own case:—“Did you or did you not come to the land in the manner that I have suggested?” If the tenant denies the suggestion, then here is a question of fact that ought to be sent to a jury.

Entry sur disseisin.For a moment we may isolate from the rest of these writs one small class which is very closely connected with the assize of novel disseisin. We have seen that the assize can only be employed if bothEdition: orig; Page: [64] the disseisor and the disseisor are still alive. But in principle our law has admitted that an ejected possessor ought to be able to pursue his land into the hands of those who have come to it through or under the disseisor. This can be done by the assize if the disseisor is still living, and clearly his death ought not to shield his feoffees. Furthermore, if we hold that a possessory action should lie even against one who comes to the land by feoffment and in good faith, then we can no longer say that the action is admissible only against one who has been guilty of a delict, an act of unlawful violence, and there can be no reason why the heir of the disseisee should not have a possessory action against any one in whose hands he finds the land.

Scope of the action.Slowly this principle bears practical fruit in the evolution of the “writs of entry sur disseisin.” In this instance we may enjoy the rare pleasure of fixing a precise date. A writ of entry for the disseisee against the heir of the disseisor was made a “writ of course” Edition: current; Page: [68] in the autumn of the year 1205.167 Very soon after this, we may find a writ for the heir of the disseisee.168 For a while such actions seem only to have been allowed where an assize of novel disseisin had been begun, but had been brought to naught by the death of one of the parties.169 This limit was transcended without legislation, but another and a very curious limit was discovered. A writ of entry can be made for the disseisee or his heir against the third hand or against the fourth hand, but not against the fifth or any remoter hand. We count the disseisee’s hand as the first, the disseisor’s as the second. The action will lie against the disseisor’s heir or the disseisor’s feoffee; his is the third hand. It will also lie against theEdition: orig; Page: [65] heir’s feoffee, the feoffee’s heir, the feoffee’s feoffee; but it will go no further; it is only effectual within these “degrees.”170 Why so? We must probably find our answer to this question in politics rather than in jurisprudence. These writs of entry draw away litigation from the feudal courts and impair the lord’s control over his tenantry; they are but too like evasions, or even infringements, of the Great Charter.171 Some barriers must be maintained against them and the legal logic which impels them forward. A temporary de-fence may be found in the argument that the only excuse for these writs is that the questions raised by them are questions about recent facts, and therefore to be solved by verdict rather than by battle. When, however, there have been three or four feoffments since the disseisin, the facts are elaborate and remote. Jurors should testify to what they have seen; on the other hand, the champion in the writ of Edition: current; Page: [69] right can testify to what his father has told him. The new procedure must not encroach on the proper sphere of the old and sacral procedure. Another defence for the frontier that lies between the fourth hand and the fifth may perhaps have an ancient rule about warranty of which we shall speak hereafter.172 But in truth this frontier was not defensible. Bracton was for crossing it,173 and the statute of Marlborough crossed it.174 That statute gave the disseisee or his heir “a writ of entry sur disseisin in the post,” an action, that is, in which he might allege that his adversary “had no entry into the land save after (post) the disseisin” that some one or another (X) perpetrated against the demandant or his ancestor. In such an action it was unnecessary for the demandant to trace the process by which the land passed from the disseisor (X) to the tenant whom the action attacked.

The English possessorium and the canon law.Thus by a series of gradual concessions we arrive at the result that if a disseisin has been committed and the time—an ever lengthening time—allowed for an action based upon that disseisin has not yet elapsed, an action can be brought for the recovery of the land by the disseisee or his heir against any person who has comeEdition: orig; Page: [66] to that land through or under the disseisor or by disseising the disseisor: and this action will be possessory. This is a matter of great interest in the general history of law, for hardly a question of jurisprudence has caused fiercer combats than the question whether a possessory action for the recovery of land should lie against “the third hand,” or, to use our English terms, against the disseisor’s feoffee; and these combats have not yet ceased. Just in the reign of our King John, when the writs of entry were becoming writs of course, his antagonist Pope Innocent III. was issuing a memorable decree.175 It often happens, he said, that because the despoiler transfers Edition: current; Page: [70] the thing to a third person, against whom a possessory action will not lie, the despoiled loses, not only the benefit of possession, but even his property, owing to the difficulty of proof; and so, notwithstanding the rigour of the civil law (whose unde vi will not lie against the third hand), we decree that the despoiled shall have the remedy of restitution against one who receives the thing with knowledge of the spoliation. Thus a possessory action was given against the mala fide possessor. But the canonists were not content with this; they found or thought that they found in ancient texts authority enough for a possessory action even against the bona fide possessor.176 English law seems never to have taken any notice of this distinction. Psychical researches, inquiries as to good faith, as to knowledge or ignorance, were beyond its powers. If its possessory action is to be given against any, it must be given against every third hand; but it felt with Pope Innocent that to refuse a possessory action was often enough to obliterate proprietary right “propter difficultatem probationum.177

Edition: orig; Page: [67]Illustration of the English doctrine.The possessory character of the English action by “writ of entry sur disseisin” can be best shown by means of a very curious case reported by Bracton. Great people were concerned in it. William Marshall, Earl of Pembroke, the famous regent, had a wife; that wife was entitled to land which was being withheld from her by one Richard Curpet. The earl took the law into his own hands and disseised Curpet. The earl died; his wife held the land; she died; his heir and her heir, William Marshall the younger, entered. A writ of entry was brought against him, and he had to give up the land. He had to give up what was his own because he and his mother before him had come to it by virtue of a disseisin. To-morrow he may bring his writ of right and get back this land; but at present he must give it up, for into it he had no entry save as the successor of a Edition: current; Page: [71] disseisor, and he is precluded from going behind the disseisin and pleading proprietary right.178

That seems to be the principle of this action. You are not to go behind the entry with which you are charged. If you admit that entry you may still have many defences open to you, as for example a deed of release executed by the disseisee; but behind that entry you are not to go.

The other writs of entry.The actions of which we have been speaking are possessory in this amongst other senses, namely, that they presuppose what may fairly be called an infringement of possession and have that infringement for their foundation. This is obviously the case with the assize of novel disseisin and the writs of entry sur disseisin. There has been a disseisin, the dispossession of a possessor. We may say the same of the mort d’ancestor, if we give the name “seisin in law” to that right which a man who dies seised “as of fee” transmits to his heir. But the same cannot be said of the large group of writs of entry which is now to come before us. We shall have before us actions which are, and well may be, called possessory, and yet they do not presuppose any violation of seisin, not even of a “seisin in law.”

The various forms of writs.Most of these writs suggest that the person who is attacked in the action has come to the land by virtue of an alienation made by someone who, though he was occupying and rightfully occupying, had no power to alienate it. He was a bailiff or a tenant in villeinage,Edition: orig; Page: [68] a termor or a guardian, and took upon himself to make a feoffment; he was a tenant for life, tenant in dower or by the curtesy, and made a feoffment in fee; he was a husband who alienated his wife’s land; he was a bishop or an abbot who without the consent of chapter or convent alienated the land of his church; he was of unsound mind; he was an infant. For one reason or another the alienation was voidable from the moment when it was made, or has become voidable. The person who is entitled to avoid it seeks to do so, and seeks to do so by a possessory action.

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Historical evolution of the writs.Some of these cases attracted attention at an early time. A tenant in fee lets or pledges (vadiare) the land for a term of years. That term expires; but the termor holds on, and insists perhaps that he is tenant in fee. It seems hard that the lessor should not be able to get back his land without battle or grand assize. And so too if this termor makes a feoffment, it seems hard that when the term has expired his feoffee should hold on and force the lessor to a difficult proof. In Glanvill’s day English law was apparently showing an inclination to meet some of these cases by actions similar to that which was competent to the disseisee, that is to say, by formulated assizes, and in Norman law we find several actions of this kind.179 But soon in this country a flexible and comprehensive formula was adopted, namely, that of a Praecipe qualified by a suggestion as to the tenant’s mode of entry. Thus: “into which land he (A) had not entry save by B, the father of the demandant (whose heir the demandant is) who demised it to him (A) for a term that has expired.”180 This form wasEdition: orig; Page: [69] flexible. Any kind of invalid “entry” might be suggested. For example, one of the earliest and commonest of these writs was that which enabled a widow to recover land which had belonged to her but had been alienated by her husband. During his life this alienation was valid; during his life she could not oppose him in any thing— cui in vita sua contradicere non potuit; but when he died leaving her alive, she could avoid the alienation, and a possessory action was Edition: current; Page: [73] given to her for this purpose. These two are old forms, the ad terminum qui praeteriit and the cui in vita; but many others were soon invented as, for instance, the dum fuit infra aetatem, by which after attaining his majority a man could recover the land that he had alienated while an infant; the sine assensu capituli which aided the successor of a bishop who without the consent of his chapter had made away with the lands of his church, and those writs called the writs ad communem legem (to distinguish them from others given by Edwardian statutes) which lay when a tenant for life had alienated in fee and had died.181 Between the days of Glanvill and the days of Bracton the chancery was constantly adding to the number of these writs. In Bracton’s day the process was almost complete; he knew nearly all those writs of entry which in after ages were reckoned as common law writs, and he knew some which soon went out of use owing to statutory extensions of the assize of novel disseisin.182 The scheme of writs of entry had crystallized; what more could be done for it was done explicitly by statutes of Edward I.

Principle of these writs.Now we must not discuss these actions at any length; we could not do so without losing our chief theme, the nature of seisin, in a maze of obscure details. But a few main principles should be understood. These we may bring to light by means of the question: How far will these possessory actions extend; to whom and against whom are they competent?

Edition: orig; Page: [70]Active transmission.To the first part of this question we answer that as a general rule they are hereditarily transmissible on the demandant’s side. If the ancestor had an action, the heir has an action. I can base my action on the fact that I, or that my father (whose heir I am) demised this land for a term that has expired. If the widow has an action (cui in vita) to avoid an alienation made by her husband and dies Edition: current; Page: [74] without using it, her heir has an action (sur cui in vita) for the same purpose.183

Passive transmission.Turning to the other side of the question, we see that no good faith, no purchase for value, will protect the man who is attacked by the action; but we also see that curious boundary which has been mentioned above. Until the Statute of Marlborough otherwise ordained, a writ of entry could only be brought “within the degrees.”184The doctrine of degrees. To take one example, the widow can bring her action against her husband’s feoffee, or against that feoffee’s feoffee; but if there has been a third feoffment, then her only remedy is by writ of right. This limitation seems illogical, though it may have for its excuse some rule limiting the number of warrantors who may be called. At any rate, the Statute of Marlborough removed it.185 Thenceforward the widow, or her heir, could bring the writ of entry against any one (however remote from the wrong-doing husband) who was holding the land in consequence of the wrongful alienation. And what we say of the widow’s writ might be said of the other writs of entry. The writ of right fell into the background; and, though still popular in Edward I.’s day, it was hardly needed by any but those whose claims were of a rare character, or who had allowed so long a time to elapse that they were debarred from writs of entry by the extremely patient statutes of limitation that were in force.186

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Edition: orig; Page: [71]Are the writs of entry possessory?Now were these actions possessory or were they not? The lawyers of the thirteenth century hardly knew their own minds about this question. Bracton seems to have thought that the writs sur disseisin and a few others were possessory, but that in general the writs of entry were proprietary.187 A little later some justices of Henry III.’s reign record their opinion that a writ of entry, since it touches property, is of a higher nature than an assize of novel disseisin which only touches possession.188 Fleta and Britton tell usEdition: orig; Page: [72] that the causes, pleaded by writs of entry have something of possession in them, but in part “savour” of property.189 About the same date a lawyer says that a writ of entry is a writ mixed of right and Edition: current; Page: [76] possession.190 At a later time it seems generally agreed that these writs are possessory. We must attempt to make up our minds as to what this term implies.

No violation of possession necessary.If it be of the essence of a possessory action that the plaintiff complains of a violated possession, then none of the actions with which we have been dealing are possessory, except the assize of novel disseisin and the writs of entry sur disseisin, to which, as we have explained above, we may perhaps add the mort d’ancestor and its attendant writs of cosinage and the like; but even these can be brought against persons who have not been concerned in the violation of possession; they can be brought against those who have come to possession by honest and legitimate means, even against those who have purchased in good faith.

The right of defence is limited.When, however, we are speaking of actions in which the possession of land may be adjudged to the plaintiff—and with actions which aim at mere damages we have at present no concern—the term “possessory” may very rightly be used in another sense. For the moment it will be enough to say that such an action is possessory if the defendant in it may find himself precluded by a rule of law from relying upon his proprietary right in the land. To put the matter another way: the action is possessory if it will leave open the question whether the successful plaintiff has better right to the land than the vanquished defendant.

The writs of entry possessory.Now in this sense all our writs of entry seem to be possessory. We will put a case: Alice who was seised in fee simple married Adam; during the marriage Adam enfeoffed Roger in fee simple, who enfeoffed William in fee simple; Adam died leaving Alice his widow; Alice now seeks to recover the land from William. She brings a writ of entry. “She claims the land as her right and inheritance and as that into which William had no entry save throughEdition: orig; Page: [73] Roger to whom Adam her husband (whom in his lifetime she could not contradict) demised it.”191 Now William is at liberty to deny Edition: current; Page: [77] that this was his entry; he is at liberty to assert that he entered in quite different fashion, for example that he was enfeoffed by Peter. If a jury is against Alice on this point, if it finds that she has not correctly stated the means by which William came to the land, then she fails; but—and here we see an illustration of the possessory character of the action—she can at once begin another action by writ of right and in that she may prove by the arm of her champion or the verdict of a grand assize that after all she has better right than William.192 But—to go back to Alice’s writ of entry—William has other defences open to him. He may admit the suggestion that Alice has made; he may say “True it is that I entered in the manner that you have described; but you in your widowhood have released your rights to me; see here your charter.” And other defences may be open to him. If, for example, we suppose the action to be brought not by Alice, but by one Benedict who calls himself her heir, then William may say “You are not Alice’s heir, for she is yet alive,” or “You are not Alice’s heir, for you have an elder brother Bertram.”193 All this William may do; but there is one thing that he must not do:—if he does not dispute the entry suggested in the writ, he must not go behind it; he must not “plead higher up” than the facts upon which Alice has based her claim. Thus, for example, he must not say, “All that you urge is very true, but I tell you that you obtained your seisin in this or that illegitimate manner and that when you married your husband I, or some ancestor of mine, or some stranger to this action, was the true owner of this land.” The whole object of that clause in the writ which suggests a particular mode of entry, is to impose an artificial limitation upon the defendant in his defence. By an artificial limitation we mean one which prevents him from asserting in this action rights which he really has, rights which tomorrowEdition: orig; Page: [74] he can assert in another action. The writ of entry does not Edition: current; Page: [78] finally decide the dispute between the parties; the vanquished tenant may hereafter be a victorious demandant.194

The hierarchy of actions.A graduated hierarchy of actions has been established. “Possessoriness” has become a matter of degree. At the bottom stands the novel disseisin, possessory in every sense, summary and punitive. Above it rises the mort d’ancestor, summary but not so summary, going back to the seisin of one who is already dead. Above this again are writs of entry, writs which have strong affinities with the writ of right, so strong that in Bracton’s day an action begun by writ of entry may by the pleadings be turned into a final, proprietary action. The writs of entry are not so summary as are the assizes, but they are rapid when compared with the writ of right; the most dilatory of the essoins is precluded; there can be no battle or grand assize.195 Ultimately we ascend to the writ of right. Actions are higher or lower, some lie “more in the right” than others. You may try one after another; begin with the novel disseisin, go on to the mort d’ancestor, then see whether a writ of entry will serve your turn and, having failed, fall back upon the writ of right.196

The hierarchy of seisins.Now we cannot consent to dismiss these rules about writs of entry as though they were matters of mere procedure. They seem to be the outward manifestation of a great rule of substantive law, for this graduated hierarchy of actions corresponds to a graduated hierarchy of seisins and of proprietary rights. The rule of substantive law we take to be this:—Seisin generates a proprietary right—an ownership, we may even say—which is good against all who haveEdition: orig; Page: [75] no better, because they have no older, right.197 We have gone far beyond Edition: current; Page: [79] the protection of seisin against violence. The man who obtains seisin obtains thereby a proprietary right that is good against all who have no older seisin to rely upon, a right that he can pass to others by those means by which proprietary rights are conveyed, a right that is protected at every point by the possessory assizes and the writs of entry. At one and the same moment there may be many persons each of whom is in some sort entitled in fee simple to this piece of land:— C’s title is good against all but B and A; B’s title is good against all but A; A’s title is absolute.

Is the writ of right possessory?But is even A’s title absolute? Our law has an action which it says is proprietary—the writ of right. As between the parties to it, this action is conclusive. The vanquished party and his heirs are “abjudged” from the land for ever. In the strongest language that our law knows the demandant has to assert ownership of the land. He says that he, or his ancestor, has been seised of the land as of fee “and of right” and, if he relies on the seisin of an ancestor, he must trace the descent of “the right” from heir to heir into his own person. For all this, we may doubt whether he is supposed to prove a right that is good against all the world. The tenant puts himself upon the grand assize. What, we must ask, will be the question submitted to the recognitors? It will not be this, whether the demandant is owner of the land. It will be this, whether the demandant or the tenant has the greater right to the land.198 Of absolute right nothing is said; greater right is right enough. Next we must observe that the judgment in this action will not preclude a third person from claiming the land. The judgment if it is followed by inaction on his part for some brief period—ultimately year and day was the time allowed to him—may preclude him, should he be in this country and under no disability; but the judgment itself is no bar.199 But lastly, as we understand the matter, even in the writ of right the tenant has no means of protecting himself by an assertion that the ownership of the land belongs neither to him nor to theEdition: orig; Page: [76] demandant but to some third person. This needs some explanation, for appearances may be against what we have here said.

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Clement brings a writ of right against William. He pleads that his grandfather Adam was seised in fee and of right, that from Adam the right descended to Bernard as son and heir, and from Bernard to Clement as son and heir. William may put himself upon battle or upon the grand assize; in the latter case a verdict will decide whether Clement or William has the greater right. But a third course is open. William may endeavour to plead specially and to bring some one question of fact before a jury. In this way he may attack the pedigree that Clement has pleaded at any point; he may, for example, assert that Bernard was not Adam’s son or was a bastard. In so doing he may seem at times to be setting up ius tertii, to be urging by way of defence for himself the rights of a stranger. But really he is not doing this. He is proving that Clement’s right is not better than his own. For example, he says: “Bernard was not Adam’s heir, for Adam left an elder son, Baldwin by name, who is alive.” Now if this be so, Clement has no right in the land whatever; Clement does not allege that he himself has been seised and he is not the heir of any one who has been seised. But what, as we think, William cannot do is this, he cannot shield himself by the right of a stranger to the action whose title is inconsistent with the statement that Adam was seised in fee and of right. He cannot, for example, say, “Adam your ancestor got his seisin by disseising Odo, or by taking a feoffment from Odo’s guardian, and Odo, or Odo’s heir, has a better right than either of us.”200

Relativity of ownership.Thus our law of the thirteenth century seems to recognize in its practical working the relativity of ownership. One story is good untilEdition: orig; Page: [77] another is told. One ownership is valid until an older is proved. No one is ever called upon to demonstrate an ownership good against all men; he does enough even in a proprietary action if he Edition: current; Page: [81] proves an older right than that of the person whom he attacks. In other words, even under a writ of right the common law does not provide for any kind of judgment in rem.

Remote history of owner-ship and possession.The question whether this idea—“the relativity of proprietary right”—should be called archaic, is difficult.201 A discussion of it might lead us into controversies which are better left to those who have more copious materials for the history of very remote ages than England can produce. For our own part we shall be willing to allow that the evolution of the writs of entry, a process to be explained rather by politics than by jurisprudence, has given to this idea in England a preternatural sharpness. The proprietary action by writ of right is cumbrous and is irrational, for it permits trial by battle. Open attacks upon it cannot be made, for it brings some profit to the lords and is supported by a popular sentiment which would gladly refer a solemn question of right to the judgment of the Omniscient. But covert attacks can be made, and they take the form of actions which protect the title begotten by seisin, actions in which artificial limits are set to the right of defence. On the other hand, we cannot but think that this idea of relatively good proprietary right came very naturally to Englishmen. It developed itself in spite of cosmopolitan jurisprudence and a romanized terminology. The lawyers themselves believe that there is a wide gulf between possessory and proprietary actions; but they are not certain of its whereabouts. They believe that somewhere or another there must be an absolute ownership. This they call dreyt dreyt,202 mere right, ius merum. Apparently they have mistaken the meaning of their own phrases; their ius merum is but that mere dreit or ius maius which the demandant asserts in a writ of right.203 Bracton more than once protests with Ulpian that possession has nothing in common with property,204 and yet has to explain how successive possessions Edition: current; Page: [82] Edition: orig; Page: [78] beget successive ownerships which all live on together, the younger being invalid against the older.205 The land law of the later middle ages is permeated by this idea of relativity, and he would be very bold who said that it does not govern us in England at the present day, though the “forms of action” are things of the past and we have now no action for the recovery of land in which a defendant is precluded from relying on whatever right he may have.206

Seisin and “estates.”We can now say our last word about that curious term “estate.”207 We have seen that the word status, which when it falls from Bracton’s pen generally means personal condition, is soon afterwards set apart to signify a proprietary right in land or in some other tenement:—John atte Style has an estate of fee simple in Blackacre. We seem to catch the word in the very act of appropriating a new meaning when Bracton says that the estate of an infant whether in corporeal or in incorporeal things must not be changed during his minority.208 A person already has a status in things; that status may be the status of tenant for life or the status of tenant in fee. It is of course characteristic of this age that a man’s status—his general position in the legal scheme—is closely connected with his proprietary rights. The various “estates of men,” the various “estates of the realm,” are supposed to be variously endowed with land; the baron, for example, ought in theory to be the holder of a barony; he has the status of a baron because he has the estate of a baron. But a peculiar definiteness is given to the term by that theory of possession which we have been examining. Seisin generates title. At one and the same time there may be many titles to one and the same piece of land, Edition: current; Page: [83] titles which have various degrees of validity. It is quite possible that two of these titles should meet in one man and yet maintain an independent existence. If a man demands to be put into the possessionEdition: orig; Page: [79] of land, he must not vaguely claim a certain piece of land, he must point out some particular title on which he relies, and if he has more than one, he must make his choice between them. For example, he must claim that “status” in the land which his grandfather had and which has descended to him. It becomes possible to raise the question whether a certain possessor of the land was on the land “as of” one status, or “as of” another status; he may have had an ancient title to that land and also a new title acquired by disseisin. What was his status; “as of” which estate was he seised?209 One status may be heritable, another not heritable; the heritability of a third may have been restricted by the forma doni. And so we pass to a classification of estates; some are estates in fee, some are estates for life; some estates in fee are estates in fee simple, others are estates in fee conditional; and so forth. We have come by a word, an idea, in which the elements of our proprietary calculus can find utterance.

Seisin and title.One other principle should be noticed. Every proprietary right must have a seisin at its root. In a proprietary action the demandant must allege that either he or some ancestor of his has been seised, and not merely seised but seised with an exploited seisin, seised with a taking of esplees. Nor is this all; every step in his title, if it be not inheritance, must comprise a transfer of seisin. Every owner of land must have been seised of it or must have inherited it from one who was seised. Such, at all events, was the old and general rule, as we shall now see when we turn to speak of the means whereby proprietary rights could be conveyed.210

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§ 3.: Conveyance

Edition: orig; Page: [80]Modes of acquiring rights in land.De acquirendo rerum dominio—this is the title of what is printed as Bracton’s second book. In the main that book deals with but two modes of acquisition, namely, gift and inheritance, and if for a while we concern ourselves only with the ownership of land, and if we relegate the whole subject of inheritance to a later chapter, we shall find that practically a projected essay de acquirendo rerum dominio will become an essay de donationibus.

No title by occupation.Of the occupation of unowned land we have not to speak, for no land is or can be unowned. This rule seems to be implied in the principle that the king is lord of all England. What is not held of him by some tenant of his is held by him in demesne. In all probability no tenant can abandon the land that he has been holding in such wise as to leave it open to the occupation of any one who sees fit to take it to himself. The tenant can indeed “waive” his tenancy; he can, says Bracton, do this even though his lord objects; but, this done, there will be no vacant ownership; the lord will be entitled to hold the land in demesne.211 Later law discovered one narrow sphere within which rights in land could be acquired by occupation. Suppose that A a tenant in fee simple gives land to B for his (B’s) life, and that B gives this land to C (saying nothing of C’s heirs), for his (B’s) life, thus making C “tenant pur autre vie”; and suppose that C dies during B’s lifetime; who is entitled to enjoy the land while B still lives? Not C’s heirs, for they have not been mentioned; not B, for he has given away all that he had to give, an estate for his life; not A, for he has given away the land for the whole of B’s Edition: current; Page: [85] lifetime. Whoever chooses may occupy the land and enjoy it during this unforeseen interval. But, old though this rule may look, it does not seem to belong to the thirteenth century. Bracton hasEdition: orig; Page: [81] a different solution for this difficult case. He does not regard the “estate pur autre vie” as a freehold; it is only a chattel like a term of years; C can dispose of it by will, and, if he fails to do this, the land will revert to B.212 Thus even here there was no room for a lawful occupation.

No acquisitive prescription.Again, our law knew no acquisitive prescription for land, it merely knew a limitation of actions. Even to the writ of right a limit was set. Before 1237 claimants had been allowed to go back to a seisin on the day in 1135 when Henry I. died; then they were restricted to the day in 1154 when Henry II. was crowned; in 1275 the boundary was moved forward to the coronation of Richard I. in 1189, and there it remained during the rest of the middle ages.213 Thus actions are barred by lapse of time; but acquisitive prescription there is none. On the other hand, we have to remember that every acquisition of seisin, however unjustifiable, at once begets title of a sort, title good against those who have no older seisin to rely upon.

Alluvion etc.Bracton copies from the Institutes and Azo’s Summa passages about alluvion and accession, the emergence of islands and the like.214 It is not very probable that English courts were often compelled to consider these matters, and a vacant field was thus left open for romanesque learning.215

Escheat, for feiture, reversion.Escheat, again, and forfeiture and reversion, can hardly be described as modes by which proprietary rights are acquired. The lord’s rights have been there all along; the tenant’s rights disappear; the lord has all along been entitled to the land; he is entitled to it Edition: current; Page: [86] now, and, since he has no tenant, he can enjoy it in demesne. As yet, again, there can be no seizure and sale of land for the satisfaction of debts, and so we have not to speak of what is sometimes called “involuntary alienation.” Thus in truth we are left with but few modes of acquisition, and, if we set on one side inheritance and marriage, we are left with but one mode. That mode can be described byEdition: orig; Page: [82] the wide word “gift,” which, as already said,216 will cover sale, exchange, gage and lease.

The gift of land.How can land be given? We will begin with the simple and common case. A tenant in fee simple wishes to give to another for life or in fee. In the latter case he may wish either to create a new tenancy by way of subinfeudation or to substitute the donee for himself in the scale of tenure. He must make a feoffment with livery of seisin. What, we must ask, does this mean?

Feoffment.Feoffment is a species of the genus gift.217 A gift by which the donee acquires a freehold is a feoffment. It is common to speak of such a gift as a feoffment, but in making it the donor will seldom use the verb “enfeoff” (feoffare); the usual phrase is “give and grant” (dare et concedere). Also we may note—for this is somewhat curious—that the feoffee (feoffatus) need not acquire a fee (feodum); the gift that creates a life estate is a feoffment.

The expression of the donor’s will.Now, of course, if there is to be a gift there must be some expression of the donor’s will. It is unnecessary that this expression should take the form of a written document.218 It is, to say the least, very doubtful whether the Norman barons of the first generation, the companions of the Conqueror, had charters to show for their wide lands, and even in Edward I.’s day men will make feoffments, nay settlements, without charter.219 Later in the fifteenth century Littleton still treats them as capable of occurring in practice. Furthermore, the charter of feoffment, if there be one, will, at all events in the thirteenth century and thenceforward, be upon its face an evidentiary, not a dispositive, document. Its language will be not “I Edition: current; Page: [87] hereby give,” but “Know ye that I have given.” The feoffor’s intent then may be expressed by word of mouth; but more than this is necessary. It is absolutely essential—if we leave out of account certain exceptions that are rather apparent than real—that there should be a livery of seisin. The donor and the donee in personThe livery of seisin. or by attorney must come upon the land. There the words of gift will be said or the charter, if there be one, will be read. It is usual, though perhaps not necessary, that there should be some further ceremony. If the subject of gift is a house, the donor will put the hasp or ring of the door into the donee’s hand (tradere per haspamEdition: orig; Page: [83] vel anulum); if there is no house, a rod will be transferred (tradere per fustem et baculum) or perhaps a glove.220 Such is the common and the safe practice; but it is not indispensable that the parties should actually stand on the land that is to be given. If that land was within their view when the ceremony was performed, and if the feoffee made an actual entry on it while the feoffor was yet alive, this was a sufficient feoffment.221 But a livery of seisin either on the land or “within the view” was necessary. Until such livery had taken place there was no gift; there was nothing but an imperfect attempt to give. We may for purposes of analysis distinguish, as Bracton does, the donatio from the traditio, the feoffment from the livery, the declaration of the donor’s will from the induction of the donee into seisin; but in law the former is simply nothing until it has been followed by the latter. The donatio by itself will not entitle the donee to take seisin; if he does so, he will be guilty of disseising the donor.222 Nor does the donatio by itself create even Edition: current; Page: [88]a contractual right and bind the donor to deliver seisin. The charter of feoffment, which professedly witnesses a completed gift, will not be read as an agreement to give.223 Until there has been livery, the feoffee, if such we may call him, has not even ius ad rem. Furthermore, the courts of Bracton’s day are insisting with rigorous severity that the livery of seisin shall be no sham. Really and truly the feoffor must quit possession; really and truly the feoffee mustEdition: orig; Page: [84] acquire possession. No charter, no receipt of homage, no transference of symbolic rods or knives, no renunciation in the local courts, no ceremony before the high altar, can possibly dispense with this, for it is the essence of the whole matter—there must be in very truth a change of possession, and rash is the feoffee who allows his feoffor’s chattels to remain upon the land or who allows the feoffor to come back into the house, even as a guest, while the feoffment is yet new.224

The ancient German conveyance.It seems probable that in this respect our law represents or reproduces very ancient German law, that in the remotest age to which we can profitably recur a transfer of rights involved of necessity a transfer of things, and that a conveyance without livery of seisin was impossible and inconceivable. Of the ancient German conveyance we may draw some such picture as this:—The essence of the transaction may be that one man shall quit and another take possession of the land with a declared intention that the ownership shall be transferred; but this change of possession and the accompanying declaration must be made in formal fashion, otherwise it will be unwitnessed and unprovable, which at this early time is as much as to say that it will be null and void. An elaborate drama must be enacted, one which the witnesses will remember. Edition: current; Page: [89] The number and complexity of its scenes may vary from time to time and from tribe to tribe. If we here speak of many symbols and ceremonies, we do not imply that all of them were essential in any one age or district. The two men each with his witnesses appear upon the land. A knife is produced, a sod of turf is cut, the twig of a tree is broken off; the turf and twig are handed by the donor to the donee; they are the land in miniature, and thus the land passes from hand to hand. Along with them the knife also may be delivered, and it may be kept by the donee as material evidence of the transaction; perhaps its point will be broken off or its blade twisted in order that it may differ from other knives. But before this the donor has taken off from his hand the war glove, gauntlet or thong,Edition: orig; Page: [85] which would protect that hand in battle. The donee has assumed it; his hand is vested or invested; it is the vestita manus that will fight in defence of this land against all comers; with that hand he grasps the turf and twig. All the talk about investiture, about men being vested with land, goes back, so it is said, to this impressive ceremony. Even this is not enough; the donor must solemnly forsake the land. May be, he is expected to leap over the encircling hedge; may be, some queer renunciatory gesture with his fingers (curvatis digitis) is demanded of him; may be, he will have to pass or throw to the donee the mysterious rod or festuca which, be its origin what it may, has great contractual efficacy.225

Symbolic livery.We are told that at a yet remote time this elaborate “mode of assurance” began to dissolve into its component parts, some of which could be transacted away from the land. It is not always very convenient for the parties to visit the land. In particular is this the case when one of them is a dead saint. One may indeed, if need be, carry the reliquary that contains him to the field that he is to acquire; but some risk will thus be run; and if the saint cannot come to the field, the field must come to the saint. In miniature it can do so; turf and Edition: current; Page: [90] twig can be brought from it and placed with the knife upon the shrine; the twig can be planted in the convent garden. And then it strikes us that one turf is very much like another, and since the bishop, who has just preached a soul-stirring sermon, would like to secure the bounties of the faithful while compunction is still at work, a sod from the churchyard will do, or a knife without any sod, or a glove, or indeed any small thing that lies handy, for the symbolical significance of sods and knives and gloves is becoming obscure, and the thing thus deposited is now being thought of as a gage or wed (vadium), by which the donor can be constrained to deliver possession of the land.226 When, under Roman influence, the written document comes into use this also can be treated as aEdition: orig; Page: [86] symbol; it is delivered in the name of the land; the effectual act is not the signing and sealing, but the delivery of the deed, and the parchment can be regarded as being as good a representative of land as knife or glove would be. Just as of old the sod was taken up from the ground in order that it might be delivered, so now the charter is laid on the earth and thence it is solemnly lifted up or “levied” (levatio cartae); Englishmen in later days know how to “levy a fine.”227 And lastly there are, as we shall see hereafter, advantages to be gained by a conveyance made before a court of law after some simulated litigation; and one part of the original ceremony can be performed there; the donor or vendor can in court go through the solemnity of surrendering or renouncing the land; the rod or festuca can be passed from hand to hand in witness of this surrender.

Symbolic livery on the Continent.It seems to be now generally believed that long before the Norman conquest of England this stage of development had been traversed by the continental nations. Land, it is said, could be conveyed without any transfer of possession, by a symbolical investiture, by the delivery of a written charter, by a surrender in court; and we suppose that this must be considered as proved, though, had our fully developed common law stood alone, we might have come to another conclusion.

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Anglo-Saxon law.As regards the Anglo-Saxon law, our evidence is but very slight. We know nothing about the conveyance of any land that was not book-land, and book-land we take to be an alien, ecclesiastical institution, from which few inferences can be drawn. Even as to this book-land some questions might be raised which could not easily be answered. On the whole, though the books may speak of the gift in the perfect or in the future as well as in the present tense, it seems probable that the signing or the delivery of the parchment was the effectual act. It would even seem that, when once land had been booked, a delivery of the original deed was sufficient to transfer proprietary rights from one man to another.228 Occasionally, though but rarely, we hear of a turf being placed upon the altar.229

Law of the Norman age.For some time after the Norman Conquest the shape that our law will take seems somewhat uncertain. In the first place, throughout the Norman period we often come upon royal and other chartersEdition: orig; Page: [87] which assume the air of dispositive documents and speak of the gift in the present tense. It is only by degrees that the invariable formula of later days, “Know ye that I have given and granted,” finally ousts “I give and grant.”230 In the second place, we read a good deal about the use of symbolical knives, rods and other such articles. Thus, for example, we are told that when the Conqueror gave English land to a Norman abbot by a knife, he playfully made as though he were going to dash the point through the abbot’s hand and exclaimed, “That’s the way to give land.”231 Often it is clear that the transfer of the symbol did not take place upon the land that was in question; it took place in a church or a court of law. The donor is said to put the land upon the altar by a knife (mittere terram super altare per cultellum).232 Charters are preserved which still have knives attached to Edition: current; Page: [92] them, and in some cases a memorandum of the gift is scratched on the haft of the knife.233 Now and again this symbol is spoken of as a vadium, or gage, and this may for a moment suggest that, even if a real transfer of possession is necessary to complete the conveyance, the transaction with the knife constitutes a contractual obligation and gives the donee ius ad rem.234 On the other hand, such a transaction, which takes place far away from the land, is sometimes, though rarely, spoken of as though it were itself a delivery of seisin.235 It is thus that a chronicler describes how a dispute between the Abbot of St. Albans and the Bishop of Lincoln was compromisedEdition: orig; Page: [88] in the king’s court: “Then the bishop arose and resigned into the king’s hand by means of his head-gear (which we call a hura) whatever right he had in the abbey or over the Abbot Robert. And the king took it and delivered it into the abbot’s hand and invested the church of St. Alban with complete liberty by the agency of the abbot. And then by his golden ring he put the bishop in ownership and civil possession of the land at Tynhurst with the consent of the abbot and chapter.”236 Thirdly, we have to remember that at a later time, within the sphere of manorial custom, seisin was delivered in court “by the rod” which the steward handed to the new tenant.

A real livery required.When all this has been considered—and it is not of rareties that we have been speaking—we shall probably come to the conclusion that some external force has been playing upon our law when it recurs to the rigorous requirement of a real transfer of possession and a ceremony performed upon the land.237 We have not far to seek for such a force. In bygone times Roman influence had made Edition: current; Page: [93] in favour of conveyance by charter, for, though the classical jurisprudence demanded a traditio rei, the men of the lower empire had discovered devices by which this requirement could be evaded and the ownership of land might practically, though not theoretically, be conveyed by the execution of a written instrument—devices curiously similar to those which Englishmen would be employing for a similar purpose in the nineteenth century.238 It was a world in which ownership was apparently being transferred by documents that the barbarians invaded. If the Anglo-Saxon land-book passes ownership, it derives its efficacy, not indeed from classical Roman law, but from Italian practice. But when our common law was taking shape the Roman influence was of another and a more erudite kind and made for an opposite result. “Traditionibus et usucapionibus dominia rerum, non nudis pactis, transferuntur”239—no text could be more emphatic. At the same time there is a great deal in our law, especially in the law relating to incorporeal things, whichEdition: orig; Page: [89] shows that Englishmen even of the thirteenth century found much difficulty in conceiving a transfer of rights unembodied in a transfer of things, and what we must ascribe to the new Roman influence is, not the requirement of a traditio rei, but the conviction that when land is to be given the delivery of no rod, no knife, no charter will do instead of a real delivery of the land. To this we may add that the king’s justices seem to have felt very strongly that donner et retenir ne vaut. They are the same judges who, as we shall see, stamped out testamentary dispositions of land. Besides, their new instrument for the discovery of truth, a jury of the country, would tell them of real transfers of possession, but could not reveal transactions which took place in private.240

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Practice in the thirteenth century.As a matter of fact, in the first half of the thirteenth century it was still common for the feoffor and the feoffee to attend the county or hundred court, to have their charter read there and to procure its attestation by the sheriff and the leading men of the district.241 In addition to this, if the gift was to be made to a monastery, the charter would be read in the chapter house and then it would be carried into the church and offered upon the altar along with knife or rod. Beside this there would be a ceremony on the land, including sometimes a perambulation of boundaries in the presence of witnesses; and this was the more necessary because the charter rarely described the many small strips of land which made up that hide or virgate which had been bestowed. One could not be too careful; one could not have too many ceremonies. But what the king’s court demanded was a real delivery of a real possession.242

Edition: orig; Page: [90]Royal conveyances.No exception was made in the king’s case. Even a royal charter did not by itself confer seisin. With it there went out a writ to the sheriff directing a livery. If the king made two inconsistent gifts, a later charter with an earlier seisin would override an earlier charter with a later seisin.243

The release.To the rule that requires a traditio it is hardly an exception that a traditio brevi manu is possible. The English traditio brevi manu is the “release.” Suppose that X is occupying the land as tenant for years or for life, that A has the fee simple; or suppose that X is holding the land adversely to A; and then suppose that in either of these cases Edition: current; Page: [95] A wishes to pass his rights to X. It would be an idle multiplication of ceremonies to oblige X to quit possession merely in order that he might be put into possession once more by a feoffment.244 In the thirteenth century English law is meeting these cases by holding that A can pass his rights to X by a written document without any change in possession. As yet there is no well-defined specific term for such a transaction. It belongs to the great genus “gift”; it is effected by such verbs as “grant, render, remit, demit, quit-claim” (concedere, reddere, remittere, dimittere, quietum clamare).245 Hereafter “release” (relaxare, relaxatio) will become the technical word, and there will be subtle learning about the various kinds of releases.The quit-claim. The curious term quietum clamare, the origin of our “to cry quits,” is extremely common, especially when the right that is to be transferred is anEdition: orig; Page: [91] adverse right; for example, a disseisee will quit-claim his disseisor. Very possibly in the past such transactions have been effected without written instruments. We often read of the transfer of a rod in connexion with a quit-claim, and the term itself may point to some formal renunciatory cry; but in the thirteenth century a sealed deed or the record of a court was becoming necessary, and so in these cases we see proprietary rights transferred, or (it may be) extinguished, by the execution and delivery of a written document.246

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The surrender.Another case in which a feoffment would have been unnecessary, and indeed misplaced, was that in which the tenant made a surrender to his lord. Here if the tenant was but tenant for term of years, his lord was already seised in demesne of the land, and if the tenant held for life or in fee, the lord was already seised of the land “in service.” It is probable that in such a case the transaction could be accomplished in an informal fashion without deed or other ceremony.247 But deeds of surrender are by no means uncommon. The verbs that were commonly used for this purpose seem to have been reddere et quietum clamare.248

Change of estate.For what may be called the converse case to that in which the release was used our law made no special provision. Suppose, for example, that A is seised in fee simple and desires to become a mere tenant for life or to acquire a conditional fee; no course seems open save that which necessitates two feoffments; he must enfeoff X in order that X may re-enfeoff him. In Edward I.’s day this machinery is being frequently employed for the manufacture of familyEdition: orig; Page: [92] settlements.249 To take one famous example, the earl marshal surrenders office and lands to the king in fee simple, and after a few months is re-enfeoffed in tail, and, as it is clear that he is going to die without issue, King Edward has thus secured for himself the fief of the Bigods.250 Probably in this case our law has had to set its face against looser practices. There is a great deal to show that men have thought themselves able by a single act or instrument to transfer the fee while retaining a life estate, and to make those donationes post obitum which have given rise to prolonged discussion in other countries. It is by no means impossible that many of the so-called Anglo-Saxon “wills” were really instruments of this kind, irrevocable conveyances which were to operate at a future time. Our law will now have none of these.251

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Gifts when the donor is not in occupation.Another case which requires some special treatment is that in which neither the donor nor the donee is in occupation of the land, but the occupier is a tenant of the donor. Here we must distinguish. If the tenant is holding in villeinage, the common law pays no heed to any customary rights that he may have; he is simply occupying in the name of his lord, and in this case a regular feoffment with livery of seisin is possible. That livery, however, will very likely include a recognition by the tenant of the transfer of lordship. Thus we may see one Richard de Turville giving seisin to the Abbot of Missenden; he sends his steward with letters patent to the villeins; they are congregated; seisin of them and of their tenements is delivered to the abbot; the abbot takes their fealty and demands rent, but, as no rent is due, some pence are lent to them and they each pay a penny for leave to remain in occupation.252 If, however, the tenant on the land was a freeholder whether for life or in fee, the case wasEdition: orig; Page: [93] not so simple. The lord would have no business to enter on the land and make a feoffment there. Slowly the doctrine is evolved that the seignory or reversion which is to be transferred can be treated as one of those incorporeal things which “lie in grant,” as distinguished from that corporeal thing the land itself which “lies in livery.” Still even here men will not allow that there can be a transfer of proprietary right until there has been what can be pictured as a transfer of a thing. A deed of grant is executed—the word “grant” (Fr. graunter, Lat. concedere) becomes the term appropriate to such a transaction253—but this leaves the transaction incomplete; the tenant who is on the land must attorn himself to the grantee; probablyAttornment. an oral acceptance of his new lord is enough; often a nominal payment is made.254 In most cases he can be compelled to attorn himself; if he will not do it, the court will attorn him;255 but, until there has been attornment, the transaction is incomplete and ineffectual. The case in which the tenant is a termor stands midway between Edition: current; Page: [98] the two that we have already mentioned. He has a possession, or even a certain sort of seisin, which the law has begun to protect; but still his lord is seised of the land and seised in demesne. It seems to be thought that two courses are open to the lord. There may be a deed of grant followed by an attornment; but a feoffment with livery of seisin may perhaps be possible. Bracton argues that the lord has a right to enter on the tenement for the purpose of making a feoffment: thereby he does no wrong to the termor, for the two concurrent seisins, that of the lord and that of the tenant, are compatible with each other.256 However, in later days, the lord could not proceed by way of feoffment, unless he obtained the termor’s consent or waited for some moment when the termor and all his family were absent from the land.257

Edition: orig; Page: [94]Feoffments with remainders.When making a feoffment it was possible for the giver to impose conditions or to establish remainders, and all this by word of mouth. It is probable, however, that a charter was executed if anything elaborate was to be done, and, if we mistake not, remainders were seldom created in the thirteenth century except by those “fines” of which we are about to speak. The remainder-man is for a while in a somewhat precarious position. This is due to two facts:—(1) he is usually no party to that transaction which gives him his rights; (2) neither he nor any ancestor of his has ever been seised. Thus if his rights are to be protected he must have special remedies.

Charters of feoffment.The charter of feoffment or of grant is generally a very brief and simple affair. We seldom find after the end of the twelfth century any examples which depart far from the common form, though a few new devices, such as the mention of “assigns” and the insertion of a well-drawn clause of warranty, were rapidly adopted in all parts of the country. It is almost always an unilateral document, a carta simplex, or as we should say “deed poll,” not a bilateral document, a carta duplicata, carta cyrographata.

The fine.There is something of mystic awe in the tone which already in Edward I.’s time lawyers and legislators assume when they speak Edition: current; Page: [99] of the “fine,” or, to give it its full name, the final concord levied in the king’s court. It is a sacred thing, and its sanctity is to be upheld at all cost.258 We may describe it briefly and roughly as being in substance a conveyance of land and in form a compromise of an action. Sometimes the concord puts an end to real litigation; but in the vast majority of cases the litigation has been begun merely in order that the pretended compromise may be made.

Origin of fines.“For the antiquity of fines,” says Coke, “it is certain that they were frequent before the Conquest.”259 We do not think that this can be proved for England, but in Frankland the use of litigious forms for the purpose of conveyancing can be traced back to a very distant date; and in the Germany of the later middle ages a transaction in court which closely resembled our English fine became the commonest, some say the only,260 “mode of assurance.” The advantagesEdition: orig; Page: [95] to be gained by employing it instead of an extrajudicial conveyance are in the main two. In the first place, we secure indisputable evidence of the transaction. In the second place, if a man is put into seisin by the judgment of a court he is protected by the court’s ban. A short term, in general a year and day, is given to adverse claimants for asserting their rights; if they allow that to elapse and can offer no reasonable excuse for their inertness, such as infancy or absence, they are precluded from action; they must for ever after hold their peace, or, at all events, they will find that in their action some enormous advantage will be allowed to the defendant, as, for example, that of proving his case by his own unsupported oath. When Bracton charges with negligence and “taciturnity” all those persons living in England who are silent while the land upon which they have claims is being dealt with by the king’s court, this may look absurd enough, for how is a man in Northumberland to know of all the collusive suits that are proceeding at Westminster?261 But Edition: current; Page: [100] the courts of old times had been local courts; the freeholders of the district had been bound to attend them; and to the man who alleged that he was not at the moot when his land was adjudged to another, there was this reply—“But it was your duty to be there.”262

Practice in the Norman age.In England after the Conquest we soon begin to see men attempting to obtain incontestable and authoritative evidence of their dealings with land. While as yet the great roll of the exchequer is the only roll that is regularly kept, men will pay money to the king for the privilege of having their compromises and conveyances entered among the financial accounts rendered by the sheriffs—a not too appropriate context; and at a much later time we may still see them getting their charters of feoffment copied onto the plea rolls of the king’s court. In Henry II.’s day one William Tallard solemnly abandoned a claim that he had been urging in the county court of Oxfordshire against the Abbot of Winchcombe. The abbot obtainedEdition: orig; Page: [96] a royal charter confirming this “reasonable fine” of the suit, and he further obtained testificatory charters from the Abbots of Oseney and Ensham, and yet another charter to which the sheriff set his seal “by the counsel and consent of the county.”263

Possession under a fine.Evidence of a transaction is one thing; a special protection of the seisin that is held under that transaction is another. To obtain this men at one time allowed a simulated action to go as far as a simulated battle. The duel was “waged, armed and struck”; that is to say, some blows were interchanged, but then the justices or the friends of the parties intervened and made peace, “a final peace,” between them.264 This had the same preclusive effect as a duel fought out to the bitter end. All whom it might concern had notice that they must put in their claims at once or be silent for ever. This might Edition: current; Page: [101] happen in the county court or in a seignorial court, and when the king’s court has developed a model form of concordia we may see this closely imitated by less puissant tribunals.265

Fines in the Angevin age.But our interest has its centre in the king’s court. After some tentative experiments266 a fixed form of putting compromises on parchment seems to have been evolved late in Henry II.’s reign, just about the same time when the first plea roll was written. From the year 1175 onwards we begin to get, in a few cases at first hand, in many cases at second hand, chirographs, that is, indented documents, which have as their first words what is to be the familiar formula: “This is a final concord made in the court of our lord the king.”267 Glanvill writing a few years afterwards has already much to say of these final concords.268 Then there is happily preserved forEdition: orig; Page: [97] us a document of this kind dated on the 15th of July, 1195, which bears an endorsement saying that this was the first chirograph that was made in the form of three chirographs, of which one was to remain in the treasury to serve as a record; it adds that this innovation was due to the justiciar Hubert Walter and the other barons of the king.269 What is new seems to be this:—heretofore when a compromise was made, its terms were stated in a bipartite indenture, one “part” of which was delivered to each litigant; henceforth there Edition: current; Page: [102] is to be a tripartite indenture and one “part” of it is to be preserved in the treasury. This “part” or copy (perhaps owing to some confusion between the French pes which means peace, concord, and the Latin pes which means foot) soon becomes known as the “foot” of the fine, and with the summer of 1195 begins that magnificent series of pedes finium which stretches away into modern times and affords the best illustrations that we have of medieval conveyancing.270 Soon the fines became very numerous; every term, every eyre (for a fine can be levied before justices in eyre as well as in the central court) supplies a large number of pedes; often they are beautiful examples of both exquisite caligraphy and accurate choice of words. The curious term “levy” soon comes into use. It may take us back to the Frankish levatio cartae, the ceremonial lifting of a parchment from the ground;271 but the usual phrase is, not that the litigants levy a fine, but that a fine levies between them.272

Edition: orig; Page: [98]Procedure when a fine is to be levied.An action was begun between the parties by writ. Many different forms of writ were used for this purpose, but ultimately one of the less cumbrous actions, the writ of covenant, or the writ of warantia cartae, was usually chosen.273 In the earliest period the parties seem often to plead and to go so far as the summoning of a grand assize;274 and of course the fine is at times the end of serious litigation; but in general so soon as they are both before the court, they ask for leave to compromise their supposed dispute (petunt licentiam Edition: current; Page: [103] concordandi):—compromising a suit without the leave of the court is an offence to be punished by amercement, and the king makes money out of the licences that his justices sell.275 Having obtained the requisite permission, the litigants state to the court (four justices at least should be present) the terms of their compact.276

Throughout the middle ages the justices exercise a certain supervision over the fines that are levied before them. When a married woman is concerned, they examine her apart from her husband and see that she understands what she is doing. In other cases they do not inquire into the subject matter of the compromise; they have not to protect the material interests of the parties or of strangers, but they do pretty frequently interfere to maintain formal correctness and the proprieties of conveyancing: they refuse irregular fines. Even the formal correctness of the arrangement they do not guarantee, but they are not going to have their rolls defaced by obviously faulty instruments.277 Then the indenture is drawn up byEdition: orig; Page: [99] an officer of the court; one “part” of it is delivered to each party, and the pes is sent to the royal treasury, there to remain until its conclusive testimony is required.278

Form of the fine.A fine is generally a bilateral instrument: that is to say, each of the parties professedly does something for the other. The one Edition: current; Page: [104] whom we may for the moment call the conveyor grants or releases his rights in the land or the incorporeal thing, for example, the advowson, which is the subject matter of the suit, or else he solemnly confesses (cognoscit) that the said thing “is the right” of the other party. In this last case we may speak of the party who makes the confession or “conusance” as the “conusor” while his adversary in the suit becomes a “conusee.” Then a separate clause will state that, in return for what he has thus done, the conveyor receives some benefit. This may be “the fraternity and prayers” of a convent;279 very often it is a sum of money paid down: in some cases a trivial sum, in others so large that the transaction seems to be a sale of the land for its full value. But again, it is possible that this recompense will take the form of some right in the land; A having confessed that the land belongs to one X, this X will grant the whole or part of it to A to hold of him (X) by some service more or less onerous. Thus a way is opened for family settlements, for we can sometimes see that X is a mere friend of the family, who is brought into the transaction for the purpose of enabling A to exchange an estate in fee simple for a life estate with a remainder to his son. It will be for future ages to distinguish accurately between the various classes of fines.280

Edition: orig; Page: [100]Advantages of a fine.Of the advantages that could be obtained by the use of a fine a little can now be said.

Evidence secured.(1) Incontestable evidence of the transaction was thus secured, and this was no small boon at a time when forgeries, or at all events charges of forgery, were common. Men would not scruple to forge even the chirograph of a fine, but then, owing to the retention of the pes in the treasury, the forgery could be detected.281 In the old days, Edition: current; Page: [105] before the reform that we have attributed to Hubert Walter, the justices might indeed have borne record of a fine that was levied before them, and, if they did so, their record was conclusive; but their record was based upon their memory, not upon parchment, and, if they were uncertain about the matter, then the question whether or no there had been a fine was open to contest, and we may see it contested.282 When, however, the practice of retaining pedes had been introduced, a search in the treasury would settle this question for good and all.283

Action on the fine.(2) A man who was party to a fine was bound by a stringent obligation to perform and respect its terms. If he infringed them, an action lay against him and he could be sent to prison; seemingly in Glanvill’s day he could be compelled to find security for the future; but at any rate he could be imprisoned.284 At a time when contractual actions, actions on mere covenants, were but slowly making their way to the royal court, the action Quod teneat ei finem factum was already popular.285

The preclusive bar.(3) We come to the most specific quality of the fine. Like a final judgment in a writ of right, it sets a short preclusive term running against the whole world “parties, privies and strangers.” If there be any person who thinks that he has a right to the land comprised in the fine, he must assert that right at once; otherwise—unless he has been under one of the recognized “disabilities,” such as infancy or absence beyond sea—he will be barred for ever. This statement needs some qualification. In order that the fine shall have this preclusive effect, it is necessary that one of the parties to it be seised: a seisin acquired by wrong will be good enough, but a seisin there must be. It is not to be suffered that a man who is in peaceful seisinEdition: orig; Page: [101] of land in Yorkshire, and who may be the true owner, should be done out of his rights by a collusive ceremony perpetrated at Westminster by two tricksters who “have nothing in the land.” Our law may have doubted for a while whether such a fine, one levied between Edition: current; Page: [106] persons neither of whom was seised, would have any effect at all, would bind even those persons or their heirs. A statute of 1299 decided that the parties and those claiming under them were bound; but strangers were not affected by the fine.286 We have further to notice that in many cases the preclusive term did not begin to run until the fine took effect in a change of seisin. It is difficult to speak in general terms of this matter because there were various kinds of fine; but just as, when there had been judgment on a writ of right, the fateful year and day did not start until seisin had been delivered by the sheriff to the victorious demandant, so, when a fine was levied, it was often necessary that a writ of seisin should be sued out and that seisin should be delivered.287 Seisin under the order of the king’s court; seisin under the king’s ban,—it is this rather than the mere compromise of an action that, if we look far enough back, seems the cause of preclusion.288

The year and day.As to the length of the preclusive term, Bracton seems to hold that the bar is established so soon as the chirograph is delivered to the parties. This is never done until fifteen days after the concord has been made in court, and fifteen days is the time usually allowed to a litigant who has been summoned.289 A little later we find that year and day are allowed,290 and as this was the period allowed from of old in Germany,291 we may perhaps infer that the judges of Bracton’s day had been attempting to abbreviate an ancient term.292 In order to prevent his right being barred, a man must either bringEdition: orig; Page: [102] an action or else enter his claim upon the pes of the fine. On ancient pedes it is common to see a claim entered, or even two or three Edition: current; Page: [107] claims; this seems to show that what went on at Westminster was soon noised abroad.293

Value of the bar.Now here of course we see an advantage of enormous importance that the fine has over any extrajudicial transaction, and, when we remember how easily seisin begets proprietary rights, how at one and the same moment half-a-dozen possessory titles to the same piece of land—titles which are more or less valid—may be in existence, we shall not be surprised at the reverential tones in which the fine is spoken of. It is a piece of firm ground in the midst of shifting quicksands.

The married woman’s fine.(4) In Bracton’s day the fine had already become the married woman’s conveyance. If her land was to be lawfully and effectually conveyed, she and her husband were made parties to an action, and before the “concord” was accepted by the court, the justices examined her and satisfied themselves that she was acting freely.294

Conveyance of reversions.(5) If what was to be conveyed was a seignory or a reversion, a fine was useful.295 It was possible that the tenant who was in possession of the land would make some difficulty about attorning himself to the purchaser. But if a fine was levied, there was a regular procedure in common use for compelling such tenants to appear before the court and confess the terms of their tenure, and then they would be forced to attorn themselves or would be attorned by the court, unless they could show some good reason for their refusal.296

Family settlements.(6) Lastly, it might seem that family settlements could be effected more simply and more securely by fine than by other means. If A is tenant in fee simple and wishes to obtain a life estate followed by remainders, or a conditional fee limited to the heirs of his Edition: current; Page: [108] body, or the like, he may be able to effect this by enfeoffing X in orderEdition: orig; Page: [103] that he may be re-enfeoffed. But there are obvious objections to this practice. For one thing, X may be dishonest and do much harm by enfeoffing a stranger; and then again, someone may hereafter urge that X never acquired a real and true seisin of the land and that the transaction was therefore but a sham. On the other hand, it may be that by fine the whole settlement can be effected at one moment.

The fine and seisin.This leads us to speak of the relation between the law about fines and the law about seisin. Can a fine transfer seisin? Is the operation of a fine an exception to the general rule that land cannot be conveyed without a traditio rei, a transfer of seisin?

A judgment can give no seisin.To the first of these questions we must answer, No. Seisin is for the men of the thirteenth century a fact; the physical element in it is essential. It cannot be transferred by a written instrument, nor by a compromise however solemn, nor even by the judgment of a court. The judgment awarded to a successful demandant does not even confer upon him a right to enter and to acquire seisin; if he enters without waiting for the sheriff, who is to execute the judgment, he will be guilty of disseising the defeated tenant.297 And so the preclusive term, the year and day, does not begin to run in favour of a victorious demandant until he has been put in seisin.

A fine gives no seisin.It is so also with the fine. It does not transfer seisin of the land. We have already seen that some one who is no party to the fine may be seised at the time when the fine is levied, and in that case his seisin and his rights will remain unaffected by the collusive action and the feigned compromise. But we must pass to the case in which one of the two parties to the fine is seised of the land, and even here we shall see that the fine standing by itself—the mere recorded compromise—is incapable of transferring seisin of the land. Of course in many cases there can be no talk of any transfer of seisin. The parties are merely doing by fine what they could have done, though not so effectually, by a deed: that is to say, the one of them Edition: current; Page: [109] who is not seised is releasing or quit-claiming some right to the one who is seised. Also of “things incorporeal” we are not speaking; but the mere fine is incapable of transferring seisin of land. This weEdition: orig; Page: [104] shall see if we turn from our first to our second question.

The fine does not convey land.Just because the mere fine is incapable of transferring seisin, it is incapable of conveying land. This may seem a startling statement to those who have been bred up to consider the fine as one of the most potent of the “common assurances” of the common law. But what we have said seems to be true in the thirteenth century. We put a simple case:— A is seised in fee simple; in an action brought against him by X he solemnly confesses that the land is the right of X,298 or goes further and confesses (what is not true) that he, A, has given it to X by feoffment;299 nevertheless A remains in occupation of the land. Now, at any moment during A’s lifetime X can obtain execution of the fine; thereby he will obtain seisin and so the conveyance will be perfected. But suppose that A dies seised, it seems exceedingly doubtful whether his confession, his false confession of a feoffment, can according to the doctrines of the thirteenth century bar the claim of his heir.300 Of another case we may speak with greater certainty. It was very common. The tenant in fee simple, A, wishes to make a settlement; by the fine he confesses that he has enfeoffed X, and then the chirograph will go on to say that X grants and renders the land to A for some estate (for example a life estate) which will entitle him (A) to remain seised as heretofore, and then some remainders are created.301 Really there has been no feoffment; X has never for a moment been on the land; A has occupied it all along and continues to occupy it until his death. Now his heir is not bound by that fine. If an attempt is made to enforce it against the heir, he will plead that A was seised at the date of the fine and continued seised until his death; and this plea will be good. We learn this from a statute of 1299 which alters the law; it takes away this Edition: current; Page: [110] plea from the heir of any one who was party to the fine. Thereafter such a fine as we have supposed will be effectual as against thoseEdition: orig; Page: [105] who stand in A’s shoes. Taken by itself and without a transmutation of seisin it will be effectual. But this operation it owes to a statute. According to the law as it stood at the end of Henry III.’s reign, a fine unaccompanied by a de facto change of seisin could never be a substitute for a feoffment; and so we have to qualify a statement with which we started, namely, that a fine is a conveyance.302

Return to seisin.Thus have we once more been brought back to seisin. Our conception of the seisin of land which our law knew in the thirteenth century is being made clearer by negative propositions. Seisin of land cannot pass from man to man by inheritance, by written instrument, by confession in court, by judgment; it involves a de facto occupation of the land. On the other hand, without a transmutation of seisin—which may however in appropriate cases take the form of a traditio brevi manu—there is no conveyance of land.

§ 4.: The Term of Years

The term of years.From time to time we have been compelled to speak of the curious treatment that the tenancy for a term of years has received at the Edition: current; Page: [111] hands of our law;303 we must now discuss it at some length. And in the first place we observe that the law has drawn a hard line which does not of necessity coincide with any economic distinction. A feoffment for life may in substance be an onerous lease, a lease for years may be granted for so long a term and at so trivial a rent thatEdition: orig; Page: [106] the lessee’s rights will be very valuable. For all this, the tenant for life will be a freeholder, while the tenant for years, or “termor,” will be no freeholder.

Attempt to treat the term as a personal right.At the end of the twelfth century the law was apparently endeavouring to regard the termor as one who has no “real” right, no right in the land; he enjoys the benefit of a covenant (conventio); he has a right in personam against the lessor and his heirs. His action is an action of covenant (quod teneat ei conventionem factam), an action which seems to have been invented chiefly for the enforcement of what we should call leases.304 In this action he can recover possession, or rather seisin (for such is the phrase commonly used), of the land. The judgment is, we may say, a judgment for the “specific performance” of the covenant.305 Frequently, if not always, the termor enjoys the benefit of a warranty. If he is evicted by some third person, he can claim from the lessor an equivalent for the benefit of which he has been deprived.306 Add to this that if his lessor attempts to turn him out, he is allowed vim vi repellere; a speedy re-ejectment would be no disseisin, no wrong to the lessor.307 But as against the world at large he is unprotected. At all events he is unprotected against ejectment. Eject him, and you disseise the freeholder under whom he is holding; that freeholder will bring the assize of novel disseisin against you. How far the termor is protected by an action Edition: current; Page: [112] for damages against mere trespassers who stop short of ejectment, we cannot say. The action of trespass only becomes common in the king’s courts near the middle of the thirteenth century, and of what went on in the local courts about the year 1200 we know very little.

Edition: orig; Page: [107]Insecurity of the termor.Even if no ejector appeared from without, the termor was not very secure in his holding. His rights had to yield to those of the guardian in chivalry, as well as to those of the lessor’s widow. If the doweress, as she might, turned him out of one-third of the land, he was allowed to hold the other two-thirds for an additional period by way of compensation.308 If his lessor’s lord, who had got his lessor’s heir in ward, turned him out, his term was, not indeed destroyed, but it was “deferred.”309 The lessor’s assigns were not bound by the lessor’s covenant; the lessor’s feoffee could oust the termor and leave him to his remedy against the lessor or the lessor’s heir.

Failure of the old doctrine.But, at all events in this last particular, the law was not expressing the common sense of mankind. About the year 1235 a new action was given to the termor, the Quare eiecit infra terminum. This reform is attributed to Bracton’s master, William Raleigh, who was then presiding in the king’s court. Bracton was loud in its praise.310 Writing a few years afterwards, he distinctly says that this new action, which will restore the ejected termor to the land, will lie against all manner of ejectors, and he appeals to the broad principle that to eject a termor is as unjustifiable as to disseise a free-holder.311 However, as has not unfrequently happened, some words got into the new writ which restricted its efficacy. The most scandalous case of ejectment is that in which the termor is turned out by one who has purchased the land from the lessor. Not only may it be urged that the purchaser should be in no better position than that which the vendor has occupied, but an obvious door is opened to fraud:—the lessor, who dares not himself eject the lessee, effects Edition: current; Page: [113] his object by the mediation of a collusive purchaser, and contrives that an action on the covenant shall be of no value.312 The new writ in the form which it takes when it crystallizes in the register, containsEdition: orig; Page: [108] words which strike directly at this particular case. It supposes that the defendant has purchased the land from the lessor. In spite of what Bracton says, the golden opportunity has been missed. This action cannot be used against ejectors in general; it will only lie against one who has purchased from the lessor.313

The termor and the writ of trespass.For protection against ejectors who were in no way connected with his lessor, the termor had to look to another quarter: to the development of the new, and for a long time semi-criminal action which accuses the defendant of having entered and broken another man’s close “with force and arms and against the king’s peace,” the action of “trespass quare clausum fregit.” Such actions were becoming popular during the last years of Henry III.’s reign. Apparently they were for a while held in check by the doctrine that they ought not to be used as substitutes for the assize of novel disseisin.314 Nor was this doctrine unnatural. By choosing an action of trespass instead of an assize one was threatening the defendant with all the terrors of outlawry and using a weapon which had in the past been reserved for felons. Now at what moment of time the termor became entitled to this new action, it is very difficult to say, for in the action of trespass the plaintiff but rarely asserts by express words any title, or seisin or possession. He simply says that “his” close has been entered and broken by the defendant. We should not be surprised at discovering that from the very first, that is, so soon as actions of trespass became common, the termor was allowed to Edition: current; Page: [114] say in this context that the land in question was “his” close.315 The principle that he ought to be protected against the world at large had been fully conceded by Bracton. An investigation of this matter would take us far beyond the moment of time that we have chosenEdition: orig; Page: [109] for our survey. It must suffice if we here say that the termor did acquire the action of trespass, an action for damages against all who unlawfully disturbed him in his possession; that a specialized writ of trespass de eiectione firmae (which is to be carefully distinguished from the old quare eiecit infra terminum) was penned to meet his particular case; and that just at the close of the middle ages it was decided that in this action he could recover, not merely damages, but his possession of the land—he could “recover his term.”316

Further protection of the termor.In another quarter a statute of 1278 gave the termor some much needed protection. In the old actions for land he had no locus standi either as the active or as the passive party. He did not represent the land. If you brought a writ of right or writ of entry against him, he would plead that he was but a termor and your action would be dismissed. Consequently his interest could be destroyed by a collusive action. Some one sued his lessor; that lessor allowed judgment to go by default, and the recoveror, who had by supposition shown a title superior to the lessor’s, ousted the termor. Already, however, in Edward I.’s day the Statute of Gloucester empowered the termor in divers cases to intervene in the action for the protection of his interest. This statute required a supplement in Henry VIII.’s reign; Edition: current; Page: [115] but during the interval a vigilant termor who had a written lease was fairly well defended against the easiest devices of chicane.317

Seisin and possession.From the thirteenth century onwards English law has on its hands the difficult task of maintaining side by side two different possessions or seisins, or (to adopt the convenient distinction which is slowly established during the fourteenth and later centuries) a seisin and a possession.318 There is the old seisin protected by the assize; there is the new possession protected by the writ of trespass.Edition: orig; Page: [110] Of course one and the same man may have both. The tenant in fee or for life, who occupies his own land, is both seised and possessed of it. But the two may be divided; they are divided when there is a termor occupying the land; he is possessed, but the freeholder is seised. Even at the present day, though the old possessory remedies which protected seisin are things of the past, we have still to be always distinguishing between seisin and possession.319

Explanation of termor’s history.It is natural therefore that we should ask how it came about that in the twelfth century the courts arrived at the conclusion that the ejected termor was not to have the assize of novel disseisin. Why is he not seised of a free tenement? The question is not easy. If in such a context we are entitled to speak of the natural inclination of English law, we ought apparently to say that this was in favour of attributing a legally protected possession to any person who is in enjoyment of the land and can take the fruits as his own, albeit he is there only for a time and is paying rent to a lord. The tenant for life, however heavily he may be burdened with rent or other service, is indubitably seised of free tenement. We are told also that Germanic law, when left to itself, always displays this inclination. It does not require of the man to whom it attributes possession that he shall behave as owner of the thing possessed; if he takes the fruits as his own, that is quite enough. We are told also that when Edition: current; Page: [116] this inclination is not manifested, then the operation of a Roman influence may be suspected.320

Early leases for years.The requisite explanation we shall hardly find in the mere rarity of tenancies for terms of years. No doubt in the year 1150 they were still uncommon, and it is not until 1200 that we begin to read much about them. How rare they had been in yet older times we cannot tell. For example, the fact that they are hardly ever mentioned in the Anglo-Saxon land-books will not prove that they were practically unknown in England before the Conquest. The solemn “book” would hardly have been used for so humble a purpose as that of creating short tenancies. Still we can see enough both inEdition: orig; Page: [111] England and on the continent to say that during the dark age leases for determinate periods were not very common. They seem to imply a pecuniary speculation, a computation of gain and loss, which is impossible where there is little commerce. The man who was in quest of land was looking out, not for a profitable investment, but for a home and the means of livelihood. He had to think of the days when he would no longer be able to work, and, if he could not obtain a secure provision for his whole life, he would take land on precarious terms and trust to a lord’s generosity or inertness: very likely his precarious estate would become hereditary. The Roman locatio conductio of land disappeared; it was overwhelmed by the precarium which tended to become a beneficium or a lease for life.321 We cannot say for certain that none of the locationes and commendationes terrae mentioned in Domesday Book were leases for years;322 such leases begin to appear very soon after the Conquest;323 but it is noticeable that the first of such tenancies of which we obtain definite tidings are rarely, if ever, what we should call “husbandry leases.” In the Conqueror’s reign the Abbot of St. Albans leased the manor of Aldenham to the Abbot of Westminster for twenty years at the Edition: current; Page: [117] rent of a hundred shillings: such at least was the story current at St. Albans.324 In the reign of Rufus land is being let for years to secure a debt of £20.325 In the twelfth century the beneficial lease was by no means unknown; it was one of the expedients employed for raising money. Thus under Henry II. William Fossard obtains a large sum from the Abbot of Meaux, and, by way of return, grants him among other things, two whole vills for a term of fifteen years.326 A little later the abbot obtains a lease of thirteen bovates for forty years at the cost of a heavy sum.327 In 1181 a gross sum is paid down for a lease for twenty-nine years and no rent is reserved.328 What is more,Edition: orig; Page: [112] as we shall see hereafter, the lease for years had become a common part of the machinery whereby land was gaged for money lent. In the first half of the thirteenth century the termor is often visible.329 He holds for fairly long terms and his rights are valuable; he has often paid a “premium,” as we should call it, for his lease.330 Nor is the sub-lessee unknown, and the sub-lessee may be an abbey.331 It is possible that for a while the notion prevailed that a lease should not be for a longer term than forty years. The writer of the Mirror protests that this was the old law,332 and it would certainly have been very dangerous to make a longer lease by word of mouth, for, Edition: current; Page: [118] when the witnesses to the transaction were dead, the termor would have been much tempted to claim the fee and drive his lessor to battle or the grand assize.333 But Bracton contemplates the possibility of a lease for a term which exceeds that of human life; Britton speaks of a lease for a hundred years;334 and in 1270 such a lease was granted.335 It must be allowed, however, that in the days when the assize of novel disseisin was yet new—and this for our present purpose is the critical moment—tenancies for terms of years were very rare when compared with tenancies for life or in fee. Still we cannot find our explanation in this rarity, for we have not to say why no special remedy was granted to the termor; we have to say why he was excluded from a very general remedy. Why has he no free tenement?

Why has the termor no freehold?Assuredly in asking this question we must not lay an accent on the word “free.” The termor’s tenement, if he can be said to have one, is in no sense unfree. Abbots of Westminster, Newminster,Edition: orig; Page: [113] Meaux, men who have paid large sums for their leases, have not done anything “unworthy of a freeman.” Nor can we dispose of them as “mere farmers or husbandmen . . . who were considered as the bailiffs or servants of the lord.”336 All the evidence that we can collect tends to show that the husbandry lease is a late institution when compared with the beneficial lease purchased by a premium. Again, we shall hardly help ourselves by saying that the tenancy is not “feudal.” The termor had no feodum; but the tenant for life had none. The termor did no homage; the tenant for life even of a military fee did none; the tenant of a socage fee was not in general bound to do it.337 On the other hand, it seems fairly plain that the tenant for years swore fealty.338

Arbitrary distinctions.We must further notice that the language of every-day life and the language of pleading refused to fit in with the only theories Edition: current; Page: [119] which the lawyers put forward to justify their denial of the assize to the termor. Indubitably the termor, like the tenant in fee, holds a tenement: there is no other phrase by which his position can be described. Men do not say, lawyers do not say when they are dealing with concrete cases, that he has the benefit of an obligation, nor that he has an usufruct, nor that he has a servitude comparable to a right of way; they say boldly that he holds a tenement.339 They add that he is seised of a tenement; he is not merely in seisin, he is seised. They have no verb specially appropriated to the act which creates a tenancy for years, they use “grant,” and even “give,” as well as “deliver” (tradere, bailler) and “demise”; and a “lease” may be for life.340 What is more, they have a word in common use which throws rent-paying termors into one class with rent-paying free-holders. People who pay full rents are farmers, firmarii. This word describes an economic fact. But many firmarii are not termors; they are freeholders holding for life or in fee. Through this natural classEdition: orig; Page: [114] of firmarii a hard line is drawn, an arbitrary line, for many termors hold on far easier terms than those to which the fee farmer is subjected.341 As a matter of economic fact it is untrue that while the freeholder always holds nomine proprio, the termor always holds nomine alieno.

Influence of Roman theory.Lastly, the only explanation that the lawyers have to give is a romanesque explanation. They go back to Paulus:—the term is an usufruct, and the usufruct is no part of the dominium; it is a servitude like a right of way. All Europe over, lawyers were being at once attracted and puzzled by the Roman doctrine of possession. They could not conceive it in all its simplicity. They could not deny every sort of dominium and every sort of possessio to the vassal who Edition: current; Page: [120] held of a lord. In England an attempt to do this would have led to the useless dogma that the king owns and possesses every inch of land. They do what they can with the adjectives civilis and naturalis, directus and utilis; there must be several dominia, several possessiones. But a line must be drawn somewhere, for clearly Roman law compels us to hold that there are some occupiers who are not possessors.342 In an evil hour the English judges, who were controlling a new possessory action, which had been suggested by foreign models, adopted this theory at the expense of the termor. He must be the conductor who does not possess, or he must be the usufructuary who does not possess the land but has “quasi possession” of a servitude. But they cannot go through with their theory. In less than a century it has broken down. The termor gets his possessory action; but it is a new action. He is “seised,” but he is not “seised of free tenement,” for he cannot bring an assize. At a somewhat later time he is not “seised” but is “possessed.” English law for six centuries and more will rue this youthful flirtation with Romanism.343

Edition: orig; Page: [115]The term as a chattel.Some compensation was made to the termor, and at the same time the gulf that divided him from the freeholder was widened, by the evolution of another doctrine. In the first half of the thirteenth century lawyers were already beginning to say that his interest in the land is a quasi chattel;344 soon they were saying boldly that it is a chattel.345 The main import of this doctrine is that he has something to bequeath by his will. There was a writ in common use which prohibited the ecclesiastical courts from meddling with lay fee (laicum feodum), but the termor’s interest was no “lay fee,” and, if he bequeathed it by his will, the spiritual tribunal would not Edition: current; Page: [121] be prevented from enforcing the bequest. On the other hand, the time had not yet come when the term would be treated as a chattel by the law of intestate succession. It was common to make the lease for years to the lessee “and his heirs,” and, at all events if this were done, the term would pass to the heir if it were not bequeathed by the lessee’s will. However, he was able to bequeath it. We can see the analogy between the term and the chattel at work in another quarter: if the termor commits a felony, his interest does not escheat to his lord, it is forfeited to the king quasi catallum.346 Indeed the analogy was beginning to work in many quarters. This is not a purely English peculiarity. In Normandy also the term of years is accounted a movable; it is firma mobilis, as contrasted with fee farm (feodi firma).347

Chattels real.At first sight it is strange that the termor should be able to do what the tenant in fee cannot do, namely, to give his right by testament. We cannot explain this by painting him as a despised creature for whom the feudal land law can find no proper place, for he is thus being put into one category with those who are exercising the most distinctively feudal of all rights in land. To a modern Englishman the phrase “chattel real” suggests at once the “leasehold interest,” and probably it suggests nothing else. But in the middle ages the phrase covers a whole group of rights, and the most prominent member of that group is, not the leasehold interest, but the seignorial right of marriage and wardship.348 When a wardship fallsEdition: orig; Page: [116] to the lord, this seems to be treated as a windfall; it is an eminently vendible right, and he who has it can bequeath it by his will. At all events in the hands of a purchaser, the wardship soon becomes a bequeathable chattel: already in John’s reign this is so.349 The analogy between his right and that of the termor is very close. The purchaser of the wardship, though he is in occupation of the land, has no seisin of free tenement; he can bring no assize. On the other Edition: current; Page: [122] hand, he obtains possessory protection by the writ Quare eiecit de custodia,350 which is a parallel writ to the termor’s Quare eiecit infra terminum. What then, we must ask, have these two cases in common? Is there any economic reason for this assimilation of a term of years to a wardship, and for the treatment of both of them as bequeathable chattels? We believe that there is, namely, the investment of capital, and by the way we will remark that the word catallum, if often it must be translated by our chattel, must at others be rendered by our capital.351 Already in the year 1200 sums of money that we must call enormous were being invested in the purchase of wardships and marriages.352 There was a speculative traffic in these things at a time when few other articles were being bought and sold on a large scale. Now it is very natural that a man who invests a round sum should wish for a power of bequest. The invested sum is an utterly different thing from the landed estate which he would desire to keep in his family. And then, as to the term of years, we believe that in the twelfth century and yet later, this stands often, if not generally, in the same economic category. It is a beneficial lease bought for a sum of ready money; it is an investment of capital, and therefore for testamentary purposes it is quasi catallum.353 If this explanation be thought untrue—and perhaps it runs counter to some traditional theories—we must once more ask attention to the closeEdition: orig; Page: [117] similarity that there is between our law’s treatment of the termor and its treatment of one who has purchased a wardship. Such a purchaser was no despised “husbandman,” no “mere bailiff”; in John’s day an archbishop who had been chief justiciar invested four thousand marks in a wardship.354

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§ 5.: The Gage of Land

The gage.Closely connected with the lease for years is the gage of land. A single root has sent out many branches which overshadow large fields of law. Gage, engagement, wage, wages, wager, wed, wedding, the Scottish wadset, all spring from one root. In particular we must notice that the word “gage,” in Latin vadium, is applied indiscriminately to movables and immovables, to transactions in which a gage is given and to those in which a gage is taken. When a lord has seized his tenant’s goods in distress they are in his hands a gage for the payment of the rent that is in arrear, and the sheriff is always taking gages from those who have no mind to give them. The notion expressed by the word seems to be that expressed by our “security”; some thing has either been given or been seized, and the possession of it by him in whose hands it now is, secures the payment of money or the performance of some act by the person by whom it was given or from whom it was taken. But it is the given gage of land that concerns us now.355

Antiquity of gages.Such transactions had long been known. We read of them in some of the Anglo-Saxon land-books, and it is highly probable that in England as elsewhere we might from a very early age distinguish several different methods by which land was made to serve as a security for money lent. We seem to see the conveyance which is subject to a condition, also the beneficial lease for years which enables Edition: current; Page: [124] a lender to satisfy himself by taking the fruits of the land, also a form of gage which does not set off the fruits against the debt.356 Already in Domesday Book we may see land in the possession ofEdition: orig; Page: [118] one to whom it has been gaged.357 Soon afterwards the duke of the Normans had gaged his duchy to the king of the English.358 Before the end of the twelfth century very large sums of money had been lent upon gage. The crusaders wanted ready money and there were Jews who would supply it. In Henry II.’s day William Fossard had gaged his land to the Jews for some twelve hundred pounds.359

Glanvill’s mortgage and vifgage.The forms which these early gages took are not in all respects so clear as might be wished. Glanvill, who perhaps leaves out of sight the conditional feoffment which required no special treatment, draws several distinctions. One of these is famous: that between the mort gage and the vif gage.360 The specific mark of the mortgage is that the profits of the land received by the creditor are not to reduce the debt. Such a bargain is a kind of usury; but apparently it is a valid bargain, even though the creditor be a Christian. He sins by making it, and, if he dies in his sin, his chattels will be forfeited to the king; but to all seeming the debtor is bound by his contract.361 Edition: current; Page: [125] As to the Jew, he was not prohibited from taking usury from Christians; he took it openly. Even the Christian, if we are not much mistaken, was very willing to run such risk of sin and punishment as was involved in the covert usury of the mortgage. The plea rolls ofEdition: orig; Page: [119] the thirteenth century often show us a Christian gagee in possession of the gaged land, but we have come upon no instance in which he was called upon to account for the profits that he had received. We infer that the gagee was usually a mortgagee in Glanvill’s sense of that term.362

Edition: orig; Page: [119]Glanvill’s gage.Then again (to return to Glanvill) the gage is given either “for a term” or “without a term.” In the former case we have another distinction. There may be an express bargain that, if at the fixed term the debtor does not pay, the creditor shall hold the gaged thing, be it land or chattel, for ever. In this instance the creditor has no need of a judgment to make the thing his own. Or there may be no such express bargain, and in that case the nature of the transaction is apparently this, that when the term has elapsed the creditor can sue the debtor and obtain a judgment which will order the debtor to pay the debt within some “reasonable” time, and will declare that, should he make default, the gaged thing will belong to the creditor. If the gage be given “without a term,” then, to all seeming, the creditor can at any time obtain a judgment which will order the debtor to pay within some fixed and “reasonable” period, and will declare that if this be not done, the creditor may do what he pleases with the gaged thing.363 It will be noticed that we have here Edition: current; Page: [126] something very like those “decrees of foreclosure” which courts of equity will make in much later days.

Disappearance of the Glanvillian gage.But of the practice described by Glanvill we know exceedingly little; it is not the root of our classical law of mortgage, which starts from the conditional feoffment.364 It seems to have soon become antiquated and the cause of its obsolescence is not far to seek. The gagee of Glanvill’s day is put into possession of the land. Unless the gagor has put the gagee into possession, the king’s court will pay no heed to the would-be gage. It will be one of those mere “private conventions” which that court does not enforce.365 So theEdition: orig; Page: [120] gagee must be put into possession. His possession is called a seisin, a seisina ut de vadio.366 For all, this, however, it is unprotected. If a stranger casts the gagee out, it is the gagor who has the assize. But more; if the gagor casts the gagee out, the gagee cannot recover the land. The reason given for this is very strange:—What the creditor is really entitled to is the debt, not the land. If he comes into court he must come to ask for that to which he is entitled. If he obtains a judgment for his debt, he has obtained the only judgment to which he has any right.367

Position of the Glanvillian gagee.Now, if a court of law could always compel a debtor to pay his debt, there would be sound sense in this argument. Why should the court give a man a security for money when it can give him the money? But a court cannot always compel a debtor to pay his debt, and the only means of compulsion that a court of the twelfth century could use for such a purpose were feeble and defective. Thus the debtor of Glanvill’s day could to all appearance reduce his gagee from the position of a secured to that of an unsecured creditor by the simple process of ejecting him from the gaged land. Such Edition: current; Page: [127] a state of things can have been but temporary. The justices were learning to use those new instruments, the possessory actions, and they may have been distracted by foreign theories of possession. They did not well know whether the gagee’s seisin was really a seisin or no.368

Later law.Soon after this English law seems to abandon the attempt to treat the rights of the gagee in the land as rights of a peculiar character. If he is to have any right of any sort or kind in the land, he must take his place in some category of tenants. He must be tenant for years, or for life, or in fee. In the first case he will obtain his rights under a demise for years and will have the termor’s remedies. In the other cases he must be enfeoffed and he will have the freeholder’s remedies.

Edition: orig; Page: [121]The gage for years and the beneficial lease.Now in our records it is not always easy to mark off the gage for years from those beneficial leases of which we have spoken above.369 Both of them will serve much the same purpose, that of restoring to a man a sum of money which he has placed at the disposal of another, though in the case of the beneficial lease there is nothing that can be called a debt. As already said the beneficial lease was common.370 It was particularly useful because it avoided the scandal of usury. There was no usury, because there was no debt; and yet the terms of the lease might be such as to provide that the money paid for it by the lessee should be returned to him out of the profits of the land with handsome interest.

The Bractonian gage for years.But the true gage for years is a different thing:—In consideration of money lent, A demises land to X for a term of years, and there is a provision that, if at the end of that term A does not pay the debt, then X is to hold the land in fee. This seems to have been the usual Edition: current; Page: [128] gage of Bracton’s day. It gives the gagee a term of years which, on the fulfilment of a certain condition, becomes a fee; the condition is that at the end of the term default is made in payment of the debt. During the term the gagee is entitled to have, and usually has, that sort of possession or seisin of the land that a termor can have, while the gagor remains seised in fee; but, on the fulfilment of the condition, the fee shifts to the gagee, and his possession or seisin becomes a seisin in fee.371 The lawyers as yet see nothing shocking in this, because “demise” and “feoffment” both belong to the great genus “gift” and they have a deep reverence for the forma donationis: it can enlarge a term of years into a fee on the happening of a certain event, or reduce a fee to a term of years on the fulfilment of a condition.372

The classical mortgage.At a later time straiter notions prevail. In substance the termor has become as well protected as the freeholder is; freeholders indeed begin to wish that they had the termor’s remedies. But the age which sees this, sees the lawyers deepening the theoretic gulfEdition: orig; Page: [122] which lies between the “mere chattel” and the freehold. They begin to see great difficulties in the way of a transaction whereby a man obtains a term of years which will swell into a fee so soon as something is or is not done.373 The mortgage of our classical common law employs a different machinery. The debtor enfeoffs the creditor and his heirs upon condition that, if upon a certain day the debt be paid, then the feoffor or his heirs may re-enter and hold the land.374

The mortgagee in possession.The gage, whatever form it took, could be effected without deed. In the thirteenth century it is not uncommon to find a dispute as to whether or no there has been a gage, and yet neither disputant produces a charter.375 We believe that as a general rule the gagee, Edition: current; Page: [129] or at least the Christian gagee, not only took but kept possession. It was only by taking the profits of the land that he could get anything in the nature of interest for his money. Perhaps he sometimes redemised the land to the gagor. Thus the Abbot of Meaux in consideration of 800 marks demised a manor to William and Andrew Hamelton for twenty years without rent; they redemised to the abbot for nineteen years at a rent of £100 and covenanted that their gage should come to an end when they had received by way of rent the capital sum that they had advanced.376 We may see Isaac the Jew of Northampton demising the gaged land to the gagor’s wife at a rent which is to go in reduction of the debt due from her husband.377 But the Jew in these matters was a highly privileged person, privileged because what belonged to him belonged potentially to the king. Certainly the Jewish gagee was not always in possession, and it seems possible that, under the system of registration which had been introduced in Richard’s reign, a valid gage could be given to him, though the gagor never went out of possession for a moment. Very early in the thirteenth century we may see an abbotEdition: orig; Page: [123] searching the register, or rather the chest, of Jewish mortgages at York in quite modern fashion.378 A little later an abbot of the same house, when buying land, has to buy up many incumbrances that have been given to Jews, but has difficulty in doing so because some of them have been transferred.379 The debts due to Israelites were by the king’s licence freely bought and sold when as yet there was no other traffic in obligations.380 We may guess that, if the Jews had not been expelled from England, the clumsy mortgage by way of conditional conveyance would have given way before a simpler method of securing debts, and would not still be incumbering our modern law.

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§ 6.: Incorporeal Things

Incorporeal things.The realm of medieval law is rich with incorporeal things. Any permanent right which is of a transferable nature, at all events if it has what we may call a territorial ambit, is thought of as a thing that is very like a piece of land. Just because it is a thing, it is transferable. This is no fiction invented by speculative jurists. For the popular mind these things are things. The lawyer’s business is not to make them things but to point out that they are incorporeal. The layman who wishes to convey the advowson of a church will say that he conveys the church; it is for Bracton to explain to him that what he means to transfer is not that structure of wood and stone which belongs to God and the saints, but a thing incorporeal, as incorporeal as his own soul or the anima mundi.381

Their thing-likeness.A complete list of incorporeal things would be long and miscellaneous. Blackstone’s list may serve us as a starting point. “Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities and rents.”382 Now with such a catalogue before us, oneEdition: orig; Page: [124] which puts the “way” next to the “office,” it would be only too easy for us to digress into remote fields of legal history, to raise once more that eternal question about the origin of tithes and then to wander off to pasture rights and the village community. If we are to keep our discussion of these things within reasonable bounds it must be devoted to that quality which they have in common. To describe that quality such terms as “real” and “reality” are too feeble; we must be suffered to use “thinglike” and “thinglikeness.” They are thinglike rights and their thinglikeness is of their very essence.383

The seignory as a thing.We may begin by observing that the line between the corporeal and the incorporeal thing is by no means so clear in medieval law as we might have expected it to be, could we not remember that even Edition: current; Page: [131] our modern institutional writers have shown some uncertainty as to its whereabouts.384 We must return to the case in which a lord has a freehold tenant and that tenant has been duly performing his services. How shall we describe this lord’s position? Shall we say that he is seised of the tenant’s homage and fealty and services, or shall we say that he is seised of the land? We may take whichever course we please; but if we say that he is seised of the land, we ought to add that he is seised of it, not in demesne, but in service.385 On the other hand, if we say that he is seised of services, we must understand that these services are a thing, and a thing that is exceedingly like an acre of land. This we shall understand the better if we give a few words to (1) the means by which the lord’s rights are enforced against his tenant, (2) the means by which they are protected against the world at large, (3) the means by which they can be transferred.

Rights of lord against tenant.(1) The tenant will not perform his services; they are in arrear. The lord can distrain him; but distress is not always a safe or easy remedy, more especially if there is reason to fear that the tenant will deny his liability. The lord must have an action. He has an action: the writ of customs and services (de consuetudinibus et servitiis).386 ItEdition: orig; Page: [125] is an action of the “realest” kind, closely similar to the proprietary action for land that is begun by the writ of right. The lord—we will suppose that he cannot rely upon a recent seisin—will have to say that some ancestor of his was seised of these services as of fee and of right by taking esplees to such or such a value in rents or in pleas or the like. Then he will trace the descent to himself and then he will offer battle.387 The tenant can accept this offer or he can put himself upon the grand assize. Should the lord be victorious, he will “recover his seisin” of the services.388 In the thirteenth century Edition: current; Page: [132] the lord has often to use this cumbrous and dilatory, because proprietary, action. But he enjoys possessory protection even as against his tenant. If once this lord has been seised of this tenant’s services, this tenant can be guilty of disseising this lord. Mere default in render of services will not be a disseisin, but the tenant will probably become a disseisor if he resists the lord’s distraint, and he will certainly be such if he without coercion renders the services to an adverse claimant.389 Whether in the latter case he will not also be forfeiting his tenancy, that is another question which he should seriously consider;390 in the past he would have left himself open to a charge of “felony.”391 But at any rate he is a disseisor. The lord will bring against him an assize of novel disseisin. The writ will be word for word the same as that which a man brings when he is ejected from the occupation of land. It will report how the plaintiff alleges that he has been disseised of “his free tenement” in such a vill, and only at a later stage will come the explanation that the thing to be recovered is, not so many acres of land, but so many shillingsworth of rent.

Contract between lord and tenant.We have here no enforcement of an obligation; we have the recovery of a thing. Of course between lord and tenant there often is an obligation of the most sacred kind, that begotten by homage and fealty; a breach of it has borne the name of felony. The tenant will often have sworn to do these services. Nevertheless, the idea of a personal obligation or contract plays but a subordinate part in theEdition: orig; Page: [126] relation between lord and tenant. We see this when we say that as a general rule that relation never gives rise to an action of debt. We shall hereafter raise the question whether the action of debt was contractual; but it seems to have had about it too strong a trait of personalness to be an appropriate action for the landlord. The landlord who demands the rent that is in arrear is not seeking to enforce a contract, he is seeking to recover a thing.392

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Rights of lord against the world.(2) After all that has been said, it will be needless to repeat that the lord has rights which are good against the world at large. He is entitled to a thing with which other people ought not to meddle. True that an ejectment of his freehold tenant is no disseisin to him; it is no invasion of his right, it is an invasion of the tenant’s right, and the disseisor will find that the seignory is subsisting when his cattle are taken because the land owes rent or other services. But suppose that we have A as the well entitled lord and M as his tenant, and that X has succeeded in obtaining from M those services that are due to A; then X is detaining a thing that belongs to A. It may be that A will have to bring a proprietary action by writ of right. Litigation between great lords is often carried on, if we may so speak, over the heads of their freehold tenants. This fact is sometimes obscured from view by the convenient term “manor.” We may find A demanding from X a manor, just as though it were a physical object like a field, and yet there may well be freehold tenants of this manor, and neither A nor X is asserting any right to disturb them; the suit passes over their heads.393 What is more, A will say that some ancestor of his was seised in demesne of this manor. He will not thereby mean that at the time of which he speaks there were no freeholders, and that his ancestor held every parcel of the land in demesne; he will mean that of this composite thing, theEdition: orig; Page: [127] manor taken as a whole, his ancestor had an immediate seisin; he held the whole manor in demesne, though of some parcels of the land which are within the precincts of the manor he was seised in service.394 The county palatine of Chester,395 nay, for the matter of Edition: current; Page: [134] that, the kingdom of Scotland, can be demanded in a proprietary action, just as Blackacre can be demanded.

Seisin of services.Very often, however, there is no need for a proprietary action, because the seisin of services is fully protected by possessory actions. It is protected by the same actions that protect a seisin of land. If M has hitherto been paying his rent to A, and is coerced by distress into paying it to X, then A has been disseised by X and can bring the assize of novel disseisin against X and recover his seisin.396 If M has paid unwillingly, then he ought not to be made a party to the action; the litigation should go on over his head.397 The wrong complained of is not in our modern phrase “a malicious interference with contractual rights”; it is a disseisin, the ousting of another from that of which he is possessed. A possessory protection of a receipt of money-dues or other services naturally gives rise to far more difficulties than such as are incident to a possessory protection of those who sit upon land. Cases arise in which we have to say that A has a choice between behaving as one who has been disseised and behaving as one who is still seised; “disseisin at election” becomes the title for an intricate chapter of law.398 Nevertheless, a gallant attempt is made to press this thought through all obstacles:—a seisin of services, however it may have been obtained, ought to be protected.

Conveyance of seignory.(3) Then as to the conveyance of the lord’s rights, we have but to repeat once more399 that the attornment of the tenant is an essential element in the transaction. Somehow or another a seisin of the thing that is to be conveyed must be transferred, and when that thing is the feudal superiority with its accompanying right to services,Edition: orig; Page: [128] we can naturally say that there has been such a transfer when the occupier of the land has confessed that, instead of holding it under the grantor, he now holds it under the grantee.400

Rents as things.In the case that we have been discussing we see an incorporeal Edition: current; Page: [135] thing that is very closely implicated with a corporeal thing; to sunder the two is not easy. Now, starting from this point, we may notice various degrees of incorporeality. This may seem a strange phrase, and yet it will serve to describe a phenomenon which deserves attention. Starting with the rent which is a service rendered by tenant to landlord, a rent which has been “reserved” when the tenancy was created and is thought of as something which remains to the giver or lessor after he has made the gift or lease, we may pass by three steps to a rent or annuity which is quite unconnected with land.

In this country the one word rent (Lat. redditus) was used toVarious kinds of rents. cover several things which were of different kinds. In other countries such a rent as that of which we have been speaking, a rent payable by tenant to landlord, was generally known as census, cens, zins, while redditus or rent was reserved for those rents of which we are now to speak. In England the term census, though by no means unknown in old times, failed to gain a permanent place in the legal vocabulary. The tenurial rent was a redditus: to use a term which comes into use somewhat late in the day, it was “rent service.” But there were other rents; we may call them “non-tenurial,” there being no technical term which covers them all. These non-tenurial rents fall into two classes, for each of which in course of time lawyers invent a name. If the non-tenurial rent can be exacted by distress, it is a rent charge; if not, it is a rent seck, redditus siccus, a dry rent. Bracton knew these distinctions, though he had not the names that mark them in after ages.401

Edition: orig; Page: [129]Non-tenurial rents.A non-tenurial rent often comes into being by virtue of a grant. The holder of land imposes such a rent upon his land in favour of some other person. It may be a rent for life or a rent in fee. If he expressly concedes to the grantee a power of distress, there is a rent Edition: current; Page: [136] charge; otherwise there is a rent seck. The creation of a rent charge was by no means uncommon. The purchase of a rent was a favou-rite mode of investing money at a time when any receipt of interest for a loan was sinful, and a religious house would have many rents constituted in its favour by those whose piety or whose wealth fell short of a gift of land. Sometimes again a rent which had started by being a rent service would become a rent seck. Thus A, who has a rent-paying tenant M, may grant the rent to X, but continue to be M’s lord and retain for himself any other services that are due, together with the feudal casualties. In that case, when M has attorned himself to X, the rent will no longer be a rent service, it will no longer be due from tenant to lord, it will be a rent seck.402

Rents charge as things.Now these non-tenurial rents, whether they be rents charge or rents seck, are treated as things. They are exceedingly like rents service. Often in a record of litigation about a rent we can see nothing that tells us to what class that rent belongs. Two people are disputing about the title to an existing rent; nothing is said about its origin; the person who will have to pay it, the “terre tenant,” the occupant of the land, is no party to the action. The “thinglikeness” of the rent charge may not surprise us, for in one most important respect it resembles the rent service:—it carries with it the power to distrain, and this power manifests itself in a procedure that attacks the land. Into the land the rent-owner enters; he takes the chattels that are found there; they may or may not be the chattels of the tenant; they are on the burdened land and that is enough. In such a case it is easy for us to picture the rent “issuing out of” the land and incumbering the land. The thinglikeness of a rent seck is therefore a more striking phenomenon. This right does not empower him who has it to make any attack upon the land by way of distress. The most that he is entitled to do to the land is to enter on it for the purpose of demanding payment of his rent. And yet the rent seck is very truly a thing.

Rents owed by the land.(1) In the first place the governing idea is that the land is bound to pay the rent, and it is by no means necessary to the existence of Edition: current; Page: [137] the rent that any person should be bound to pay it. In later daysEdition: orig; Page: [130] the creator of a rent seck or rent charge was in general personally bound to pay it, and, if he had expressly bound his heirs to pay it, then his heirs were bound; but it was always open to the creator of a rent to exclude this personal liability.403 The personal liability was enforced by an action of annuity, an action in which the plaintiff demanded the arrears of an annual rent that was due to him. But this action is by no means one of our oldest. If we mistake not, it was very new when Bracton was writing.404 To the last, protection by this writ is not of the essence of a valid rent; there often may be a rent which no person is bound to pay. Of course, if we must be analytic, a payment is always made by a person and is never made by land, and if a payment is due some person must be bound to make it. But the terre tenant has only to pay the rent that becomes due while he is terre tenant. We may almost go the length of saying that the land pays it through his hand. The rent-owner’s weapon against him is not a contractual action, it is an assize of novel disseisin. When the rent-owner has received an instalment of rent and the terre tenant refuses another, the rent-owner has been disseised of his free tenement in a certain vill. Another refusal to pay will make the tenant a redisseisor; he will be sent to gaol and will have to pay double damages.405

The rent-owner’s rights against the world.(2) The assize of novel disseisin enables the rent-owner to coerce the tenant of the land into paying the rent as it becomes due. It also protects him as against the world at large in the enjoyment of his incorporeal thing. The rent is a thing about which there can be litigation between adverse claimants. One of them is possessed of it, the other claims possession and perhaps alleges that he has been Edition: current; Page: [138] unlawfully disseised. Every sort of action that can be brought for the recovery of land can be brought for the recovery of rent; one hasEdition: orig; Page: [131] but to put in the writ ten shillingsworth of annual rent instead of ten acres of land.406 Even a writ of entry can be used; there is not the least impropriety in saying that a man entered into a rent charge,407 or was ejected from it.408

Creation and transfer of rents.(3) Next we see that in order to create one of these non-tenurial rents a transaction that is closely akin to a livery of seisin is necessary. In the thirteenth century the execution and delivery of a deed is becoming an essential element in the transaction, and, since the creation of such rents can hardly be traced beyond the time when the use of sealed writings had become common, we may perhaps treat the requirement of a deed as aboriginal. Such a deed will be closely similar to a charter of feoffment; the creator or transferor of the rent will say, “Know ye that I have given and granted a rent,” and very possibly the transaction is actually spoken of as a feoffment.409 But the execution and delivery of the deed were not sufficient. If we suppose A, the tenant of the land, to be creating a rent in favour of X, the delivery of the deed may be enough to give X a power to distrain for the rent if the rent be a rent charge; but, in order to give him an action for a rent charge and in order to give him any remedy whatever for a rent seck, he must obtain a “seisin in deed” of the rent. This will be given to him if A hands to him a penny or, it is said, any other valuable thing in name of seisin of the rent.410 Next we suppose that the rent has been created, that A is still the terre tenant and that X wishes to convey the rent to Y. The mere execution and delivery of a deed will do nothing effectual. In order to give Y the power to distrain for the rent, which for the moment we suppose to be a rent charge, A must attorn to Y. But more than attornment—which may be made by mere words without act—is required if Y is to have an action for a rent charge Edition: current; Page: [139] or any means whatever of exacting a rent seck. The terre tenant A must pay something to Y in name of seisin of the rent. The right is not completely transferred until there has been some act that canEdition: orig; Page: [132] be regarded as a manual transfer of the thing.411

Annuities as things.We have been gradually leaving the land behind us. The rent service is part of a lordship over land; the rent charge authorizes a distress upon land similar to that which a landlord makes; the rent seck does not authorize a distress but still it “issues out of,” it is owed by, land. One more step we must make, for we have yet to speak of rents that do not issue out of land. Of “rents” we say. At a later time they will generally be called “annuities,” “personal annuities.” But let an action be brought for such an annuity, then in the precise language of pleading it will be called an annual rent, annuus redditus.412 Such annuities were known in the thirteenth century, and it was allowed that they did not “issue out of” land. Did they then issue out of nothing? No, that would have been inconceivable. A permanent right of this kind, a right to receive money year by year, could not exist unless it had some point of contact with the physical world; it must issue out of some thing. These annuities issue out of the grantor’s “chamber,” the place where he keeps what treasure he has.413 To our eyes they are merely personal annuities, unsecured annuities; the grantee has nothing to trust to but the grantor’s honesty and solvency. Still they are things, incorporeal things, and in the thirteenth century they must be thought of as having in some sort a visible fountain-head in the world of sense.

Annuities lose their thinglikeness.Our materials give us but little information as to the treatment of these personal annuities by the law of Bracton’s age. Probably the only things of this sort that were at all common were the corodies granted by religious houses, of which we must speak hereafter. But it was decided that the actions for land could not be made Edition: current; Page: [140] to serve for the recovery of these “chamber rents.” The writ of novel disseisin was inapplicable, because there was no land of which a view could be given to the jurors. The grantor’s chamber was no fixed place.414 Therefore the person who is deforced of such a rentEdition: orig; Page: [133] has not been disseised of his free tenement; therefore such a rent is not a tenement.415 Late in Henry’s reign an appropriate action, the writ of annuity, or rather of “annual rent,” was given for their recovery. They fell apart from land, and in course of time they slowly assumed the guise of merely contractual rights; but in the earlier Year Books their thinglikeness is visible. For many reasons it was important for the annuitant that he should be able to allege a seisin of his annuity.416

Corodies as things.One class of annuities has an instructive history of its own. It consists of the corodies (conredia) granted by religious houses. In consideration, as we should say, of some benefit conferred, or some services done or to be done, a religious house undertakes to supply some man at stated intervals with victuals and clothes or other commodities. Sometimes he may be a distinguished canonist and the corody is his retaining fee. Sometimes one of the abbey’s land agents, steward or woodward, is to be thus rewarded for his labours. Sometimes the king will exact a corody for one of his chancery clerks from a house of royal foundation. Sometimes a man will invest ready money in the purchase of a corody and thus provide for his old age. In many cases an elaborate document will be executed. The quantity and quality of the meat, drink, clothes, candles, firewood, that the grantee is to receive will be carefully defined; even the mustard and garlic will not be forgotten. Perhaps he will be entitled to the use of one of the convent’s horses or to stabling for his own horse. Perhaps a room in the house must be found for the use of him or of his servants if he requires it.417

Treatment of corodies.In Bracton’s day the temporal courts were leaving the corody Edition: current; Page: [141] alone. It was very like a rent seck. It “issued out of” a fixed place, and in this respect it differed from the mere personal annuity which was supposed to issue from the grantor’s “chamber.” Such a chamber may be here to-day and gone to-morrow, but the religious house is permanent. The corody, however, issued from a house which was on consecrated soil, a house which, to use Bracton’s phrase, was in bonis Dei. Therefore it is a spiritual thing and its exaction must be left to the ecclesiastical court.418

Edition: orig; Page: [134]Disseisin of corodies.A new rule was introduced by statute in 1285.419 A temporal action was given for the corody, and this action was the assize of novel disseisin. If an annual supply of victuals or other necessaries is to be received in some certain place, the right to receive it is to be treated like land. To us this treatment of what in our eyes is but the benefit of a contract may seem very awkward. It was deliberately chosen as the proper treatment by the great lawyers who surrounded King Edward. They might have given an action of annuity, of debt, of covenant; they gave an assize of novel disseisin; they told the man whose corody was in arrear to complain of an ejectment from his free tenement; they sent the jurors to view the monastery whence the corody issued. A better example of medieval realism could hardly be given.

Offices as things.If rights that appear to us to be merely contractual are thus dealt with, we shall not be surprised to find that where the contractual element is wanting, incorporeal things are very easily created. If “offices” are to fall within the pale of private law at all, if they are to be heritable and vendible, perhaps we cannot do better than treat them as being very like pieces of land.

The statute that we have just mentioned gave the assize of novel disseisin for “the wardenship of woods, parks, chases, warrens and gates, and other bailiwicks and offices in fee.” Some have said that this was no innovation.420 Be that as it may, at the end of the century the assize which protects the possessor of land seems the natural Edition: current; Page: [142] defence for the possession of an office, at all events if that office has a local sphere, if the jurors can be shown some place in which it has its home or its being. Our law is following in the wake of the canon law. The canonists have been carrying their doctrine of “the possession of rights” into almost every province of jurisprudence. By a famous decretal the Archbishop of York gained a possessory and provisional protection for the right, if right it were, of carrying his cross erect in the province of Canterbury; and in days when theEdition: orig; Page: [135] two primates were hardly to be kept from fisticuffs, this iuris quasi possessio made for decency.421

The advowson as a thing.But we shall learn most about the thinglikeness of our incorporeal things if we turn to the advowson. The advowson is a thing of great value and importance, the subject-matter of frequent litigation and copious law. Generally422 an advowson is the right to present a clerk to the bishop for institution as parson of some vacant church; the bishop is bound to institute this presented clerk or else must show one of some few good causes for a refusal. There can be little doubt that historically the patron’s right has it origin in an ownership of the land upon which the church stands.423 The law of the thirteenth century regards the advowson as being normally an appurtenance of some manor. Make a feoffment of the manor, and the advowson is conveyed. Disseise a man of the manor, and you become seised of the advowson. But advowsons are often severed from the manors to which, in legal theory, they have at some time or another belonged. The lord gives the manor but retains the advowson, or else he gives the advowson but retains the manor. The latter transaction is common; numerous advowsons are detached from their manors by being given to religious houses. An advowson thus detached becomes, to use a phrase which is current in the last years of the century, “a gross,” that is, a thing by itself, a thing which has an independent existence.424

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Where is the advowson?We may see Bracton struggling with the notion that such a right cannot exist unless it exists somewhere. There must be some corporeal thing in which it inheres. It no longer inheres in a manor. It must inhere in the church itself, the structure of wood and stone. Every-day advowsons are being taken into the king’s hands; this is a common episode in litigation. The sheriff goes to the church and declares before witnesses that he seizes the advowson. The advowson must be there, in the church, or how could he seize it?425 Still Bracton knows that the advowson is incorporeal, invisible, impalpable, and speaks with some pity of the layman who says that he gives a church when he means that he gives a right of patronage.426

Edition: orig; Page: [136]Actions for advowsons.If, however, the advowson is incorporeal it is none the less a thing—a thing for the purposes of litigation, a thing for the purposes of conveyance. In the first place, there is a proprietary action for the recovery of the advowson, a writ of right of advowson, which is closely parallel to the writ of right for land; it leads to battle or the grand assize.427 In the second place, there is definite possessory protection for the possessor of the advowson. This takes the form of an assize of darrein presentment (de ultima presentatione) which is almost, if not quite, as old as the analogous novel disseisin.428 To apply the idea of seisin or possession to an advowson is not altogether easy. The only actual exercise that there can be of this right is a successful presentation. If you have presented the man who is now parson of the church, then it may well be said that, rightfully or wrongfully, you are seised of the advowson. But you cannot exercise such a right just when you please, nor can you exercise it periodically. Now and again at longish intervals a man has a chance of Edition: current; Page: [144] showing that he is seised. Nevertheless, seisin there is, and it ought to be protected. The question addressed to the recognitors of the assize is this:—

Who was the patron who in time of peace presented the last parson, who is now dead, to the church of Middleton, which is vacant, and the advowson whereof Alan claims against William?

The principle of law which lies at the root of this formula seems simple. The person who, by himself or his ancestors, presented on the last occasion, ought to present upon this occasion also. But this principle is too simple, or rather, the formula that enshrines it is too rude. The jurors may be compelled to answer the question in favour of Alan, and yet William ought to prevail, even in a possessory action. For one thing, since the last presentation Alan may have granted the advowson of the church to William, and alreadyEdition: orig; Page: [137] in Glanvill’s day such a grant will entitle the grantee to the next presentation.429 But William, if he wishes to rely upon such a grant, must plead it by way of exceptio (special plea); if the original question be answered by the recognitors, Alan will succeed in his action and present a clerk. At a comparatively early time special pleas became common in this assize.430 Probably it was for this reason that, while the novel disseisins and mort d’ancestors were disposed of in their proper counties by justices of assize, darrein presentments were reserved (except when there was a general eyre) for the justices of the bench.431 For all this, however, the action was a purely possessory action. The defendant could not go behind the last presentation. The victor in to-day’s assize may succumb to-morrow before a writ of right brought by the very adversary whom he has vanquished.

Conveyance of advowsons.An advowson can be conveyed by one person to another. Often it passes from one person to another as appendant to a manor which is being conveyed. In such a case no deed is requisite; there will be Edition: current; Page: [145] a feoffment; seisin of the manor will be delivered, and, when the church next becomes vacant, the feoffee will be entitled to present; in the meantime he will have a seisin in law, a “fictitious seisin.” But we have more concern with the case in which the advowson is to be conveyed by itself as “a gross.” Probably in this case also, whatever could be done by deed could be done without deed. Late in the next century all the justices agree that in order to grant an advowson it is sufficient that the two parties shall go to the door of the church and that the grantor shall there speak the words of grant and deliver “seisin of the door.”432 However, the common practice certainly was that a deed should be executed. But the mere delivery of the deed cannot be for all purposes a sufficient conveyance. In Bracton’s eyes such a deed transfers a “fictitious” or “imaginary” seisin.433 This is effectual for some purposes. We will suppose that Alan, who made the last presentment, has by deed granted the advowson to William. Now if the church falls vacant and William has not parted with the advowson, he will be entitled to present. Against an assize of darrein presentment brought by Alan he can protect himself byEdition: orig; Page: [138] an exception. Further, he has himself an action which will enable him while the church is vacant to enforce his right against Alan or a third person. This is the Quare impedit, a possessory action invented for the sake of those who cannot (and William cannot) use the assize.434 But we will suppose that, before the church falls vacant, William by a deed grants the advowson to Roger. Then the parson dies. Who is entitled to present? Four times over Bracton, with many references to decided cases, has given us the answer, and curious it is.435 Alan is entitled to present. The “quasi-possession,” the imaginary or fictitious seisin, that his deed gave to William was not transferable, and therefore Roger has got nothing. On the other Edition: current; Page: [146] hand, William has succeeded in depriving himself of whatever he had or seemed to have. The only real seisin is with Alan, and he is entitled to present. Until the grantee of an advowson has obtained an actual seisin by a successful presentment, he has nothing that he can give to another.

Seisin of advowsons.But further, the grantee until he has successfully presented is in an extremely insecure position. The church falls vacant; he is entitled to present, and he can make good this right by means of the Quare impedit. But suppose that he does not seize this opportunity. Suppose that some mere wrong-doer presents and gets his clerk instituted. Then our grantee’s rights are gone for ever. Of course he can have no possessory action, for seisin is now with the usurper. But he can have no proprietary action, for he cannot allege—and this in a writ of right he would have to do—that either he or some ancestor of his has been seised with an exploited seisin. Such was the law until a statute of 1285 allowed him six months after the usurpation for his Quare impedit; but down to Queen Anne’s day an usurpation followed by inaction for more than six months would utterly destroy his right.436

Rights of common as things.Edition: orig; Page: [139]The same ideas are applied to other incorporeal things, more especially to those rights that are known as rights of common. If a feoffment is made of a piece of land to which a right of common belongs, the feoffee, says Bracton, at once acquires a fictitious seisin by viewing the ground over which the right of pasturage or the like extends.437 It may be that he has at the moment no beasts to turn out; it may be that the season of the year during which the right is exercisable has not yet come. But he ought to take the first opportunity that occurs of converting this imaginary into a real seisin; if he lets that slip, he may well find that he can no longer turn out his beasts without being guilty of a disseisin.438 To this we must add that, so long as his seisin is fictitious, he has nothing that he can Edition: current; Page: [147] convey to another. Such at all events is the case if the right of pasturage was granted to him “as a gross.”439

Possessory protection of rights of common.Then again, there is a possessory protection for these incorporeal things. The novel disseisin for common of pasture is coeval with the novel disseisin for land.440 The practice of Bracton’s day was extending the same remedy to rights of turbary and fishery.441 The Second Statute of Westminster sanctioned this extension and carried it further. The right to take wood, nuts, acorns is to be included, also the right to take toll and similar dues. The assize of novel disseisin is regarded as a most successful institution; the best method of enforcing these rights is to protect those who are seised of them.442

Law of prescription.Seisin itself is protected, seisin of the incorporeal thing. We see this best if we consider the modes in which the ownership of such a thing can be acquired. It can be acquired by inheritance; it can be acquired by conveyance, though, as we have just seen, the grantee has never got full and secure ownership until he has got possession, actual exploited possession; it can also be acquired by long-continued user. Of the effects of long-continued user Bracton speaks somewhat obscurely; his romanesque terms, usucapio and the like, perplex his doctrine.443 We must, however, draw a marked line between land and incorporeal things. Our medieval law knows no acquisitiveEdition: orig; Page: [140] prescription for land; all it knows is a limitation of actions. This principle seems to be implicit in the form which every demand for land by proprietary action must take. The claimant must allege that he or some ancestor of his was seised as of right; he must deduce his title from a seisin that was rightful. He must not indeed “plead higher up” than a certain limiting period. In Bracton’s day he must Edition: current; Page: [148] allege a seisin as of right on this side of Henry II.’s coronation. That date will leave him a hundred years or thereabouts. He will have to tender a champion prepared to swear to this rightful seisin, as one who either saw it, or was enjoined to bear witness of it by a dying father.444 Thus a limit is set to the action. Mere lapse of time may serve as a shield for the tenant, but it cannot serve as a sword for the demandant. He cannot say, “I claim this land because my ancestors were seised of it for twenty, thirty, a hundred years.” He must begin with some ancestor who was seised as of right. But further, we may doubt whether for land there is any extinctive prescription. The man who cannot allege a seisin on this side of Henry II.’s day has lost every action for the land; but it does not follow that his right is extinct. Hereafter it may prove its vitality, if this man, having obtained seisin under some new and defeasible title, is “remitted” to the oldest title that he has. We cannot say with certainty that this was so in Bracton’s day; but at a later time “it is commonly said that a right cannot die”445 and this we may well believe to be an old, as well as a common, saying.

Incorporeals acquired by prescription.By way of contrast we may see that many incorporeal things can be acquired by prescription, by long-continued user.446 In particular we may see this in the case of rights of common. There is an action by which the landowner calls upon the person who asserts such rights to prove his title, the action Quo iure clamat communam.447 It is regarded as a thoroughly proprietary action; it may lead to a grand assize. Now one of the usual answers to this action is a prescriptive claim—“I and those whom I represent have commoned here— always—from before the Norman Conquest—from time immemorial.” In most cases the Norman Conquest is mentioned. Behind theEdition: orig; Page: [141] great resettlement of the land one must not go; on the other hand one can, to all seeming, be required to allege a continuous seisin ever since that remote event.448

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Possessory protection of an inchoate right.This is a proprietary action; but it is fairly evident that a man can acquire a legally protected possession of an incorporeal thing on much easier terms. We put this case:—For some time past a man openly and peaceably, and as though asserting a right, has been turning his beasts out on my land; he may have been doing it for so long a time that I can no longer bring an assize against him as against one who has been disseising me of my land; still he cannot assert a user that goes back nearly as far as the Conqueror’s days. The question is whether this man is protected against my self-help. May I bar out his beasts from the pasture or seize them if they are there? To this question the answer that Bracton gives is that against self-help this man is protected. My proper course is to bring against him some more or less proprietary action. Possibly I may have to bring the Quo iure, and then there may be a grand assize. It is very possible that this man should one day “recover the common” in an assize and the next day be made a defendant in a proprietary action which will deprive him of the common for good and all.449 This idea of a purely possessory protection for those who are enjoying “incorporeal things,” but who cannot yet say that those things are their own, is one that cannot be easily managed. We seem to have before us a pasture right that is only half a right, an incorporeal thing that exists and yet does not exist.450 But the lawyers of the thirteenth century made a strenuous endeavour to pursue this idea through all speculative difficulties.451

Edition: orig; Page: [142]Can annuities be prescribed for?It is by no means certain that both prescription and the possessory protection of inchoate “things” were not extended to “things” Edition: current; Page: [150] which in our eyes consist wholly or in part of the benefit of a contractual obligation. In the Year Book period it is possible to prescribe for rents, and the courts seem to be engaged rather in setting new limits to this doctrine than to widening its scope. One ecclesiastical corporation is allowed to prescribe against another for a mere personal annuity. In 1375 the judges draw a line at this point; they will not hold that a natural person can be bound to pay an annuity merely because from time immemorial his ancestors have paid it.452 We have but little evidence as to the opinions which the lawyers of Henry III.’s reign held about this matter; but the canonical influence was making for the widest extension both of the sphere of prescription and of the possessory protection of inchoate things;453 and English law would take little account of the canonist’s requirement of bona fides. Certainly it was very dangerous for any man to make any payment which could possibly be construed as being made in discharge of a permanent duty, unless he wished to go on making similar payments at periodical intervals to the end of time. You should never attend the county court unless you want to attend it every month, for you will be giving the king and his sheriff the seisin of “a suit.” But in this region it is not very easy to distinguish between what we may call the generative and the merely evidentiary effects of seisin. Even when seisin does not beget a right, it will often be good evidence that the right exists.

Prescription for franchises.How far prescription can be carried in another direction, that in which the “franchises” lie, was a burning question. The royal lawyers were asserting that the franchises, or at all events such of them as had to do with the administration of justice, could not be gained by continuous user.454 As regards these, Nullum tempus occurrit Regi. They can only be acquired by express grant; a grant will be construed in a manner favourable to the king; if once acquired theyEdition: orig; Page: [143] are inalienable;455 they are very easily lost. The man who has the Edition: current; Page: [151] franchise of utfangthief, for example, must be vigilant in acquiring and retaining a seisin thereof;456 if he lets the sheriff hang even one thief who is within the terms of the privilege, he will have forfeited that privilege by non-user and will have to repurchase it by a fine. Edward I. was forced to make concessions in this quarter;457 many of the franchises, even many of the justiciary franchises, became prescriptible; but so long as they were of any real importance there were frequent debates about this matter.

Appurtenances.Many of the incorporeal things inhere in corporeal things; indeed the notion that they can exist by themselves, that they can exist “in gross” or “as a gross” has had difficulties to encounter. Where can the advowson be, if it is not inherent in a manor?458 A tract of land has rights pertaining to it; they are as much a part of it as the trees that grow out of it and the houses that are built upon it. In a charter of feoffment it is not usual to describe these rights; to say that the land has been conveyed cum pertinentiis is quite enough, and very probably even this phrase is needless. Occasionally however we may come upon a copious stream of “general words.” One example may suffice. Just about the time of Edward I.’s accession the Abbot of Ramsey purchased a manor from Berengar le Moigne for the very large sum of £1666. 13 s. 4 d. (this instance of a great sale for ready money is remarkable), and it was conveyed to him “with the homages, rents, services, wardships, reliefs, escheats, buildings, walls, banks, in whatsoever manner constructed or made, cultivated and uncultivated lands, meadows, leys, pastures, gardens, vineyards, vivaries, ponds, mills, hedges, ways, paths, copses, and with the villeins, their chattels, progeny and customs, and all that may fall in from the said villeins, merchets, gersums, leyrwites, heriots, fines for land and works, and with all easements and commodities within the vill and without.”459 A manor is a highly complex and organized aggregate of corporeal and incorporeal things. This aggregate may be broken up, but, while it remains intact, the Edition: current; Page: [152] thoughtEdition: orig; Page: [144] that it is a single thing is maintained with consistency, even in favour of a violent wrong-doer. You are seised of a manor to which an advowson belongs; I disseise you of that manor; if the church falls vacant before you have recovered the manor, it will be for me, not for you, to present a clerk.460

Easements and profits.One large class of incorporeal things consists of rights to be exercised in alieno solo. Normally these inhere in a dominant tenement; but our law does not deny the possibility of their existing as “grosses.”461 It is as yet vaguely liberal about these matters. It does not make any exhaustive list of the only “praedial servitudes” that there can be. Men are very free to strike what bargains they please, and the result of such a bargain will be, not an enforceable contract, but the creation and grant of an incorporeal thing. The most elaborate and carefully worded of the private documents that have come down to us are those which create or regulate pasture rights and rights of way. Our law seems to look at these rights from the standpoint of the person who enjoys them, not from that of the person who suffers by their exercise. They are not “servitudes,” they are “easements,” “profits,” “commodities.”462 A distinction is being established between the “easement” which does not authorize one to take anything, and the “profit” that authorizes a taking; the typical instance of the one is the right of way, of the other the right to take grass “by the mouths of one’s cattle.” The term common (communa) is not confined to cases in which many neighbours have a right to some profit, by fishing, taking turf, depasturing cattle, on the soil of their lord, though it may be that the term has its origin in cases of this sort. You may grant to me “common of pasture” in your soil, and I may be your one commoner, and it is by no means essential that you should be my lord. Such grants were not unusual and very often they defined with minute particularity the number of beasts Edition: current; Page: [153] that might be turned out and the other terms of the bargain.463 Nor is it very rare to find the grant of a right to take wood; this is oftenEdition: orig; Page: [145] limited to such wood as may be requisite for the repair or the warming of a certain house or the maintenance of fences on a certain tract of land.464 The yet feeble law of contract is supplemented by a generous liberality in the creation of incorporeal things. The man of the thirteenth century does not say, “I agree that you may have so many trees out of my copse in every year,” he says, “I give and grant you so much wood.”465 The main needs of the agricultural economy of the age can be met in this manner without the creation of any personal obligations.

Liberty and serfage as things.“Liberty,” again, and “serfship” can be treated as things of which there is possession or seisin.466 The lord of a villein owns a corporeal thing and ought to be seised of it, and in the thirteenth century, though a feoffment of a “manor” will transfer the ownership of men as well as of other things, still in an action for reducing a man to villeinage, the would-be lord claims that man as a thing by itself and seldom, if ever, makes any mention of manor or land. “My grandfather,” he will say, “was seised of your grandfather as of his villein, and took esplees of him as by taking merchet from him, tallaging him high and low and making him reeve,” and then the descent of the right and the transmission of the villein blood will be traced step by step. But the lord is only driven to this proprietary pleading if the man whom he claims is “in seisin of liberty.” This seisin of liberty the villein may somewhat readily gain, if he has the courage to flee. Apparently the lapse of four days will preclude his lord from self-help. After that, he may not seize the body of the fugitive, unless he has returned to “his villein nest,” nor may the chattels of the fugitive be taken, since they can for this purpose Edition: current; Page: [154] be regarded as appurtenances of his body, and when one loses seisin of the principal thing, one loses seisin of its appurtenances. On the other hand, a man who is free de iure may be a villein de facto. Until by flight or litigation he destroys this de facto relationship, heEdition: orig; Page: [146] can, it would seem, be lawfully treated as a villein, be tallaged, for example, or set in the stocks.467

The marital relation-ship and possessory protection.But even to the conjugal relationship the idea of seisin is extended. Possibly we might expect that a husband would be seised of his wife; but, as a matter of fact, we more commonly read in our English records of a wife being seised of her husband. The canon law in its desire to suppress sin has made marriage exceedingly easy; no nuptial ceremony is necessary. The result is that many de facto marriages are of doubtful validity, since it is only too possible that one of the parties has some more legitimate spouse. The canon law has been constrained to divide the possessorium from the petitorium. I can be compelled to live with my de facto wife until by reason of an earlier marriage, or of consanguinity, or the like, I have obtained a divorce from her.468 With this our temporal law is not concerned; but it is by no means improbable that, when a man dies, two women will claim dower, and that one of the would-be widows will put forward a definitely possessory claim: “I was seised of this man when he died as of a lawful husband; possession of one-third of his lands should be awarded to me, and when I have got that, then let this lady assert her proprietary rights.”469 The position of defendant is coveted and medieval judges will not decide a question of best right if they can help it.

Wardships as things.The guardian can and ought to be seised of the body of the ward, and the seisin of a de facto guardian is protected against the self-help of a more rightful claimant. As to the wardship of land, this is treated as an incorporeal thing which is distinct from the land. One may, rightfully or wrongfully, have possession of this Edition: current; Page: [155] custodia, but this will not give one a seisin of the land. For testamentary purposes the custodia is an incorporeal chattel.

Landlikeness of the incorporeals.For the more part, however, our incorporeal things are conceived as being very like pieces of land. Gradually a word is being told of to express this similarity. That word is “tenements.” Unless we are mistaken, that word first came into use for the purpose of comprising meadows, pastures, woods and wastes, for at an early timeEdition: orig; Page: [147] the word terra will hardly cover more than the arable land.470 But tenementum will also comprise any incorporeal thing which can be holden by one man of another. Thus in particular it will comprise an advowson, even when that advowson exists “in gross,” for it will be held of the king or of some mesne lord. Probably the advowson “in gross” was generally held by frankalmoin, since it was chiefly for the benefit of religious houses that advowsons were severed from their manors; but it might be held by knight’s service.471 Then, as the assize of novel disseisin was extended to one class of incorporeal things after another, the term “tenements” was extended to things that were not holden of another person, for the writ of assize always supposed that the plaintiff had been disseised “of his free tenement” in a certain vill. Thus, for example, rents charge, rents seck, rights of common, become tenements. Statutes of Edward I.’s day gave the word a sharper edge.472 On the whole the analogy is persistently pursued; the incorporeal thing as regards proprietary and possessory remedies, as regards conveyance, as regards succession, as regards the “estates” that may exist in it, shall be made as like an acre of land as the law can make it. The mere personal or unsecured annuity, when it is no longer conceived as a “cameral rent,” falls apart from the other incorporeal things; its contractual Edition: current; Page: [156] nature becomes more and more apparent. It is like land for the purposes of succession on death, but not for other purposes; in the language of a later time it is a “hereditament” but no “tenement.” That land should have been the model after which these things were fashioned, will not surprise us, when we have turned, as now we must, from the rich land law to the poor and backward law of movableEdition: orig; Page: [148] goods; but we cannot leave behind us the law of incorporeal things, the most medieval part of medieval law, without a word of admiration for the daring fancy that created it, a fancy that was not afraid of the grotesque.

§ 7.: Movable Goods

Ownership and possession of chattels.Of the manner in which our English law of the thirteenth century treated the ownership and the possession of movable goods, we know but little. Against the supposition that in the feudal age chattels were of small importance so that there was hardly any law about them, a protest should be needless. Not even in the feudal age did men eat or drink land, nor, except in a metaphorical sense, were they vested with land. They owned flocks and herds, ploughs and plough-teams and stores of hay and corn. A Cistercian abbot of the thirteenth century, who counted his sheep by the thousand, would have been surprised to hear that he had few chattels of any value. Theft has never been a rare offence; and even on the landowner the law brought its pressure to bear chiefly by seizures of his movable goods. Indeed the further we go back, the larger seems the space which the possession of chattels fills in the eye of the law. An action for the recovery of cattle seems as typical of the Anglo-Saxon age as an action for the recovery of land is of the thirteenth century, or an action on a contract is of our own day. It is, no doubt, worthy of remark that in the feudal time the title to chattels was often implicated with the title to land. The ownership of a manor usually involved the lordship over villeins and the right to seize their chattels; and so when two men were litigating about a “manor,” the subject of the dispute was not a bare tract of land, but a complex Edition: current; Page: [157] made up of land and of a great part of the agricultural capital that worked the land, men and beasts, ploughs and carts, forks and flails.473 For all this, however, by the operation of sales and gifts, by the operation of our dual law of inheritance or succession—to say nothing of the nefarious operations of the cattle lifter,—the ownership and the possession of movables were often quite distinct from the ownership and the possession of any land.

Edition: orig; Page: [149]Obscurity of the subject.In part our ignorance may be explained by the fact that litigation about chattels was prosecuted chiefly in those local courts which kept no written records of their doings, or whose records have not been preserved or have not been published. Even when in Edward I.’s day the competence of those courts had been restricted within a pecuniary limit, they could still entertain by far the greater number of the actions for the recovery of chattels that were brought; for a chattel worth forty shillings was in those days a costly thing.474 But to this cause of ignorance we must add another, namely, a want of curiosity. It has been common knowledge that medieval land law was unlike modern land law and that it would repay the investigator. On the other hand, we have but too easily believed that the medieval law of chattels was simple and straightforward and in all probability very like modern law. A little acquaintance with foreign books would teach us that this can hardly be true. In France and Germany, in countries which are not overwhelmed by such voluminous records of the land law as those that we have inherited, few questions about legal history have given rise to keener debates than those which touch the ownership and possession of movables. Did medieval law know an ownership of movables? Even this fundamental question has been raised.

The medieval chattel.A few characteristics of the typical medieval chattel demand our attention. In the first place, we can speak of a typical chattel; the very word chattel tells us this. The typical chattel is a beast. Edition: current; Page: [158] The usage which has differentiated chattel from cattle is not very ancient; when Englishmen began to make their wills in English a gift of one’s “worldly catell” was a gift of all one’s movables. Then, in the second place, this typical chattel was perishable; the medieval beast, horse, ox, sheep, had but a short life, and in this respect but few chattels departed far from the type. With the exception of armour, those things that were both costly and permanent were for the more part outside the ordinary province of litigation; books, embroidered vestments, jewelled crowns and crucifixes, these were safe in sanctuary or in the king’s treasure house; there was little traffic in them. Thirdly, the typical chattels had a certain “fungibility.”Edition: orig; Page: [150] Time was when oxen served as money, and rules native in that time will easily live on into later ages. The pecunia of Domesday Book is not money but cattle. When cattle serve as money, one ox must be regarded as being for the purposes of the law exactly as good as another ox. Of course a court may have to decide whether an ox is a good and lawful ox, just as it may have to decide whether a penny is a good and lawful penny; but, granted that two animals are legally entitled to the name of ox, the one in the eye of the law can be neither better nor worse than the other. It was by slow degrees that beasts lost their “pecuniary” character. A process of differentiation went on within each genus of animals; the genus equus contains the dextrarius, the iumentum, the palefridus, the runcinus. All horses are not of equal value, but all palfreys are or may for many legal purposes be supposed to be, and the value of the destrier can be expressed in terms of rounceys. Rents are payable in oxen, sheep, corn, malt, poultry, eggs. The royal exchequer has a tariff for the commutation of promised hawks and hounds into marks and shillings.475 We may expect therefore that the law of the twelfth and thirteenth centuries will draw no very sharp line between coins and other chattels; but this means that one important outline of our modern law will be invisible or obscure.

Pecuniary character of chattels.We are not arguing that the typical chattels of the middle ages were indistinguishable from each other, or were supposed to be so Edition: current; Page: [159] by law. When now-a-days we say that “money has no ear-mark,” we are alluding to a practice which in all probability played a large part in ancient law. Cattle were ear-marked or branded, and this enabled their owner to swear that they were his in whosesoever hands he might find them.476 The legal supposition is, not that one ox is indistinguishable from another ox, but that all oxen, or all oxen of a certain large class, are equivalent. The possibility of using them as money has rested on this supposition.

Possession of chattels.In one other particular a chattel differs from a piece of land. As we have seen, when several different persons, lords and tenants of divers orders, have rights in a piece of land, medieval law can attributeEdition: orig; Page: [151] to each of them a certain possession or seisin. One is seised “in service,” the other “in demesne”; one is seised of the land, the other of a seignory over the land; one is seised while the other possesses—and so forth. The consequence is that in the case of land a great legal problem can be evaded or concealed from view. If we ascribe possession or seisin to a hirer of land, this will not debar us from ascribing a certain sort of possession or seisin to the letter: istae duae possessiones sese compatiuntur in una re.477 But it is otherwise with chattels. As between letter and hirer, lender and borrower, pledgor and pledgee—in short, to use our convenient general terms, as between bailor and bailee—we must make up our minds, and if we concede possession to the one, we must almost of necessity deny it to the other. The lord’s seisin of his seignory becomes evident when he enters to distrain for services that the land owes him, when he enters as the heir’s guardian and the like. In the case of goods we can hardly have any similar phenomenon, and if, as we may be apt to do, we attribute possession to the bailee, we shall have to refuse it to the bailor. We may then be compelled to face a case which will tax to the uttermost the forces of our immature jurisprudence. The ownership of a chattel may be divorced, not only from possession, Edition: current; Page: [160] but from the right to possess. Can it in such a case really continue to be ownership? May it not undergo such a transmutation that it will be reduced to the rank of a mere right in personam?

Is there any ownership of movables?Englishmen are accustomed to hear it said that our medieval law knew, and even that our modern law knows, no absolute ownership of land. To many of them the statement that our medieval law knew no absolute ownership of chattels may be new, and yet we shall see that the ownership of land was a much more intense and completely protected right than was the ownership of a chattel. Indeed we may be left doubting whether there was any right in movable goods that deserved the name of ownership.478

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Edition: orig; Page: [152]English law and recovery of goods.In the course of our investigation, we must distinguish two questions, the one about a remedy, the other about a substantive right. Our common law in modern times has refused, except in rare cases, to compel the restitution of a chattel.479 Having decided that the chattel belongs to the plaintiff and that the defendant’s possession is wrongful, it nevertheless stopped short of taking the thing by force from the defendant and handing it over to the plaintiff. Its judgment was that the plaintiff should recover from the defendantEdition: orig; Page: [153] the chattel or a sum of money that a jury had assessed as its value. This left to the defendant the choice between delivering up the thing and paying a sum of money, and if he would do neither the one nor the other, then goods of his were seized and sold, and the plaintiff in the end had to take money instead of the very thing that he demanded. This odd imperfection in the remedy may suggest to us that there are some historical problems to be solved, still it affected not the plaintiff’s right but only his remedy:—he obtained the value of the thing because he had shown that the thing belonged to him. On the other hand, for some time past the ownership of chattels that our common law has sanctioned has reached a high grade in the scale of intensity. That law has been very favourable to the owner, unduly favourable, so our legislators have thought.480 It has maintained that, except in the case of a sale in market overt—an exception which was more important in the later middle ages than it is in the present century—the owner cannot be deprived of his ownership by any transaction between other persons, even though he has parted with possession, and for a time with the right to Edition: current; Page: [162] possess. The owner, A, lends, lets, deposits, pledges, his chattel—in short he “bails” it—to B; if B, in breach of the contract between him and A, sells this chattel to C, the sale, unless it took place in market overt, will not deprive A of his ownership, even though C has acted with the utmost good faith, paid a full price and made every inquiry that he could be expected to make.

Foreign law: Mobilia non habent sequelam.If, however, we may draw inferences from foreign systems, we may say with some certainty that the favour thus shown to ownership cannot be very ancient. When French and German law take shape in the thirteenth century, they contain a rule which is sometimes stated by the words Mobilia non habent sequelam (Les meubles n’ont pas de suite), or, to use a somewhat enigmatical phrase that became current in Germany, Hand muss Hand wahren. Their scheme seems to be this:—If my goods go out of my possession without or against my will—if they are unlawfully taken from me, or if I lose them—I may recover them from any one into whose possession they have come; but if, on the other hand, I have of my own freeEdition: orig; Page: [154] will parted with the possession of them—if I have deposited them, or let or lent or pledged, or “bailed” them in any manner—then I can have no action for their recovery from a third possessor. I have bailed my horse to A; if A sells or pledges it to X, or if X unlawfully takes it from A, or if A loses and X finds it—in none of these cases have I an action against X; my only action is an action against my bailee, against A or the heirs of A.481 “Where I have put my trust, there must I seek it.” We have not here to deal with rules which in the interest of free trade protect that favourite of modern law, the bona fide purchaser. Neither the positive nor the negative rule pays any heed to good or bad faith. If my goods go from me without my will, I can recover them from the hundredth hand, however clean it may be; if they go from me with my will, I have no action against any one except my bailee.482

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Explanation of the rule.To account for this state of things many ingenious theories have been devised. It has been contended that we have to deal with an imperfect conception of ownership. The owner who of his own free will parts with the possession of his chattel, parts also with the ownership of it. In exchange he takes a mere right in personam, a mere contractual right, a promise that in certain events, or after the lapse of a certain time, the chattel shall be returned to him. On the other hand, it has been argued that we have before us not imperfect ownership but defective remedies. The bailor is still owner of the thing that he has bailed; but the law has hitherto been so much occupied with the difficult task of suppressing theft, that it has omitted to supply him with a “real” action, a vindication: many plausible reasons may be suggested for this neglect. To an Englishman bred up to believe that “there is no right without a remedy,” some of the controversies that have raged over this matter may seem idle.Edition: orig; Page: [155] There may come a time when those legal rules of which we have been speaking no longer express men’s natural thoughts about right and wrong. In such a time it may be allowable to say that the defect is in the remedy rather than in the right, more especially if the law courts are beginning to treat the old rules as antiquated and to circumvent them whenever this can be done. But by this means we only throw back the question into a remoter age. If there was any age in which these rules seemed an adequate protection for ownership, then we are bound to say that the ownership known to that age was in one most important particular different from the ownership that is known to us.

English law.Of late years learned writers have asserted that the negative or restrictive half of this scheme was at one time a part of English law. There is much, it is said, in the Year Books, something even in our modern law, which cannot be explained unless we suppose that the rule Mobilia non habent sequelam held good in this country, and that the man who had bailed his goods had no action against any save his bailee.483 But more than this has been said. It has been pointed out that in the Year Books “possession has largely usurped not only Edition: current; Page: [164] the substance but the name of property,”484 and that the justices have a perplexing habit of ascribing the propretie to the trespasser and even to the thief.485 A thorough treatment of this difficult topic is impossible to those who are debarred from discussing in detail the texts of the later middle ages. Still something about it must be said.486

The “property” of the thief.I. Leaving out of sight for a while the cases in which there has been a bailment, we may consider the position of the owner whose goods have been taken from him, in order that we may if possible come to some understanding of that puzzling phenomenon, the ascription of property to the trespasser and even to the thief, which we find in the later Year Books.

Cattle lifting is our starting point. It is a theme to which the Anglo-Saxon dooms and the parallel “folk laws” of the continental nations are ever recurring. If only cattle lifting could be suppressed,Edition: orig; Page: [156] the legislators will have done all or almost all that they can hope to do for the protection of the owner of movables.Ancient action for the recovery of stolen goods. The typical action for the recovery of a movable is highly penal. It is an action against a thief, or at any rate it is an action which aims at the discovery and punishment of a thief as well as at the restitution of stolen goods. An action we call it, but it is a prosecution, a prosecution in the primary sense of that word, a pursuit, a chase; a great part of the legal procedure takes place before any one has made his way to a court of law. My cattle have been driven off; I must follow the trail; it is the duty of my neighbours to assist me, to ride with me. If we catch the marauder still driving the beasts before him, we take him as a “hand-having” thief and he is dealt with in a summary fashion; “he cannot deny” the theft. The practice of ear-marking or branding cattle, and the legal duty that I am under of publicly exposing to the view of my neighbours whatever cattle I have, make it a matter of notoriety that these beasts, which this man is driving Edition: current; Page: [165] before him, have been taken from me. Even if we cannot catch a thief in the act, the trail is treated as of great importance. If it leads into a man’s land, he must show that it leads out again; otherwise it will “stand instead of a foreoath”; it is an accusing fact.487 If the possessor has no unbroken trail in his favour, then, when he discovers the thing, he lays his hand upon it and claims it. He declares the ox to be his and calls upon the possessor to say how he came by it. The possessor has to give up the thing or to answer this question. He may perhaps assert that the beast is his by birth and rearing; a commoner answer will be that he acquired it from a third person whom he names. Then the pursuer with his left hand grasping one of the beast’s ears, and his right upon a relic or a sword, swears that the beast is his and has been stolen from him, and the possessor with his left hand grasping the other ear swears that he is naming the person from whom he purchased.488

Now at length there may be proceedings before a court of law. The possessor must produce this third person in court; he hasEdition: orig; Page: [157]The procedure in court. vouched a warrantor and must find him. If this vouchee appears and confesses the warranty, then the beast is delivered over to him and the accusation is made against him. He can vouch another warrantor, and so, by following backwards the course along which the beast has passed, we may come at length to the thief. The rules about proof we need not here consider, only we must notice that the possessor, though he is not convicted of theft, may often have to give up the thing to the pursuer. The elaborate law of warranty, the attempts made in England and other countries to prevent undue delay by a restriction of the process to some three or four vouchers, these show plainly enough that the man whose beasts have been stolen can claim them from any one in whose possession they are. If the possessor can name no warrantor, it is still possible that he should protect himself against the charge of theft by showing that he purchased the thing in open market before the proper witnesses; but he will have to surrender that thing; it is not his though Edition: current; Page: [166] he bought it honestly.489 Sales and purchases ought to take place before official witnesses, and the possessor who has neither warrantor nor witness has himself to blame if he is treated as a thief.490

The bailee pursues the thief.When there has been a bailment and the chattel has been taken from the bailee’s possession, it is natural that, so long as prosecution means speedy pursuit, the right and duty of prosecution should he his. The bailor, it may be, will never hear of the theft until it is some days old and the tell-tale hoof-marks have been effaced. When the pursuer makes his claim he will say that the thing is “his”; but this is an assertion of possession rather than of ownership; he means that the thing was taken from him.491

Edition: orig; Page: [158]The bailor’s action against the bailee.Of any other procedure for the recovery of goods we read little or nothing in our old dooms. No doubt the bailor had some action against the bailee for the return of the goods; but whether this action was conceived as based upon ownership or as based upon contract, whether that distinction could have been clearly drawn, whether the bailee could be compelled to deliver back the very thing that had been bailed, or whether the bailor had to be content if he got its value—these are questions about which we have no certain information.492

Bracton’s actio furtiIn the thirteenth century this ancient procedure was not yet obsolete; but it was assuming a new form, that of the appeal of larceny. Bracton called it the actio furti.493 We should do wrong were Edition: current; Page: [167] we to reject this name as a scrap of romanizing pedantry. English law knew an action based upon theft, and, if we would speak of such an action in Latin, we can but call it actio furti. It still had about it many antique traits, though, as already said, it was assuming a new form, that of the appeal of larceny.494 We are wont to think of the appeal as of a criminal prosecution, though one that was instituted by a private prosecutor. A criminal prosecution it was, and if the appellee was convicted, he would as a general rule be sentenced to death; but still throughout the middle ages it had in it a marked recuperatory element; it was constantly spoken of as a remedy competent to the man whose goods had been stolen: it would restore those goods to him.495 But in Bracton’s day the recuperatory element was even more visible than it was in later centuries, and we can see a close connexion between the appeal and that old procedure which we have endeavoured to describe. A little time spent over this matter will not be lost, for it is only through procedural forms that we can penetrate to substantive rights.

The trail has not yet lost its importance. The sheriff and men of Shropshire were wont to trace it into the borough of Bridgenorth and to charge the burgesses with the difficult task of showing its exit.496Edition: orig; Page: [159] The summary mode of dealing with “hand-having” thieves,Procedure in the action of theft. thieves who are “seised of their thefts” was still maintained; the prosecutor in such a case bore the ancient name of sakeber; the fresh suit and capture being proved, a local court sentenced the prisoner to decapitation, giving him no opportunity of denying the theft; in some cases the duty of beheading him was committed to the sakeber.497 Edition: current; Page: [168] But even if such summary justice was out of the question, even if there was to be a regular appeal, a great part of the procedure took place, or was supposed to take place, out of court. The appellor had to allege “fresh suit” after the criminal. He ought at once to raise the hue and cry, he ought to go to the four nearest townships, “the four quarters of the neighbourhood” and proclaim his loss.498 At the next county court the appellor must make, and at court after court he must repeat his appeal, until the accused either appears or is outlawed. The king’s justices may not hold themselves very straitly bound by the letter of old rules, but they are fond of quashing appeals that have not been prosecuted with the utmost diligence.499

Edition: orig; Page: [160]Scope of the action of theft.A far more important point is this, that an actio furti, we may almost say an appeal of larceny, may very properly be brought against one who is not a thief. We are assured by Bracton and his epitomators that the plaintiff may if he chooses omit the “words of felony” from his count.500 He may, even though he thinks that his adversary is a thief, demand his chattels, not as stolen chattels, but as goods that somehow or another have gone from him against his will; they have been adirata from him.501 In the course of his action, and perhaps in consequence of the defendant’s answer, he may add the charge of felony. This is permissible; one may thus raise Edition: current; Page: [169] a civil into a criminal, though one may not lower a criminal into a civil charge. Of such a procedure we can, it is true, find but few instances upon our records; but that this should be so is natural, for it is the procedure of local courts, and is not commenced by royal writ. We must not confuse it with that action of “trespass de bonis asportatis” which is being slowly developed by the king’s courts. We can see enough, however, to say that Bracton is not misleading us. For one moment in 1233 we catch a glimpse of the court of the royal manor of Windsor. Edith of Wackford charged William Nuthach with detaining from her three pigs, which were adirati from her. William denied that the pigs were hers. She left the court to seek counsel, and on her return counted against William as against a thief, and, as she did so she, in true archaic fashion, held one of the pigs in her hand.502 A few years earlier, in one of the hundred courts of Gloucestershire, Adam of Throgmorton demanded some hay from Clement Bonpas. It was adjudged that Clement should purge himself with oath-helpers in the county court. When Clement was upon the point of swearing, Adam “levied him from the oath” and made a charge of felony.503 But a regular appeal might beEdition: orig; Page: [161] properly commenced against one who was not the thief. The appellor was not bound to say to the appellee, “You stole these goods”; it was enough if he said, as in old days his English or Frankish ancestor might have said, “These goods were stolen from me, and I can name no other thief than you.”504 We may expand this charge. Edition: current; Page: [170] “These goods were stolen from me; I have pursued them into your possession; upon you now lies the burden of proving, (1) that you are not a thief, (2) that I ought not to have these goods back again.” At any rate, however, and by whatever words it may be commenced, the English actio furti can be effectually used against one who is no thief, but an honest man.

Defences to the action of theft.We have to consider the appellee’s means of defence. The appellor offers battle, and to all appearance the appellee can always, if he pleases, accept the offer.505 In later days he can always, if he pleases, put himself upon his country for good and ill. The permission thus accorded to him of submitting to the verdict of a jury tends to change the character of the appeal, to strengthen the criminal or accusatory at the cost of the civil or recuperatory element. This we shall see if we observe that in the days of Bracton the appellee who does not wish to fight has to defend himself in one of three ways; (i) he proves the goods to have been his from the first moment of their existence; (ii) he vouches a warrantor; (iii) he admits the appellor’s title, surrenders the goods and confines his defence to a proofEdition: orig; Page: [162] of honest and open purchase. Of each of these modes of meeting the action a few words must be said.

Defence of “birth and rearing.”(i) The appellee says that the goods have been his from the first: for instance, that the horse in question was the foal of his mare.506 He enforces this by the production of a “suit” of witnesses. The appellee may meet this by a counter suit, and in Bracton’s day these rival suits can be examined by the court. Each witness can be severed from his fellows and questioned about ear-marks and so forth. The larger and more consistent suit carries the day.507

Defence by voucher.(ii) But what is regarded as the common defence is the voucher of a warrantor.508 The appellee asserts that he acquired the goods from a third person, whom he calls upon to defend the appeal. There Edition: current; Page: [171] is a writ enabling him to compel the appearance of the vouchee.509 The vouchee appears. If he denies that the goods passed from him to the appellee, there may be battle between him and the appellee, and should he succumb in this, he will be hanged as a thief.510 If he admits that the goods passed from him to the appellee, then the appellee retires from the action.511 We see the goods placed in the warrantor’s hand, and, when he is seised of them, then the appellor counts against him as against the thief or one who can name the thief.512 The warrantor can vouch another warrantor. The process of voucher can be repeated until a third, or perhaps a fourth, warrantor is before the court.513 There a doom of Cnut drew a line; similar lines are drawn in other ancient bodies of law, both Teutonic and Celtic:—some limit must be set to this dilatory process.514 But the point that we have to observe is that the actio furti is put to a legitimate use when it is brought against one who is no thief. The convicted warrantor is hanged; the appellor recovers his chattel; butEdition: orig; Page: [163] meanwhile the first appellee has gone quit; he is no thief, but he has lost the chattel.515

Defence of honest purchase.(iii) If the appellee can produce no warrantor, and cannot assert that the thing was his from the first moment of its existence, then he must, if he would avoid battle, confine his defence to an assertion of honest acquisition. He may prove by witnesses a purchase in open market. If he does this, he goes quit of the charge of theft, Edition: current; Page: [172] but must surrender the chattel. The law has still a great suspicion of secret sales. It is no longer so rigid as it used to be; perhaps by this time an appellee will be allowed to prove his honesty though he cannot prove a purchase in open market; but the man who cannot allege such a purchase is, says Bracton, “in peril.” He will probably have to fight if he would escape the gallows.516

Stolen goods recovered from honest purchasers.We have spoken at some length of these ancient modes of meeting the actio furti, because they are soon overwhelmed by the verdicts of jurors, and because they enable us to lay down a proposition about the substantive law of the thirteenth century, which, regard being had to what will be said in later days, is of no small value:—Stolen goods can be recovered by legal action, not only from the hands of the thief, but from the hands of the third, the fourth, the twentieth possessor, even though those hands are clean and there has been a purchase in open market.

Transformation of the action of theft.Now this old procedure, which is Glanvill’s petitio rei ex causa furtiva517 and Bracton’s actio furti, underwent a further change. The appellee against whom a charge of larceny was brought was expected, if he would not fight, to put himself upon his country. This we may regard as a concession to appellees. The accused had no longer to choose between some two or three definite lines of defence;Edition: orig; Page: [164] he could submit his case as a whole to the verdict of his neighbours, and hope that for one reason or another—which reason need not be given—they would acquit him. The voucher of a warrantor disappeared, and with it the appellor’s chance of recovering his goods from a hand which was not that of the thief. Men were taking more notice than they once took of the psychical element of theft, the dishonest intention, and it was no longer to be tolerated that a burden of disproving theft should be cast upon one against whom no more could be asserted than that he was in possession of goods that had been taken from another. The appeal had become simply a criminal prosecution; it failed utterly if the appellee was not convicted of theft. If he was convicted, and the stolen goods Edition: current; Page: [173] had been seized by the king’s officers, the appellor might, as of old, recover them; a writ of restitution would be issued in his favour, if he proved that he made “fresh suit.” But more and more this restitution is regarded as a mere subordinate incident in the appeal, and when it is granted, it is granted rather as a favour than as a matter of strict right. The man who has been forward in the prosecution of a malefactor deserves well at the hands of the state; we reward him by giving him his own. In order to explain this view of the matter we must add that our law of forfeiture has been greedy. The felon forfeits his chattels to the king; he forfeits what he has; he forfeits “that which he seemeth to have.” If the thief is indicted and convicted, the king will get even the stolen goods;518 if he is appealed, then the appellor will perhaps, if he has shown himself a diligent subject, receive a prize for good conduct.519 Men will begin to say that the thief has “property” in the stolen goods and that this is the reason why the king takes them. As a matter of history we believe this to be an inversion of logic:—one of the reasons why the thief is said to have “property” in those goods is that the king has acquired a habit of taking them and refusing to give them up.520

Edition: orig; Page: [165]Action of trespass de bonis asportatis.But more than this must be said before we can understand the ascription of property to a thief or other wrongful taker.521 So long as the old practice of bringing an actio furti against the third hand obtained, such an ascription would have been impossible. As already said, that practice went out of use. The king’s court was putting something in its place, and yet not exactly in its place, namely, a writ of trespass. This became common near the end of Henry III.’s reign. It was a flexible action; the defendant was called upon to say why with force and arms and against the king’s peace he did some Edition: current; Page: [174] wrongful act. In course of time the precedents fell into three great classes; the violence is done to the body, the lands, the goods of the plaintiff. The commonest interference with his goods is that of taking and carrying them away; a well-marked sub-form of trespass, is trespass de bonis asportatis. If, however, we look back at the oldest precedents, we shall see that the destruction or asportation of goods was generally complained of as an incident which aggravated the invasion of land, the entry and breach of a close, and this may give us a clue when we explore the remedy which this action gives.522

Scope of the action of trespass.It is a semi-criminal action. The procedure against a contumacious defendant aims at his outlawry. The convicted defendant is imprisoned until he makes fine with the king. He also is condemned to pay damages. The action is not recuperatory; it is not rei persecutoria.523 In the case of assault and battery a compensation in money is the appropriate remedy. But it is so also if the plaintiff complains of an invasion of his land. Whatever may happen at a later day, the writ of trespass is as yet no proper writ for a man who has been disseised of land. A whole scheme of actions, towering upwards from the novel disseisin to the writ of right, is provided for one who is being kept out of land that he ought to possess. To have made the action recuperatory (rei persecutoria) in the case of chattels would have been an anomaly; in Henry III.’s day it might even have been an improper interference with the old actio furti; but atEdition: orig; Page: [166] any rate it would have been an anomaly. Therefore the man whose goods have been taken away from him can by writ of trespass recover, not his goods, but a pecuniary equivalent for them; and the writ of trespass is beginning to be his only remedy, unless he is hardy enough to charge the defendant with larceny.524

No action of trespass against the third hand.This is not all. Whatever subsequent ages may think, an action of trespass de bonis asportatis is not an action that should be brought against the third hand, against one who has come to the Edition: current; Page: [175] goods through or under the wrongful taker, or against one who has wrongfully taken them from one who is not the plaintiff.525 The man who has bought goods from the trespasser, how has he broken the king’s peace and why should he be sent to gaol? As to the second trespasser, the action de bonis asportatis would have fallen out of touch with its important and influential neighbour the action de clauso fracto, if it could have been brought against any one but the original wrong-doer. If I am disseised of land and one disseises my disseisor, a writ of trespass is not my remedy against him; I want land, not money, and a proper action is provided for me. It would be an anomaly to suffer the writ of trespass to do for the disseisee of a chattel what it will not do for the disseisee of land. The mischief is that the two cases are not parallel. The disseisee of land has plenteous actions though the writ of trespass be denied him, while the disseisee of a chattel, when the barbaric actio furti was falling into oblivion, had none. And so we arrive at this lamentable result which prevails for a while:—If my chattel be taken from me by another wrongfully but not feloniously, then I can have no action against any third person who at a subsequent time possesses it or meddles with it; my one and only action is an action of trespass against the original taker.526 A lamentable result we call this, not so much because it may have done some injustice to men who are longEdition: orig; Page: [167] since dead and buried, as because for centuries it bewildered our lawyers, made them ascribe “property” to trespassers and even to thieves, and entailed upon us a confused vocabulary, from the evil effects of which we are but slowly freeing ourselves.527

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Self-help.As to self-help, we must not suppose that the owner’s rights of action were supplemented by a right of recapture. The old procedure was a procedure by way of self-help and recapture; but it was no formless procedure; it was a solemn legal act. In the presence of the possessor the pursuer laid hand on the beast and in set phrase he claimed it. We may be pretty certain that if, neglecting ceremonies, he just took his own behind the possessor’s back, he was laying himself open to a charge of theft. Even at the end of the thirteenth century he was hazarding the loss of his rights. Britton supposes that John appeals Peter of stealing a horse, and that Peter says, “The horse was mine and as mine I took it.” If Peter succeeds in proving this assertion, he escapes the gallows, but he loses the horse for good and all, “for” (King Edward is supposed to say) “we will that every one shall have recourse to judgment rather than to force.”528 Our common law, which in later days has allowed a wide sphere to recapture529—a sphere the width of which would astonish foreign lawyers—seems to have started in the twelfth and thirteenth centuries with a stringent prohibition of informal self-help, and a rigorous exclusion of proprietary pleas from the possessory action of trespass. Thus far it applied a common rule to land and toEdition: orig; Page: [168] chattels; but while in the one case the disseisor, after being ousted from the land, might fall back upon those legal methods that he had despised, in the other case no place of penitence was allowed him; he lost for good and all the thing that was his, because he had taken it to himself.

Thus far we have been dealing with what in our eyes is an unlucky chapter of mishaps, which in the fourteenth century has deprived Edition: current; Page: [177] the owner of a remedy which he would have had in the twelfth century, namely, of an action against the third hand for the recovery of goods that had been wrongfully taken. We have now to speak of a more vital rule and one that appears in many lands besides our own.

The bailment.II. Hitherto we have supposed that the thing in question was taken from the owner’s possession. We have next to suppose that the owner has bailed the thing to another. And here we may remark that our medieval law has but a meagre stock of words that can be used to describe dealings with movable goods. The owner, whenever and for whatever purpose he delivers possession of his chattel to another, is said to bail it to that other (Fr. bailler, Lat. tradere, liberare). This word is used even when he is indubitably parting with ownership, when he delivers a sold thing to the buyer, or when he makes a “loan for consumption” (mutui datio).530 In more modern times we have restricted the term bailment to cases in which there is no transfer of ownership, to cases in which the goods, after the lapse of a certain time or upon the happening of a certain event, are to be delivered by the bailee to the bailor or his nominee. Even these cases are miscellaneous; but our lawyers found no great need of words which would distinguish between the various forms of bailment, the pledge, the deposit for safe custody, the delivery to a carrier or to an artizan who is to do work upon the thing, the gratuitous loan for use and return, the letting for hire. All these transactions are regarded as having much in common; one term will stand for them all.531 And all these transactions were known in the thirteenth century: for example, the deposit for safe custody ofEdition: orig; Page: [169] those valuable chattels, the title-deeds of land was not uncommon.

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The bailee has the action against the wrongdoer.Now if goods were unlawfully taken from the possession of the bailee, it was he that had the action against the wrongdoer; it was for him to bring the appeal of larceny or the action of trespass.532 And, having thus given the action to the bailee, we must in all probability deny it to the bailor. As already said, in the days when the actio furti still preserved many of its ancient characteristics, when it began with hue and cry and hot pursuit, it was natural that the bailee, rather than the bailor, should sue the wrongful possessor. But already in the thirteenth century a force was at work which tended to disturb this arrangement.

Liability of bailees.The nature of this force we shall understand if we turn to the question that arises between the bailor and the bailee when the goods have been taken from the bailee by a third person. We are likely to find the rule that the bailee has the action against the stranger in close connexion with a rule that makes the bailee absolutely responsible to the bailor for the safe return of the goods:— if they are taken from him, he, however careful he may have been, must pay their value to the bailor. We have good reason to believe that this rule had been law in England.533 In 1200 a plaintiff asserts that two charters were delivered to the defendant for custody; the defendant pleads that they were robbed from him when his house was burnt and that he is appealing the robbers; the plaintiff craves judgment on this admission by the defendant that the charters were lost out of his custody; the defendant makes default and judgment is given against him.534 Glanvill holds that the commodatary is absolutely bound to restore the thing or its value.535 Bracton, however, with the Institutes before him, seems inclined to mitigate the old rule. Apparently he would hold the depositary liable only in the case of dolus; the conductor can escape if he has shown a due diligence, and so can the pledgee, and it seems that even the commodatary Edition: current; Page: [179] may escape, though we cannot be very certain as to the limits of the liability that Bracton would cast upon him.536 There is much in later history to make us believe that Bracton’s attempt toEdition: orig; Page: [170] state this part of our law in romanesque terms was premature;537 but none the less it is plain that already in his day English lawyers were becoming familiar with the notion that bailees need not be absolutely responsible for the return of the chattels bailed to them, and that some bailees should perhaps be absolved if they have attained a certain standard of diligence.538 Now this notion may easily begin to react upon the rule which equips every bailee with the action against the wrongful taker and denies that action to the bailor. Perhaps we come nearest to historical truth if we say that between the two old rules there was no logical priority. The bailee had the action because he was liable and was liable because he had the action.539 But, when once a limit is set to his liability, then men will begin to regard his right of action as the outcome of his liability, and if in any case he is not liable, then they will have to reconsider the position of the bailor and perhaps will allow him to sue the wrongful taker. In Bracton’s text and in the case-law of Bracton’s day we may see this tendency at work, a tendency to require of the bailee who brings an appeal of larceny or an action of trespass something Edition: current; Page: [180] more than mere possession, some interest in the thing, some responsibility for its safety. But as yet it has not gone very far.540

Edition: orig; Page: [171]The bailor and the third hand.That the bailor has no action against any person other than his bailee, no action against one who takes the thing from his bailee, no action against one to whom the bailee has sold or bailed the thing—this is a proposition that we nowhere find stated in all its breadth. No English judge or text-writer hands down to us any such maxim as Mobilia non habent sequelam. Nevertheless, we can hardly doubt that this is the starting-point of our common law. We come to this result if one by one we test the several actions which the bailor might attempt to use. These are but three:541 (1) the appeal of larceny, (2) the action of trespass, and (3) the action of detinue. The first two would be out of the question unless there had been an unlawful taking, and in that case, as already said, there seem to be ample reasons for believing that the taker could be successfully attacked by the bailee and by him only.542

The action of detinue.But at first sight there seems to be one action open to the bailor, the action of detinue. This action slowly branches off from the action of debt. The writ of debt as given by Glanvill is closely similar to that form of the writ of right for land which is known as a Praecipe in capite. The sheriff is to bid the defendant render to the Edition: current; Page: [181] plaintiff so many marks or shillings, “which, so the plaintiff says, the defendant owes him, and whereof he unjustly deforces him”; and if the defendant will not do this, then he is to give his reason in the king’s court. The writ is couched in terms which would not be inappropriate were the plaintiff seeking the restoration of certainEdition: orig; Page: [172] specific coins, of which he was the owner, but which were in the defendant’s keeping. Very shortly after Glanvill’s day this form gave way to another somewhat better fitted to express the relation between a debtor and a creditor:—the word “deforces” was dropped; the debtor is to render to the creditor so many pounds or shillings “which he owes and unjustly detains.”543 This was the formula of “debt in the debet et detinet,” a formula to be used when the original creditor sued the original debtor. If, however, there had been a death on the one side or on the other, then the word debet was not in place; the representative of the creditor could only charge the debtor with “unjustly detaining” money, and only with an unjust detention could the representative of the debtor be charged. In such cases there is an action of debt “merely in the detinet.544 At the same time the claim for a particular chattel is being distinguished from the claim for a certain quantity of money, or of corn or the like. If a man claims a particular object, he ought not to use the word debet; he should merely say iniuste detinet. Roughly this distinction may seem to us to correspond with that between contractual and proprietary claims; the action of debt may look like the outcome of contract, while the action of detinue is a vindication based upon proprietary right. The correspondence, however, is but rough. A nascent perception of “obligation” seems to be involved in the rules that prevail as to the use of the word debet, but this is struggling with a cruder idea which would be satisfied with a distinction between current coins on the one hand and all other Edition: current; Page: [182] movable things upon the other. It is with detinue, not with debt, that we are here concerned; but it was very needful that the close connexion between these two actions should not escape us.

Scope of detinue.Now at first sight the writ of detinue seems open to every one who for any cause whatever can claim from another the possession of a chattel:— X, the defendant, is to give up a thing which he wrongfully detains (iniuste detinet) from A, the plaintiff, or to explainEdition: orig; Page: [173] why he has not done so. But so soon as we begin to examine the scope and effect of the action, two remarkable phenomena meet our eye. In the first place, if X chooses to be obstinate, he cannot be compelled to deliver the chattel—let us say the ox—to A. In his count A will be bound to put some value upon the ox:— X, he will say, is detaining from me an ox worth five shillings. If he makes good his claim, the judgment will be that he recover his ox or its value assessed by a jury, and if X chooses to pay the money rather than deliver up the ox, he will by so doing satisfy the judgment. If he is still obstinate, then the sheriff will be bidden to sell enough of his chattels to make the sum awarded by the jurors and will hand it over to the plaintiff. In a memorable passage Bracton has spoken of this matter: memorable for to it we may trace all our talk about “real and personal property.” “It would seem at first sight,” he says, “that the action in which a movable is demanded should be as well in rem as in personam since a specific thing is demanded and the possessor is bound to restore that thing; but in truth it is merely in personam, for he from whom the thing is demanded is not absolutely bound to restore it, but is bound alternatively to restore it or its price; and this, whether the thing be forthcoming or no. And therefore, if a man vindicates his movable chattel as having been carried off for any cause, or as having been lent (commodatam), he must in his action define its price, and propound his claim thus:—I, such an one, demand that such an one do restore to me such a thing of such a price:—or—I complain that such an one detains from me, or has robbed me of, such a thing of such a price:—otherwise, no price being named, the vindication of a movable thing will fail.”545

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No real action for movables.For a moment we may think that Bracton has gone astray among the technical terms of a foreign system. We may argue against him that the “vindication” of a chattel, if it really be a vindication, if it be an assertion of ownership, is not the less an action in rem because the court will not go all lengths to restore that chattel to its owner, but will do its best to give him what is of equal value. But there is a second phenomenon to be considered. Bracton says nothing aboutEdition: orig; Page: [174] it, though possibly it was in his mind when he wrote this passage. No one, so far as we know, says anything about it for a long time to come, and yet in our eyes it will be strange. It is this:—despite the generality of the writ, the bailor of a chattel can never bring this action against any one save his bailee or those who represent his bailee by testate or intestate succession. In later days there are but two modes of “counting” in detinue.546 The plaintiff must say either, “I lost the goods and you found them,” or, “I bailed the chattel to you.”547 The first of these counts (detinue sur trover) was called a “new found haliday” in the fifteenth century.548 We have, however, some reason for believing that it had been occasionally used in earlier times.549 In the present context it is of no great interest to us, for if the owner has accidentally lost his chattel, that chattel has gone from him against his will, and we are here dealing with cases in which the owner has given up possession to another. In such cases there is clearly no place—if words mean anything—for detinue sur trover, for there has been no loss and finding. We must see what can be done with detinue sur bailment; and we come to the result that this action will not lie against the third hand. In other words, A bails a chattel to M, and M wrongfully gives or sells or bails it to X, or X wrongfully takes it from M:—in none of these cases has A an action against X; his only action is against M. In times much later Edition: current; Page: [184] than those with which we are dealing, lawyers will have begun to say that these phrases about trover and bailment, though one of them must be used, are not “traversable”: that the defendant must not catch hold of them and say, “You did not lose, I did not find,” or, “You did not bail to me,” but must deny that wrongful detention which has become the gist of the action. It was not always so; it was not so in the thirteenth century.550 Early in the fifteenth a man bailed chattels for safe custody to a woman; she took a husband and died; her husband would not restore the goods; the bailor went to the chancery saying that he had no remedy at the common law.551 Apparently in this instance, as in some other instances, the common law held to its old rule until an interference of the chancellor’s equity was imminent.

Edition: orig; Page: [175]Has the bailor property?How shall we explain this? Shall we say that the man who bails his chattel to another parts with the ownership of it, that in exchange for ownership he takes a promise, and that the refusal to call his action an action in rem is fully justified, for he has no right in rem but only a right in personam? There is much to attract us in this answer. It has the plausible merit of being definite; it deals with modes of thought to which we are accustomed. What is more to the purpose, it seems to explain the close relation—in form it is almost identity—between detinue and debt. But unfortunately it is much too definite. Were it true, then the bailee ought consistently to be thought of and spoken of as the owner of the thing. But this is not the case. For example, Bracton in the very sentence in which he concedes to the bailee the appeal of larceny, denies that he is the owner of the things that have been bailed to him. Such things are in his keeping, but they are the things of another.552 Indeed the current Edition: current; Page: [185] language of the time is apt to speak of the bailee as having but a custodia (Fr. garde) of the goods and to avoid such terms as possessio and seisina, though the bailee has remedies against all who disturb him. The thought has even crossed men’s minds that a bailee can commit theft. Glanvill explains that this is impossible since the bailee comes to the thing by delivery;553 but he would not have been at pains to tell us that a man cannot steal what he both possesses and owns. The author of the Mirror recounts among the exploits of King Alfred that “he hanged Bulmer because he adjudged Gerent to death, by colour of larceny of a thing which he had received by title of bailment.”554 This romancer’s stories of King Alfred have for the more part some point in the doings of the court of Edward I., and it is not inconceivable that some of its justices had shown an inclination to anticipate the legislators of the nineteenth century by punishing fraudulent bailees as thieves. But to us the convincingEdition: orig; Page: [176] argument is that, if once the bailee had been conceived as owner, and the bailor’s action as purely contractual, the bailor could never have become the owner by insensible degrees and without definite legislation. We know, however, that this happened; before the end of the middle ages the bailor is the owner, has “the general property” in the thing, and no statute has given him this. Lastly, we must add that, as will appear in the next chapter, to make the bailor’s right a mere right ex contractu is to throw upon the nascent law of contract a weight that it will not bear. The writ of detinue is closely connected with the writ of debt; but then the writ of debt is closely connected with the writ of right, the most proprietary and most “real” of all actions.

Evolution of ownership.The explanation we believe to be that the evolution of legal remedies has in this instance lagged behind the evolution of morality. The law of property in land may be younger than the law of property in chattels, but has long ago outstripped its feebler rival. There may have been a time when such idea of ownership as was Edition: current; Page: [186] then entertained was adequately expressed in a mere protection against theft. From century to century the pursuit and punishment of thieves and the restoration of chattels to those from whom they have been stolen were the main objects which the law had set itself to attain. Meanwhile “bailments,” as we call them, of goods were becoming common. As against the thief and those who receive the goods from the thief, it was the bailee who required legal weapons. They were given him, and, when he has assumed them, he looks, at least to our eyes, very like an owner. But men do not think of him as the owner; they do not think of his bailor as one who has a mere contractual right. At all events so long as the goods are in the possession of the bailee, they are the goods of the bailor. If the men of the thirteenth century, or of yet earlier times, had been asked why the bailor had no action against the third hand, they would not have said, “Because he has only a contract to rely upon and a contract binds but those who make it”; they would, we believe, have said, “We and our fathers have got on well enough without such an action.” Their thoughts are not our thoughts; we cannot at will displace from our minds the dilemma “in rem or in personam” which seems to have been put there by natural law. We cannot rethink the process which lies hidden away in the history of those two words owe and own. What is owing to me, do I not own it, and is it not my own? Nevertheless what has already been said about the “pecuniary”Edition: orig; Page: [177] character of chattels may give us some help in our effort to represent the past.

Pecuniary character of chattels.We have seen that when a man claims a chattel our law will make no strenuous effort to give him the very thing that he asks for. If he gets the value of the thing, he must be satisfied, and the thing itself may be left to the wrong-doer. Absurd as this rule might seem to us now-a-days, it served Englishmen well enough until the middle of the nineteenth century; it showed itself to be compatible with peace and order and an abundant commerce.555 In older times it was a natural rule because of the pecuniary character of chattels. If one Edition: current; Page: [187] man has deposited a sovereign with another, or has lent that other a sovereign, the law will hardly be at pains to compel the restitution of that particular coin; an equivalent coin will do just as well. Our language shows that this is so. When we speak of money being “deposited,” we almost always mean that money is “lent,” and when we speak of money being “lent,” we almost always mean that the ownership of the coins has passed from the lender to the borrower; we think of mutuum not of commodatum. But more than this can be said. True “bailments” of coins do sometimes occur; coins may be deposited in the hands of one who is bound not to spend them but to keep them safely and restore them; they may even be “commodated,” that is, lent for use and return, as if one lends a sovereign in order that the borrower may perform some conjuring trick with it and give it back again. In these cases our modern criminal law marks the fact that the ownership in the coins has not been transferred to the bailee, for it will punish the bailee as a thief if he appropriates them.556 But then, this is the result, sometimes of a modern statute,557 sometimes of the modern conception of delivery for a strictly limited purpose not being a bailment at all; and if we carry back our thoughts to a time when the bailee will not be committing theft or any other crime in appropriating the bailed chattel, then we shall see that a bailment of coins can hardly beEdition: orig; Page: [178] distinguished for any practical purpose from what we ordinarily call a loan (mutui datio) of money. In the one case the ownership in the coins has been, in the other it has not been, transferred; but how can law mark this difference? The bailee does all that can be required of him if he tenders equivalent coins, and those who, dealing with him in good faith, receive from him the bailed coins, will become owners of them. Some rare case will be required to show that the bailee is not the owner of them. And now if we repeat that the difference seen by modern law between coins and oxen is not Edition: current; Page: [188] aboriginal, we come almost of necessity to the result that there was a time when the lender of an ox or other thing might be called and thought of as its owner and yet have no action to recover it or its value, except one which could be made to look very like an action for a debt created by contract.

An elementary question.We must not be wise above what is written or more precise than the lawyers of the age. Here is an elementary question that was debated in the year 1292:—I bail a charter for safe custody to a married woman; her husband dies; can I bring an action of detinue against her, it being clear law that a married woman cannot bind herself by contract? This is the way in which that question is discussed:—


Sir, our plaint is of a tortious detinue of a charter which this lady is now detaining from us. We crave judgment that she ought to answer for her tort.


The cause of your action is the bailment; and at that time she could not bind herself. We crave judgment if she must now answer for a thing about which she could not bind herself.


If you had bailed to the lady thirty marks for safe custody while she was coverte for return to you when you should demand them, would she be now bound to answer? I trow not. And so in this case.


The cases are not similar; for in a writ of debt you shall say debet, while here you shall say iniuste detinet. And again, in this case an action arises from a tortious detainer and not from the bailment. We crave judgment.


We repeat what we have said.558

Edition: orig; Page: [179]Any one who attempts to carry into the reign of Edward I. a neat theory about the ownership and ossession of movables must be prepared to read elementary lectures on “general jurisprudence” to the acutest lawyers of that age.

Conveyance of movables.There are other questions about movables that we should like Edition: current; Page: [189] to ask; but we shall hardly answer them out of the materials that are at hand. We think it fairly certain that the ownership of a chattel could not be transferred from one person to another, either by way of gift, or by way of sale, without a traditio rei, also that the only known gage of movables was what we should call a pawn or pledge, which has its inception in a transfer of possession. In Bracton’s eyes the necessity for a livery of seisin is no peculiarity of the land law.559 In order to transfer the ownership of any corporeal thing we must transfer the possession of it. Naturally, however, we hear much less of the livery of goods than of the livery of land. When land is delivered it is highly expedient that there should be some ceremonies performed which will take root in the memory of the witnesses. In the case of chattels formal acts would be useless, since there is no probability that the fact of transfer will be called in question at a distant day. Besides, in this case the court has not to struggle against the tendency to substitute a sham for the reality, a “symbolical investiture” for a real change of possession; there is not much danger that the giver of chattels will endeavour both to give and to keep. At a later time our common law allowed that the ownership of a chattel could be transferred by the execution, or rather the delivery, of a sealed writing; but as this appears to have been a novelty in the fifteenth century,560 we can hardly suppose that it was already known in the thirteenth. Nor is it clear that even at the later time a gift by deed was thought to confer more than an irrevocable right to possess the goods. We doubt whether, according to medieval law, one could ever be full owner of goods, unless as executor, without having acquired actual possession. We do not doubt that the modern refinements of “constructive delivery” were unthought of, at all events in the thirteenth century. Of sales we shall speak in the next chapter.

Land and chattels.In dealing with chattels we have wandered far from the beaten track of traditional exposition. Had we followed it we should have begun by explaining that chattels are not “real property,” not Edition: current; Page: [190] “hereditaments,” not “tenements.” But none of the distinctions to which these terms point seem to go to the root of the matter. If by a denial of the “realty” of movable goods we merely mean (as is generally meant) that their owner, when he sues for them, can be compelled to take their value instead of them, this seemsEdition: orig; Page: [180] a somewhat superficial phenomenon, and it is not very ancient. So long as the old procedure for the recovery of stolen goods was in use, so long even as the appellor could obtain his writ of restitution, there was an action, and at one time a highly important action, which would give the owner his goods. Also, as modern experience shows, a very true and intense ownership of goods can be pretty well protected by actions in which nothing but money can with any certainty be obtained. Indeed when our orthodox doctrine has come to be that land is not owned but that “real actions” can be brought for it, while no “real action” can be brought for just those things which are the subjects of “absolute ownership,” it is clear enough that this “personalness” of “personal property” is a superficial phenomenon. Again, in the thirteenth century—this we shall see hereafter—the distinction which in later days was indicated by the term “hereditaments” was not as yet very old, nor had it as yet eaten very deeply into the body of the law. Lastly, the fact that movables are not made the subjects of “feudal tenure,” though it is of paramount importance, is not a fact which explains itself. It is not unlikely that some of the first stages in the process which built up the lofty edifice of feudalism were accomplished by loans of cattle, rather than by loans of land. Of course we must not seem to deny that rights in land played a part in the constitution of society and in the development of public law which rights in chattels did not and could not play; but we have not told the whole of the story until we have said that the dogma of retrospective feudalism which denies that there is any absolute ownership of land (save in the person of the king) derives all such truth as it contains from a conception of ownership as a right that must be more complete and better protected than was that ownership of chattels which the thirteenth century and earlier ages knew. On the land dominium rises above dominium; a long series of lords who are tenants and Edition: current; Page: [191] of tenants who are lords have rights over the land and remedies against all the world. This is possible because the rights of every one of them can be and is realized in a seisin; duae possessiones sese compatiuntur in una re. It is otherwise with the owner of a chattel. If he bails it to another, at all events if he bails it on terms that deprive him of the power to reclaim it at will, he abandons every sort and kind of seisin; this makes it difficult for us to treat him as an owner should be treated, for it is hard for us to think of an ownership that is not and ought not to be realized in a seisin. We may callEdition: orig; Page: [181] him owner or say that the thing belongs to him, but our old-fashioned law treats him very much as if he had no “real” right and no more than the benefit of a contract. Hence the dependent tenure of a chattel is impossible. This, if we approach the distinction from the side of jurisprudence, rather than from the side of constitutional or economic history, seems to be its core. The compatibility of divers seisins permits the rapid development of a land law which will give to both letter and hirer, feoffor and feoffee, rights of a very real and intense kind in the land, each protected by its own appropriate action, at a time when the backward and meagre law of personal property can hardly sanction two rights in one thing, and will not be dissatisfied with itself if it achieves the punishment of thieves and the restitution of stolen goods to those from whose seisin they have been taken.

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Chapter V: Contract

Edition: orig; Page: [182]Late development of a law of contract.The law of contract holds anything but a conspicuous place among the institutions of English law before the Norman Conquest. In fact it is rudimentary. Many centuries must pass away before it wins that dominance which we at the present day concede to it. Even in the schemes of Hale and Blackstone it appears as a mere supplement to the law of property. The Anglo-Saxon dooms tell us but little about it; they tell us less the more carefully we examine them. For example, certain provisions which may seem at first sight to show a considerable development in this department turn out, on closer scrutiny, to have a wholly different bearing. There are many ordinances requiring men who traffic in cattle to make their purchases openly and before good witnesses.1 But they really have nothing to do with enforcing a contract of sale between the parties. Their purpose is to protect an honest buyer against possible claims by some third person alleging that the beasts were stolen from him. If the Anglo-Saxon teám was an ancestor of the later law of warranty in one line, and of rules of proof, ultimately to be hardened into rules of the law of contract, in another, the results were undesigned and indirect. Anglo-Saxon society barely knew what credit was, and had no occasion for much regulation of contracts. We find the same state of things throughout northern and western Europe. Ideas assumed as fundamental by this branch of law in modern times and so familiar to modern lawyers as apparently to Edition: current; Page: [193] need no explanation had perished in the general breaking up of the Roman system, and had to be painfully reconstructed in the middleEdition: orig; Page: [183] ages. Further, it is not free from doubt (though we have no need to dwell upon it here) how far the Romans themselves had attained to truly general conceptions. In any case the Germanic races, not only of the Karolingian period, but down to a much later time, had no general notion whatever of promise or agreement as a source of civil obligation. Early Germanic law recognized, if we speak in Roman terms, only Formal and Real Contracts. It had not gone so far as to admit a Consensual Contract in any case. Sale, for example, was a Real, not a Consensual, transaction. All recent inquirers seem to concur in accepting this much as having been conclusively established.2

The Real and the Formal Contract.Beyond this there is much ground that is debatable, and we have no reason for believing that the order of events was exactly the same in all the countries of western Europe; indeed it is plain that at latest in the thirteenth century our English law was taking a course of its own. One main question is as to the derivation of the “formal contract” of old Germanic law from the “real contract.” Some “real contracts,” or transactions that we should regard as such, must appear at a very early time. Sale and exchange, it may be, are as yet only known to the law as completed transactions, which leave no outstanding duty to be enforced; no credit has been given on either side; the money was paid when the ox was delivered and the parties have never been bound to deliver or to pay. But loans there must soon be, and the borrower ought to return what is lent him. Also a gage (wed, vadium, gagium), or as we should now call it a pledge, will sometimes be given.3 Even in these cases, however, it is Edition: current; Page: [194] long before any idea of contractual obligation emerges. The lenderEdition: orig; Page: [184] claims not what has been promised him but what belongs to him. He does so in the case of the loan for use (commodatum); but he does so also in the case of the loan for consumption (mutuum); we have already seen how slowly these two cases are distinguished.4 Then in the case of the gage there probably was at first no outstanding duty on the side of the debtor when once the gage had been given. He had become indebted for a wergild or a bót; he handed over some thing of sufficient value to cover and more than cover the debt; the debt was satisfied; the only outstanding duty was that of the recipient of the gage, who was bound to hand it back if within due time its giver came to redeem it. But here again, if the gage was not restored, the claim for it would take the form, “You unjustly detain what is mine.”5 Again, a pledge or surety was in the beginning but an animated gage, a hostage delivered over to slavery but subject to redemption. The wed or gage, however, was capable of becoming a symbol; an object which intrinsically was of trifling value might be given and might serve to bind the contract. Among the Franks, whom we must regard as being for many purposes our ancestors in law, it took the shape of the festuca.

Fides facta. The formal contract. The formal contract.Whether this transition from the “real” to the “formal” can be accomplished without the intervention of sacral ceremonies seems doubtful. There are some who regard the festuca as a stout staff which has taken the place of a spear and is a symbol of physical power.6 Others see in it a little bit of stick on which imprecatory runes have been cut.7 It is hard to decide such questions, for, especially under the influence of a new religion, symbols lose their old meanings and are mixed up. Popular etymology confounds confusion. When a straw takes the place of a stick, this we are told is the outcome of speculations which derive the Roman stipulatio Edition: current; Page: [195] from stipula.8 Our English documents come from too late a time to throw much light upon these archaic problems. The Anglo-SaxonEdition: orig; Page: [185] is constantly finding both wed and borh; but what his wed is we do not know. In later times “the rod” plays a part in the conveyance of land, and is perhaps still more often used when there is a “quit-claim,” a renunciation of rights;9 but we sometimes hear of it also when “faith” is “made.” Hengham tells us that when an essoiner promises that his principal will appear and warrant the essoin, he makes his faith upon the crier’s wand,10 and we find the free miner of the Forest of Dean making his faith upon a holly stick.11 But at any rate the Franks and Lombards in yet early times came by a binding contractual ceremony, the fides facta. At first it seems to be usually performed in court. The duty of paying wergild or other bót seems to have been that which first led to a legal process of giving credit. Where the sum due was greater (as must have often happened) than the party buying off the feud could raise forthwith, or at any rate produce in a convenient form, he was allowed to pay by instalments on giving security. Originally he must give either gages or hostages which fully secure the sum; at a later time he makes faith “with gage and pledge”; and among the Franks his gage is a festuca. He passes the festuca to the creditor who hands it to the pledge. The pledge is bound to the creditor; for a while he is Edition: current; Page: [196] still regarded as a hostage, a hostage who is at large but is bound to surrender himself if called upon to do so. He holds the debtor’s wed and this gives him power to constrain the debtor to pay the debt. Here is a general form of contract which can be used for a great variety of purposes, and the forms can be abandoned one by one or take weaker shapes. A man may make himself his own pledge by passing the festuca from the one hand to the other.12 The festucaEdition: orig; Page: [186] with its runes may be rationalized into a tally stick.13 If sticks and straws will do, why not any other trifle? A glove becomes the gage of battle. Even this trifle may disappear and leave nothing save an empty hand to be grasped; but this in turn becomes indistinguishable from the distinct and very ancient form of faith-plight by the right hand which we now must mention.

The hand-grasp.In many countries of western Europe, and in other parts of the world also, we find the mutual grasp of hands (palmata, paumée, Handschlag) as a form which binds a bargain. It is possible to regard this as a relic of a more elaborate ceremony by which some material wed passed from hand to hand; but the mutuality of the hand-grip seems to make against this explanation. We think it more likely that the promisor proffered his hand in the name of himself and for the purpose of devoting himself to the god or the goddess if he broke faith. Expanded in words, the underlying idea would be of this kind: “As I here deliver myself to you by my right hand, so I deliver myself to the wrath of Fides—or of Jupiter acting by the ministry of Fides, Dius fidius—if I break faith in this thing.”14 Whether the Germans have borrowed this symbolic act from the Roman provincials Edition: current; Page: [197] and have thus taken over a Roman practice along with the Roman term fides, or whether it has an independent root in their own heathen religion, we will not dare to decide.15 However, the grasp of hands appears among them at an early time as a mode of contracting solemn, if not as yet legally binding, obligations.16 Probably weEdition: orig; Page: [187] ought to keep the mutual grasp apart from another act of great legal efficacy, that of placing one’s folded hands within the hands of another in token of subjection. This act, which as the act of homage is to transform the world, appears among our English forefathers in the days of Edward the Elder.17 But at any rate the feudal, or rather the vassalic, contract is a formal contract and its very essence is fides, faith, fealty.

The Church and thefides facta.We must, however, remember that agreements sanctioned by sacral forms are not of necessity enforced by law; indeed so long as men firmly believe that the gods interfere with human affairs there may be something akin to profanity in the attempt to take the vow out of their hands and to do for them what they are quite capable of doing for themselves. But the Christian church could not leave sinners to the wrath of God; it was her duty to bring them to repentance. Her action becomes of great importance, because she is beginning to hold courts, to distribute penances according to fixed rules, to evolve law. She transmutes the fides facta and makes it her own. She was glad to find a form which was not an oath, but Edition: current; Page: [198] which, even if it did not already involve an ancient sacral element, could be regarded as a transaction directly concerning the Christian faith. She was bound to express some disapprobation of oaths, that is, of unnecessary oaths; she could not blot out the “Swear not at all” from her sacred books. True that she invented new oaths, the oath upon the relics, the oath upon the gospels. These new oaths took their place beside and then began to drive out the ancient German imprecations. This process was very slow; the heathen oaths on weapons and on rings lived on, though they now occupied a secondary place in the hierarchy of assertions; men wouldEdition: orig; Page: [188] still swear upon a sword in Christian England.18 True also that the church would enforce oaths by penance and did not nicely distinguish between the assertory and the promissory oath. Already in the seventh century Archbishop Theodore has a graduated scheme of penances for a graduated scheme of oaths. He was not prepared to define a censure for a breach of an oath that was sworn upon the hand of a mere layman; but an oath sworn upon a priest’s hand was a different matter.19

Oath and faith.Still, as already said, the church was bound to express some disapprobation of unnecessary swearing. The clergy at all events ought to refrain from it. At times it is asserted that even in court a priest should not be compelled to swear; no more should be exacted of him than “Veritatem in Christo dico, non mentior.”20 A new and a Christian tinge is therefore given to the old contract with wed and borh. It may look like an oath; we may think that it implicitly contains Edition: current; Page: [199] all the essentials of an oath; but no relic or book or other thing is sworn upon and no express words of imprecation are used.21 A gage is given; that gage is fides; that fides is the giver’s Christianity; he pawns his hope of salvation. If, on the one hand, the wed is spiritualized and becomes incorporeal, on the other hand a man’s Christianity is “realized”; it becomes a thing, an object to be given and returned.22 An “age of faith” uses daring phrases about theseEdition: orig; Page: [189] matters. When a man makes a vow to God he will place his faith upon an altar and will find sureties who are to have coercive power over him.23 But more, when he makes a promise to another man, he will sometimes offer God as his surety.24 We must remember that in very old times the surety or pledge had in truth been the principal debtor, the creditor’s only debtor, while his possession of the wed gave him power over the person whose plegius he was. Hence it is that when we obtain details of the ceremony by which faith is “made” or “given” or “pledged,” we often find that the manual act takes place, not between the promisor and the promisee, but between the promisor and a third person who is sometimes expressly called a fideiussor. He is generally one whose station gives him coercive power over the promisor; he is the bishop of the diocese or the sheriff of the county. He does not accept any legal liability for the promise; but he holds the promisor’s faith in his Edition: current; Page: [200] hands and can constrain him to redeem it by ecclesiastical censure or temporal distress.25 We are far from saying that whenever faith was pledged, even in the most ancient times, three persons took part in the transaction. It may well be that sometimes the promisor put his faith directly into the hands of the promisee, and in this form the ceremony would become fused with that mutual grasp of hands which, as already said, may have had a somewhat differentEdition: orig; Page: [190] origin. And like a man’s religious faith, so his wordly honour can be regarded as an object that is pawned to a creditor. Of pledges of honour which have definite legal results much may be read in the German documents of the later middle ages.26 To this day we speak as though we could pledge our faith, our honour, our word, while the term borrow tells us of a time when men rarely, if ever, lent without receiving sufficient borh. Here, however, we are concerned to notice that a form of contract has been devised which the ecclesiastical tribunals may fairly claim to enforce:—a man has pawned his religion; very often, he has placed it in the hand of the bishop.27

The written document as a form.Meanwhile the written document is beginning to present itself as a validating form for transactions. To the eye of the barbarians the Roman provincials seemed to be conveying land by means of documents and to be stipulating by means of documents.28 It is broadly stated that according to the “Lex Romana” any one who contravenes or will not perform a written agreement is infamous Edition: current; Page: [201] and to be punished.29 The written document, which few have the art to manufacture, is regarded with mystical awe; it takes its place beside the festuca.30 The act of setting one’s hand to it is a stipulatio;31 it is delivered over as a symbol along with twig and turf and glove.32 For a long time, however, it is chiefly used as a means of creating or transferring rights in land by way of gift, sale, lease or gage; it is rarely used for the purpose of creating or attesting the creation of purely personal rights.33 But it has a future before it. TheEdition: orig; Page: [191] belief that the Romans stipulated by writing, the argument a fortiori that if men can be bound by question and answer they must be bound by their charters, will not easily be dispelled.34 The most carefully worded documents that will be sealed in the England of the thirteenth century, the bonds given to Lombard merchants, will speak of stipulation.35

English law in the twelfth century.It would be idle to inquire what stage of development these various institutions had attained in the England or the Normandy of the year 1066. The God-borh flits before us in Alfred’s laws,36 and we Edition: current; Page: [202] have other evidence that a “wedded” promise was under the sanction of the church.37 We may see the solemn contract of betrothal38 and may read of promises secured by oath and wed and borh.39 But, for example, we cannot tell in what, if any, cases a merely symbolic gage will have the effect of binding a bargain. To all appearance writing has hardly been used for any legal purpose except when land is to be conveyed or a last will is to be made. There is no sure ground earlier than Glanvill’s book. But that book reminds us that in the twelfth century two new forces are beginning to play upon the law of contract: the classical Roman law is being slowly disinterred and the canon law is taking shape. Glanvill knows a little, Bracton knows much more about both. For a moment we may glance at them, though the influence that they exercise over English law is but superficial and transient.

Medieval Roman law.In the twelfth century the revived study of Justinian’s books, though it urged men to rediscover or to construct some general lawEdition: orig; Page: [192] about the validity of agreements, tended also to confirm the notion that something more than a formless expression of agreement must be required if an action is to be given.40 Nudum pactum non parit actionem—so much at least was clear beyond a doubt, and the glossators set themselves to describe, sometimes in picturesque phrases, those various “vestments” which will keep the pact from perishing of cold.41 The Roman formal contract, the stipulatio, might be dead past resuscitation, yet they were neither prepared to put a new ceremony in its place nor to declare that ceremonies are needless. The mere pactum in their eyes derives its name from that mutual grasp of hands (palmarum ictus) whereby men were wont to bind a bargain.42 Even in countries where “the imperial laws” had a claim to Edition: current; Page: [203] rule because they were imperial, the civilian’s doctrine of contract was too remote from traditional practice to sway the decisions of the courts, and the civilian was beginning to find in the canonist a rival who had a simpler doctrine and one less hampered by ancient history. Bracton makes a half-hearted attempt to engraft the theory of the legists upon the stock of English law. No part of his book has of late attracted more attention than the meagre chapters that he gives to contract; none is a worse specimen of his work.43 It is a scholastic exercise poorly performed. Here and there half unwillingly he lets us see some valuable truth, as when, despite Justinian and Azo, he mixes up the mutuum and the commodatum and refuses to treat sale as “consensual.” But there is no life in this part of his treatise because there is no practical experience behind it. The main lesson that we learn from it is that at the end of Henry III.’s reign our king’s court has no general doctrine of contract.44

Edition: orig; Page: [193]The canon law.We have seen that ecclesiastical law gained a foot-hold within the province of contract by giving a Christian colouring to the old formal agreement, the pledge of faith. This having been accomplished, the canonists began to speak slightingly of ceremonies. The sacred texts, which teach that the Christian’s Yea or Nay should be enough, may have hastened the change, but we believe that the motive force had its origin elsewhere. The law of marriage had fallen into the canonist’s hand, and in the middle of the twelfth century, after long hesitation, he was beginning to teach that a bare interchange of words was sufficient to constitute a marriage. This doctrine was not due to any contempt for ceremonies, but to quite other causes of which we must speak elsewhere.45 Nevertheless, it could not but exercise a powerful influence outside the sphere of marriage law, and some small counterpoise to the enormous harm that it did within that sphere may be found in the effects that it produced in Edition: current; Page: [204] other quarters. If, not merely a binding contract to marry, but an indissoluble marriage can be constituted without any formalities, it would be ridiculous to demand more than consenting words in the case of other agreements. In the course of the thirteenth century the canonists were coming to this opinion, and could cite in its favour two sentences which had found a place in the Gregorian statute-book. Even the “nude pact” should be enforced, at any rate by penitential discipline.46

Evolution of a law of contract on the continent.From this point onward the process of arriving at a general law of contract was different in England and on the continent, although some curious particular coincidences may be found. Both here and elsewhere the secular courts were put on their mettle, so to speak, by the competition of the spiritual forum. In Italy, where the power of the revived Roman law was at its strongest, the development of the new doctrine, which would cast aside the elaborate learning of “vestments” and enforce the naked agreement, was to some extentEdition: orig; Page: [194] checked by the difficulty of stating it in a Roman form of plausible appearance, even for the use of ecclesiastical judges, while, on the other side, the problem for the civilian was to find means of expanding or evading the classical Roman rules and of opening the door of the secular tribunal to formless agreements by practically abolishing the Roman conception of nudum pactum.47 In Germany and in northern France the old Teutonic formalism was but slowly undermined by the new principle, and in one and the same book we may find the speculative Pacta sunt servanda lying side by side with the practical demand for formalities.48 In England the Courts Christian were early in occupation of the ground and bold in magnifying their jurisdiction, and the king’s judges were rather slow to discover how profitable a field their rivals were occupying. It is not a little remarkable that Bracton, in search for principles, preferred Edition: current; Page: [205] importing the system of the glossators, which at all events preached the sterility of the naked pact, to adopting the novel and ecclesiastical doctrine. His efforts ended in a sad failure. English law went on its way uninfluenced by Italian learning, but confirmed in its belief that pacts require vestments. The problem of constructing a general law of contract was not faced until a much later day, when the common-law system of pleading was mature, and what was then sought was a new cause and form of action which could find a place within limits that were already drawn.

Influence of Roman and canon law in England.In Italy we find some jurists holding that an action de dolo will lie for damage caused by breach of an informal pact.49 This offers a striking parallel to the influence of the action of deceit in forming that English action of assumpsit which was to become by slow degrees the ordinary means of enforcing an informal contract. But the method which found most favour among the Italians was to hold that an additional express promise (pactum geminatum or duplex) was a sufficient “clothing” of the natural obligation of a nudum pactum to make it actionable. The opinion formerly current in our courts that an express promise, founded on an existing moral duty, is a sufficient cause of action in assumpsit, is not unlike this. But all this lies in the future. Gradually upon the continent the new principleEdition: orig; Page: [195] that had been proclaimed by the canonists gained ground; the French lawyers of the sixteenth century, going back as humanists to the original Roman authorities, held out latest of all. From the seventeenth century onwards German writers boldly appealed to the law of nature. The modern philosophic lawyers of Germany do not seem wholly satisfied with the results.50 But, before the thirteenth century was out, both Roman and canon law had lost their power to control the development of English temporal law. The last effective words that they had spoken here were contradictory. About one point Bracton and his epitomators are clear— Nudum pactum non parit actionem; but the words sculptured on the tomb of “the English Justinian” are the canonical Pactum serva.

English law in the thirteenth century.Our task now becomes that of tracing the fortunes of three different Edition: current; Page: [206] institutions, the germs of which we have already seen, namely (1) the pledge of faith, (2) the action of debt, and (3) the action of covenant. We shall be compelled to speak chiefly of the doctrines of the king’s court. These were to be in the future the English law of contract; but we must remember that in the twelfth and even in the thirteenth century that court was not professing to administer the whole law. There were other courts for the recovery of debts, and both Glanvill and Bracton seem willing to admit that there may be many binding agreements which royal justice will not enforce or will only enforce as a matter of grace and favour.51

(1) The pledge of faith.(1) We have seen how “an interposition of faith” accomplished by some manual act could be converted into a vestment for pacts, and how this vestment was sanctified by a doctrine which saw in the faith that was pledged the pledgor’s Christianity. This interpretation brought the ceremony within the cognizance of the ecclesiastical tribunals, which in the twelfth century were seeking toEdition: orig; Page: [196] enlarge their borders. The ceremony is often mentioned in deeds of that age, and it must frequently have taken that elaborate form which involved the action of three persons, the faith being deposited in the hands of some mediator or fideiussor who was often the bishop and judge ordinary, but often the sheriff of the county or the steward of a lord who kept a court.52 The letters of John of Salisbury allow us to see that in the earliest years of Henry II.’s reign the ecclesiastical tribunals, even the Roman curia, were busy over agreements made by Englishmen with pledge of faith.53 Then came the quarrel between Henry and Becket.

Edition: current; Page: [207]

The church’s jurisdiction in case of broken faith.We hardly need explain, after all that we have elsewhere said, that there was no question of a war all along the line between the spiritual and the temporal power. The king never disputed that many questions belonged of right to the justice of the church, nor the bishop that many belonged to the justice of the king. But there was always a greater or less extent of border-land that might be more or less plausibly fought for. In this region the mastery was with the party which could establish the right to draw the boundary. This was as clearly perceived by Henry and Becket as by any modern theorist; and the controversy centred round the question: who in doubtful cases should decide where a cause should be tried. The Constitutions of Clarendon (1164) mark the king’s determination that his justices, not the bishops, shall be the persons to say what matters are for the royal court and what are not. The fifteenth article, which alone concerns us here, is in these terms: “Placita de debitis, quae fide interposita debentur, vel absque interpositione fidei, sint in iustitia regis.”

We cannot be certain about the precise meaning that the king’s advisers attributed to these words. Becket and his friends interpreted them to mean that the ecclesiastical tribunals were deprived of all jurisdiction of every kind over breaches of oath or breaches of faith.54 This article was among those that the pope condemned.55Edition: orig; Page: [197]Struggle between ecclesiastical and temporal justice. After the murder Henry was compelled to renounce his “innovations”; but here as in other cases we are left to guess how much he conceived to be covered by that term. A few years afterwards we have Glanvill’s statement of the law.56 He admits that fidei laesio vel transgressio is a proper subject of criminal cognizance in the ecclesiastical court; but is careful to add that by statute (per assisam regni, that is, by the Constitutions of Clarendon) the “interposition of Edition: current; Page: [208] faith” must not be so used as to oust the king’s jurisdiction over the debts of the laity or their tenements. Thenceforward there were two subjects of debate. We have seen that the spiritual courts claimed a civil, that is, a non-criminal jurisdiction over all personal actions in which a clerk was defendant. We have seen how this claim was resisted and slowly abandoned;57 still there can be little doubt that during the thirteenth century clerks were often sued upon their contracts in the courts Christian.58

The writs of prohibition.But what concerns us here is the assertion of a criminal jurisdiction to be exercised in foro externo over all causes of broken oath or broken faith. Now the lay courts did not deny that this jurisdiction had a legitimate sphere. They defined that sphere by two writs of prohibition; the one forbad the ecclesiastical judges to meddle with “lay fee,” the other forbad them to meddle with chattels or debts except in matrimonial and testamentary causes.59 How wide a provinceEdition: orig; Page: [198] was left to them is by no means clear. It is plain that a creditor who had a claim which the king’s court would enforce was not to hale his opponent before the ordinary on a charge of violated faith. That a man might sometimes wish to do this is also evident; he might thus attain his end more speedily than by an action of debt.60 In such cases a promise not to seek a prohibition, a renunciation of the privilegium fori, would not stay the issue of the writ, for no one could renounce the king’s right to protect his own jurisdiction, though the man who thus went against his own act might be sent to gaol, and a certain validity was thus conceded to those renuncia-tory clauses which are not uncommon in the charters of this age.61 Edition: current; Page: [209] But there were as yet numerous agreements which the king’s court did not profess to enforce. Might the court Christian punish a breach of these when they involved a gage of faith? We doubt it. They must in almost every case have fallen within the words of the writ of prohibition. At any rate the clergy were profoundly dissatisfied with the law administered by the royal justices, and spoke as though the spiritual forum was prohibited from punishing a breach of faith in any pecuniary matter if it were not of a testamentary or matrimonial character.62 Certainly these writs were always buzzing about the ears of the ecclesiastical judges;63 they retaliated with excommunications, and we may see Northampton laid under an interdict because its mayor enforced a prohibition.64

Circumspecte agatis.A document attributed to the year 1285, which in after days was ranked among the statutes, the Circumspecte agatis, suggests that at some time or another some concession was made in this matter by the lay power.65 This document may be described as a royal circular sent to the judges; perhaps it was issued along with a set ofEdition: orig; Page: [199] commissions, or sent to the judges after they had already started on their circuits. The bishop’s court is not to be interfered with in matters of spiritual discipline (pro hiis quae sunt mere spiritualia); and it is laid down as already settled that violent laying of hands upon a clerk, defamation, and (according to some, but by no means all copies) breach of faith, are good subjects of ecclesiastical jurisdiction, so long as, not the payment of money, but spiritual correction Edition: current; Page: [210] is the object of the suit. The words about breach of faith may possibly be authentic;66 but there were lawyers in the fourteenth century who protested that this document was concocted by the prelates and of no authority.67 In any case the quarrelling went on as before; no change was made in the writs of prohibition. Both parties were in their turn aggressors. In 1373 the commons in parliament complain that the courts Christian are encroaching to themselves pleas of debt even where there has been no lesion of faith,68 and it seems plain that the ecclesiastical judges did not care to inquire whether a complainant could have found a remedy in a lay court.69 On the other hand, the king’s justices would concede but a smallEdition: orig; Page: [200] territory to the canonists; their doctrine is that the only promises that are subjects for spiritual jurisdiction are promises which concern spiritual matters.70 That one court, if it has received no prohibition, should have a right to do what another court can prohibit it from it doing, need not surprise us: this in the middle ages is no antinomy.

The formal pledge of faith in the ecclesiastical court.Within the limits assigned to their civil or non-penal jurisdiction the English courts Christian were in all probability able and willing to enforce the doctrines of the Italian decretists, who, as already said, were slowly coming to the opinion that the “nude pact” will support an action. These limits however were not very Edition: current; Page: [211] wide, though they included testamentary and matrimonial causes and other matters “merely spiritual.” No English canonist, so far as we are aware, achieved anything for the law of contract. Outside the limits just mentioned the very most that the ecclesiastical judge could do was to punish by corporal penance a breach of promise which was also a breach of faith, and the king’s courts would not have allowed him to whittle away the requirement of “form.” To the end there must be at least a hand-shake in order to bring the case within his cognizance.71

The king’s court and the pledge of faith.One curious result of this bickering over “faith” seems to have been that already in Glanvill’s day the king’s justices had set their faces against what might otherwise have become the English formal contract. Glanvill gives us to understand that a plaintiff who claims a debt in the royal court must produce some proof other than an interposition of faith.72 In other words, the grasp of hands will not serve as a sufficient vestment for a contract. The same may be said of the gage. If a thing be given by way of gage, the creditor can keep it and can call upon the debtor to “acquit” it by paying the debt; but, if the debtor will not do this, then no worse will happenEdition: orig; Page: [201] to him than the loss of the gage.73 This prevents our treating the delivery of a rod or a glove as a validating ceremony. Within a sphere marked out for it by ancient law, the symbolic wed was still used. This sphere we may call that of the “procedural contract” made in the course of litigation, the contract to appear before the court, the contract to abide by and fulfil its award. By this time justice had grown so strong that these engagements were hardly regarded as contracts; but, at least in theory, men found gage as well as pledge for their appearance in court, and when they were there Edition: current; Page: [212] they “waged” battle, or “waged” their law, or “waged” an amercement, by the delivery of a glove or some other symbol.74 In the exchequer75 and in other courts men were constantly pledging their faith (affidare) that essoins would be warranted, that pleas would be prosecuted and the like;76 but they were ceasing to think that in such cases the court’s power to punish a defaulter was given to it by agreement. We should be rash were we to assume that the local courts of the twelfth century paid no heed to these ceremonies. Blackstone has recorded how in his day men shook hands over a bargain;77 they do it still; but already in Henry II.’s reign the decisive step has been taken; common as these manual acts may be, they are not to become the formal contract of English temporal law.

(2) The action of debt.(2) We must now turn to the action of debt. But first we ought to notice that in the thirteenth century a prudent creditor was seldom compelled to bring an action for the recovery of money that he hadEdition: orig; Page: [202] lent. He had not trusted his debtor’s bare word nor even his written bond, but had obtained either a judgment or a recognizance before the loan was made. We see numerous actions of debt brought merely in order that they may not be defended, and we may be pretty sure that in many cases no money has been advanced until a judgment has been given for its repayment. Still more often there is upon the plea rolls what purports to be the compromise of an action of debt. The defendant confesses (cognoscit, recognoscit) that he owes a sum of money, promises to pay it upon a certain day and “grants” that, if he does not pay it, the sheriff may levy it from his lands and goods; in return the plaintiff is sometimes Edition: current; Page: [213] said to remit the damages which are supposed to be already due to him from his debto.78 Still more often the parties go into theThe recognizance. chancery or the exchequer and procure the making of an entry upon the close roll or some other roll. The borrower confesses (recognoscit) that he owes a certain sum which is to be paid upon a certain day, and grants that, if default be made, the money may be levied by the sheriff. This practice, which is of some importance in the history of the chancery, may have its origin in the fact (for fact it is) that some of its officers were money lenders on a great scale; but no doubt it has ancient roots; it is analogous to the practice of “levying fines”; indeed we ought to notice that at this period the “fine of lands” sometimes involves an agreement to pay money and one which can be enforced by summary processes. Now the recognizance is aptly called a “contract of record”; we might also call it an “execu-tory” contract, if we used this adjective in an unfamiliar sense, but one that it will bear. The recognizance is equivalent to a judgment; nothing remains to be done but execution. Within a year from the date fixed for payment, a writ of execution will issue as a matter of course on the creditor’s applying for it, unless the debtor, having discharged his duty, has procured the cancellation or “vacation” of the entry which describes the confession. The legislation of Edward I. in favour of merchants instituted a new and popular “contract of record,” the so-called “statute merchant.” This we must not examine; but already before his accession the recognizance was in common use and large sums of money were being lent upon its security.

Edition: orig; Page: [203]The action of debt in Glanvill.Glanvill knows an action of debt in the king’s court.79 The original writ is a close copy of that form of the writ of right for land which is known as a Praecipe in capite. The sheriff is to bid the debtor render a hundred marks which he owes to the plaintiff “and whereof the plaintiff complains that the defendant unjustly deforces him”; if the debtor will not obey this order, then he is to be summoned before the king’s court. The creditor is being “deforced” Edition: current; Page: [214] of money just as the demandant who brings a writ of right is being “deforced” of land. There may be trial by battle in the one case as in the other. The bold crudity of archaic thought equates the repayment of an equivalent sum of money to the restitution of specific land or goods. To all appearances our ancestors could not conceive credit under any other form. The claimant of a debt asks for what is his own. After all, we may doubt whether the majority of fairly well-to-do people, even at this day, realize that what a man calls “my money in the bank” is a mere personal obligation of the banker to him.80 The gulf that we see between mutuum and commodatum is slurred over. If we would rethink the thoughts of our forefathers we must hold that the action of debt is proprietary, while at the same time we must hold, as we saw in the last chapter, that there is no action for the recovery of a chattel that would be called proprietary by a modern lawyer.81

An action of debt in the king’s court is rare.Though Glanvill gives a writ of debt and though the action of debt occasionally appears on the very earliest plea rolls,82 it long remains a rare action in the king’s court. In the case of debts any royal writ, whether it takes the form of a Praecipe or of a Iusticies,83 seems to be regarded as a luxury which the king is entitled to sell at a high price. Even in the earlier years of Henry III.’s reign theEdition: orig; Page: [204] plaintiff must often promise the king a quarter or a third of all that he recovers before he will get his writ.84 That men are willing to purchase the king’s interference at this extravagant price seems to tell us that the justice of the local courts is feeble and that credit Edition: current; Page: [215] is seldom given. All the entries relating to Staffordshire cases that appear upon the rolls of the king’s court during this long reign of fifty-six years are in print; some eight actions of debt are all that we find among innumerable novel disseisins.85 Staffordshire was a poor and backward county and our series of rolls is by no means perfect; but still this is a significant fact. In the last years of the reign, however, the action was becoming much commoner; fifty-three entries on the plea roll of one term speak of it, and some of the loans to which they testify are large.86 First from the Jew, then from the Lombard, Englishmen were learning to lend money and to give credit for the price of goods.

Proprietary character of the action.We may see the action gradually losing some of its proprietary traits; we may see the notion of personal obligation slowly emerging. The offer of battle in proof of debt vanishes so early that we are unable to give any instance in which it was made; thus one link between the writ of right for land and what we might well call the writ of right for money is broken. Then the eloquent “de-forces” of Glanvill’s precedent disappears. In the king’s courts one says “detains” not “deforces”; but late in the thirteenth century the old phrase was still being used in local courts and the deforcement was even said to be a breach of the peace.87 But “debt” was falling apart from “detinue”: in other words, lawyers were beginning to feel that there are certain cases in which the word debet ought, certain in which it ought not, to be used.88 They were beginning to feel that the two forms of “loan,” the commodatum and the mutuum, are not all one, and this although the judgment in detinue gave the defendant a choice between returning the thing that he had borrowed and paying an equivalent in money.89 One ought not to say debet when there is a commodatum. But further—and this is veryEdition: orig; Page: [205] Edition: current; Page: [216] curious—even when there is a money loan the word debet should only be used so long as both parties to the transaction are alive; if either dies, the money may be “unlawfully detained” by the representative of the one or from the representative of the other, but there is no longer any “owing” of the money. This looks like a clumsy struggle on the part of the idea of obligation to find its proper place in the legal system.90 Centuries will pass away before it comes by its just rights. Well worthy of remark is the fate of the Roman term. It is useless for Bracton to talk of obligationes ex contractu vel quasi, ex maleficio vel quasi; an obligation, or in English a “bond,” is a document written and sealed containing a confession of a debt; in later times “contract” is the genus, “obligation” the species.91

Debts arising from sale.By far the commonest origin of an action of debt is a loan of money. But soon we begin to see the same action used for the price of goods. The contract of sale as presented by Glanvill is thoroughly Germanic.92 Scraps of Roman phraseology are brought in, only to be followed by qualification amounting to contradiction. To make a binding sale there must be either delivery of the thing, payment of the whole or part of the price, or giving of earnest.93 The specially appointed witnesses, the “transaction witnesses” of the Anglo-Saxon laws, have by this time disappeared or are fast disappearing, and we must think of them as having provided, not an alternative form or evidence of the contract, but a collateral precaution:—theEdition: orig; Page: [206] man who bought cattle without their testimony was exposed to criminal charges. In substance the conditions mentioned by Glanvill Edition: current; Page: [217] are the very conditions which in the seventeenth century our Statute of Frauds will allow as alternatives in a case of sale to a note or memorandum in writing.94

Earnest.We must observe that the giving of earnest is treated as a quite different thing from part payment. Earnest, as modern German writers have shown,95 is not a partial or symbolic payment of the price, but a distinct payment for the seller’s forbearance to sell or deliver a thing to any one else. In the Statute of Frauds, “something in earnest to bind the bargain” and “part payment” are distinguished indeed, but thrown into the same clause as if the distinction had ceased to be strongly felt. In Glanvill’s time earnest was still, as it was by early Germanic law, less binding than delivery of the goods or part-payment of the price, for if the buyer did not choose to complete his bargain, he only lost the earnest he had given. The seller who had received earnest had no right to withdraw from the bargain, but Glanvill leaves it uncertain what penalty or compensation he was liable to pay. In the thirteenth century Bracton and Fleta state the rule that the defaulting seller must repay double the earnest.96 In Fleta the law merchant is said to be much more stringent, in fact prohibitory, the forfeit being five shillings for every farthing of the earnest, in other words “pound for penny.”97 It is among the merchants that the giving of earnest first loses its old character and Edition: current; Page: [218] Edition: orig; Page: [207] becomes a form which binds both buyer and seller in a contract of sale. To all appearance this change was not accomplished without the intermediation of a religious idea. All over western Europe the earnest becomes known as the God’s penny or Holy Ghost’s penny (denarius Dei).98 Sometimes we find that it is to be expended in the purchase of tapers for the patron saint of the town or in works of mercy.99 Thus the contract is put under divine protection. In the law merchant as stated by Fleta we seem to see the God’s penny yet afraid, if we may so speak, to proclaim itself as what it really is, namely a sufficient vestment for a contract of sale. A few years later Edward I. took the step that remained to be taken, and by his Carta Mercatoria, in words which seem to have come from the south of Europe,100 proclaimed that among merchants the God’s penny binds the contract of sale so that neither party may resile from it.101 At a later day this new rule passed from the law merchant into the common law.102

Law of sale continued.Returning however to Glanvill’s account of sale, we must notice that in case a third person claims the object as stolen from him, Edition: current; Page: [219] the seller must be prepared to warrant the buyer’s right, or, if he refuses to do this, to be himself impleaded by the buyer, and in eitherEdition: orig; Page: [208] case there may be a trial by battle.103 We have seen above how the old rules which set a limit to the voucher of warrantors were still being maintained; the fourth, or perhaps the third, warrantor is not allowed to vouch.104 That the ownership of the purchased goods did not pass to the buyer until they were delivered to him seems plain. We may gather from Bracton and Fleta that this was so even when the whole price had been paid.105 Unless there was some special agreement to the contrary, the risk remained with the party who was in possession of the goods.106 At the same time the question about the transfer of ownership has not as yet taken that sharp form with which we are familiar, because, as we endeavoured to show in an earlier chapter,107 it is but slowly that an owner of goods who is not also the possessor of them acquires legal remedies against thieves or trespassers who meddle with them. For this reason our law was able to reconsider this question about the effect of the contract of sale at a time when its notion of ownership had become more precise than it was in Bracton’s day.

Scope of the action of debt.Even in Edward I.’s time, whatever may have been the potential scope of the action of debt, it seems (if we may judge from the plea rolls, the Year Books and some manuscript precedents that have come to us) to have been used but rarely save for five purposes: it was used, namely, to obtain (1) money lent, (2) the price of goods sold, (3) arrears of rent due upon a lease for years, (4) money due from a surety (plegius), and (5) a debt confessed by a sealed document.108 We cannot say that any theory hemmed the action within these narrow limits. As anything that we should call a contract was Edition: current; Page: [220] not its essence, we soon find that it can be used whenever a fixed sum, “a sum certain,” is due from one man to another. Statutory penalties, forfeitures under by-laws, amercements inflicted by inferior courts, money adjudged by any court, can be recovered by it.Edition: orig; Page: [209] This was never forgotten in England so long as the old system of common law pleading was retained.109 Already in 1293 the bailiff of one of the Bishop of Ely’s manors has paid a sum of money to the bishop’s steward for him to pay over to the bishop; the steward has neglected or refused to do his duty; the bailiff seeks restitution by action of debt.110 In the next year we are told that if the purchaser of land pays his money and the vendor will not enfeoff him, an action of debt will lie.111 An action of debt against his father’s executors is considered the appropriate remedy for the child who claims a legitima portio of his father’s goods.112 If however we look only at the cases in which the action is used for what modern lawyers would regard as the enforcement of a contract, and if we put aside for a while the promise under seal, we have the money loan, the sale of goods, the lease of land and the surety’s undertaking, as the four main causes for an action of debt. The action against the surety has had its own separate history; the surety has been a hostage and in later days a formal ceremony with a wed or festuca has been the foundation of the claim against him.113 In the three other cases the defendant has received something—nay, he has received some thing—from the plaintiff. To use the phrase which appears at a later day, he obviously has quid pro quo, and the quid is a material thing. We do not say that the doctrine rested here even for a moment. Probably the king’s court would have put services rendered on an equality with goods sold and delivered. The fact that we cannot Edition: current; Page: [221] give an instance of an action brought by a servant to recover his wages may well be due to the existence of local courts which were fully competent to deal with such matters. But we much doubt whether at the end of the thirteenth century the action extended beyond those cases in which the defendant had received some materialEdition: orig; Page: [210] thing or some service from the plaintiff.114

The doctrine of quid pro quo.Any formulated doctrine of quid pro quo was still in the future. Therefore we are not concerned to explore the history of the generalization which in after days is expressed by that curious term. The courts are proceeding outwards from a typical debt. In its earliest stage the action is thought of as an action whereby a man “recovers” what belongs to him. It has its root in the money loan; for a very long time it is chiefly used for the recovery of money that has been lent. The case of the unpaid vendor is not—this is soon seen—essentially different from that of the lender: he has parted with property and demands a return. It enters no one’s head that a promise is the ground of this action. No pleader propounding such an action will think of beginning his count with “Whereas the defendant promised to pay”; he will begin with “Whereas the plaintiff lent or (as the case may be) sold or leased to the defendant.” In short he will mention some causa debendi and that cause will not be a promise.115 The Norman custumal which lies parallel to, but is much less romanized than, Bracton’s book, puts this very neatly:— “Ex promisso autem nemo debitor constituitur, nisi causa precesserit legitima promittendi.”116 Our English writers give us nothing so succinct as this, because unfortunately the Italian glossators Edition: current; Page: [222] have led them astray with a theory of “vestments” which will not fit the English facts; but we cannot doubt that the Norman maxim would have commanded the assent of every English pleader. No one thinks of transgressing it. If you sue in debt you must rely onEdition: orig; Page: [211] loan, or sale, or some other similar transaction. At a later time, various transactions have been pronounced to be similar to loan and sale, and an attempt is made to define them by one general phrase, or, in other words, to discover the common element in the legitimae causae debendi.

Gratuitous gifts and promises in early law.That this should be found in quid pro quo is not unnatural. We may take it as a general principle of ancient German law that the courts will not undertake to uphold gratuitous gifts or to enforce gratuitous promises.117 The existence of this principle is shown by the efforts that are made to evade it. We can trace back the manufacture of what an English lawyer would call “nominal considerations” to the remotest period. In the very old Lombard laws we see that the giver of a gift always receives some valueless trifle in return, which just serves to make his gift not a gift but an exchange.118 At a much later time both in France and in England we see the baby, who as expectant heir is brought in to take part in a sale of land, getting a penny or a toy. The buyer gives the seller a coin by way of earnest, otherwise the seller’s promise would not bind him. The churches would not acquire their vast territories if they had nothing to offer in return; but they have the most “valuable” of “considerations” at their disposal. As regards the conveyance of land, the principle is concealed by feudalism, but only because it is so triumphant that a breach of it is hardly conceivable. Every alienation of land, a sale, an onerous lease in fee farm, is a “gift” but no “gift” of land is gratuitous; Edition: current; Page: [223] the donee will always become liable to render service, though it be but the service of prayers. Every fine levied in the king’s court will expressly show a quid pro quo; often a sparrow-hawk is given in return for a wide tract of land; and this is so, though here the bargain takes the solemnest of solemn forms.119 Perhaps we may doubt whether in the thirteenth century a purely gratuitous promise,Edition: orig; Page: [212] though made in a sealed instrument, would have been enforced if its gratuitous character had stood openly revealed.120 We are not contending that the principle had as yet been formulated. It is long before men formulate general negations of this kind. They proceed outwards from a type such as the loan of money: they admit one causa debendi after another, until at last they have to face the task of generalization. Still we think that all along there is a strong feeling that, whatever promises the law may enforce, purely gratuitous promises are not and ought not to be enforceable.121

In the action of debt, unless the plaintiff relied on a sealed document,Proof of debt. Edition: current; Page: [224] the defendant might as a general rule wage his law: that is to say, he might undertake to deny the debt by an oath with oath-helpers.122 A wager of battle there had seldom been in such cases, and in the thirteenth century it was no longer allowed. In the earlier years of that age a defendant would sometimes meet the chargeEdition: orig; Page: [213] by demanding that the “suitors” who were produced by the plaintiff should be examined, and, if they failed to tell a consistent story, the action was dismissed; but the tender of “suit” was, at least in the king’s court, rapidly becoming a mere form.123 Efforts were made from time to time to place the tally, at all events if it bore writing and a seal, on an equality with the sealed charter. In cases between merchants a royal ordinance decreed that, if the defendant denied the tally, the plaintiff might prove his case by witnesses and the country in the same way as that in which the execution of a charter could be proved.124 The common law, however, allowed the defendant to meet a tally by wager of law. In mercantile cases, when a tally of acquittance was produced against a tally of debt, the defendant was allowed to make good his assertion by an oath sworn upon nine altars in nine churches.125 In the city of London the “foreigner” who could not find oath-helpers was allowed to swear away a debt by visiting the six churches that were nearest the gildhall.126 The ease with which the defendant could escape was in the end the ruin of this old action.

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In the action of debt the plaintiff demands a sum of moneyDamages in debt. together with “damages” for the unjust detention. The damages claimed by the plaintiff are often very high,127 and he has a chance of getting all that he claims, for if the defendant wages, but fails to make his law, there will be no mitigation or “taxation” of theEdition: orig; Page: [214] amount that the plaintiff has mentioned.128 In other cases the jurors under the control of the justices seem to be free to award what damages they please, provided that they do not give more than has been demanded. There is no usury here, for there has been no bargain that the creditor shall receive any certain sum for the use of his money, still, so far as we can see, the plaintiff gets damages though he has only proved that the debt was not paid when it was due.

Limit to the action.One boundary of the action of debt is fixed from the first and cannot be removed. The plaintiff must claim some fixed sum that is due to him. We must have a quite different action if “unliquidated” sums are to be claimed by way of damages for breach of contract.

(3) Action of covenant.(3) The writ of covenant (breve de conventione) is not mentioned by Glanvill; but it appears within a short time after the publication of his book129 and already in the early years of Henry III. it can be had “as of course,” at all events when the tenement that is in question is of small value.130 Before Henry’s death it has become a popular writ. On the roll for the Easter term for 1271 we found thirty-five actions of covenant pending.131 But the popularity of the writ is due to the fact that men are by this time commonly employing it when they Edition: current; Page: [226] want to convey land by way of fine.132 The great majority of actions of covenant are brought merely in order that they may be compromised. We doubt whether any principle was involved in the choice; but may infer that the procedure instituted by this writ was cheap and expeditious for those who wished to get to their final concord.Edition: orig; Page: [215] In all the oldest specimens that we have seen, whether on the plea rolls or in the registers, the subject matter of the conventio is land or one of those incorporeal things that are likened to land.

Covenants and leases.The specific want that this action has come to meet is that which is occasioned by the growing practice of letting lands for terms of years. The placitum conventionis is almost always what we should call an action on a lease. We have seen above how an unsuccessful attempt was made to treat the termor as having no rights in, no possession or seisin of, the land, but merely the benefit of an agreement. This attempt, as already said, we are inclined to regard as an outcome of misdirected Romanism; at any rate it failed. The termor, however, is protected by the writ of covenant and for a while this is his only protection; the action therefore becomes popular as leases for terms of years become common.133 At a little later time it finds another employment. Family settlements are being made by way of feoffment and refeoffment; the settlor takes a covenant for refeoffment from his feoffee. Again, there is some evidence that in the course of the thirteenth century attempts were made to establish a kind of qualified tenure in villeinage by express agreements.134 In all these cases, however, the writ mentions a certain piece of land, an advowson or the like, as the subject matter of the conventio and the judgment will often award this subject matter to the successful plaintiff.135 As may well be supposed, in days when the typical conventio was a lease of land for a term of years and the lessee was Edition: current; Page: [227] gaining a “real” right in the land, men were not very certain that other conventiones concerning land would not give real rights, that a covenant to enfeoff, or a covenant not to alienate might not bind the land and hold good against a subsequent feoffee.136 However, in 1284 the Statutum Walliae made it clear that a feoffment cannotEdition: orig; Page: [216] thus be set aside in favour of an earlier conventio, and specified this case as one of those in which the freehold cannot be recovered and judgment must be for damages.137

Scope of the action.The same great statute assures us that in an action of covenant sometimes movables, sometimes immovables are demanded, also that the enforceable covenants are infinite in number so that no list of them can be made;138 and, though we believe that the covenants which had as yet been enforced by the king’s court had for the more part belonged to a very few classes, still it is plain that the writ was flexible and that no one was prepared to set strict limits to its scope. Bracton speaks as though the royal justices had a free hand in the enforcement of “private conventions” and might in this particular do more than they were actually doing.139 We can produce Edition: current; Page: [228] a few examples in which the plaintiff is not claiming land or an incorporeal thing such as a rent or an advowson.140 However, inEdition: orig; Page: [217] the Statute of Wales we have a sufficient declaration that, as regards the subject matter of the agreements that can be enforced by this action, no boundaries have been or can be drawn. One limitation however soon becomes apparent, and is curious. The action of covenant cannot be employed for the recovery of a debt, even though the existence of the debt is attested by a sealed instrument. A debt cannot have its origin in a promise or a conventio; it must arise from some transaction such as loan, or sale or the like; and the law is economical; the fact that a man has one action is a reason for not giving him another.141

The covenant must be written.But what of form? Before the end of Edward I.’s reign the king’s court had established the rule that the only conventio that can be enforced by action is one that is expressed in a written document sealed “by the party to be charged therewith.” Thenceforward the word conventio and the French and English covenant, at least in the mouths of Westminster lawyers, imply or even denote a sealed document. There had been some hesitation; nor is this to be wondered at. Pacta sunt servanda was in the air; Pactum serva was Edward’s chosen motto. The most that the Romanist could do for the written Edition: current; Page: [229] agreement was to place it alongside the stipulatio or to say that it was a stipulatio, and he knew that according to the latest doctrine of mature Roman law a stipulatio could be made by a simple question and answer without the use of any magical or sacramental phrases. Again, the king’s court had refused to attribute any special efficacy to what we may call the old Germanic forms, the symbolic wed and the grasp of hands; these had fallen under the patronage of the rival tribunals of the church. There was a special reason for hesitation and confusion, for it was chiefly for the protection of lessees of land that the writ of covenant had come into being; for some time it was the termor’s only writ, and no one had yet said or would ever say that the “term of years” could not (apart from statute) be created by word of mouth and delivery of possession. To require a charterEdition: orig; Page: [218] for a lease would have been to require more than was demanded where there was to be a feoffment in fee simple. And so for a while we seem to see some unwritten agreements enforced as conventiones, and, even when it is plain that the unwritten agreement will bear no action, men think that it will bear an “exception”: in other words, that it can be set up by way of defence. What is more, the lawyers do not think that they are laying down a rule of substantive law about the form that a covenant must take; they are talking about evidence. The man who relies upon a covenant must produce in proof some “specialty” (especialté, aliquid speciale); the production of “suit” is not enough. Thenceforward, however, it is only a short step to holding as a matter of law that a “deed”—and by a deed (fet, factum) men are beginning to mean a sealed piece of parchment— has an operative force of its own which intentions expressed, never so plainly, in other ways have not. The sealing and delivering of the parchment is the contractual act. Further, what is done by “deed” can only be undone by “deed.”142

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Edition: orig; Page: [219]The action of account.One other action remains to be mentioned, namely, the action of account. Here, again, the writ was modelled upon the proprietary writs. The defendant must “justly and without delay render to the plaintiff” something, namely, an account for the time during which he was the plaintiff’s bailiff and receiver of the plaintiff’s money. Even in the modern theory of our law “the obligation to render an account is not founded upon contract, but is created by law independently of contract.”143 The earliest instance of this action known to us dates from 1232:144 the writ seems to come upon the register late in Henry III.’s reign,145 and much of its efficacy in later times Edition: current; Page: [231] was due to the statutes of 1267 and 1285.146 These statutes sanctioned a procedure against accountants which was in that age a procedure of exceptional rigour. We gather that the accountants in question were for the more part “bailiffs” in the somewhat narrow sense that this word commonly bore, manorial bailiffs. In Edward I.’s day the action was being used in a few other cases; it had been given by statute against the guardian in socage,147 and we find that it can be used among traders who have joined in a commercial adventure: the trade of the Italian bankers was being carried on by large “societies” and Englishmen were beginning to learn a little about partnership.148 Throughout the fourteenth and fifteenth centuries the action was frequent enough, as the Year Books and Abridgements show. In after times the more powerful and convenientEdition: orig; Page: [220] jurisdiction of equity superseded the process of account at common law, though the action lingered on in one application, as a remedy between tenants in common, late enough to furnish one or two modern examples. But on the whole it did very little for our law of contract.

Covenant in the local courts.We have been speaking of actions in the king’s court; but we imagine that in the thirteenth century the local courts were still very free to go their own way about such matters as contract. There is evidence that some of them enforced by action of “covenant” agreements that were not in writing.149 It is possible that these Edition: current; Page: [232] agreements had been fastened by a grasp of hands; as yet we know but too little of what was done by the municipal and manorial tribunals. Pacta sunt servanda was, as we have said, already in the air. The scheme of actions offered by the king’s court had become rigid just too soon, and in later centuries the Westminster lawyers were put to strange and tortuous devices in their attempt to develop a comprehensive law of contract. They had to invent a new action for the enforcement of unwritten agreements, and its starting point was the semi-criminal action of trespass. Of their bold and ingenious inventions we must not here speak. At present we see them equipped with the actions of debt, covenant and account; each has its own narrow sphere and many an agreement though, as we should say, made for valuable consideration, finds no remedy in the king’s court.

The sealed document.The English formal contract, therefore, is no product of ancient folk-law. The “act and deed” that is chosen is one that in the pastEdition: orig; Page: [221] has been possible only to men of the highest rank. The use of the seal comes to us from the court of Frankish kings. At the date of the Conquest the Norman duke has a seal and his cousin the late king of England had a seal; but in all probability very few of William’s followers, only the counts and bishops, have seals.150 Even in the chancery of our Norman kings the apposition of a seal had to struggle with older methods of perfecting a charter. A seal sufficed for writs, but a solemn “land-book” would as of old bear the crosses of the king and the attesting magnates, ink crosses which they had drawn, or at least touched, with their own hands.151 This old ceremony did not utterly disappear before Stephen’s day; but men were beginning to look for a seal as an essential part of a charter. Edition: current; Page: [233] The unsealed “books” of the Anglo-Saxon kings are called in question if they have not been confirmed by a sealed document.152Gilbert de Balliol called in question the charters granted by his ancestors to Battle Abbey; Richard de Lucy the justiciar replied that it was not the fashion of old time that every petty knightling should have a seal.153 For some time to come we meet with cases in which a man who had land to give had no seal of his own and delivered a charter which had passed under the seal of the sheriff or of some nobleman. In the France of Bracton’s day the privilege of using a seal was confined to “gentixhomes”; a man of lower degree would execute his bond by carrying it before his lord and procuring the apposition of his lord’s seal.154 But in England, as we have often seen, the law for the great became the law for all, and before the end of the thirteenth century the free and lawful man usually hadEdition: orig; Page: [222] a seal. It is commonly assumed that jurors will as a matter of course have seals. We must not think of the act of sealing as a mere formality; the impressed wax was treated as a valuable piece of evidence. If a man denied a charter that was produced against him and the witnesses named in it were dead, the seal on it would be compared with the seals on instruments the genuineness of which he admitted, and thus he might be convicted of a false plea.155 “Nient mon fet” was a very common defence, and forgery, even the forgery of royal writs and papal bulls, was by no means rare.

Growth of written documents.In the twelfth century charters of feoffment had become common; they sometimes contained clauses of warranty. In the next century leases for years and documents which dealt with easements, Edition: current; Page: [234] with rights of pasturage, with tithes and the like, were not unfrequent; they sometimes contained penal clauses which were destined to create money debts.156 Occasionally there was an agreement for a penal sum which was to go to the king or to the sheriff, to the fabric fund of Westminster abbey or to the relief of the Holy Land.157 In John’s reign the Earl of Salisbury, becoming surety for the good behaviour of Peter de Maulay, declares that, if Peter offends, all the earl’s hawks shall belong to the king; and so Gilbert Fitz Remfrey invokes perpetual disherison on himself should he adhere to Magna Carta which the pope has quashed.158 But documents of a purely obligatory character were still rare. They seem to come hither with the Italian bankers. They generally took the formThe single bond. of the “single bond”;159 the bond with a clause of defeasance seems to be of later date. The creditor confesses himself to be bound (se teneri) in respect of money lent, and obliges himself and all his goods, movable and immovable, for its repayment on a fixed day orEdition: orig; Page: [223] after the lapse of so many days from the presentation of the bond. Sometimes we may see (at all events when the lender is an Italian) a distinct promise to pay interest (interesse);160 more often there is a promise to pay all damages and costs which the creditor shall incur, and this is sometimes coupled with a promise that the creditor’s Edition: current; Page: [235]sworn or unsworn assertion shall fix their amount.161 When a rate of interest was fixed, it was high. With the pope’s approval, Henry III. borrowed 540 marks from Florentine merchants, and, if repayment were not made after six months or thereabouts, the debt was to bear interest at sixty per cent.162 Often the debtor had to renounce in advance every possible “exception” that civil or canon or customary law might give him. The cautious Lombard meant to have an instrument that would be available in every court, English or foreign. But even an English lawyer might think it well to protect himself by such phrases. Thus when Mr. Justice Roubury lent the Bishop of Durham £200, the bishop submitted himself to every sort of jurisdiction and renounced every sort of exception.163 Often the debtor is bound to pay the money either to the creditor or to any attorney or mandatory of his who shall produce the bond.

Mercantile documents.The clause which promises payment to the creditor “or his attorney” is of great interest. Ancient German law, like ancient Roman law, sees great difficulties in the way of an assignment of a debt or other benefit of a contract.164 The assignee who sued the debtor would be met by the plea “I never bound myself to pay money to you.” But further, men do not see how there can be a transfer of a Edition: current; Page: [236] Edition: orig; Page: [224] right unless that right is embodied in some corporeal thing. The history of the “incorporeal things” has shown us this; they are not completely transferred until the transferee has obtained seisin, has turned his beasts onto the pasture, presented a clerk to the church or hanged a thief upon the gallows.165 A covenant or a warranty of title may be so bound up with land that the assignee of the land will be able to sue the covenantor or warrantor. At an early time we may see the assignee of a lease bringing an action of covenant against the lessor.166 But, even in the region of warranty, we find that much depends on the use of the word assigns; the feoffor will only be bound to warrant the feoffee’s assigns if he has expressly promised to warrant them.167

Assignment of debts.In the case, however, of the mere debt there is nothing that can be pictured as a transfer of a thing; there can be no seisin or change of seisin. In course of time a way of escape was found in the appointment of an attorney. In the thirteenth century men often appear in the king’s court by attorney; but they do not even yet enjoy, unless by virtue of some special favour purchased from the king, any right of appointing attorneys to conduct prospective litigation; when an action has been begun, then and not until then, an attorney can be appointed.168 The idea of representation is new;169 it has spread outwards from a king who has so many affairs that he cannot conduct them in person. However, it has by this time spread so far that the debtor who in express written words promises to pay money either to the creditor or to the mandatory (nuntius) or attorney of the creditor is bound by his promise; he has himself given the creditor power to appoint a representative for the exaction of the debt. Often in the bonds that are before us the debtor promises to pay the creditor or “his certain attorney producing these letters.” The attorney will have to produce the bond and also evidence, probably Edition: current; Page: [237] in the form of a “power of attorney,” that he is the attorney of the original creditor.170 It seems probable that the process which in the end enables men to transfer mere personal rights has taken advantage,Edition: orig; Page: [225] if we may so speak, of the appearance of the contract in a material form, the form of a document. That document, is it not itself the bond, the obligation? If so, a bond can be transferred. For a very long time past the Italians have been slowly elaborating a law of negotiable paper or negotiable parchment; they have learnt that they can make a binding promise in favour of any one who produces the letter in which the obligation is embodied. Englishmen are not yet doing this, but under Italian teaching they are already promising to pay the Florentine or Sienese capitalist or any attorney of his who produces the bond.171

Agency in contract.The whole law of agency is yet in its infancy. The king indeed ever since John’s day has been issuing letters of credit empowering his agents to borrow money and to promise repayment in his name.172 A great prelate will sometimes do the like.173 It is by this time admitted that a man by his deed can appoint another to do many acts in his name, though he cannot appoint an attorney to appear for him in court until litigation has been begun.174 Attorneys Edition: current; Page: [238] were appointed to deliver and to receive seisin.175 Among the clergy the idea of procuration was striking root; it was beginning to bear fruit in the domain of public law; the elected knights and burgesses must bring with them to parliament “full powers” for the representation of the shires and boroughs. But of any informal agency, of any implied agency, we read very little.176 We seem to see theEdition: orig; Page: [226] beginning of it when an abbot is sued for the price of goods which were purchased by a monk and came to the use of the convent.177

Agency and “uses.”The germ of agency is hardly to be distinguished from the germ of another institution which in our English law has an eventful future before it, the “use, trust or confidence.” In tracing its embryonic history we must first notice the now established truth that the English word use when it is employed with a technical meaning in legal documents is derived, not from the Latin word usus, but from the Latin word opus, which in old French becomes os or oes.178 True that the two words are in course of time confused, so that if by a Latin document land is to be conveyed to the use of John, the scribe of the charter will write ad opus Johannis or ad usum Johannis indifferently, or will perhaps adopt the fuller formula ad opus et ad usum; nevertheless the earliest history of “the use” is the early history of the phrase ad opus.179 Now this both in France and in England we may find in very ancient days. A man will sometimes receive money to the use (ad opus) of another person; in particular, money is frequently being received for the king’s use. A king must have many officers who are always receiving money, and we have to distinguish what they receive for their own proper use (ad opus Edition: current; Page: [239] suum proprium) from what they receive on behalf of the king. Further, long before the Norman Conquest we may find a man saying that he conveys land to a bishop to the use of a church, or conveys land to a church to the use of a dead saint. The difficulty of framing a satisfactory theory touching the whereabouts of the ownership of what we may loosely call “the lands of the churches” gives rise to such phrases. In the thirteenth century we commonly find that where there is what to our eyes is an informal agency, this term adEdition: orig; Page: [227] opus is used to describe it. Outside the ecclesiastical sphere there is but little talk of “procuration”; there is no current word that is equivalent to our agent; John does not receive money or chattels “as agent for” Roger; he receives it to the use of Roger (ad opus Rogeri).

Chattels held to the use of another.Now in the case of money and chattels that haziness in the conception of ownership to which we have often called attention180 prevents us from making a satisfactory analysis of the notion that this ad opus implies. William delivers two marks or three oxen to John, who receives them to the use of Roger. In whom, we may ask, is the ownership of the coins or of the beasts? Is it already in Roger; or, on the other hand, is it in John, and is Roger’s right a merely personal right against John? This question does not arise in a clear form, because possession is far more important than ownership. We will suppose that John, who is the bailiff of one of Roger’s manors, has in the ordinary course of business gone to a market, sold Roger’s corn, purchased cattle with the price of the corn and is now driving them home. We take it that if a thief or trespasser swoops down and drives off the oxen, John can bring an appeal or an action and call the beasts his own proper chattels. We take it that he himself cannot steal the beasts; even in the modern common law he cannot steal them until he has in some way put them in his employer’s possession.181 We are not very certain that, if he appropriates them to his own use, Roger has any remedy except an action of debt or of account, in which his claim can be satisfied by a money payment. And yet the notion that the beasts are Roger’s, not John’s, is Edition: current; Page: [240] growing and destined to grow. In course of time the relationship expressed by the vague ad opus will in this region develop into a law of agency. In this region the phrase will appear in our own day as expressing rights and duties which the common law can sanction without the help of any “equity.” The common law will know the wrong that is committed when a man “converts to his use” (ad opus suum proprium) the goods of another; and in course of time it will know the obligation which arises when money is “had and received to the use” of some person other than the recipient.

Edition: orig; Page: [228]Lands held to the use of another.It is not so in the case of land, for there our old law had to deal with a clearer and intenser ownership. But first we must remark that at a very remote period one family at all events of our legal ancestors have known what we may call a trust, a temporary trust, of lands. The Frank of the Lex Salica is already employing it; by the intermediation of a third person, whom he puts in seisin of his lands and goods, he succeeds in appointing or adopting an heir.182 Along one line of development we may see this third person, this “saleman,” becoming the testamentary executor of whom we must speak hereafter; but our English law by forbidding testamentary dispositions of land has prevented us from obtaining many materials in this quarter. However, in the England of the twelfth century we sometimes see the lord intervening between the vendor and the purchaser of land. The vendor surrenders the land to the lord “to the use” of the purchaser by a rod, and the lord by the same rod delivers the land to the purchaser.183 Freeholders, it is true, have soon acquired so large a liberty of alienation that we seldom read of their taking part in such surrenders; but their humbler neighbours (for instance, the king’s sokemen) are often surrendering land “to the use” of one who has bought it. What if the lord when the symbolic stick was in his hand refused to part with it? Perhaps the law had never been compelled to consider so rare an event; and in these cases the land ought to be in the lord’s seisin for but a moment. However, we soon begin to see what we cannot but call permanent Edition: current; Page: [241] “uses.” A slight but unbroken thread of cases, beginning while the Conquest is yet recent, shows us that a man will from time to time convey his land to another “to the use” of a third. For example, he is going on a crusade and wishes that his land shall be held to the use of his children, or he wishes that his wife or his sister shall enjoy the land, but doubts, it may be, whether a woman can hold a military fee or whether a husband can enfeoff his wife. Here there must be at the least an honourable understanding that the trust is to be observed, and there may be a formal “interposition of faith.” Then, again, we see that some of the lands and revenues of a religious house have often been devoted to some special object; they have been given to the convent “to the use” of the library or “to theEdition: orig; Page: [229] use” of the infirmary, and we can hardly doubt that a bishop will hold himself bound to provide that these dedications, which are sometimes guarded by the anathema, shall be maintained. Lastly, in the early years of the thirteenth century the Franciscan friars came hither. The law of their being forbad them to own anything; but they needed at least some poor dormitory, and the faithful were soon offering them houses in abundance. A remarkable plan was adopted. They had come as missionaries to the towns; the benefactor who was minded to give them a house, would convey that house to the borough community “to the use of” or “as an inhabitation for” the friars. Already, when Bracton was writing, plots of land in London had been thus conveyed to the city for the benefit of the Franciscans. The nascent corporation was becoming a trustee. It is an old doctrine that the inventors of “the use” were “the clergy” or “the monks.” We should be nearer the truth if we said that, to all seeming, the first persons who in England employed “the use” on a large scale were, not the clergy, nor the monks, but the friars of St. Francis.

The “use” of lands.Now in few, if any, of these cases can the ad opus be regarded as expressing the relation which we conceive to exist between a principal and an agent. It is intended that the “feoffee to uses” (we can employ no other term to describe him) shall be the owner or legal tenant of the land, that he shall be seised, that he shall bear the burdens incumbent on owners or tenants, but he is to hold his rights Edition: current; Page: [242] for the benefit of another. Such transactions seem to have been too uncommon to generate any definite legal theory. Some of them may have been enforced by the ecclesiastical courts. Assuredly the citizens of London would have known what an interdict meant, had they misappropriated the lands conveyed to them for the use of the friars, those darlings of popes and kings. Again, in some cases the feoffment might perhaps be regarded as a “gift upon condition,” and in others a written agreement about the occupation of the land might be enforced as a covenant. But at the time when the system of original writs was taking its final form “the use” had not become common enough to find a comfortable niche in the fabric. And so for a while it lives a precarious life until it obtains protectionEdition: orig; Page: [230] in the “equitable” jurisdiction of the chancellors. If in the thirteenth century our courts of common law had already come to a comprehensive doctrine of contract, if they had been ready to draw an exact line of demarcation between “real” and “personal” rights, they might have reduced “the use” to submission and assigned to it a place in their scheme of actions: in particular, they might have given the feoffor a personal, a contractual, action against the feoffee. But this was not quite what was wanted by those who took part in these transactions; it was not the feoffor, it was the person whom he desired to benefit (the cestui que use of later days) who required a remedy, and moreover a remedy that would secure him, not money compensation, but enjoyment of the land. “The use” seems to be accomplishing its manifest destiny when at length after many adventures it appears as “equitable ownership.”

Feudalism and contract.We have been laying stress on the late growth of a law of contract, so for one moment we must glance at another side of the picture. The master who taught us that “the movement of the progressive societies has hitherto been a movement from Status to Contract,” was quick to add that feudal society was governed by the law of contract.184 There is no paradox here. In the really feudal centuries men could do by a contract, by the formal contract of vassalage or commendation, many things that cannot be done now-a-days. Edition: current; Page: [243] They could contract to stand by each other in warfare “against all men who can live and die”; they could (as Domesday Book says) “go with their land” to any lord whom they pleased; they could make the relation between king and subject look like the outcome of agreement; the law of contract threatened to swallow up all public law. Those were the golden days of “free,” if “formal,” contract. The idea that men can fix their rights and duties by agreement is in its early days an unruly, anarchical idea. If there is to be any law at all, contract must be taught to know its place.

Note on the Phrase “Ad Opus,” and the Early History of the Use

I. The employment of the phrase ad opus meum (tuum, suum asEdition: orig; Page: [231] meaning on my (your, his) behalf, or for my (your, his) profit or advantage, can be traced back into very early Frankish formulas. See Zeumer’s quarto edition of the Formulae Merovingici et Karolini Aevi (Monumenta Germaniae), index s.v. opus. Thus, e.g.:—

p. 115 “ut nobis aliquid de silva ad opus ecclesiae nostrae . . . dare iubeatis.” (But here opus ecclesiae may mean the fabric of the church.)

p. 234 “per quem accepit venerabilis vir ille abba ad opus monasterio suo [= monasterii sui] . . . masas ad commanendum.”

p. 208 “ad ipsam iam dictam ecclesiam ad opus sancti illius . . . dono.”

p. 315 (An emperor is speaking) “telonium vero, excepto ad opus nostrum inter Q et D vel ad C [place names ubi ad opus nostrum decima exigitur, aliubi eis ne requiratur.”

II. So in Karolingian laws for the Lombards. Mon. Germ. Leges, iv. Liber Papiensis Pippini, 28 (p. 520): “De compositionibus quae ad palatium pertinent: si comites ipsas causas convenerint ad requirendum, illi tertiam partem ad eorum percipiant opus, duos vero ad palatium.” (The comes gets “the third penny of the county” for his own use.)

Lib. Pap. Ludovici Pii 40 (p. 538): “Ut de debito quod ad opus nostrum fuerit wadiatum talis consideratio fiat.”

Edition: current; Page: [244]

III. From Frankish models the phrase has passed into Anglo-Saxon land-books. Thus, e.g.:—

Cenwulf of Mercia, ad 809, Kemble, Cod. Dipl. v. 66: “Item in alio loco dedi eidem venerabili viro ad opus praefatae Christi ecclesiae et monachorum ibidem deo servientium terram . . .”

Beornwulf of Mercia, ad 822, Kemble, Cod. Dipl. v. 69: “Rex dedit ecclesiae Christi et Wulfredo episcopo ad opus monachorum . . . villam Godmeresham.”

Werhard’s testament, ad 832, Kemble, Cod. Dipl. i. 297: the archbishop acquired lands for the use of the cathedral convent: “ad opus . . . familiae [Christi].”

IV. It is not uncommon in Domesday Book. Thus, e.g.:—

D. B. i. 209: “Inter totum reddit per annum xxii. libras . . . ad firmam regis . . . Ad opus reginae duas uncias auri . . . et i. unciam auri ad opus vicecomitis per annum.”

D. B. i. 60 b: “Duae hidae non geldabant quia de firma regis erant et ad opus regis calumniatae sunt.”

D. B. ii. 311: “Soca et saca in Blideburh ad opus regis et comitis.”

V. A very early instance of the French al os occurs in Leges Willelmi, i. 2 § 3: “E cil francs hom . . . seit mis en forfeit el cunté, afert al os le vescunte en Denelahe xl. ores . . . De ces xxxii. ores averad le vescunte al os le rei x. ores.” The sheriff takes certain sums for his own use, others for the king’s use. This document can hardly be of later date than the early years of the twelfth century.

VI. In order to show the identity of opus and os or oes we may pass to Britton, ii. 13: “Villenage est tenement de demeynes de chescunEdition: orig; Page: [232] seignur baillé a tenir a sa volunté par vileins services de emprouwer al oes le seignur.” VII. A few examples of the employment of this phrase in connexion with the receipt of money or chattels may now be given.

Liberate Roll 45 Hen. III. (Archaeologia, xxviii. 269): Order by the king for payment of 600 marks which two Florentine merchants lent him, to wit, 100 marks for the use (ad opus) of the king of Scotland and 500 for the use of John of Britanny.

Liberate Roll 53 Hen. III. (Archaeologia, xxviii. 271): Order by the king for payment to two Florentines of money lent to him for Edition: current; Page: [245] the purpose of paying off debts due in respect of cloth and other articles taken “to our use (ad opus nostrum)” by the purveyors of our wardrobe.

Note Book, pl. 177 (ad 1222): A defendant in an action of debt confesses that he has received money from the plaintiff, but alleges that he was steward of Roger de C. and received it ad opus eiusdem Rogeri. He vouches Roger to warranty.

Selby Coucher Book, ii. 204 (ad 1285): “Omnibus . . . R. de Y. ballivus domini Normanni de Arcy salutem. Noveritis me recepisse duodecim libras . . . de Abbate de Seleby ad opus dicti Normanni, in quibus idem Abbas ei tenebatur . . . Et ego . . . dictum abbatem . . . versus dominum meum de supradicta pecunia indempnem conservabo et adquietabo.”

Y. B. 21-22 Edw. I. p. 23: “Richard ly bayla les chateus a la oeus le Eveske de Ba.”

Y. B. 33-35 Edw. I. p. 239: “Il ad conté qe eux nous livererent meyme largent al oes Alice la fille B.”

VIII. We now turn to cases in which land is concerned:—

Whitby Cartulary, i. 203-4 (middle of the twelfth century): Roger Mowbray has given land to the monks of Whitby; in his charter he says “Reginaldus autem Puer vendidit ecclesiae praefatae de Wyteby totum ius quod habuit in praefata terra et reliquit michi ad opus illorum, et ego reddidi eis, et saisivi per idem lignum per quod et recepi illud.”

Burton Cartulary, p. 21, from an “extent” which seems to come to us from the first years of the twelfth century: “tenet Godfridus viii. bovatae [corr. bovatas] pro viii. sol. praeter illam terram quae ad ecclesiam iacet quam tenet cum ecclesia ad opus fratris sui parvuli, cum ad id etatis venerit ut possit et debeat servire ipsi ecclesiae.”

Ramsey Cartulary, ii. 257-58, from a charter dated by the editors in 1080-87: “Hanc conventionem fecit Eudo scilicet Dapifer Regis cum Ailsio Abbate Rameseiae . . . de Berkeforde ut Eudo habere deberet ad opus sororis suae Muriellae partem Sancti Benedicti quae adiacebat ecclesiae Rameseiae quamdiu Eudo et soror eius viverent, ad dimidium servitium unius militis, tali quidem pacto ut post Eudonis sororisque decessum tam partem propriam Eudonis Edition: current; Page: [246] is quam in eadem villa habuit, quam partem ecclesiae Rameseiae, Deo et Sancto Benedicto ad usum fratrum eternaliter . . . possidendam . . . relinqueret.” In D. B. i. 210 b, we find “In Bereforde tenet Eudo dapifer v. hidas de feodo Abbatis [de Ramesy].” So here we have a “Domesday tenant” as “feoffee to uses.”

Edition: orig; Page: [233]Ancient Charters (Pipe Roll Soc.), p. 21 (circ. ad 1127): Richard fitz Pons announces that having with his wife’s concurrence disposed of her marriage portion, he has given other lands to her; “et inde saisivi Milonem fratrem eius loco ipsius ut ipse eam manute-neat et ab omni defendat iniuria.”

Curia Regis Roll No. 81, Trin. 6 Hen. III. m. 1 d. Assize of mort d’ancestor by Richard de Barre on the death of his father William against William’s brother Richard de Roughal for a rent. Defendant alleges that William held it in custodia, having purchased it to the use of (ad opus the defendant with the defendant’s money. The jurors say that William bought it to the use of the defendant, so that William was seised not in fee but in wardship (custodia). An attempt is here made to bring the relationship that we are examining under the category of custodia.

Note Book, pl. 999 (ad 1224): R, who is going to the Holy Land, commits his land to his brother W. to keep to the use of his (R’) sons (commisit terram illam W. ad opus puerorum suorum); on R’s death his eldest son demands the land from W, who refuses to surrender it; a suit between them in a seignorial court is compromised; each of them is to have half the land.

Note Book, pl. 1683 (ad 1225): R is said to have bought land from G to the use of the said G. Apparently R received the land from G on the understanding that he (R) was to convey it to G and the daughter of R (whom G was going to marry) by way of a marriage portion.

Note Book, pl. 1851 (ad 1226-27): A man who has married a second wife is said to have bought land to the use of this wife and the heirs of her body begotten by him.

Note Book, pl. 641 (ad 1231): It is asserted that E impleaded R for certain land, that R confessed that the land was E’s in consideration of 12 marks, which M paid on behalf of E, and that M then Edition: current; Page: [247] took the land to the use (ad opus) of E. Apparently M was to hold the land in gage as security for the 12 marks.

Note Book, pl. 754 (ad 1233): Jurors say that R desired to enfeoff his son P, an infant seven years old; he gave the land in the hundred court and took the child’s homage; he went to the land and delivered seisin; he then committed the land to one X to keep to the use of P (ad custodiendum ad opus ipsius Petri) and afterwards he committed it to Y for the same purpose; X and Y held the land for five years to the use of P.

Note Book, pl. 1244 (ad 1238-39): A woman, mother of H, desires a house belonging to R; H procures from R a grant of the house to H to the use (ad opus) of his mother for her life.

Assize Roll No. 1182, m. 8 (one of Bracton’s Devonshire rolls): “Iuratores dicunt quod idem Robertus aliquando tenuit hundredum illud et quod inde cepit expleta. Et quaesiti ad opus cuius, utrum ad opus proprium vel ad opus ipsius Ricardi, dicunt quod expleta inde cepit, sed nesciunt utrum ad opus suum proprium vel ad opus ipsius Ricardi quia nesciunt quid inde fecit.”

Chronicon de Melsa, ii. 116 (an account of what happened in the middle of the thirteenth century compiled from charters): Robert confirmed to us monks the tenements that we held of his fee; “et in-superEdition: orig; Page: [234] duas bovatas cum uno tofto . . . ad opus Ceciliae sororis suae et heredum suorum de corpore suo procreatorum nobis concessit; ita quod ipsa Cecilia ipsa toftum et ii. bovatas terrae per forinsecum servitium et xiv. sol. et iv. den. annuos de nobis teneret. Unde eadem toftum et ii. bovatas concessimus dictae Ceciliae in forma praescripta.”

Historians of the Church of York, iii. 160: In 1240 Hubert de Burgh in effect creates a trust for sale. He gives certain houses to God for the defence of the Holy Land and delivers them to three persons “ad disponendum et venditioni exponendum.” They sell to the Archbishop of York.

IX. The lands and revenues of a religious house were often appropriated to various specific purposes, e.g. ad victum monachorum, ad vestitum monachorum, to the use of the sacrist, cellarer, almoner or the like, and sometimes this appropriation was designated by the Edition: current; Page: [248] donor. Thus, e.g. Winchcombe Landboc, i. 55, “ad opus librorum”; i. 148, “ad usus infirmorum monachorum”; i. 73, certain tithes are devoted “in usum operationis ecclesiae,” and in 1206 this devotion of them is protected by a ban pronounced by the abbot; only in case of famine or other urgent necessity may they be diverted from this use. So land may be given “to God and the church of St. German of Selby to buy eucharistic wine (ad vinum missarum emendum”; Selby Coucher, ii. 34.

In the ecclesiastical context just mentioned usus is a commoner term than opus. But the two words are almost convertible. On Curia Regis Roll No. 115 (18-19 Hen. III.) m. 3 is an action against a royal purveyor. He took some fish ad opus Regis and converted it in usus Regis.

X. In the great dispute which raged between the Archbishops of Canterbury and the monks of the cathedral monastery one of the questions at issue was whether certain revenues, which undoubtedly belonged to “the church” of Canterbury, had been irrevocably devoted to certain specific uses, so that the archbishop, who was abbot of the house, could not divert them to other purposes. In 1185 Pope Urban III. pronounces against the archbishop. He must restore certain parochial churches to the use of the almonry. “Ecclesiae de Estreia et de Munechetun . . . ad usus pauperum provide deputatae fuissent, et a . . . praedecessoribus nostris eisdem usibus confirmatae . . . Monemus quatenus . . . praescriptas ecclesias usibus illis restituas.” Again, the prior and convent are to administer certain revenues which are set apart “in perpetuos usus luminarium, sacrorum vestimentorum et restaurationis ipsius ecclesiae, et in usus hospitum et infirmorum.” At one stage in the quarrel certain representatives of the monks in the presence of Henry II. received from the archbishop’s hand three manors “ad opus trium obedientiariorum, cellerarii, camerarii et sacristae.” See Epistolae Cantuarienses, pp. 5, 38, 95.

XI. Historians of the Church of York, iii. 155: In 1241 we see an Archbishop of York using somewhat complicated machinery for the creation of a trust. He conveys land to the chapter on condition that (ita quod) they will convey it to each successive archbishop to be Edition: current; Page: [249] held by him at a rent, which rent is to be paid to the treasurer of the cathedral and expended by him in the maintenance of a chantry. The event that an archbishop may not be willing to accept the land subject to this rent is provided for. This “ordination” is protected by a sentence of excommunication.

XII. We now come to the very important case of the Franciscans.

Thomas of Eccleston, De adventu Fratrum Minorum (Monumenta Franciscana, i.), p. 16: “Igitur Cantuariae contulit eis aream quandam et aedificavit capellam . . . Alexander magister Hospitalis Sacerdotum; et quia fratres nihil omnino appropriare sibi voluerunt, facta est communitati civitatis propria, fratribus vero pro civium libitu commodata . . . Londoniae autem hospitatus est fratres dominus Johannes Ywin, qui emptam pro fratribus aream communitati civium appropriavit, fratrum autem usumfructum eiusdem pro libitu dominorum devotissime designavit . . . Ricardus le Muliner contulit aream et domum communitati villae [Oxoniae]Edition: orig; Page: [235] ad opus fratrum.” This account of what happened in or about 1225 is given by a contemporary.

Prima Fundatio Fratrum Minorum Londoniae (Monumenta Franciscana, i.), p. 494. This document gives an account of many donations of land made to the city of London in favour of the Franciscans. The first charter that it states is one of 1225, in which John Iwyn says that for the salvation of his soul he has given a piece of land to the communitas of the city of London in frankalmoin “ad inhospitandum [ a word missing pauperes fratres minorum [minores?] quamdiu voluerint ibi esse.”

XIII. The attempt of the early Franciscans to live without property of any sort or kind led to subtle disputations and in the end to a world-shaking conflict. At one time the popes sought to distinguish between ownership and usufruct or use; the Franciscans might enjoy the use but could not have ownership; the dominium of all that was given to their use was deemed to be vested in the Roman church and any litigation about it was to be carried on by papal procurators. This doctrine was defined by Nicholas III. in 1279. In 1322 John XXII. did his best to overrule it, declaring that the Edition: current; Page: [250] istinction between use and property was fallacious and that the friars were not debarred from ownership (Extrav. Jo. XXII. 14. 3). Charges of heresy about this matter were freely flung about by and against him, and the question whether Christ and His Apostles had owned goods became a question between Pope and Emperor, between Guelph and Ghibelline. In the earlier stages of the debate there was an instructive discussion as to the position of the third person, who was sometimes introduced as an intermediary between the charitable donor and the friars who were to take the benefit of the gift. He could not be treated as agent or procurator for the friars unless the ownership were ascribed to them. Gregory IX. was for treating him as an agent for the donor. See Lea, History of the Inquisition, iii. 5-7, 29-31, 129-54. XIV. It is very possible that the case of the Franciscans did much towards introducing among us both the word usus and the desire to discover some expedient which would give the practical benefits of ownership to those who could yet say that they owned nothing. In every large town in England there were Minorites who knew all about the stormy controversy, who had heard how some of their foreign brethren had gone to the stake rather than suffer that the testament of St. Francis should be overlaid by the evasive glosses of lawyerly popes, and who were always being twitted with their impossible theories by their Dominican rivals. On the continent the battle was fought with weapons drawn from the armoury of the legist. Among these were usus and usufructus. It seems to have been thought at one time that the case could be met by allowing the friars a usus or usufructus, these terms being employed in a sense that would not be too remote from that which they had borne in the old Roman texts. Thus it is possible that there was a momentary contact between Roman law—medieval, not classical, Roman law—and the development of the English use. Englishmen became familiar with an employment of the word usus which would make it stand for something that just is not, though it looks exceedinglyEdition: orig; Page: [236] like, dominium. But we hardly need say that the use of our English law is not derived from the Roman “personal servitude”; the two have no feature in common. Nor can we believe that the Roman Edition: current; Page: [251] fideicommissum has anything to do with the evolution of the English use. In the first place, the English use in its earliest stage is seldom, if ever, the outcome of a last will, while the fideicommissum belongs essentially to the law of testaments. In the second place, if the English use were a fideicommissum it would be called so, and we should not see it gradually emerging out of such phrases as ad opus and ad usum. What we see is a vague idea, which developing in one direction becomes what we now know as agency, and developing in another direction becomes that use which the common law will not, but equity will, protect. It is only in the much later developments and refinements of modern family settlements that the English system of uses becomes capable of suggesting Fideicommiss to modern German inquirers as an approximate equivalent. Where Roman law has been “received” the fideicommissum plays a part which is insignificant when compared with that played by the trust in our English system. Of course, again, our “equitable ownership,” when it has reached its full stature, has enough in common with the praetorian bonorum possessio to make a comparison between the two instructive; but an attempt to derive the one from the other would be too wild for discussion.

Edition: current; Page: [252]

Chapter VI: Inheritance

§ 1.: Antiquities

Edition: orig; Page: [237]The history of the family: a controversial theme.If before we speak of our law of inheritance as it was in the twelfth and thirteenth centuries, we devote some small space to the antiquities of family law, it will be filled rather by warnings than by theories. Our English documents contain little that can be brought to bear immediately or decisively on those interesting controversies about primitive tribes and savage families in which our archaeologists and anthropologists are engaged, while the present state of those controversies is showing us more clearly every day that we are yet a long way off the establishment of any dogmas which can claim an universal validity, or be safely extended from one age or one country to another. And yet so long as it is doubtful whether the prehistoric time should be filled, for example, with agnatic gentes or with hordes which reckon by “mother-right,” the interpretation of many a historic text must be uncertain.

The family as an unit.It has become a common-place among English writers that the family rather than the individual was the “unit” of ancient law. That there is truth in this saying we are very far from denying—the bond of blood was once a strong and sacred bond—but we ought not to be content with terms so vague as “family” and “unit.” It may be that in the history of every nation there was a time when the men and women of that nation were grouped together into mutually exclusive clans, when all the members of each clan were in fact or in fiction bound to each other by the tie of blood, and were accounted Edition: current; Page: [253] strangers in blood to the members of every other clan. But let us see what this grouping implies. It seems to imply almost ofEdition: orig; Page: [238] necessity that kinship is transmitted either only by males or only by females. So soon as it is admitted that the bond of blood, the bond which groups men together for the purpose of blood-feud and of wergild, ties the child both to his father’s brother and to his mother’s brother, a system of mutually exclusive clans is impossible, unless indeed each clan is strictly endogamous. There is a foray; grandfather, father and son are slain; the wer must be paid. The wer of the grandfather must be paid to one set of persons; the wer of the father to a different set; the wer of the son to yet a third set. If kinship is traced only through males or only through females, then we may have permanent and mutually exclusive units; we may picture the nation as a tree, the clans as branches; if a twig grows out of one branch, it cannot grow out of another. In the other case each individual is himself the trunk of an arbor consanguinitatis.

No clans in England.Now it is not contended that the Germans, even when they first come within the ken of history, recognize no bond of blood between father and son. They are for the more part monogamous, and their marriages are of a permanent kind. The most that can be said by ardent champions of “mother-right” is that of “mother-right” there are distinct though evanescent traces in the German laws of a later day. On the other hand, we seem absolutely debarred from the supposition that they disregarded the relationship between the child and its mother’s brother.1 So soon as we begin to get rules about inheritance and blood-feud, the dead man’s kinsfolk, those who must bear the feud and who may share the wergild, consist in partEdition: orig; Page: [239] Edition: current; Page: [254] of persons related to him through his father, and in part of persons related to him through his mother.

Spear-kin and spindle-kin.It was so in the England of Alfred’s day; the maternal kinsfolk paid a third of the wer. The Leges Henrici, which about such a matter will not be inventing new rules, tell us that the paternal kinsfolk pay and receive two-thirds, the maternal kinsfolk one-third of the wer; and this is borne out by other evidence.2 Also it is clear that marriage did not sever the bond between a woman and her blood-kinsmen; they were responsible for her misdeeds; they received her wer, and we are expressly told that, if she committed homicide, vengeance was not to be taken on “the innocent family” of her husband.3 It would even seem that her husband could not remove her from the part of the country in which her kinsmen lived without giving them security that he would treat her well and that they should have an opportunity of condoning her misdeeds by money payments.4 Now when we see that the wives of the members of one clan are themselves members of other clans, we ought not to talk of clans at all.5 If the law were to treat the clan as an unit for any purpose whatever, this would surely be the purpose of wer and blood-feud; but just for that purpose our English law does not contemplate the existence of a number of mutually exclusive units which can be enumerated and named; there were as many “blood-feud groups” as there were living persons; at all events each set of brothers and sisters was the centre of a different group.

No permanent organization of the blood-feud group.From this it follows that the “blood-feud group” cannot be a permanently organized unit. If there is a feud to be borne or wer to be paid or received, it may organize itself ad hoc; but the organization will be of a fleeting kind. The very next deed of violence that Edition: current; Page: [255] is done will call some other blood-feud group into existence. Along with his brothers and paternal uncles a man goes out to avenge hisEdition: orig; Page: [240] father’s death and is slain. His maternal uncles and cousins, who stood outside the old feud, will claim a share in his wer.

The blood-feud group is not a permanent legal unit.This is what we see so soon as we see our ancestors. About what lies in the prehistoric time we can only make guesses. Some will surmise that the recognition of the kinship that is traced through women is a new thing, and that in the past there have been permanently coherent agnatic gentes which are already being dissolved by the action of a novel principle. Others will argue that the movement has been not from but towards agnation, and has now gone so far that the spear-cousins are deemed nearer and dearer than the spindle-cousins. Others, again, may think that the great “folk-wandering” has made the family organization of the German race unusually indefinite and plastic, so that here it will take one, and there another form. What seems plain is that the exclusive domination of either “father-right” or “mother-right”—if such an exclusive domination we must needs postulate—should be placed for our race beyond the extreme limit of history. To this, however, we may add that the English evidence as to the wife’s position is a grave difficulty to any theory that would start with the patriarchal family as a primitive datum. That position we certainly cannot ascribe to the influence of Christianity. The church’s dogma is that the husband is the head of the wife, that the wife must forsake her own people and her father’s house; and yet, despite all preaching and teaching, the English wife remains, for what has once been the most important of all purposes, a stranger to her husband’s kin, and even to her husband.

The kindred as a local group.It is quite possible that in England men as a matter of fact dwelt together in large groups tilling the land by co-operation, that the members of each group were, or deemed themselves to be, kinsmen in blood, and that as a force for keeping them in these local groups spear-sibship was stronger than spindle-sibship:—their relative strength could be expressed by the formula 2: 1. We get a hint of such permanent cohesive groups when we find King Æthelstan legislating against the mœgð that is so strong and so mickle that it Edition: current; Page: [256] denies the king’s rights and harbours thieves. The whole power of the country is to be called out to ride against these offenders.6 The law will, if possible, treat such a mœgð as an “unit” by crushing itEdition: orig; Page: [241] into atoms. But in no other way, so far as we can see, will its unity be legally recognized. The rules of blood-feud that the law sanctions are a practical denial of its existence. Unless it be endogamous, it can have no claim to the whole wer of any one of its members; every one of its members may have to pay wer along with persons who stand outside it.

The kindred as landowning unit.Again, if we accept the common saying that the landowning unit was not an individual but a mœgð, a clan, or gens, we must meet the difficulty that at an early period land was being inherited through women. The rules of inheritance are very dark to us, but, so far as we can see, the tendency in the historic period is not towards an admission of the “spindle-kin,” but towards a postponement of their claims to those of the “spear-kin.”7 Already in the eighth century the Anglo-Saxon thegn wishes to create something like the estate in tail male of later times.8 And the law takes his side; it decrees that the form of the gift shall be respected.9 Now if for a moment we suppose that a clan owns land, we shall see a share in this land passing through daughters to their children, and these children will be on their father’s side members of another clan. Our landowning clan, if it still continues to hold its old lands, will soon cease to be a clan in any tolerable sense of the term; it will be a mere group of co-proprietors, some of whom are bound by the sacred tie of blood-feud more closely to those who stand outside than to those who stand inside the proprietary group.

The kindred no corporation.We must resist the temptation to speak of “the mœgð” as if it were a kind of corporation,10 otherwise we have as many corporations as there are men and women. The collective word mœgð is interchangeable with the plural of the word mœ´g, which signifies a kinsman. When a man has been slain, those who are bound and entitled Edition: current; Page: [257] to avenge his death will, it is probable enough, meet together and take counsel over a plan of campaign; but so far as we can see, the law, when first it knows a wergild, knows the main outlines of a system which divides the wergild among individual men. ThereEdition: orig; Page: [242] is in the first place a sum called the healsfang, which is due only to those who are very closely related to the dead man;11 then there is the rule that gives two-thirds to the spear and one to the spindle. Again, when the “kindred” of a lordless man is ordered to find him a lord, we need not think of this as of a command addressed to corporations, or even to permanently organized groups of men; it may well be addressed to each and all of those persons who would be entitled to share the wergild of this lordless man: every one of them will be liable to perform this duty if called upon to do so.12

The household as landowner.A fatherless child “follows its mother”; apparently this means that, as a general rule, this child will be brought up among its maternal, not its paternal, kinsmen; the guardianship however of its paternal goods is given by ancient dooms to its paternal kinsmen.13 But such texts do not authorize us to call up the vision of a mœgð acting as guardian by means of some council of elders; the persons who would inherit if the child died may well be the custodians of the ancestral property. But even if in any given case a person’s kinsmen act together and, for example, find a lord or appoint a guardian for him, it is only by reason of their relationship to him that they constitute an unit. There may be a great deal to show that in England and elsewhere strong family groups formed themselves and that the law had to reckon with them; but they were contending against a principle which, explain it how we will, seems to be incompatible with the existence of mutually exclusive gentes as legal entities.14

We turn to the popular theory that land was owned by families Edition: current; Page: [258] or households before it was owned by individuals. This seems to mean that at a time when a piece of land was never owned by one man, co-ownership was common. Now co-ownership may takeEdition: orig; Page: [243] various forms. In the later middle ages it took here in England at least four. There was the tenancy in common. In this case when one co-tenant died, his own undivided share descended to his heir.15 There was the joint tenancy. In this case when one co-tenant died, his share did not descend to his heir, but “accrued” to the surviving co-tenant or co-tenants. There was the co-parcenary occasioned by the descent of lands to co-heiresses. In this case there had been doubt whether on the death of one co-tenant without issue there would be inheritance or “accruer by survivorship.” The intimate union between husband and wife gave rise to a fourth form, known as tenancy by entireties. We cannot a priori exhaust the number of forms which co-ownership may take. Nor is it only on the death of one of the co-owners that the differences between these forms will manifest themselves. In a modern system of law, and in many a system that is by no means modern,16 every one of the co-owners may in general insist on a partition either of the land itself or, it may be, of the money that can be obtained by a sale of it; or again, without any partition being made, he can without the consent of his fellows transfer his aliquot share to one who has hitherto stood outside the co-owning group. Demonstrably in some cases, perhapsEdition: orig; Page: [244] in many, these powers are of recent origin.17 Let us for a moment put them out of account. Let us suppose that on a father’s death his land descends to his three sons, that no son can force his brothers to a physical partition of the inheritance, and that no son can sell or give away his share. Let us make yet another supposition, for Edition: current; Page: [259] which there may be warrant in some ancient laws. Let us suppose that if one of the three sons dies leaving two sons, these two will not of necessity inherit just their father’s share, no more, no less. Let us suppose that there will be a redistribution of the shares into which the land has hitherto been ideally divided, so (for example) that these four persons, namely the two uncles and their two nephews, will have equal shares. The land is still owned by four men.18 Let the number of co-tenants increase until there are forty of them; the state of the case is not altered. Individuals do not cease to be individuals when there are many of them. But if there are many of them, we shall often spare ourselves the trouble of enumerating them by the use of some collective name. If John Smith’s land has descended to his seven daughters who are holding it as co-parceners, we shall in common discourse speak of it as the land of the Smiths or of the Smith family, or, if we prefer medieval Latin to modern English, we shall say that the land belongs to the genealogia Johannis Fabri. If these ladies quarrel with their neighbours about a boundary, there may be litigation between two families (inter duas genealogias), the Smiths, to wit, and the Browns; but it will be a quarrel between “individuals”; this will be plain enough so soon as there is any pleading in the action.

Edition: orig; Page: [245]Is co-ownership older than several ownership?Now no one is likely to maintain, even as a paradox, that the ownership of aliquot shares of things is older than the ownership of integral things. If nothing else will restrain him, he may at least be checked by the reflection that the more ancient institution will inevitably become the more modern within a few years. He distributes the land to families. So soon as by the changes and chances of this mortal life any one of those families has but a single member, Edition: current; Page: [260] “individual ownership” will exist, unless to save his dogma he has recourse to an arbitrary act of confiscation.

Co-ownership and aliquot shares.To deny that “family ownership” is an ownership by individuals of aliquot shares is another expedient. But this in truth is a denial of the existence of any law about partition. If there is any law which decides how, if a partition be made, the physically distinct shares ought to be distributed, then there is already law which assigns to the members of the group ideal shares in the unpartitioned land.19 But to seek to go behind a law for the partition of family estates without passing into a region in which there is no ownership and no law does not in western Europe look like an endeavour that is destined to succeed. Such evidence as we have does not tend to prove that in ancient times the “joint family” was large. Seldom did it comprise kinsmen who were not the descendants of a common grandfather: in other words, the undivided family rarely lived through three generations.20 But supposing that there is no law about partition, we still have before us something which, if we agree to call it ownership, is ownership by individuals. We have land owned by four, or by forty individuals, and at any moment a war, a plague or a famine may reduce their number to one.

Birth-rights.To our thinking then, the matter that has to be investigated is not well described as the non-existence of “individual ownership.”Edition: orig; Page: [246] It would be more correctly described as the existence and the origin of “birth-rights.” Seemingly what we mean when we speak of “family ownership,” is that a child acquires rights in the ancestral land, at birth or, it may be, at adolescence; at any rate he acquires rights in the ancestral land, and this not by gift, bequest, inheritance or any title known to our modern law.

Edition: current; Page: [261]

History of birth-rights.Now that such rights once existed in England and many other parts of western Europe is not to be denied. When the dark age is over, they rarely went beyond this, that the land holder could not utterly disinherit his expectant heirs either by will or by conveyance; the father, for example, could not sell or give away the ancestral land without the consent of his sons, or could only dispose of some “reasonable” part of it. If he attempted to do more, then when he was dead his sons could revoke the land. However, it was not unknown in some parts of Germany that, even while the father lived, the sons could enforce their rights and compel him to a partition.21

Birth-rights and inheritance.It is natural for us to assume without hesitation that those forms of birth-right which are least in accord with our own ideas are also the most archaic, that the weaker forms are degenerate relics of the stronger, that originally the child was born a landowner, that a law which only allows him to recall the alienated land after his father’s death is transitional, and that his right has undergone a further and final degradation when it appears as a mere droit de retrait, a right to redeem the alienated land at the price that has been given for it. According to this theory, the law of intestate succession has its origin in “family ownership.” It is an old and a popular doctrine.22 Before however we allow to it the dignity of a proved and universal truth, we shall do well to reflect that it attributes to barbarous peoples a highly commendable care for the proprietary rights of the filius familias, and if for his proprietary rights then also for his life and liberty, for the state of things in which a father may lawfully reduce the number of his co-proprietors by killing them or selling them into slavery is not one that we can easily imagine as a normal or stable stage in the history of mankind.

Edition: orig; Page: [247]Birth-rights begotten by a law of inheritance.The suggestion therefore may be admissible that at least in some cases “family ownership,” or the semblance of it, may really be, not the origin, but the outcome of intestate succession.23 We have but to Edition: current; Page: [262] ask for a time when testamentary dispositions are unknown and land is rarely sold or given away. In such a time a law of intestate succession will take deep root in men’s thoughts and habits. The son will know that if he lives long enough he will succeed his father; the father will know that in the ordinary course of events his land will pass from him to his sons. What else should happen to it? He does not want to sell, for there is none to buy; and whither could he go and what could he do if he sold his land? Perhaps the very idea of a sale of land has not yet been conceived. In course of time, as wealth is amassed, there are purchasers for land; also there are bishops and priests desirous of acquiring land by gift and willing to offer spiritual benefits in return. Then the struggle begins, and law must decide whether the claims of expectant heirs can be defeated. In the past those claims have been protected not so much by law as by economic conditions. There is no need of a law to prohibit men from doing what they do not want to do; and they have not wanted to sell or to give away their land. But now there must be law. The form that the law takes will be determined by the relative strength of conflicting forces. It will be a compromise, a series of compromises, and we have no warrant for the belief that there will be steady movement in one direction, or that the claims of the heirs must be always growing feebler. That this is so we shall see hereafter. The judges of Henry II.’s court condemned in the interest of the heir those testamentary or quasi-testamentary dispositions of land which Englishmen and Normans had been making for some time past, though the same judges or their immediate successors decided that the consent of expectant heirs should no longer be necessary when there was to be an alienation inter vivos. Thus they drew up the great compromise which ruled England for the rest of the middle ages. Other and different arrangements were made elsewhere, some more, some less favourable to the heirs, and we must not assume without proof that those which are most favourable to the heirs are in the normal order of events the most primitive. They imply, as already said, that a son can hale his father before a court of law and demand a partition; when this Edition: current; Page: [263] can be done there is no “patriarchalism,” there is little paternal power.24

Edition: orig; Page: [248]Antiquity of inheritance.In calling to our aid a law of intestate succession we are not invoking a modern force. As regards the German race we cannot go behind that law; the time when no such law existed is in the strictest sense prehistoric. Tacitus told his Roman readers that the Germans knew nothing of the testament, but added that they had rules of intestate succession. These rules were individualistic: that is to say, they did not treat a man’s death as simply reducing the number of those persons who formed a co-owning group. Again, they did not give the wealth that had been set free to a body consisting of persons who stood in different degrees of relationship to the dead man. The kinsmen were called to the inheritance class by class, first the children, then the brothers, then the uncles.25 The Lex Salica has a law of intestate succession; it calls the children, then the mother, then the brothers and sisters, then the mother’s sister.26 These rules, it may be said, apply only to movable goods and do not apply to land; but an admission that there is an individualistic law of succession for movable goods when as yet anything that can be called an ownership of land, if it exists at all, is new, will be quite sufficient to give us pause before we speak of “family ownership” as a phenomenon that must necessarily appear in the history of every race. Our family when it obtains a permanent possession of land will be familiar with rules of intestate succession which imply that within the group that dwells together there is mine and thine. But the Lex Salica already knows the inheritance of land; the dead man’s land descends to his sons, and an express statement that women cannot inherit it is not deemed superfluous.

Edition: current; Page: [264]

Family ownership in England.Now as regards the Anglo-Saxons we can find no proof of the theory that among them there prevailed anything that ought to be called “family ownership.” No law, no charter, no record of litigationEdition: orig; Page: [249] has been discovered which speaks of land as being owned by a mœgð, a family, a household, or any similar group of kinsmen. This is the more noticeable because we often read of familiae which have rights in land; these familiae, however, are not groups of kinsmen but convents of monks or clerks.27

Birth-rights in England.But, further, the dooms and the land-books are markedly free from those traits which are commonly regarded as the relics of family ownership.28 If we take up a charter of feoffment sealed in the Norman period we shall probably find it saying that the donor’s expectant heirs consent to the gift. If we take up an Anglo-Saxon land-book we shall not find this; nothing will be said of the heir’s consent.29 The denunciatory clause will perhaps mention the heirs, and will curse them if they dispute the gift; but it will usually curse all and singular who attack the donee’s title, and in any system of law a donee will have more to fear from the donor’s heirs than from other persons, since they will be able to reclaim the land if for any cause the conveyance is defective.30 Occasionally several co-proprietors join to make a gift; but when we consider that in all probability all the sons of a dead man were equally entitled to the land that their father left behind him, we shall say that such cases are marvellously Edition: current; Page: [265] rare. Co-ownership, co-parcenary, there will always be. We see it in the thirteenth century, we see it in the nineteenth; the wonder is that we do not see more of it in the ninth and tenth than our Anglo-Saxon land-books display.

In the days before the Conquest a dead man’s heirs sometimesEdition: orig; Page: [250] attempted to recover land which he had given away, or which some not impartial person said that he had given away. They often did so in the thirteenth century; they sometimes do so at the present day. At the present day a man’s expectant heirs do not attempt to interfere with his gifts so long as he is alive; this was not done in the thirteenth century; we have no proof that it was done before the Conquest.31

Expectant heirs do not like to see property given away by will; they sometimes contest the validity of the will which contains such gifts; not unfrequently, as every practitioner in a court of probate will know, the legatees are compelled to compromise their claims. All this happened in the days before the Conquest; but when we consider that the testamentary or quasi-testamentary gift was in that age a new thing, we cannot say that such disputes about wills were common.32

Edition: current; Page: [266]

A doom of King Alfred speaks thus:—“If a man has book-land which his kinsmen left him, we decree that he is not to alienate itEdition: orig; Page: [251] outside his kindred, if there is writing or witness that this was forbidden by those who first acquired it and by those who gave it to him;The restraint on alienation. and let this be declared with the witness of the king and the bishop in the presence of his kinsfolk.”33 We may argue, if we will, that this is an attempt to impose upon the alienable book-land some of those fetters which have all along compressed the less alienable folk-land or “family-land”; the forma donationis is to be observed and restrictive forms are not unknown.34 Nevertheless, here, about the year 900, we see the current of legislation moving, at least for the moment, in favour of the expectant heirs. Either a new law is made for their benefit or a new precision is given to an old law.

Partition of inheritances.We may well suppose that often enough a man’s co-heirs left his land unpartitioned for some time, and that for more than one generation his male descendants and such of his female descendants as were not married continued to live together under one roof or within one enclosure as a joint, undivided household. We may guess that when, to take one out of many examples, ten thegns hold three hides in parage, they are cousins;35 but the partition of an inheritance among co-heirs, or rather as it happens co-heiresses, appears at an early time,36 and we have nothing to show that when an inherited estate remained undivided and one of the parceners died, his share did not pass to his own descendants according to the same rules of inheritance that would have governed it had it been physically partitioned and set out by metes and bounds. No one word is there to show that a son at birth was deemed to acquire a share of the land that his father held. Need we say that there is no one word to show that the law treated the father as a trustee for his children, or as the attorney or procurator of his family?

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The appointment of heirs.“Only God can make a heres, not man”—said Glanvill.37 But far back in remote centuries Englishmen had seen no difficulty in giving the name heres to a person chosen by a landholder to succeed him in his holding at his death. And so with the English word for which heres has been an equivalent. It was not inconceivable that a man should name an yrfeweard to succeed him. We are far from believingEdition: orig; Page: [252] that this could be done of common right, or that this nominated yrfeweard was a heres in the Roman sense of that term; but, while in Glanvill’s day it would have been a contradiction in terms to speak of an heir who was not of the blood of the dead man, this had not been so in the past.38

The restraint on alienation before and after the Conquest.We must admit that most of our evidence relates to book-land, and we have often argued that in all likelihood book-land is an exotic and a superficial institution, floating, as it were, on the surface of English law. Of what went on below the surface among those men who had no books we can learn little; it is very likely that a restraint in favour of the expectant heirs was established. But what we see happening among the great folk is not unimportant, and it is this:— the Anglo-Saxon thegn who holds book-land does not profess to have his heir’s consent when he gives part of that land to a church; his successor, the Norman baron, will rarely execute a charter of feoffment which does not express the consent of one heir or many heirs. Our record is miserably imperfect, but as it stands it tends to prove that among the rich and noble there was a period when the rights of the expectant heir were not waning but waxing. In the end, as we shall see hereafter, the heir succeeds in expelling from the common law the testamentary or quasi-testamentary gift of land.

Last words on family ownership.We have not been arguing for any conclusion save this, that in Edition: current; Page: [268] the present state of our knowledge we should be rash were we to accept “family ownership,” or in other words a strong form of “birthright,” as an institution which once prevailed among the English in England. That we shall ever be compelled to do this by the stress of English documents is improbable; nor at this moment does it seem likely that comparative jurisprudence will prove that dogma the universal validity of which we have ventured to doubt. To suppose that the family law of every nation must needs traverse the same route,Edition: orig; Page: [253] this is an unwarrantable hypothesis. To construct some fated scheme of successive stages which shall comprise every arrangement that may yet be discovered among backward peoples, this is a hopeless task. A not unnatural inference from their backwardness would be that somehow or another they have wandered away from the road along which the more successful races have made their journey.

Nature of inheritance.About the rules of intestate succession which prevailed here in the days before the Conquest we know little; they may have been different in the different folks, and at a later time they may have varied from shire to shire. We know much more of the rules that obtained among our near cousins upon the mainland, and by their aid we may arrive at a few cautious conclusions. But we are here met by a preliminary question as to the nature of inheritance. For a time we must disregard that canon of later English law which bids us use the words “inheritance” and “heir” only when we are describing the fate which awaits the lands, or to speak more nicely, the “real estate,” of the dead. This canon we cannot take back with us into the distant age that is now before us; but, applying these terms to movables as well as to immovables, and assuming for a while that we know who the dead man’s heirs must be, we have still to ask, What is the nature of inheritance?

Inheritance and representation of the dead.It is the more necessary to ask this question because we might otherwise be misled by modern law and Roman law into giving it a tacit answer that would not be true. To us it must seem natural that when a man dies he should leave behind him some representative who will bear, or some few representatives who will jointly bear, his persona. Or again, we may be inclined to personify the group of rights and duties which are, as it were, left alive, though the man Edition: current; Page: [269] in whom they once inhered is dead: to personify the hereditas. We Englishmen do something of this kind when we speak of an executor owing money to or having claims against “the estate” of his testator. To do something of this kind is so natural, that we can hardly imagine a time when it was not done.

Representation of the dead in modern law.But our own modern law will remind us that even in the nineteenth century there is no absolute necessity compelling the whole persona, or whole estate, of the dead man to devolve upon one representative, or one set of representatives who will act in unison. In the case of intestacy the “realty” will go one way and the “person-alty” another. This is not all: it is conceivable that the realty itselfEdition: orig; Page: [254] should fall into fragments, each of which will descend in a different course. Not only does our law respect local customs, but it also retains in an obscured form the old rule which gives paterna paternis, materna maternis. As an exercise for the imagination we might construct a case in which the intestate’s realty would be broken into twelve portions, each of which would follow a different path.39 Thus even in our own day we have not yet found it needful to decree that some one man or some set of conjoint persons shall succeed in universum ius defuncti.40

Why must the dead be represented?But why do we demand that the dead shall be represented? The law of inheritance seems to answer two purposes, which can be distinguished, though in practice they are blended. The dead man has left behind him a mass of things, and we must decide what is to be done with them. But further, he has gone out of the world a creditor and a debtor, and we find it desirable that his departure should make as little difference as may be to his debtors and creditors. Upon this foundation we build up our elaborate system of credit. Death is to make as little difference as may be to those who have had dealings with him who has died, to those who have wronged him, to those whom he has wronged.

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Representation not necessary in early times.Now the first of these needs must be met at an early stage in legal history. If there is to be peace, a scramble for the dead man’s goods cannot be suffered; law must have some rule for them. On the other hand, we cannot say with any certainty that the second purpose will become perceptible until there is a good deal of borrowing and lending. But it is only this second purpose that requires any representation of the dead. It may be allowed indeed that so soon as land is inherited the heir will in some sort fill the place of his ancestor. The land, when it becomes his, must still bear the same burdens that it has hitherto borne. But here there seems to be no representation of the ancestor; rather we have a personification of the plot of land; it has sustained burdens and enjoyed easements in the past, and must sustain and enjoy them still.

Edition: orig; Page: [255]Representation and religion.We have therefore grave doubts as to whether any widely general dogma about these matters will deserve a ready assent. So much will depend upon religion. In this province of law the sacral element has in various ages and various lands been strong. We have to think not only of what is natural but also of what is supernatural. Among one rude people the representation of the ancestor by the heir may appear at an early time, because the son must perform sacrificial duties which have been incumbent on his father. Among another and a less rude people there may be no representation until commerce and credit demand it. Of Germanic heathenry we know little, but the Christianity which the Germans have adopted when first they are writing down their laws is not a religion which finds its centre at the family hearth. Much might be done by a pious heir for the good of his ancestor’s soul, and the duty of doing this was sedulonsly preached; but the heir could not offer the expiatory sacrifice, nor would it be offered in his house; no priesthood had descended upon him. There is therefore no religious nucleus that will keep together the universum ius defuncti; the churches would prefer that the dead man’s lands and goods should never reach the hands of the heir but be dissipated by pious gifts.

Inheritance of debts and credits.In the old time the person or persons who succeeded to the lands and goods of the dead man had few, if any, debts to pay or to receive. Most of the pecuniary claims that could be made good Edition: current; Page: [271] in a court of law would perish at the death of the creditor and at the death of the debtor. We may perhaps gather from the so-called “wills” of this age that there were some claims of which this was not true, for a testator sometimes says that his debtors are to be forgiven or that his creditors are to be paid.41 In the former case, however, we cannot be certain that there has not been an express promise that the creditor “or his heir” shall have the money. In later days this phrase becomes part of the common form of a written bond for the payment of money; and there is much both in English and in continental documents to suggest that the mention of the heirs has not been idle verbiage.42 A promise to pay money to Alfred is no promise to pay money to Alfred’s heir, just as a gift of land to Alfred will hardly give him heritable rights unless something be saidEdition: orig; Page: [256] of his heirs. As to the hereditary transmission of a liability, this we take it was not easily conceived, and when an Anglo-Saxon testator directs that his debts be paid, this, so far from proving that debts can normally be demanded from those who succeed to the debtor’s goods, may hint that law is lagging behind morality. If the heir paid the ancestor’s debts, he did a pious and laudable act, perhaps an act as beneficial for the departed soul as would be the endowment of a chantry:—this is a feeling that grows stronger as time goes on. At any rate our law, when at the end of the thirteenth century it takes a definite form, seems to tell us that in the past many debts have died with the debtors. We have every reason to believe that claims ex delicto would seldom, if ever, survive the death of the wrong-doer or of the wronged. For one moment the blood-feud and the wergild may induce us to think otherwise; but in truth there is here no representation. The wergild was not due to the slain man and is not paid to one who represents him. At least in the common case it is not even paid only to those persons who are his heirs, for many persons are entitled to a share in the wergild who take no part of the inheritance. The slain man’s brothers, uncles and cousins, as well as his children, have been wronged and atonement must be made Edition: current; Page: [272] with them. And when an attack is made upon the slayer’s kinsmen or the wergild is demanded of them, they are not pursued as his representatives—he himself may be alive—they are treated rather as his belongings, and all that belongs to him is hateful to those who hate him. Gradually as the feud loses its original character, that of a war, the heirs of the slayer may perhaps free themselves from all liability by rejecting the inheritance; but this is an infringement of the old principle, and in the region of blood-feud there is not much room for the development of representation.43 Lastly, as regards the wrongs which do not excite a lawful feud, such as insults, blows, wounds, damage to land or goods, we must think of them as dying with the active and dying with the passive party. Only by slow degrees has our law come to any other rule, and even now-a-days those causes of action which were the commonest in ancient times still die with the person.

Edition: orig; Page: [257]The inheritance need not descend in one mass.If there is to be no representation of the dead man for the purpose of keeping obligations alive, then there is no great reason why the things that he leaves behind him should all go one way, and early Germanic law shows a tendency to allow them to go different ways. It sees no cause why some one person or some set of conjoint persons should succeed in universum ius defuncti. Thus the chattels may be separated from the land and one class of chattels from another. Among some tribes the dead man’s armour, his “heriot,” follows a course of its own and descends to his nearest kinsman on the sword side. Then it is said that in the Lex Salica we may see the last relics of a time when movable goods were inherited mainly or only by women; and all along through the middle ages there are German laws which know of certain classes of chattels, the clothes and ornaments of a woman’s person, which descend from woman to woman to the neglect of males. At all events, already in the Lex Salica there is one set of canons for chattels, another for land; a woman cannot inherit land.

Transition.But the little more that can be said of these obscure matters will be better said hereafter. It is time that we should turn to an age Edition: current; Page: [273] which is less dark and speak of the shape that our law of inheritance takes when first it becomes plain in the pages of Glanvill and Bracton and the rolls of the king’s court. And the first thing that we have to do is to leave off using the words “inheritance” and “heir” in that wide sense in which we have hitherto used them:—they point only to the fate of land and of those incorporeal things that are assimilated to land; they point to a succession which is never governed by testament.

§ 2.: The Law of Descent

Primary rules.At the end of Henry III.’s reign our common law of inheritance was rapidly assuming its final form. Its main outlines were those which are still familiar to us, and the more elementary of them may be thus stated:—The first class of persons called to the inheritance comprises the dead person’s descendants; in other words, if he leaves an “heir of his body,” no other person will inherit. Among hisEdition: orig; Page: [258] descendants, precedence is settled by six rules. (1) A living descendant excludes his or her own descendants. (2) A dead descendant is represented by his or her own descendants. (3) Males exclude females of equal degree. (4) Among males of equal degree only the eldest inherits. (5) Females of equal degree inherit together as co-heiresses. (6) The rule that a dead descendant is represented by his or her descendants overrides the preference for the male sex, so that a grand-daughter by a dead eldest son will exclude a younger son. Here for a while we must pause, in order to comment briefly upon these rules.44

Preference of descendants.The preference of descendants before all other kinsfolk we may call natural: that is to say, we shall find it in every system that is comparable with our own. A phrase that is common in the thirteenth Edition: current; Page: [274] century makes it prominent. A man who dies without leaving a descendant, though he may have other kinsfolk who will be his heirs, is often said to die “without an heir of (or from) himself” (obiit sine herede de se). It is only when a man has no heir de se, that his brother or any other kinsman can inherit from him.

Preference of males.A preference for males over females in the inheritance of land is strongly marked in several of the German folk-laws. The oldest form of the Lex Salica excludes women altogether. Some of the later codes postpone daughters to sons and admit them after sons, but a postponement of daughters even to remoter male kinsmen is not unknown. As to England, we may say with some certainty that, in the age which immediately preceded Harold’s defeat, women, though they could inherit land, were postponed at least to their brothers. Domesday Book seems to prove this sufficiently. In every zone of the system of landholdership as it stood in the Confessor’s day we may find a few, but only a few, women as tenants.45 On the other hand, already at the beginning of the ninth century we see aEdition: orig; Page: [259] clear case of a king’s daughter inheriting his land,46 and other cases of female heirs are found at an early date.47

Influence of feudalism.In later days the customs which diverge from the common law, for instance the gavelkind custom of Kent, agree with it about this matter:—males exclude females of equal degree.48 This precedence is far older than feudalism, but the feudal influence made for its Edition: current; Page: [275] retention or resuscitation.49 At the same time, the feudalism with which we are concerned, that of northern France, seems to haveEdition: orig; Page: [260] somewhat easily admitted the daughter to inherit if there was no son. In England, so soon after the Norman invasion as any law becomes apparent, daughters, in default of sons, are capable of inheriting even military fees. In 1135 it is questionable—and this is the extreme case—whether a king’s daughter cannot inherit the kingdom of England.50

Primogeniture.A rule which gives the whole of a dead man’s land to the eldest of several sons is not a natural part of the law of inheritance. In saying this we are not referring to any fanciful “law of nature,” but mean that, at all events among the men of our own race, the law of inheritance does not come by this rule if and so long as it has merely to consider what, as between the various kinsmen of the dead man, justice bids us do. When it decides that the whole land shall go to one son—he may be the eldest, he may be the youngest— and that his brothers shall have nothing, it is not thinking merely of the dead man and his sons, and doing what would be fair among them, were there no other person with claims upon the land; it has in view one who is a stranger to the inheritance, some king or some lord, whose interests demand that the land shall not be partitioned. It is in the highest and the lowest of the social strata that “impartible succession” first appears. The great fief which is both property and office must, if it be inherited at all, descend as an integral whole; the more or less precarious rights which the unfree peasant Edition: current; Page: [276] has in a tenement must, if they be transmissible at all, pass to one person.51 But these tendencies have to struggle against the dictateEdition: orig; Page: [261] of what seems to be natural justice, the obvious rule that would divide the inheritance among all the sons. Perhaps we see this best in the case of the kingship. So soon as the kingship became strictly hereditary it became partible. Over and over again the Frankish realm was partitioned; kings and the younger sons of kings were slow to learn that, at least in their case, natural justice must yield to political expediency.52 Brothers are equals, they are in parage; one of them cannot be called upon to do homage to his peer.53

Primogeniture in England.Happily for the England of the days before the Conquest, the kingship had never become so strictly hereditary as to become partible. On the other hand, we have every reason to believe that the landowner’s land was divided among all his sons. We are here speaking of those persons who in the Norman classification became libere tenentes. It is not improbable that among those who were to be the villani and the servi of Domesday Book a system of impartible succession, which gave the land to the eldest or to the youngest son, was prevalent; but for a while we speak of their superiors. In the highest strata, among the thegns, though we do not see primogeniture, we do see causes at work which were favouring its growth. Causes were at work which were tying military service to the tenure of land, and it would be natural that the king, who had theretofore looked to one man for an unit of fighting power, should refuse to recognize an arrangement which would split that duty into fractional parts: he must have some one man whom he can hold responsible for the production of a duly armed warrior. It Edition: current; Page: [277] is to this that point the numerous entries in Domesday Book which tell us of two, three, four, nine, ten thegns holding land “in parage.” They are, we take it, co-heirs holding an undivided inheritance, but one of them is answerable to the king for the military service due from the land. This is the meaning of “tenure in parage” in later Norman law. The younger heirs hold of the eldest “in parage”; theyEdition: orig; Page: [262] do him no homage; they swear to him no fealty; they are his peers, equally entitled with him to enjoy the inheritance; but he and he alone does homage to the lord and is responsible for the whole service of the fee.54 As will be said below, this arrangement appears in the England of the twelfth and thirteenth centuries when an inheritance falls to co-heiresses. There are several texts in Domesday Book which seem to show that the Norman scribes, with this meaning of the term in their minds, were right in saying that some of the Anglo-Saxon thegns had been holding in parage. It is not unnatural that, if one of several brothers must be singled out to represent the land, this one should usually be the eldest. In Buckinghamshire eight thegns were holding a manor, but one of them was the senior of the others and was the man of King Edward.55 Probably he was their senior in every sense of the word, both their elder and their superior; he and only he was the king’s man for that manor. The king then is beginning to look upon one of several brothers and co-heirs, usually the eldest, as being for one very important purpose the only representative of the land, the sole bearer of those duties to the state which were incumbent on his father as a landholder. The younger sons are beginning to stand behind and below their elder brother. By a powerful king this somewhat intricate arrangement may be simplified. He and his court may hold that the land is adequately represented by the firstborn son, not merely for one, but for all purposes. This will make the collection of reliefs and aids and taxes the easier, and gradually the claims of the younger sons upon their eldest brother may become merely moral claims which the king’s court does not enforce.

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Primogeniture in Normandy.It is by no means certain that in 1066 primogeniture had gone much further in Normandy than in England.56 True that in all probability a certain traditional precariousness hung about the inheritance of the military fiefs, a precariousness which might become a lively force if ever a conquering duke had a vast land to divide among his barons. But we cannot argue directly from such precariousnessEdition: orig; Page: [263] to primogeniture. We may say, if we will, that primogeniture is a not unnatural outcome of feudalism, of the slow process which turns an uninheritable beneficium into a heritable feodum. It is as a general rule convenient for the lord that he should have but one heir to deal with; but as already said, the lord’s convenience has here to encounter a powerful force, a very ancient and deep-seated sense of what is right and just, and even in the most feudal age of the most feudal country, the most feudal inheritances, the great fiefs that were almost sovereignties, were partitioned among sons, while as yet the king of the French would hardly have been brought to acknowledge that these beneficia were being inherited at all. It is the splendid peculiarity of the Norman duchy that it was never divided.57 And, as this example will show, it was not always for the lord’s advantage that he should have but one heir to deal with: the king at Paris would not have been sorry to see that great inheritance split among co-heirs. And so we cannot believe that our Henry III. was sorry when his court, after prolonged debate, decided that the palatinate of Chester was divisible among co-heiresses.58 A less honest man than Edward I. would have lent a ready ear to Bruce and Hastings when they pleaded for a partition of Scotland.59 That absolute and uncompromising form of primogeniture which prevails in England belongs, not to feudalism in general, but to a highly centralized feudalism, in which the king has not much to fear from the power of his mightiest vassals, and is strong enough to impose a law that in his eyes has many merits, above all the great merit of simplicity.

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Primogeniture under later Norman law.In Normandy the primogenitary rule never went beyond securing the impartibility of every military tenement, and even this impartibility was regarded as the outcome of some positive ordinance.60 If the inheritance consisted of one hauberk-fief, or of a barony, or of a serjeanty, the eldest son took the whole; he was bound to provide for his brothers to the best of his ability; but this was only a moral duty, for an ordinance had forbidden the partition of a fief.61 If there were two fiefs in the inheritance and more than one son, the two eldest sons would get a fief apiece. Other lands wereEdition: orig; Page: [264] equally divided; but the eldest son would have no share in them unless, as we should say, he would “bring into account” the military fief that he was taking. It is put as a possible case that the value of a share in the other lands will exceed that of the fief; if so, the eldest son need not take the fief; he has first choice, and it is possible that the knightly land will be left to the youngest and least favoured son. In short, Norman law at the end of the twelfth century prescribes as equal a partition of the inheritance among sons as is compatible with the integrity of each barony, serjeanty or military fief, and leaves the sons to choose their portions in order of birth.62 Indeed, subject to the rule about the impartibility of military fiefs, a rule imposed by the will of the duke, Norman law shows a strong desire for equality among sons. Any gift of land made by a father to one of his sons is revoked by the father’s death; no one is to make one of his expectant heirs better off than the rest.63 Not upon the Normans as Normans can we throw the burden of our amazing law of inheritance, nor can we accuse the Angevin as an Angevin.64

Primogeniture in England under the Norman kings.We may believe that the conquest of England gave William an opportunity of insisting that the honour, the knight’s fee, the serjeanty, of the dead man, was not to be divided; but what William and his sons insisted on was rather “impartible succession” than a strict application of the primogenitary rule. The Conquest had Edition: current; Page: [280] thrown into their hands a power of reviving that element of precariousness which was involved in the inheritance of a beneficium or feodum. There is hardly a strict right to inherit when there is no settled rule about reliefs, and the heir must make the best bargain that he can with the king.65 What we see as a matter of fact in theEdition: orig; Page: [265] case of the very great men is that one son gets the Norman, another the English, fief. On the death of William Fitz Osbern, for example, “the king distributed his honour among his sons and gave Breteuil and the whole of the father’s possessions in Normandy to William and the county of Hereford in England to Roger.”66 “Roger of Montgomery died; his son Hugh of Montgomery was made earl in England, and Robert of Bellême acquired his whole honour in Normandy, while Roger of Poitou, Arnulf, Philip and Everard had no part of the paternal inheritance.”67 We may believe also that in the outer zones of the feudal system the mesne lords insisted on the impartibility of the knight’s fee and of the serjeanty, and that these as a general rule passed to the eldest son; but we cannot say with any certainty that, if the dead man held two different fees of different lords, his eldest son was entitled to both of them. Norman law, as already said, is in favour of as much equality as is compatible with the integrity of each military fee.

Inheritance in the Anglo-Norman Leges.Two of the authors who have left us Leges for the Anglo-Norman period approached the topic of inheritance; neither of them knew what to make of it. The Leis Williame say, “If a man dies without a devise, let his children divide the inheritance equally”; but this occurs among sentences of Roman origin, and, if its maker had any warrant for it, he may perhaps have been speaking only of movables.68 The author of the Leges Henrici goes all the way to Edition: current; Page: [281] the ancient Lex Ribuaria for a canon of inheritance, and fetches thence a rule which we should be rash in applying to the England of the twelfth century, for it would exclude a daughter in favour of the remotest male kinsman, to say nothing of admitting father and mother.69 He says this however, and it is to the point:—In theEdition: orig; Page: [266] first place the eldest son takes the father’s feodum. What exactly he would have given to the eldest son, or what he would have done if the inheritance comprised two feoda, we do not know.70 The Conquest and the clash of national laws have thrown all into confusion, and the king will profit thereby.

Primogeniture under the Angevins.It may well be that Henry II. spoke his mind in favour of primogeniture both in England and in Normandy; his son Geoffrey in 1187, just when Glanvill was writing, decreed that in Britanny the knight’s fee should pass intact to the eldest son.71 But already in Glanvill’s day English law had left Norman law behind it. “According to the law of the realm of England,” he says—and probably he is here contrasting the kingdom with the duchy—the eldest son of the knight or of one who holds by knight’s service succeeds to all that was his father’s.72 With such a military tenant he contrasts the “free sokeman.” The free sokeman’s land is divided among all his sons, but only if it be “socage and partible from of old.” If it has not Edition: current; Page: [282] been partible from of old, then by some customs the eldest, by others the youngest son will inherit it.

Primogeniture in Glanvill and Bracton.In the many commentaries on this text it has hardly been sufficiently noticed that the sphere of primogeniture is already defined by very wide, and the sphere of equal division by very narrow words. Glanvill does not say that a knight’s fee is impartible among sons; he says that land held by military service is impartible. Of the serjeanties he here says nothing; of them it were needless to speak, for a serjeanty is the most impartible of all tenements, impartible (so men are saying) even among daughters.73 But if we leave serjeantyEdition: orig; Page: [267] and frankalmoin out of account, by far the greater number of the free tenures that exist in England at the end of the twelfth century fall within the sphere of primogeniture; they are in name and in law military tenures.74 True that the tenant may be a mere peasant who will never go to the wars; but if he pays one penny by way of scutage his tenure is military,75 and usually when lords make feoffments they take care that the burden of scutage shall fall upon their tenants. By far the greater number of the countless new feoffments that are being made day by day are creating military tenures, for it is not usual for the feoffor to assume as between himself and his tenant the ultimate incidence of the uncertain war-tax. The greater number of those very numerous tenures in “free and common socage” which exist in the last of the middle ages, have, we believe, their origin in the disappearance of scutage and the oblivion into which the old liability for scutage fell.76 But then again, Glanvill does not say that socage land is partible among sons. For one thing, it is partible only if it has been treated as partible in time past. Every new tenure therefore that is created after Henry II.’s day, albeit a tenure in socage, adds to the number of estates which obey the primogenitary rule. But more; the estates which according to Glanvill are partible, are only the estates of the “free sokemen.” Now while in his day the term “socage” was just beginning to have Edition: current; Page: [283] that wide meaning which would ultimately make it cover whatever tenure was non-military, non-elemosinary, non-serviential, there was no similar extension of the term “sokeman.”77 The free sokemen whom he has in view are a small class that is not increasing. They are to be found chiefly on the ancient demesne of the crown. A few may be found on other manors, for the more part in the eastern counties; but these are disappearing. On the one hand, many are lapsing into villeinage; on the other hand, some are obtaining charters, which perhaps make them in name and in law military tenants, but at any rate give them a new estate and one that has never been partitioned. Therefore after Glanvill’s day there was no further change in the law; Bracton uses almost the self-same wordsEdition: orig; Page: [268] that his predecessor used.78

Partible lands.Consequently there is very little litigation about this matter, and Edition: current; Page: [284] what there is comes from very few counties. We can refer to seventeen cases from the reign of John and the early years of Henry III. which make mention of partible land; of these seven come from Kent, five from Norfolk, three from Suffolk, one from Northamptonshire, one from Rutland.79 Leaving Kent out of account, it is the land which the Domesday surveyors found well stocked with “free-men” and sokemen that supplies us with our instances. In later days it may be possible to find a few isolated examples of partible land in many shires of England; but, outside Kent, the true home of partibility is the home of that tenure which the lawyers of Edward I.’s day distinguished from “socage” by the term “sokemanry.”80

Edition: orig; Page: [269]Gavelkind.The problem which is set before us by the gavelkind of Kent is not a problem in the history of the law of inheritance, but a difficult problem in the general history of English law, and one which is of an economic rather than of a purely legal character. It belongs to the twelfth century. It is this:—How does it come about that at the end of that period there is in Kent, and not elsewhere, a strong class of rent-paying tenants who stand well apart from the knights on the one side and the villeins on the other, a class strong enough to maintain a lex Kantiae which differs at many points from the general law of the land? We have already given such answer as we can give to this hard question.81 On the one hand, it seems to us that the matter of the Kentish custom is in part very old. The law of inheritance shows a curious preference for the youngest son. When his father’s house has to be divided, the hearth (astre) is reserved for him.82 We may say with some certainty that a rule which had its origin in the twelfth century, if it gave a preferential share to any son, would give it to the eldest.83 Again, some parts of the custom Edition: current; Page: [285] enshrined ancient English proverbs, which the scribes of the fourteenth century could not understand and which make reference to institutions that must have been obsolescent in the twelfth, obsolete in the thirteenth century.84 On the other hand, we cannot think that the Kent of 1065 was a county in which the tillers of the soilEdition: orig; Page: [270] were peculiarly well off. Unless the terminology of the Domesday surveyors was far more perverse and deceptive than we can believe it to have been, Kent differed little from Sussex, widely from Norfolk, and in 1086, not Kent, but the shires of the Danelaw must have seemed the predestined home of a strong free yeomanry tenacious of ancient customs. Nor, again, can we think that Kent suffered less than other districts at the hands of the Norman invaders. The best theory that we can suggest is that in the twelfth century the un-rivalled position of Kent as the highway of commerce induced a widespread prosperity which favoured the tillers of the soil. An old system of “provender rents” may have passed into the modern system of money rents without passing through the stage in which the lord places his main reliance on the “week work” of his tenants. A nucleus of old customs expanded and developed; even the lowest classes of tenants were gradually brought within their range, until at length it was said that every child born in Kent was born free.85

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Disgavelling.It is only to modern eyes that the inheritance partible among sons is the main feature of gavelkind. In the thirteenth century a custom which allowed the sons of the hanged felon to inherit from their father may have seemed a more striking anomaly. Still the partible inheritance was beginning to attract attention. ArchbishopEdition: orig; Page: [271] Hubert Walter, who presided in the king’s court during years critical in our legal history, obtained from King John a charter empowering him and his successors to convert into military fees the tenements that were holden of their church in gavelkind.86 The archbishop’s main object may have been to get money in the form of rents and scutages, instead of provender and boon-works, “gavel-corn” and “gavel-swine,” “gavel-erth” and “gavel-rip”; and we have here an illustration of those early commutations of which we have been speaking, and an important illustration, for a great part of Kent was under the archbishop and his example would find followers.87 It is possible, however, that Glanvill’s nephew and successor also intended to destroy, so far as he could, the partible inheritance. Such at any rate was the avowed object of Edward I. when in 1276 he “disgavelled” the lands of John of Cobham. In the charter by which he did this we have perhaps the oldest argument in favour of primogeniture that has come down to us, Edition: current; Page: [287] for when Bracton tells us that the first-born son is “first in the nature of things” this is hardly argument. “It often happens,” says Edward, “that tenements held in gavelkind, which so long as they remained whole were sufficient for the maintenance of the realm and provided a livelihood for many, are divided among co-heirs into so many parts and fragments that each one’s part will hardly support him”; therefore as a special favour Cobham’s gavelkind lands are to descend for ever as though they were held by knight’s service.88

Introduction of primogeniture.We are far from saying that there were no sound reasons of state to be urged for the introduction and extension of the primogenitary rule. Englishmen in course of time began to glory in it, and under its sway the England of Edward I.’s day had become a strong, a free,Edition: orig; Page: [272] and a wealthy state. But we miss one point in the history of our law unless we take account of its beautiful simplicity. Granted that each military fee should descend as an impartible whole, a hundred difficulties will be evaded if we give all the dead man’s lands to his eldest son—difficulties about “hotchpot,” difficulties about the contribution of co-heirs to common burdens, difficulties about wardships and marriages to which a “parage” tenure must, as we shall see hereafter, give rise. We cut these knots. That when one man leaves the world one other should fill the vacant place, this is an ideally simple arrangement. The last years of Henry II. were the years that decided the matter for good and all, and they were years in which a newly fashioned court, unhampered by precedents, was with rude, youthful vigour laying down its first principles. Here as elsewhere its work is characterized by a bold, an almost reckless, simplicity. Nor must we fail to notice that here as elsewhere it generalized the law of the great folk and made it common law for all free and lawful men, except some ancient and dwindling classes which had hardly come within its ken. When we balance the account Edition: current; Page: [288] of our primogenitary law we must remember that it obliterated class distinctions.89

Inheritance by co-heiresses.The manner in which our law deals with an inheritance which falls to the dead man’s daughters may give us some valuable hints about the history of primogeniture. If we look merely at the daughters and isolate them from the rest of the world, their claims are equal and the law will show no preference for the first-born. This principle was well maintained, even though some of the thingsEdition: orig; Page: [273] comprised in the inheritance were not such as could be easily divided, or were likely to become of less value in the process of division. For example, if there was but one house, the eldest daughter had no right to insist that this should fall to her share, even though she were willing to bring its value into account. No, unless the parceners could agree upon some other plan, the house itself was physically divided.90 And so again, if there was but one advowson, the eldest sister could not claim the first presentation as her own; all the parceners must join in a presentation, otherwise it will lapse to the ordinary.91 There were, however, certain indivisible things; a castle could not be partitioned, nor the messuage which was the head of a barony. This passed as a whole to the eldest of the sisters, but she accounted for its value in the division of the rest of the inheritance. To explain this a maxim of public law is introduced:— were partitions made of these things, earldoms and baronies would be brought to naught, and the realm itself is constituted of earl-doms and baronies.92 So again, Bracton’s opinion is that a tenement Edition: current; Page: [289] held by serjeanty ought not to be divided, and this opinion seems to have been warranted at all events by the practice of an earlier age.93 But the king’s claim to prevent the partition of a great fee has in the past gone far. In 1218 a litigant pleads that ever since the conquest of England it has been the king’s prerogative right that, if one of his barons dies leaving daughters as his heirs, and the elder-born daughters have been married in their father’s lifetime, the king may give the youngest daughter to one of his knights with the whole of her father’s land to the utter exclusion therefrom of the elder daughters.94 There is a good deal in the history of the twelfth century to show that the king had held himself free to act upon some such rule. The law of later times about the abeyance of titles of honour is but a poor remnant of the right which he has thus assumed. When of old he “determined an abeyance in favour of one of the parceners,” he disposed not merely of a “title of honour” andEdition: orig; Page: [274] a “seat in the House of Lords,” but of a great tract of land.95

Co-heirs and parage.But, though the division among the co-heiresses was in general a strictly equal division, we see the eldest daughter or her husband standing out as the representative of the whole inheritance for certain feudal purposes. The law about this matter underwent an instructive change. We will suppose that Henry, who holds of Roger, dies leaving three daughters, whom in order of birth we call Alice, Barbara and Clara, and that a partition of the land is made among them. Now two different feudal schemes may be applied to this case. On the one hand, we may decide that each of the three women holds her land of Roger; on the other, that Alice holds the whole inheritance of Roger, while her sisters hold their shares of her. Roger has apparently something to gain and something to lose by the adoption of either scheme. On the one hand, he may wish to Edition: current; Page: [290] treat Alice as his only tenant, for he will thus have one person to whom he can look for the whole service due from the whole land;96 but then, if this theory is adopted, can he fairly claim any ward-ships or marriages in the lines of which Barbara and Clara are the starting points? This, however, seems to have been the old theory; Alice will hold of Roger; her husband, and no one else, will do homage to Roger for the whole land; her sisters will hold of her; they will “achieve” (accapitare) to her, that is, will recognize her as their head. For three generations (of which they are the first) they and their descendants will do no homage, swear no fealty, and pay no reliefs; but the third heir of Barbara or Clara must pay relief to, and become the man of, Alice or her heir.97 We have here the Norman tenure in parage.98

Edition: orig; Page: [275]Fluctuations in the law as to parage.The reason why no homage is done until a third heir has inherited we cannot here discuss; but it soon becomes apparent that the king is dissatisfied with this arrangement and that the law is beginning to fluctuate. In 1236 the English in Ireland sent to Westminster for an exposition of the law. Of whom do the younger sisters hold? The answering writ, which has sometimes been dignified by the title Statutum Hiberniae de Coheredibus, said that if the dead man held in chief of the king, then all the co-heirs hold in chief of the king and must do him homage.99 If the lands were held of a mesne lord, then that lord has the marriages and wardships of all the parceners, but only the eldest is to do homage, and her younger sisters are to do their services through her hands. The eldest daughter, the writ Edition: current; Page: [291] says, is not to have the marriage and wardship of her sisters, for this would be to commit the lambs to the wolf.100 This last provision looks like new law, if it means that the wardships and marriages of Barbara’s descendants are to belong to Roger, and not to Alice or her descendants. In 1223 we may find the daughter of an elder sister claiming the marriage of the son and heir of a younger sister.101 A judge of Edward I.’s day tells us of a cause célèbre in which the wardships and marriages of the heirs in the younger line had in generation after generation gone to the representatives of the older line; but all this was held null and void at the suit of the lord.102 Bracton gives the law as it was laid down by the writ of 1236, and in his day we still see the younger daughters holding of their sister, holding without homage until the third heir has inherited.103 BrittonEdition: orig; Page: [276] knows that the lord cannot be compelled to take the homage of any but the eldest daughter, and that, when this has been done, he can and must look to that sister for the whole of his services; but Britton advises the lord to accept the homage of all, for should he not do so, he may find some difficulty in getting wardships and marriages in the younger lines.104 The lords from this time forward had their choice between two courses. As a matter of fact they took Britton’s advice, followed the king’s example and exacted homage from all the sisters. Very soon, if we are not mistaken, the old law of parage began to fall into oblivion.105

The lord’s interest in primogeniture.The lesson that we learn from this episode is that the lord’s interest has been powerful to shape our law of inheritance. At one time it Edition: current; Page: [292] looks as if even among women there would be what we may call an external primogeniture, so that the eldest of the daughters would be the only representative of the fee in the eyes of the lord and of the feudal courts. Had this principle been consistently applied, the rights of the younger daughters might have become merely moral rights. But in the thirteenth century wardships and marriages were of greater importance than knight’s service and scutage, and first the king and then the other lords perceived that they had most to gain by taking the homage of all the sisters.

Inheritance of villein land.It is by no means impossible that the spread of primogeniture to tenements that were hardly military save in name, and then to tenements that were not military even in name, was made the easier by the prevalence of “impartible succession” among the holders of villein tenements. We have already said that in the thirteenth century such tenements often pass from ancestor to heir.106 There is a custom of inheritance which is known to the manorial court and maintained against all but the lord. That custom seems generally to point to one person and one only as entitled to succeed to the dead man’s tenement. In a manorial extent it is rare to find the names ofEdition: orig; Page: [277] two brothers or even of two sisters entered as those of the tenants of a tenement.107 On the other hand, it is very common to find that the tenant is a woman. Often she is a widow, and it is clear that she is holding the virgate of a dead husband. But putting the widow out of the case, then, if there were several sons, either the eldest or the youngest seems usually to have succeeded to his father to the exclusion of his brothers. In later days very many copyholds follow the primogenitary rules of the common law, and we cannot think that those rules have been thrust upon them in recent days, though no doubt the courts have required strict proof of abnormal customs. We imagine therefore that from a remote time many villein tenements have descended in a primogenitary course. On the other hand, it is certain that a scheme which gave the land to the youngest son was common.

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Ultimogeniture.A mere accident—for we think that it was no better—has given the name “borough English” to this custom of ultimogeniture. In the Norman days a new French borough grew up beside the old English borough of Nottingham. A famous case of 1327 drew the attention of lawyers to the fact that while the burgages of the “burgh Francoys” descended to the eldest son, those of the “burgh Engloys” descended to the youngest.108 It was natural for the lawyers to find a name for the custom in the circumstances of this case, to call it the custom of the borough English, or the custom of borough English, for such a custom came before them but rarely.109 Without saying that it never ruled the descent of tenements held by the free socage of the common law, we seem fully entitled to say that, if we put on one side what in the thirteenth century were distinguished from socage as being burgage tenures, and if we also put on one side the “sokemanry” of the ancient demesne, then a freehold tenement descending to the youngest son was an exceedingly rare phenomenon; and in 1327 the Westminster courts had as yet had little to do with the inheritance of burgages and sokemanries. The true home of ultimogeniture is the villein tenement; among villeinEdition: orig; Page: [278] tenements it has widely prevailed; in Bracton’s day its appearance raised a presumption that the tenements which it governed were not free.110

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Origin of ultimogeniture.It is hardly to be explained without reference to the lord’s interest and the lord’s will. But what has thus to be explained is not really the preference of the youngest son, but the impartible inheritance. If once we grant that the tenement is not to be divided, because the lord will have but one tenant, then in truth the preference of the youngest is quite as natural as the preference of the eldest son. Perhaps if the lord had merely to pursue his own interest he would as a general rule choose the first-born, for the first-born is the most likely of all the sons to be of full age at the time of his father’s death. Were there military service to be done, there would be good reason for selecting him. But if we look at the matter from the tenant’s point of view, there is something to be said in favour of the youngest son. If the eldest son took the tenement, he might marry and beget a new family while his brothers were still unable to earn a livelihood. Give it to the youngest, and the brothers may all dwell together until all can labour. Add to this—and it will count for something—that the youngest is the son most likely to be found in the house at his father’s death; he will be at the hearth; he is the fireside child. The ancient customs of free tenements will sometimes respect this idea: the land is to be equally divided among the sons, but the house, or, if not the house, at least the hearth, is given to the youngest. Perhaps we may see in this a trace of an ancient religion of which the hearth was the centre. If then we suppose aEdition: orig; Page: [279] lord insisting on the rule, “One tenement, one tenant,” and yet willing to listen to old analogies or to the voice of what seems to be “natural equity,” it is not at all improbable that, with the general approval of his tenantry, he will allow the inheritance to fall to the youngest son.

Impartible peasant holdings.A good illustration of the conflicting principles which will shape a scheme of descent among peasant holders is afforded by a verdict given in 1224 about the custom which prevailed in the “ancient demesne” manors of Bray and Cookham:111—The jurors have always seen this custom, “that if any tenant has three or four daughters and all of them are married outside their father’s tenement, save one, Edition: current; Page: [295] who remains at the hearth,112 she who remains at the hearth shall have the whole land of her father, and her sisters shall recover no part thereof; but if there are two or three or more daughters and all of them are married outside their father’s tenement with his chattels, whether this be so before or after his death, the eldest daughter shall have the whole tenement and her sisters no part; and if the daughters are married after their father’s death with his chattels, and this without protest, and one of them remains at the hearth, she at the hearth shall retain the whole tenement as aforesaid.”113 Subject to the rule that the tenement must not be partitioned, we seem to see here an attempt to do what is equitable. If really there is no difference between the daughters—no such difference as can be expressed in general terms by a rude rule of law—then we fall back upon primogeniture; but if the other daughters have been married off, the one who is left at the hearth is the natural heir.114 But already in the thirteenth century ultimogeniture was becoming unpopular:Edition: orig; Page: [280] Simon de Montfort granting a charter of liberties to his burgesses at Leicester abolished it. The reason that he gave is curious:—the borough was being brought to naught by the default and debility Edition: current; Page: [296] of heirs.115 By the common assent and will of all the burgesses he established primogeniture among them. We may believe that what moved the burgesses was not so much any ill effects occasioned by the old mode of inheritance as the bad repute into which it had fallen. It was the rule for villeins, explicable only by the will of the lord. The burgesses of Leicester mean to be free burgesses and to enjoy what is by this time regarded as the natural law for freemen.

Causes of ultimogeniture.We would not suggest that in no case can a custom of ultimogeniture have arisen save under the pressure of seignorial power. In a newly conquered country where land is very plentiful, the elder sons may be able to obtain homes of their own and, they being provided for, the father’s lands may pass to the fireside child; and again there may conceivably have been a time when the pressure which made for impartible succession was rather communal than seignorial. But as a matter of fact, whether we look to England or to other European countries, we shall hardly find ultimogeniture save where some lord has been able to dictate a rule of inheritanceEdition: orig; Page: [281] to dependent peasants.116 It seems to have been so in medieval Germany. The common land law divides the land among all the sons, giving perhaps to the eldest, perhaps to the youngest a slight preference;117 the noble fief will often pass undivided to the first-born; the tenement of the peasant will go as a whole either to his eldest or to his youngest son, and as a matter of geographical distribution the primogenitary will be intermingled with the ultimogenitary customs:—“the peasant,” says a proverb, “has only one child.”118 Edition: current; Page: [297] For all this, however, we are not entitled to draw from ultimogeniture any sweeping conclusions as to the large number of slaves or serfs that there must have been in a remote past. The force which gives the peasant’s tenement to his youngest or his eldest son is essentially the same force which, in one country with greater in another with less success, contends for the impartibility of the military fee. Somehow or another it has come about that there is a lord with power to say “This land must not be divided.” The persons to whom he says this may be slaves, or the progeny of slaves, who are but just acquiring an inheritable hold upon the land; they may be mighty barons who have constrained him much against his will to grant them “loans” of land; they may be free landowners over whom he has acquired jurisdictional powers, which he is slowly converting into proprietary rights.

Representation in inheritance.The representative principle—the principle which allows the children or remoter descendants of a dead person to stand in that person’s stead in a scheme of inheritance—is one which in England and elsewhere slowly comes to the front. Our fully developed common law adopts it in all its breadth and permits it to override the preference for the male sex. The daughters, grand-daughters and other female descendants of an eldest son who died in his father’s lifetime will exclude that father’s second son. In the twelfth century, however, this principle was still struggling for recognition. In all probability neither the old English nor the old Frankish law would have allowed grandsons to share an inheritance with sons.Edition: orig; Page: [282]119 The spread of primogeniture raised the problem in a somewhat new shape. In Glanvill’s day the king’s court was hesitating about a case that must have been common, namely, a contest between the younger son and his nephew, the son of his dead elder brother.120 In some cases the problem can be evaded. If, to use Glanvill’s phrase, A who is tenant of the land “forisfamiliates” his eldest son by providing him with a tenement for himself, this may prevent that son’s son from claiming to inherit before A’s younger sons. On the other Edition: current; Page: [298] hand, the tenant by persuading his lord to take in advance the homage of his eldest son may secure the preference of that son’s issue. If, however, there are in the case no such facts as these,—if the question between uncle and nephew is neatly raised,—then we must fall back upon the maxim Melior est conditio possidentis; he who is the first to get seisin can keep it.

Influence of John’s accession.Some ten years afterwards the realm of England together with duchies and counties in France was a vacant inheritance lying between John and Arthur. John’s coronation and reign in England might have become a formidable precedent in favour of the uncle, had his reign been aught but a miserable failure. It might well seem, however, that a judgment of God had been given against him.121 Had not Glanvill’s nephew told him that he was not king by hereditary right?122 The lesson that Englishmen were likely to learn from his loss of Normandy and Anjou was that hereditary right ought not to be disregarded, and that the representative principle was part of the scheme of hereditary right. Neglect of that principle had exposed England to a French invasion and had given a king of the French some plausible excuse for pretending that he ought to be king of England also.123

Edition: orig; Page: [283]Casus Regis.So the representative principle grew in favour. Bracton obviously thinks that as a general rule it is the just principle, though he shows some reluctance, which has deep and ancient roots, to apply it to a case in which the uncle is, and the nephew is not, found seated at the dead man’s hearth. As to the law of the king’s court it is still this, that if the uncle is, and the nephew is not, an astrier,124 a Edition: current; Page: [299] “hearth-heir,” at the moment of the ancestor’s death, or if, the tenement having been left vacant, the uncle is the first to obtain seisin of it, the nephew must not have recourse to self-help, nor has he any action by which he can obtain a judgment. The possessory mort d’ancestor will not lie between kinsmen who are so nearly related,125 while if the nephew brings a proprietary action, the king’s court will keep judgment in suspense. It will give no judgment against the nephew; he really is the rightful heir; but a precedent stands in his way; it is the casus Regis; and “so long as that case endures” no judgment can be given against the uncle.126 The inference has been drawn127 that Bracton wrote the passages which deal with this matter before the death of Arthur’s sister, Eleanor of Britanny, which happened in 1241.128 Henry III. kept that unfortunate lady in captivity, and took good care that she should never marry. This inference, however, does not seem necessary. For some years after Eleanor’s death Henry may have been unwilling to admit that there ever had been any flaw in his hereditary title.129 At any rate the records of the earlier years of his reign seem fully to bear out what Bracton says.130 On the other hand, from the Edwardian law books the casus RegisEdition: orig; Page: [284] has disappeared. The nephew can now recover the land from the uncle by writ of right although the uncle was the first to get seisin. After Bracton’s day there was nothing that was regarded as a change in the law; but at some moment or another an impediment which had obstructed the due administration of the law was removed, and thus, at what must be called an early date, the principle of representation prevailed in England and dominated our whole law of inheritance. In the suit for the crown of Scotland we can see Edition: current; Page: [300] that Bruce, though he stood one step nearer to the common ancestor, was sadly at a loss for arguments which should win him precedence over Balliol, the representative of an older line. He had to go to a remote age and remote climes, to Spain and Savoy and the days of Kenneth MacAlpin; all the obvious analogies were by this time in favour of representation.131

The exclusion of ascendants.We must now turn to the rules which govern the inheritance when the dead man has left no descendants, and we at once come upon the curious doctrine that the ascendants are incapable of inheriting. Even though I leave no other kinsfolk, neither my father, nor my mother, nor any remoter ancestor can be my heir; my land will escheat to the lord. To find an explanation for this rule is by no means easy. Already Bracton seems to be puzzled by it, for he has recourse to a metaphor. An inheritance is said to “descend”; it is a heavy body which falls downwards; it cannot fall upwards. This is one of those would-be explanations which are mere apologies for an existing rule whose origin is obscure. Nor is the metaphor apt. We cannot say that the inheritance always descends, for in the language of Bracton’s time it is capable of “resorting,” of bounding back. My land cannot ascend to my father, but it can resort to my father’s brother. Thus we are driven to say that, though the heavy body may rebound, it never rebounds along a perpendicular line. These legal physics however are but after-thoughts.132

Edition: orig; Page: [285]This exclusion not primitive.There can be little doubt that the phenomenon now before us is in some sort and in some measure the work of feudalism. This at all events seems plain, that we cannot treat the exclusion of ascendants as primitive. Several of the folk-laws give the father and mother a prominent place in the scheme of inheritance.133 The passage Edition: current; Page: [301] from the Ripuarian law which the author of our Leges Henrici appropriated says:134—“If a man dies without children, his father or mother succeeds to his inheritance”; the brother and the sister are postponed to the parents. On the other hand, there is much to show that in many parts of Europe the process which made beneficia hereditary stopped for a while at the point at which the vassal’s descendants, but no other kinsfolk, could claim the precarious inheritance.135 What we have now to discuss, however, is not an exclusion of ascendants and collaterals, it is the admission of collaterals and the exclusion of ascendants.

Blackstone’s explanation.An ingenious theory about this matter has been made popular by Blackstone.136 It is said that the admission of collaterals took place in the following fashion. Originally the first feudatory, the man who has taken a feodum novum, could transmit an inheritance in it only to his descendants. When, however, it had passed to one of his issue, let us say a son, and that son died without issue, then there were some collaterals who might be admitted to the inheritance of this feodum antiquum. The restriction was that the fief was not to go to any one who was not a descendant of the original vassal, “the first purchaser” of our English law; but among such descendants there might be collateral inheritance. Thus suppose that Adam is the first purchaser, that he leaves two sons, Bertram and Clement, that Bertram inherits the fief and dies without issue; then Clement can inherit; or, if we suppose that Bertram leaves issue, then on any future failure of his issue, Clement or Clement’s issue can inherit. In such a scheme of course there is no place for inheritance by an ascendant. Then we are told that the next advance was to treat theEdition: orig; Page: [286] feodum novum, the newly granted fief, as though it were a feodum antiquum, a fief that by fiction of law had descended to the dead man from some ancestor. Thus Adam is enfeoffed and dies without issue; any collateral kinsman of his can inherit from him, because every collateral kinsman of his must be the descendant of some person who can be regarded by fiction of law as the first purchaser Edition: current; Page: [302] of the fief. On the other hand, none of Adam’s lineal ancestors can inherit. By fiction the land came to him down some line of ancestry; we cannot tell down which line it descended; we must suppose (our fiction requires this) that the ancestors in that line must be dead; therefore we have to act as though all of Adam’s ancestors were dead, and therefore we exclude them from the inheritance.

Failure of the explanation.That something of this kind happened in some countries of Europe, in particular Lombardy, may be true.137 That it happened in England or in Normandy we have no direct evidence, and indeed Norman law of the thirteenth century admitted the ascendants, though it postponed each ascendant to his or her own issue.138 But at any rate we cannot make this story explain the English law of Bracton’s day. Adam is enfeoffed and dies without issue. His father cannot inherit; but his elder brother can inherit, and yet the fiction that the feodum novum is a feodum antiquum would afford as good a reason for excluding an elder brother as for excluding a father. In our law it would be impossible for the younger of two brothers to acquire a feodum antiquum if his elder brother were still living.139 We have not, however, for England, nor have we for Normandy, any proof that the process which converted the “benefice” into a hereditary “feud” made any distinct pause at the moment when it had admitted the descendants of the dead vassal. We have not for England, nor have we for Normandy, any proof that the collaterals gained their right to inherit under cover of a fiction. The terms which our modern feudists have employed, feodum antiquum, feodum novumEdition: orig; Page: [287] are not technical terms of our English law; they were brought hither from a remote country.140 We cannot be certain that Edition: current; Page: [303] Norman law had ever excluded the ascendants; it did not exclude them in the thirteenth century. Dark as are the doings of the author of the Leges Henrici, we can hardly believe that he was at pains to copy from so distant a source as the law of the Ripuarian Franks a passage which flatly contradicted what already was a settled rule in this country, while it is impossible to suppose that in this instance he is maintaining an old English rule against Norman innovations.141 On the whole, remembering that the Conquest must have thrown the law of inheritance into confusion, that the king had many a word to say about the inheritance of the great fees, that the court of Henry II. had many an opportunity of making rules for itself without much regard for ancient custom, we are inclined to look for some explanation of the exclusion of ascendants other than that which has been fashionable in England.

The rule as to lord and heir.Another explanation has been suggested.142 It introduces us to a curious rule which deserves discussion for its own sake, the rule, namely, that the same person can never at the same time be both lord and heir of the same tenement.

The question in Glanvill.Glanvill tells us that certain difficult questions are often raised by gifts which fathers make to their sons.143 We may well believe that this is so, for in England the primogenitary rule is just now taking its comprehensive and absolute shape, and a father must in his lifetime provide for his younger sons, if he wishes them to be provided for at all. Glanvill then supposes that a father, whom we will call O, has three sons whom in order of their birth we will call A, B and C. With the consent of A his apparent heir, O makes aEdition: orig; Page: [288] feoffment to B.144 Then B dies without issue, leaving O, A and C alive. Who is to inherit? This is a knotty problem which taxes the Edition: current; Page: [304] wisdom of our wisest lawyers.145 Glanvill distinctly supposes that O, the father, will claim that the land is to come to him.146 But A urges that O is already the lord of the land and cannot be both lord and heir. Then C appears and argues that the same objection can be urged against A; for A is heir apparent of the seignory, and, if now he be allowed to inherit the land in demesne, then, on O’s death, he will be both lord and heir. Glanvill thinks that at any rate the claim of O must be rejected. He cannot possibly hold the land, for he cannot be both lord and heir; nor, when homage has been done, will land ever revert to the feoffor, if the feoffee has any heir however remote. Besides (says Glanvill, who brings in this physical or metaphysical consideration as an after-thought) in the course of nature an inheritance descends and never ascends.147 Then the question between A and C must be argued. Glanvill is for allowing A to inherit at present; but if hereafter O dies and the seignory descends to A, he will not be able to retain both the seignory and the tenancy, for he must not be both lord and heir. Having become lord, he must give up the land to C.

Problems occasioned by the rule about lord and heir.On our earliest plea rolls we may see this quaint doctrine giving rise to all manner of difficulties.148 Obviously it is capable of doing this. For example, if in the case that has just been put we suppose that at O’s death A has a son X, then there will be the question whether A, now that he has become lord, must give up the land to his own son X or to his brother C. In the former event, if A leaves at his death two sons X and Y, we shall once more have a problem to solve. We have undertaken to prevent the seignory and the tenancy Edition: orig; Page: [289]remaining in one and the same hand, and yet the common rules of inheritance are always bringing them together.149

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Effect of homage.Glanvill in his treatment of this theme supposes that the father (O) has taken the homage of his son (B). Bracton lays stress upon this condition.150 Only when homage has been done are we to apply the rule which excludes the lord from the inheritance. This is at the bottom of one of the peculiarities of the “estate in frankmarriage.”151 When a father makes a provision for a daughter, he intends that if the daughter has no issue or if her issue fails—at all events if this failure occurs in the course of a few generations—the land shall come back to him or to his heir. Therefore no homage is done for the estate in frankmarriage until the daughter’s third heir has entered, for were homage once done, there would be a danger that the land would never come back to the father or to his heir.152 Here again is a reason why in parage tenure a younger sister and her heirs do no homage to the elder sister until the younger sister’s third heir has entered.153 Were homage once done, the younger sister’s share could never come to her elder sister.154 Why either in the case of frankmarriage or in that of parage the entry of the third heir should make a difference it is not easy to see. Perhaps it is presumed that, if the land has thrice descended down the line of which the daughter is the starting point, there is no reason to fear that her issue will fail. Perhaps, however, we have here some relics of an old system of inheritance which, could we understand it, would show the connexion between several puzzling rules.155

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Edition: orig; Page: [290]Why cannot the lord inherit?But whence this rule that excludes the lord from the inheritance? Why cannot the same man be both lord and heir, or (to put the question in a better shape) why should not the lord inherit and the seignory become extinct? Have we here to deal merely with one of those metaphysical difficulties which lawyers sometimes create for themselves, or have we to deal with a rule that has a purpose? On the one hand, it may be said that the kernel of the whole matter is this, that the seignory, the homage, is regarded as a thing and that lawyers cannot readily conceive its annihilation.156 Such an explanation would be more probable had we before us a doctrine of the fifteenth century; in the twelfth our law had hardly entered the metaphysical stage. On the whole we are inclined to see here a struggle against the effects of primogeniture. If under this novel principle the younger sons are to have anything, it must be given them by their father in his lifetime:—the law of the royal court has decreed it. But the voice of natural justice can be heard crying as of old for as much equality among the sons as the interests of the king and of the state will permit. At all events it is not fair that one son should take the whole of the land that his father has not given away, and also come in by some accident to the land that was given—and it could hardly have been given without his consent—to one of his younger brothers. He ought not to have it so long as there is any younger brother to claim it:—enough for him that he will get homage and service; he should not ask for more. The case is not like that in which a father provides a marriage portion for a daughter. That is an old case. In the days when the inheritance was divisible among sons that case had to be met. Without the concurrence of his sons a father might give his daughter a reasonable maritagium;157 but if the daughter’s issue failed, then the land was to come back to her father or her brothers. The primogenitary rule which is now being enforced in all its simplicity has raised a new case. The father Edition: current; Page: [307] who enfeoffs a younger son in return for homage is (probablyEdition: orig; Page: [291] with his eldest son’s consent) contending against the primogenitary rule. He is “forisfamiliating” the younger son; he is in a possible case depriving that younger son’s sons of their chance of inheriting from their grandfather.158 We ought not to allow the eldest son to get back the land of which he has, with his own consent, been deprived by his father.159

The leaning towards equality.It is difficult for us to express this vague feeling in precise terms; but the difficulty is not of our making. In Glanvill’s day it was puzzling the wisest heads in the king’s court.160 In Bracton’s day there had been a great change. Men had been accommodating themselves to primogeniture. The father now freely disposes of his land without the consent of his eldest son. Often when he enfeoffs a younger son he does not take homage, and does not take it just because he desires that on failure of that son’s issue his eldest son shall have the land.161 The rule that, if homage has intervened, a lord cannot inherit from his man is still in force; but it now looks like a capricious, inexplicable rule, and the judges seem to be showing it little favour.162 The statute of 1290 which put a stop to subinfeudation soon made the whole doctrine obsolete. Thenceforward if a father enfeoffed a son in fee simple, there would be no homage, no tenure, between the feoffor and the feoffee.163

The exclusion of the lord and the exclusion of the ascendant.We may seem to have digressed far from our original theme, the exclusion of ascendants from the inheritance; but it is a serious question whether that exclusion is not the outcome of the rule about lord and heir. Glanvill supposes a father to come forward Edition: current; Page: [308] and claim the tenement of which he enfeoffed a son who has died without issue. The father is sent empty away and is told that he Edition: orig; Page: [292]must not be both lord and heir. Would it not have been simpler to tell him that an elementary rule of the law of inheritance excludes all direct ancestors of the dead man? A remark about the course of nature, which does not permit inheritances to ascend, is thrown in, but it fills a secondary place; it may express a generalization which is gradually taking shape.

Exclusion of the lord leads to exclusion of the father.On the whole there are not many cases in which a man can put in any plausible claim to inherit from a dead son. If the son acquired the land by inheritance from any paternal ancestor, there can be no talk of the father inheriting from the son, for the father must be already dead. If the son acquired the land by inheritance from his mother or any maternal ancestor, there can be no talk of the father inheriting, for, as we shall see hereafter, a strict rule prevents maternal lands from falling to the paternal kinsfolk. And now we have decided that if the son comes to the land by the gift of his father, his father is not to be heir as well as lord. We have thus exhausted all the common cases in which a boy is likely to acquire land. The case in which a man dies without issue in his father’s lifetime leaving land which he did not acquire by inheritance, nor yet by the gift of his father, nor yet by the gift of any one whose heir the father is,— this in the twelfth century is a rare case. It is one which the king’s judges engaged in their task of rapid simplification will be apt to neglect, especially as they find the rule about lord and heir an unmanageable rule. And so we come to the principle that excludes the direct ancestors, and the only apology that can be offered for it is that heavy bodies never bound upwards in a perpendicular line.

Suggested explanation of the exclusion of ascendants.This explanation, it must be frankly owned, has in it some guesswork; but before it is rejected we must call attention to two facts. In the year 1195, unless a plea roll misleads us, a man did bring an assize of mort d’ancestor on the death of his son, and the defendant answered, not that fathers do not inherit from sons, but that the plaintiff was his villein.164 We know of no other case of the same kind and Edition: current; Page: [309] should be much surprised to find one during the next hundred years. On the other hand, after just a hundred years we should not be surprised to find in some solitary instance a father putting in a claim. Edition: orig; Page: [293] Britton, with Bracton’s text before him, deliberately and more than once asserted that the father can inherit from the son.165 He would postpone the father to all his own descendants but would admit him after them. What apology have we to offer for Britton? Perhaps this:—He was writing when the statute of 1290 had just been made; he shows himself uncertain as to its precise effect; but he knows that it will make great changes.166 One of these changes will be that it will deprive the old rule about lord and heir of any material to work upon. Henceforward if a father enfeoffs a son in fee simple, the son will not be the father’s tenant. Why then should not the father inherit? Has not the only rational impediment to his succession been removed? But by this time the rule was too well rooted to be blown down by a side wind. The father was excluded until 1833.167

The ascendants in Scottish law.Lastly, before our suggestion is condemned, we would ask that a law of inheritance very closely akin to our own should be examined. Scottish law, like Norman law, did not exclude the lineal ancestor; it admitted him so soon as his own issue was exhausted. But Scottish law had some rules very strange in the eyes of a Southron which had the effect, if not the object, of tempering the universal dominion of primogeniture. The youngest of three brothers purchases land and dies without issue; it is the middle, not the eldest, brother who inherits from him. It is not fair that the eldest should have everything.168

Inheritance of collaterals.The canons which regulate the course of inheritance among the collateral kinsfolk of the dead man are worthy of observation. Our Edition: current; Page: [310] English law has been brought to bear upon a brisk controversy that has been carried on in Germany. What was the main principle of Edition: orig; Page: [294]the old Germanic scheme of inheritance? Was it a “gradual” or a “parentelic” scheme? Proximity of kinship may be reckoned in divers ways. The calculus which will seem the most natural to us in modern time is a “gradual” calculus. Each act of generation makes a degree, and we count the number of degrees that lie between the propositus and the various claimants. It is probable that any system of inheritance with which we have to deal will prefer the descendants of the dead man to all other claimants; we will therefore leave them out of account. This done, we find in the first degree the dead man’s parents; in the second his grandparents, brothers and sisters; in the third his great-grandparents, uncles, aunts, nephews, nieces; in the fourth his great-great-grandparents, great uncles, great aunts, first cousins, great-nephews, great-nieces; and so forth. Our English law of inheritance has a very different scheme. In order to explain it we had better make use of a term to which modern disputants have given a technical meaning, the term parentela. By a person’s parentela is meant the sum of those persons who trace their blood from him. My issue are my parentela, my father’s issue are his parentela. Now in our English scheme the various parentelae are successively called to the inheritance in the order of their proximity to the dead man. My father’s parentela is nearer to me than my grandfather’s. Every person who is in my father’s parentela is nearer to me than any person who can only claim kinship through some ancestor remoter from me than my father. For a moment and for the sake of simplicity we may speak as if there were but one ascendant line, as if the dead man had but one parent, one grandparent and so forth, and we will call these progenitors father, grandfather and the like. The rule then becomes this: Exhaust the dead man’s parentela; next exhaust his father’s parentela; next his grandfather’s; next his great-grandfather’s. We see the family tree in some such shape as that pictured on the next page.

The remotest kinsman who stands in Parentela I. is a nearer heir than the nearest kinsman of Parentela II. Between persons who stand in different parentelae there can be no competition. In a purely Edition: current; Page: [311] gradual scheme my great-great-grandfather, my great uncle, my first cousin and my great-nephew are equally close to me. In a parentelic scheme my great-nephew, since he springs from my father, is nearer to me than my first cousin. We have here, it is said, not aEdition: orig; Page: [295] “gradual” but a “lineal-gradual” scheme. Within each parentela or line of issue the “grade” is of importance; but no computation of grades must induce us to jump from a nearer to a remoter line so long as the nearer line has any representative.169


The parentelic scheme.We have preferred to state the matter in this abstract, and in England unfamiliar, fashion rather than to repeat the rules that have been admirably expounded by Hale and Blackstone. English, Scottish and Norman law seem to afford the best specimens of the parentelic scheme. Whether this scheme is of extremely ancient date, or whether it is the outcome of feudalism, is a controverted question which cannot be decided by our English books and records. We can only say that in the thirteenth century it seems to be among Englishmen the only conceivable scheme. Our text-writers Edition: current; Page: [312] accept it as obvious, and this although they will copy from the civilians an elaborate Arbor Consanguinitatis and hardly know that the English law is radically different from the Roman.170


Edition: orig; Page: [296]The Scottish inheritance.A good illustration is afforded by the careful pleadings of John Balliol in the great suit for the crown of Scotland. He traced the downward descent of the crown from David to the Maid of Norway. He himself had to go back to Henry, Earl of Huntingdon, in order to find an ancestor common to him and the proposita. But he had to face the fact that William the Lion left daughters, and he could not get so far back as Henry without alleging that the lines of these daughters had become extinct. On the Maiden’s death “the right resorted” to William’s parentela, but it found that parentela empty and so had to go back further.171

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Rules for collaterals of the same parentela.We have said that the parentelae or stocks are to be exhausted one by one. The method of exhausting them is that in accordance with which the descendants of the dead man are first exhausted. We must apply our six rules:—(1) A living descendant excludes his or her own descendants. (2) A dead descendant is represented by his or her own descendants.172 (3) Males exclude females of equal degree. (4) Among males of equal degree only the eldest inherits. (5) Females of equal degree inherit together. (6) The rule that a dead descendant is represented by his or her descendants overrides the preference for the male sex.

Choice among the ascending lines.But we have as yet been treating the problem as though it were much simpler than really it is. The dead man does not stand at the end of a single line of ancestors. He must have had two parents, four grandparents, and so forth. Along which of the lines which met in him are we to move in search of those parentelae which are to be called to the inheritance? Our medieval lawyers, copying theEdition: orig; Page: [297] pictures drawn by canonists and civilians, are guilty of the same unjustifiable simplification with which we can be charged. They represent “the ascending line” as a single line. In the first “cell” in it they write “pater, mater,” in the second “avus, avia,” in the third “proavus, proavia” and so on, apparently forgetting that every person has four grandparents, and that the English system is not one which can treat these four as sharing a single “cell.” More instructive would it have been had they drawn their picture thus:—

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Had they done this, they might have left us some clear principle for directing our choice between the various ascendant lines and have solved some problems which were still open in the nineteenth century.

Paterna paternis. Materna maternis.As it is, we can see the rule that the heir must be one who is related by blood kinship not only to the propositus but to the purchaser. By “purchaser” is here meant the person who last acquired the estate otherwise than by inheritance. Now if the person whose heir we are seeking was himself the purchaser, our rule will admit every blood kinsman or kinswoman of his. But if he was not the purchaser, then our choice will be restricted. Suppose that his father was the purchaser, no one can be admitted who is not related by blood to that father. Suppose that his mother was the purchaser, any one who takes the inheritance must be related by blood to her. Suppose that his father’s mother was the purchaser, a successful claimant must be her blood kinsman. We have here the rule which in foreign books is expressed by the proverb Paterna paternis, maternaEdition: orig; Page: [298] maternis.173 Our English law does not merely postpone the materni or, as the case may be, the paterni; it absolutely excludes them. My father’s brother cannot inherit from me land that descended to me from my mother; my father’s father’s brother cannot inherit from me land that descended to me from my father’s mother. So far as we can see, this rule was in force in the thirteenth century. Attempts have been made to represent it as a specifically feudal rule, one which takes us back to a time when only the descendants of the original vassal could inherit; but such attempts seem to be unnecessary; a rule whose main effect is that of keeping a woman’s land in her own family is not unnatural and may well be very ancient.174 We see its naturalness when we apply it to the descent of a kingdom. When the Maid of Norway died, her father, King Eric, put Edition: current; Page: [315] in a claim to the throne of Scotland and sent learned Italian lawyers to argue his case in Edward’s court; but no one seems to have taken him or his claim very seriously.175 The ascending line along which the inheritance must return should obviously be the line of the Scottish kings; it is not to be tolerated that one who has no drop of their blood in his veins should fill their place. In the thirteenth century no wide gulf could be fixed between the inheritance of a kingdom and other impartible inheritances. John Balliol argued on the expressed assumption that the rules applicable to baronies were applicable to his case. If therefore at a later day we find the law of Scotland not merely rejecting the rule Materna maternis, but absolutely excluding all materni even when the inheritance has come from their side,176 we may suspect that it is no true witness to the ideas of the thirteenth century, and take to heart the lesson that a system that looks exceedingly “agnatic” and that refuses to trace inheritable blood through a female, except in the descending line, is not of necessity very old. Those rules of inheritance which deal with unusual cases are often the outcome of no recondite causes, but of some superficial whim.

Edition: orig; Page: [299]Choice among the admissible stocks.The rule Paterna paternis, materna maternis may exclude from our view certain of those ascending lines which go upwards from our propositus; it will not enable us to make a choice between the lines that are not thus excluded. Thus suppose that the person whose heir is wanted was himself the purchaser of the land, none of his kinsmen are excluded and we have to choose between many ascending lines. We think it certain that in the thirteenth century, as in later times, the line first chosen was that which we may call agnatic, the line, that is, in which there is an unbroken succession of male ancestors, and that, so long as there was any one who could trace his blood from a member of that line, no other person could inherit. Such a rule is a natural part of a system which postpones females to males. Just as the inheritance will go down from father to son so long as the male line is unbroken, so when we look upwards Edition: current; Page: [316] we first look along the male line. The remotest person in the remotest parentela which comes down from an ancestor who stands in that line is preferable to the nearest person in the nearest parentela which has some other starting point.177

No clear principles are found.Beyond this all is dark. We gravely doubt whether during the middle ages any clear canons were established to regulate the order of succession between those parentelae which could trace their kinship to the propositus only through some female ancestor of his. That “the male blood is more worthy than the female” was indubitable; Adam was created before Eve, but a definite calculus which should balance worthiness of blood against proximity of degree was wanting. Our lawyers were not at pains to draw pictures of their own; they transplanted the trees of the Romanists, and those trees could not take firm root in English soil. In Elizabeth’s day an exceedingly simple problem was treated as an open question for which the Year Books provided no obvious solution. A man purchases land and dies without issue; who shall inherit from him, his mother’s brother or a cousin who is his father’s mother’s father’s son’s son?Edition: orig; Page: [300]178 When this question had been decided in favour of the claimant who was of kin to the father of the propositus, it still left open a question about the order of precedence among the female ancestors upon the father’s side, a question which was warmly debated and never really settled until a statute of 1833 rounded off our law of inheritance by declaring that the mother of the more remote male paternal ancestor is preferable to the mother of a less remote male paternal ancestor.179 That in an age which allowed no Edition: current; Page: [317] testamentary disposition of freehold lands cases never happened which raised such problems as these is hardly to be believed; but, to all seeming, they did not happen with sufficient frequency to generate a body of established doctrine.180

Place of the half-blood in the classical common law.Our law’s treatment of “the half-blood” has been a favourite theme for historical speculators. We have been sent for its origin back to a time when “feuds” were not yet hereditary; we have been sent to “the agnatic family.”181 As a matter of fact we do not believe that the phenomenon which has to be explained is very ancient. It is this:—Our common law utterly excludes “the half-blood.” No one who is connected with the propositus only by the half-blood can inherit from him. A man buys land and dies without issue; his half-brother, whether consanguineous or uterine, cannot inherit from him. If there is no kinsman or kinswoman of the whole blood forthcoming, the land will escheat to the lord. Of course all the descendants of a man or a woman are of kin to him or to her by the whole blood. A man leaves a daughter by his first wife, a son by his second wife; his son inherits from him. A man leaves no sons and no issue of sons, but five daughters, two by his first wife and three by his second wife; they will all inherit from him together and take equal shares. Any question about the half-blood can only arise when thisEdition: orig; Page: [301] man has ceased to be and one of his descendants has become the propositus, and no one of them, according to our law, will become the propositus until he obtains an actual seisin of the land. A man leaves a son and a daughter by a first wife, and a son by a second wife. His eldest son inherits and is entitled to seisin. If however he dies without issue before he has obtained seisin, then his father is still the propositus. That father has a daughter and a son. The son inherits before the daughter. He is not inheriting from his half-brother; he is inheriting from his father. On the other hand, if the elder son acquires seisin, all is altered. When he dies without issue he is the propositus. We have now to choose between a sister by the whole blood Edition: current; Page: [318] and a half-brother, and we hold, not merely that the sister is to be preferred, but that the land shall sooner escheat to the lord than go to the half-brother. Possessio fratris de feodo simplici facit sororem esse heredem; the entry of the eldest son has made his sister heir.182

The half-blood in earlier times.Now it seems clear that the law of Bracton’s day had not yet taken this puzzling shape. Bracton holds that the half-blood can inherit, though it is postponed to the whole blood. First we take the case in which a man purchases land and dies without issue, leaving a sister of the whole blood and a brother of the half-blood. The sister will inherit to the exclusion of her brother; but after her death and the failure of her heirs the brother will inherit; he is merely postponed, not excluded for good and all.183 Next we take the case in which a man inherits land from his father and then dies without issue, leaving a sister of the whole blood and a consanguineous half-brother. Now some were for holding that the half-brother should in this case be preferred to the sister, and Bracton, though his mind may have fluctuated, probably shared this opinion. The distinction which turns on the question whether the eldest son has acquired seisin seems to be only just coming to the front.184 Fleta and Britton agree that if a man purchases land and dies without issue, his Edition: orig; Page: [302]sister by the whole blood will be preferred to the half-brother.185 They do not affirm, as Bracton does, that in this case if there is no brother or sister of the whole blood, a brother or sister of the half-blood will be admitted; but neither do they deny this. As to the case in which the propositus has inherited land from his father, Fleta is for preferring the consanguineous half-brother to the sister of the whole blood, and this without reference to seisin;186 Britton is for preferring the sister by the whole blood, and this without reference to seisin.187 What is more, Britton holds that if a man has two wives and a son by each, one of those sons can inherit from his Edition: current; Page: [319] half-brother land that had descended to that half-brother from his mother; in other words, that I may on the death of my half-brother inherit land which belonged to my stepmother, though here of course I am not of the blood of the purchaser.188

Fluctuations in practice.These are not speculative fancies. If we turn to the records of the time, we shall see much uncertainty; we shall see claims brought into court which the common law of a later day would not have tolerated for an instant, and juries declining to solve the simplest problems.189 Even Britton’s doctrine that through my half-brother I can acquire the land of my stepfather or stepmother, does not seem ridiculous.190 In Edward I.’s reign the law seems to be setting its face against the claims of the half-blood; but even in Edward II.’s there is a great deal more doubt and disputation than we might have expected.191 It is clear that a sister will inherit from her brother of the whole blood a tenement that he purchased, and exclude a brother by the half-blood; but that the brother of the half-blood is utterly incapable of taking such a tenement is not plain. When the tenement has descended from father or mother to the eldest son, the lawyers are beginning to make every thing turn on seisin; but they haveEdition: orig; Page: [303] not yet fully established the dogma that, if once that eldest son is seised, his half-brother will be incapable of inheriting from him.

Exclusion of the half-blood is modern.Our persuasion is that the absolute exclusion of the half-blood, to which our law was in course of time committed, is neither a very ancient nor a very deep-seated phenomenon, that it tells us nothing of the original constitution of feuds nor of the agnatic family. In truth the problem that is put before us when there is talk of admitting the half-blood is difficult and our solution of it is likely to be capricious. We cannot say now-a-days that there is any obviously proper place for the half-blood in a scheme of inheritance, especially Edition: current; Page: [320] in our “parentelic” scheme.192 The lawyers of the thirteenth and fourteenth centuries had no ready solution, and we strongly suspect that the rule that was ultimately established had its origin in a few precedents. About such a matter it is desirable that there shall be a clear rule; the import of the rule is of no great moment. Our rule was one eminently favourable to the king; it gave him escheats; we are not sure that any profounder explanation of it would be true.193

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Edition: orig; Page: [304]Coparcenery.When an inheritance falls to the daughters of the dead man, each of these “parceners” (participes) is conceived as having a certain aliquot share in the as yet undivided land.194 This share is her “purparty” (propars); it will obey the ordinary rules of inheritance; it will descend to her issue, and, on failure of her issue, it will resort to her sisters or their descendants. We may, as already noticed,195 see traces of an older scheme which would admit a right of accruer between sisters and the near descendants of sisters; but this was fast disappearing.196 Once more we see the representative principle brought into play; the distribution of shares between the descendants of dead daughters is per stirpes not per capita. If we suppose the only issue of the propositus living at his death to be the two grand-daughters that have sprung from one of his daughters and the three that have sprung from another, the inheritance must first be halved, and then one half of it will be halved again, while the other half will be divided into thirds. It would be a great mistake to suppose that our male-preferring and primogenitary system succeeded in keeping almost all of the great inheritances as unbroken wholes. Glanvill’s own lands passed to three daughters.Edition: orig; Page: [305] Twice within a few years the inheritance of an Earl of Chester “fell among the spindles.” The inheritance of William Marshall the regent was soon split into thirty-fifths for one of his five daughters was represented by seven daughters.197 For a male to get a share “by distaff right”198 was by no means uncommon. But generally when an estate, at all events when a great estate, became partible, it was soon physically partitioned. Any one of the parceners could Edition: current; Page: [322] demand a partition, and the days were past when a family would keep together after the death of its head. The young heiress did not long remain unespoused; her marriage was disposed of at the earliest possible moment; the rich widow generally found another husband, though the church would not bless her second union; it is rare therefore to find that any large mass of land long remains in the hands of a feme sole.

Limits of inheritance.Germanic law seems to have set a limit to blood relationship, or “sib-ship.” An inheritance cannot be claimed by one who does not stand within a certain degree, or rather, a certain “joint” or generation, the fifth, the sixth or the seventh. The family was pictured not as a scale with degrees, nor as a tree with branches, but as a human body with joints. The parents, according to one scheme, stand in the head, brothers in the neck, first cousins at the shoulders, second cousins at the elbows, third cousins at the wrists, fourth, fifth and sixth cousins at the finger-joints; here the sib ends; seventh cousins would be “nail cousins” and there would be no legal relationship between them.199 We may see traces of this idea in England and in Normandy.200 The Norman custom held that the line of consanguinityEdition: orig; Page: [306] did not extend beyond the seventh degree.201 Bracton refuses to draw the ascending line beyond the tritavus, the sixth ancestor of the propositus; beyond this point memory will not go.202 However, the rules for the limitation of actions that were in force in Bracton’s day would in any ordinary case have made it impossible for even a fifth cousin to bring an action for an inheritance, for a demandant was obliged to allege that the common ancestor who connected him with the propositus had been seised since the coronation of Edition: current; Page: [323] Henry II.203 The rule therefore against ascending beyond the tritavus fell into oblivion,204 and then, owing to the spasmodic nature of our statutes of limitation, it becomes theoretically possible for a man to claim an inheritance from any kinsman however remote.

Restriction of alienation in favour of the expectant heir.We turn to speak of an important episode which is intimately connected with the spread of primogeniture. In the thirteenth century the tenant in fee simple has a perfect right to disappoint his expectant heirs by conveying away the whole of his land by act inter vivos. Our law is grasping the maxim Nemo est heres viventis. Glanvill wrote just in time, though only just in time, to describe an older state of things.205

Glanvill’s rules.Several distinctions must be taken. We must distinguish between military tenure and free socage; between land that has come to the dead man by descent (“heritage”) and land that he has otherwise acquired (“conquest”); between the various purposes for which an alienation is made.206 Without his expectant heir’s consent the tenant may give reasonable marriage portions to his daughters, may bestow something on retainers by way of reward, and give something to the church. His power over his conquest is greater than his power over his heritage; but if he has only conquest he must not give the whole away; he must not utterly disinherit the expectant heir. Curiously enough, as it may seem to us, he has a much greaterEdition: orig; Page: [307] power of providing for daughters, churches and strangers than of providing for his own sons. Without the consent of his eldest son he can “hardly” give any part of his heritage to a younger son.207 The bastard therefore is better off than the legitimate younger son. Glanvill confesses that this is a paradox; but it is law. As to the man Edition: current; Page: [324] who holds partible socage, he can give nothing, be it heritage, be it conquest, to any son, beyond the share that would fall to that son by inheritance. Glanvill, however, is far from defining an exact rule for every possible case; he nowhere tells us in terms of arithmetic what is that reasonable portion which the father may freely alienate. We can see however that one main restraint has been the deeply rooted sentiment that a father ought not to give one of his sons a preference over the others; they are equals and should be treated as equals.208 In the case of partible socage land this sentiment still governs; but the introduction of primogeniture has raised a new problem. When Glanvill is writing, the court is endeavouring to put the eldest son in the advantageous position that is occupied by each of the sokeman’s expectant heirs; without his consent he should not be deprived by any gift made to his brothers of that which was to come to him upon his father’s death. But under the new law what was to have come to him at his father’s death was the whole of his father’s land. Are we then to secure all this for him, and that too in the name of a rule which has heretofore made for equality among sons? If so, then we come to the paradox that it is better to be a bastard than a legitimate younger son. This could not long be tolerated. Free alienation without the heir’s consent will come in the wake of primogeniture. These two characteristics which distinguish our English law from her nearest of kin, the French customs, are closely connected.

The heir’s consent.The charters of the twelfth century afford numerous examples of expectant heirs joining in the gifts of their ancestors. Occasionally the giver may explain that he has not obtained his heir’s concurrence, because he is disposing not of heritage but of conquest;209 Edition: orig; Page: [308]but very often one heir or several heirs are said to take part in the gift. To all seeming the necessity for the heir’s concurrence was not confined to the common case in which the donor had a son. Walter Edition: current; Page: [325] Espec’s foundation of Kirkham Abbey was confirmed by his nine nephews, the sons of his three sisters;210 and the consent of the donor’s daughters is sometimes mentioned.211 It would seem too that it was not enough that the heir apparent, the donor’s eldest son, should give his consent. If he consented, he could not afterwards complain; but if he died before his father, his consent would not bar his brothers, perhaps not his sons. Therefore the prudent donee procures the concurrence of as many of the donor’s near kinsfolk as can be induced to approve the gift.212 Daughters consent though the donor has sons who also consent.213 In a gift to Winchcombe three of the donor’s sons give a sworn consent, and further swear that they will if possible obtain the consent of a fourth son, should he return to the king’s peace.214 The Abbey of Meaux could not get the consent of the donor’s eldest brother, but it took the consents of his other brothers and “all his other kinsfolk”; the eldest brother died in the donor’s lifetime and his sons brought a suit for the land, which the monks were glad to compromise.215 Well worthy of notice are the cases, not very uncommon, in which little children are made to approve their father’s pious gifts; worthy of notice, because an attempt seems made to bind them by receipt of a quid pro quo. At Abingdon the monks, fearing that the heir might afterwards dispute the donation, gave him twelve pence and a handsome leather belt.216 At Ramsey two infantes receive five shillings apiece, an infantulus a shilling, and a baby held in its mother’s arms twenty pence;217 so at Chartres four pence are put into the hands of a child who isEdition: orig; Page: [309] too young to speak;218 and so, to return to England, the monks of Edition: current; Page: [326] Winchcombe who are taking a conveyance from a woman before the king’s justices at Gloucester, besides making a substantial payment to her, give six pence to her son and six pence to each of her three daughters.219 In some charters the heirs are put before us not merely as assenting to, but as joining in the gift; it is a gift by a man and his heirs; in other cases the heirs are named among the witnesses of the deed. What ceremony was observed upon these occasions we cannot tell, but when the heirs are spoken of as giving the land, it is by no means impossible that the symbolic turf, twig or charter was delivered to the donee by the “joint hands” of all the givers.220

Disappearance of the restriction.Unfortunately when in 1194 the rolls of the king’s court begin their tale, it is too late for them to tell us much about this matter.221 However in 1200 Elyas Croc gave the king thirty marks and a palfrey to have a judgment of the court as to whether a gift made by his father Matthew was valid. Matthew had given to his own younger brother, the uncle of Elyas, a knight’s fee which, so Elyas asserted, was the head of the honour and barony.222 Whether Elyas got a judgment or no we cannot say; but this looks like an extreme case; the father had been giving away the ancestral mansion. So late as 1225 a son vainly tries to get back a tenement which his father has alienated, and plaintively asks whether his father could give away all the land that he held by military tenure without retaining any service for himself and his heirs:—but it is unavailing.223 Bracton knows nothing of—or rather, having Glanvill’s book before him, deliberately ignores—the old restraint: it is too obsolete to be worth a word. The phrase “and his heirs” in a charter of feoffment gives nothing to an heir apparent.224

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Edition: orig; Page: [310]Causes of the change.The change, if we consider its great importance, seems to have been effected rapidly, even suddenly. The earliest plea rolls have hardly anything to say of rules which, however indefinite, were law in 1188. We seem to see here, as already suggested, the complement of that new and stringent primogeniture which the king’s court had begun to enforce. The object of the restraint in time past had not been solely, perhaps not mainly, the retention of land “in a family”; it had secured an equal division of land among sons, or as equal a division as the impartibility of the knight’s fee would permit. It became useless, inappropriate, unbearable, when the eldest son was to have the whole inheritance. No great harm would be done to the feudal lords, at all events to the king, by abolishing it. They had, or they meant to have, some control over the alienations made by their tenants,225 more control than they could have had under a law which partitioned the inheritance.

Rebutting effect of a warranty.The material cause of the great change we may find in such considerations as these; but it must have been effected by some machinery of legal reasoning, and we may suspect that the engine which did the work was one that was often to show its potency in after centuries—“the rebutting effect of a warranty.” Alan alienates land to William; Alan declares that he and his heirs will warrant that land to William and his heirs. Alan being dead, Baldwin, who is his son and heir, brings suit against William, urging that Alan was not the owner of the land, but that it really belonged to Alan’s wife and Baldwin’s mother, or urging that Alan was a mere tenant for life and that Baldwin was the remainderman. William meets the claim thus:—“See here the charter of Alan your father, whose heir you are. He undertook that he and his heirs would warrant this land to me and mine. If a stranger impleaded me, you would be the very person whom I should vouch to warrant me. With what face then can you claim the land?” Baldwin is rebutted from the claim by his ancestor’s warranty. It is a curious and a troublesome doctrine which hereafter will give rise to many a nice distinction. A man is debarred, rebutted, from claiming land because the burden of a warranty given by one of his ancestors has fallen upon him. In later Edition: current; Page: [328] days, already when Bracton was writing, this doctrine no longer came into play when a tenant in fee simple had alienated his land; Edition: orig; Page: [311]for in such a case the heir had no right to the land, no claim which must be rebutted. It only came into play when the alienator and warrantor had been doing something that he had no business to do, when a husband had been alienating his wife’s land, or a tenant for life had made a feoffment in fee. But we may suspect that this doctrine performed its first exploit when it enabled the tenant in fee simple to disappoint his expectant heirs by giving a warranty which would rebut and cancel their claims upon the alienated land.226

A great and sudden change.Be this as it may, our law about the year 1200 performed very swiftly an operation that elsewhere was but slowly accomplished. Abroad, as a general rule, the right of the expectant heir gradually assumed the shape of the retrait lignager. A landowner must not alienate his land without the consent of his expectant heirs unless it be a case of necessity, and even in a case of necessity the heirs must have an opportunity of purchasing. If this be not given them, then within some fixed period—often it is year and day—they can claim the land from the purchaser on tendering him the price that he paid.227 The conception of a case of necessity may be widened indefinitely; but for centuries the seller’s kinsmen enjoy this ius retractus. Norman law228 and Angevin law229 took this turn, and we can see from our own borough customs that it was a turn which our own law might easily have taken.230 But above our law at the Edition: current; Page: [329] critical moment stood a high-handed court of professional justices who were all for extreme simplicity and who could abolish a whole chapter of ancient jurisprudence by two or three bold decisions.

§ 3.: The Last Will

Edition: orig; Page: [312]The germs of the last will.We may believe that, even in the first days of English Christianity, the church was teaching that the dying man was in duty bound to make such atonement as was possible for the wrongs that he had done and to devote to the relief of the poor and other pious works a portion of the wealth that he was leaving behind him. There is a curious story in Bede’s history which may prove somewhat more than this. A certain householder in the realm of Northumbria died one evening but returned to life the next morning. He arose and went into the village church, and, after remaining for a while in prayer, he divided all his substance into three parts; one of these he gave to his wife, another to his sons, the third he reserved to himself, and forthwith he distributed it among the poor. Shortly afterwards he entered the abbey of Melrose.231 Now certainly this man behaved as though he conceived his property to consist of “wife’s part,” “bairns’ part” and “dead’s part,” and it is a remarkable coincidence that this tale should be told of a Northumbrian, for in after days it was in Scotland and the northern shires of England that the custom which secured an aliquot share to the wife, an aliquot share to the children, and left the dying man free to dispose of the residue of his goods, struck its deepest roots. We might be wrong however in drawing any wide inference from this isolated story, the only tale of the kind that comes to us from these very ancient times, and at all events we are not entitled to say that this man made a testament. To all seeming his pious gift was irrevocable and took effect immediately.

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What is a will?From the middle of the ninth century we begin to get documents which are often spoken of as Anglo-Saxon wills or testaments.232 Before using these terms, it will be well for us to say a few words about their meaning, and, though we allow to them Edition: orig; Page: [313]their largest scope, we ought, it would seem, to insist that a will or testament should have at least one of three qualities. In the first place, it should be a revocable instrument. Secondly, it should be an ambulatory instrument. By this we mean that it should be capable of bestowing (though in any given instance it need not necessarily bestow) property which does not belong to the testator when he makes his will, but which does belong to him at the moment of his death. For the third quality that we would describe we have no technical term; but perhaps we may be suffered to call it the “hereditative” quality of the testament; it can make an heir, or (since our own history forbids us to use the term heir in this context) it can make a representative of the testator.

Ambulatory quality of a will.This matter may be made the clearer by a short digression through a later age. In the twelfth century it became plain that the Englishman had no power to give freehold land by his will, unless some local custom authorized him to do so. A statute of 1540,233 which was explained and extended by later statutes,234 enabled any person who should “have” any lands as tenant in fee simple to “give, dispose, will and devise” the same “by his last will and testament in writing.” Nevertheless, we find the courts holding—and apparently they were but following a rule which had long been applied to those wills of land that were sanctioned by local custom235—that a will of freehold lands is no ambulatory instrument. The statute, they hold, does but empower a man to give by will what he “has” when he makes the will. And such was our law until 1837.236 Now Edition: current; Page: [331] this piece of history will dispose us to believe that our ancestors, in times not very remote from our own, found great difficulty in conceiving that a man can give by his will what does not belong to him when he makes that will. Our common lawyers would not allow that a statute had surmounted this difficulty, and this although for a long time past the will of chattels, which was under the care of the canonists, had been an ambulatory instrument. Still the statutoryEdition: orig; Page: [314] will of freehold land was a revocable instrument; it did nothing at all until its maker died; it did not impede him from selling or giving away the lands that were mentioned in it; and it was always called “a last will and testament.”

Hereditative wills.Then again the “hereditative” quality of the will comes to the front but very slowly. We are not here speaking about the use of words. In England it is as true to-day as it was in the time of Glanvill that only God, not man, can make an heir, for the term heir we still reserve as of old for the person who succeeds to land ab intestato. But, to come to a more important matter, though at the present day it is possible for the Englishman by his will to transmit the whole of his persona, the whole of his fortune “active and passive,” to a single person—as when he writes “I give all my real and personal estate to my wife and appoint her my sole executrix”—he can make a complete will without doing this. He may leave Blackacre to John, Whiteacre to Thomas, Greenacre to William, and so forth; there will then be no one person representing the whole of his fortune, the whole mass of those rights and duties which were once his and continue to exist though he is dead, nor will there be any group of persons who jointly represent him or his fortune. John, William, and Thomas do not jointly represent him even as regards the rights that he had in his land. John, for example, has nothing whatever to do with Whiteacre or Greenacre. We find this a tolerable state of things even in the nineteenth century.237 For a long time past the executor, or the group of executors, has represented the testator as regards that part of his fortune which is called his “personalty”; but of this representation also we shall see the beginnings in the thirteenth century. What of the ninth?

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The Anglo-Saxon will.Nothing is plainer than that the so-called Anglo-Saxon will is not the Roman testament. The use of writing is Roman, and a vague idea that in some way or another a man can by written or spoken words determine what shall be done after his death with the goods that he leaves behind, comes as a legacy from the old world to the new; but the connexion between the Anglo-Saxon will and the Roman testament is exceedingly remote. We have no one instance of an Englishman endeavouring to institute a heres in the Roman Edition: orig; Page: [315]sense of that term. That term was in use among the clerks, but it could be applied to one who in no sense bore the whole persona of a dead man, it could be applied to a devisee, as we should call him, who became entitled to a single piece of the testator’s land.238 The word testamentum was laxly used; almost any instrument might be called a testament; the ordinary land-book which witnessed a conveyance by one living man to another living man was a testament.239 The Anglo-Saxon “will,” or cwiðe as it calls itself, seems to have grown up on English soil, and the Roman testament has had little to do with its development.

The post obit gift.The most important of its ingredients we shall call “the post obit gift.” A man wishes to give land to a church, but at the same time he wishes to enjoy that land so long as he lives. A “book” is drawn up in which he says, “I give (or, I deliver) the land after my death.”240 Now this book cannot fairly be called a will. To all seeming it is neither revocable, nor ambulatory, nor yet is it hereditative. At this moment the testator gives a specific plot of land to a church; he makes the gift for good and all; but the church is not to have possession until after he is dead. Men do not seem to see the ambiguity Edition: current; Page: [333] of this phrase, “Dono post obitum meum,” or to apply the dilemma, “Either you give at this moment, in which case you cease to have any right in the land, or else you only promise to give, in which case the promisee acquires at most the benefit of an obligation.” Occasionally, but rarely, the donor says something that we may construe as a reservation of an usufruct or life estate;241 but generally this seems to be thought quite unnecessary; “I give after my death,” is plain enough.242

Edition: orig; Page: [316]The post obit gift and the royal land-book.At a later time such a gift has become impossible, because the courts insist that there cannot be a gift without a livery of seisin. You cannot give and keep. The desired transaction, if it is to be effected at all, must involve two feoffments. You must enfeoff the church in fee and be re-enfeoffed as its tenant for life. That laxer notions about seisin should have prevailed in earlier times may seem strange, but is a well-attested fact.243 In part we ascribe it to the influence of those royal land-books which bear the crosses of the bishops and the anathema of the church. The book that the lay holder of bookland possesses authorizes him in express terms to give that land in his lifetime or after his death to whomsoever he pleases, or to whatsoever “heir” he pleases. The pious recitals in the book tell us that one of the objects of these words is that the donee may have wherewithal to redeem his soul and benefit the churches. The holder of bookland when he makes his post obit gift is, to use a modern but not inappropriate phrase, “executing a power of appointment” given to him by an authoritative privilege, he is doing what he is empowered to do by the forma doni. And as he can give his land after his death, so he can burden his land with the payment of a rent which is only to become current at his death. He can combine these forms. He may give the land to his wife for her life, she paying a rent to the monks at Winchester, and declare that on her death the land itself is to go to the New Minster.244 He may declare that one thing is to happen if he dies without Edition: current; Page: [334] a son and another thing if he has a son.245 He can make contingent and conditional gifts.246 All this he can do, at all events with the king’s consent, for a full liberty of alienation post obitum suum is secured to him by his land-book.

The death-bed distribution.But there is a second ingredient in the will, namely, the deathbed confession with its accompanying effort to wipe out past sin. Already in the eighth century the dying man’s last words, his verba novissima, are to be respected. In the dialogue ascribed to Egbert, Archbishop of York, the question is put, “Can a priest or deacon be witness of the verba novissima which dying men utter about their property?” The answer is, “Let him take with him one or two, so Edition: orig; Page: [317]that in the mouth of two or three witnesses every word may be established, for perchance the avarice of the kinsfolk of the dead would contradict what was said by the clergy, were there but one priest or deacon present.”247 We have here something different from those post obit gifts of which we have already spoken. A man may make a post obit gift though he expects to live many years; but those last words which we find the church protecting are essentially words spoken by one who knows himself to be passing away. And we seem to see that they are as a rule spoken, not written, words; they form part (we may almost say this) of the religious service that is being performed at the death-bed. How much power they have we know not. Some portion of his chattels, no doubt, the dying man may give to pious uses, and perhaps his last words may convey the title to his bookland:—his “avaricious” kinsfolk (so they are called by the clergy) are watching him narrowly.248 But further, there is much in future history, much in continental history, to suggest that even here we have to deal with gifts which are thought of as gifts inter vivos. The sick man distributes, divides, “devises,” a portion of his chattels.249 He makes that portion over to his confessor Edition: current; Page: [335] for the good of his soul; he makes what—regard being had to the imminence of death—is a sufficient delivery of them to the man who is to execute his last will. The questions that we wish to ask—Are his words revocable and are they ambulatory?—are not practical questions. Not in one case in a thousand does a man live many hours after he has received the last sacrament. The germ of executorship seems to be here. The dying man hands over some of his goods to one who is to distribute them for the good of his soul.

The written cwiðe.Then these two institutions “the post obit gift” and “the last words” seem to coalesce in the written cwiðe of the ninth, tenth and eleventh centuries. At first sight it seems to have many of the characteristics of a true will. For one thing, it is an exceedingly formless instrument; it is almost always written in the vulgar tongue, not inEdition: orig; Page: [318] Latin, even though it comes from a bishop. It calls itself a cwiðe, that is a saying, a dictum; it is its maker’s nihsta cwiðe;250 it contains in advance (if we may so speak) his verba novissima. He gives his various lands specifically, providing for his kinsfolk, remembering his dependants, freeing some of his slaves and bestowing lands and rents upon various churches. He also makes gifts of specific chattels, his precious swords, cups and vestments are distributed. He says how many swine are to go with this piece of land and how many with that. He sometimes gives what we should describe as pecuniary legacies. Distinct traces of those qualities which we have called ambulatoriness and revocability are very rare. Occasionally however we see residuary gifts of chattels and of lands.251 King Alfred tells us that in the past when he had more money and more kinsmen, he had executed divers writings and entrusted them to divers men. He adds that he has burned as many of the old writings as he could find, and declares that if any of them still exist they are to be deemed void.252 But it is never safe for us to assume that every man Edition: current; Page: [336] can do what a king does with the counsel of his wise men. Lastly, the testator—though this is not very common—says something about debts that are owed to him or by him, and which are not to perish at his death.253

The right to bequeath.But, though all this be so, we cannot think that an instrument bearing a truly testamentary character had obtained a well-recognized place in the Anglo-Saxon folk-law. With hardly an exception these wills are the wills of very great people, kings, queens, king’s sons, bishops, ealdormen, king’s thegns. In the second place, it is plain that in many cases the king’s consent must be obtained if the will is to be valid, if the cwiðe is to “stand.” That consent is purchased by a handsome heriot. Sometimes the cwiðe takes the form of a supplicatory letter addressed to the king. In the third place, an Edition: orig; Page: [319]appeal is made to ecclesiastical sanctions; a bishop sets his cross to the will; the torments of hell are denounced against those who infringe it. Then again, even in the eleventh century, it seems to be quite common that the cwiðe should be executed in duplicate or triplicate, and that one copy of it should be at once handed over to that monastery which is the principal donee, and this may make us doubt whether it is a revocable instrument.254 In some cases the will shades off into a family settlement.255 Often it is clear enough that the testator is not disposing of all his property. He merely tries to impose charges in favour of the churches on those unnamed men who will succeed to his land.

Wills and death-bed gifts.On the whole it seems to us that we have here to deal with a practice which has sprung up among the great, a practice which is ill-defined because it is the outcome of privilegia. As to the common folk, we may perhaps believe that the landholder, if and when he can give away his land at all, may make a post obit gift of it which will reduce him to the position of a tenant for life, and that every man, even when his last hour has come, may distribute some part Edition: current; Page: [337] of his goods for the effacement of his sins and the repose of his soul. This distribution we strongly suspect of being in theory a gift inter vivos. The goods are handed over to those who are to divide them. In the written cwiðe of the great man, it is true, we do not at first sight see anything that looks like either a delivery inter vivos or the appointment of an executor. At first sight the dead man’s estate seems expected to divide itself. Then, however, we observe that the will begins with a prayer that the king will uphold it. May we not say that the king is the executor of these wills? In a few instances we find something more definite. “Now I pray Bishop Ælfstan that he protect my widow and the things that I leave to her . . . and that he aid that all the things may stand which I have bequeathed”256— “And be Bishop Ælfric and Tofig the Proud and Thrunni guardians of this cwiðe.257 When among the great the practice of uttering one’s last words in advance while one is still whole and strong becomesEdition: orig; Page: [320] established, the goods are no longer handed over when the words are uttered and the cwiðe is becoming an ambulatory instrument; but still some person is named who is to effect that distribution which is to be made at the testator’s death. A well-known text in the Epistle to the Hebrews, a text far better known than anything in the Institutes, says that a testament is of no effect until the testator’s death; but even at the call of an inspired writer men were not able to accept this doctrine all at once.258

Intestacy in Cnut’s day.Already in Cnut’s day it was unusual for a man to die without “last words,” and it was necessary for the king to combat, or perhaps to renounce, the notion that the man who has said no last words has proved himself a sinner. “If any one leaves this world without a cwiðe, be this due to his negligence or to sudden death, then let the lord take naught from the property, save his right heriot; and let the property be distributed according to his (the lord’s) direction and according to law among the wife and children and Edition: current; Page: [338] nearest kinsfolk, to each the proper share.”259 Some lords, we may suspect, perhaps some episcopal and abbatial lords, had already been saying that if a man leaves the world without taking care of his soul, his lord, or the church, ought to do for him what he should have done for himself. But the time had not come when this doctrine would prevail.

The lord and the cwiðe.The law that we have just cited seems to assume, not only that every man will have a lord, but that every man will have a lord with a court, and that by this lord’s hand his goods, perhaps also his lands, will be divided among his kinsfolk, the “right heriot” having been first taken. The heriot gives an occasion for what we may call a magisterial, though it is also a seignorial, intervention between the dead man and his heirs. Another such occasion is afforded by the soul-scot or mortuary. The dead man’s parish church has a legal claim to a payment when he is buried.260 At least in later Edition: orig; Page: [321]days, it generally claims the best, or the second best, beast or other chattel; very commonly the testator provides for his mortuary in his will. Not unfrequently it happens that a monastery can demand both soul-scot and heriot. But though the lord is thus tempted to intervene, it does not seem likely that Anglo-Saxon law knew anything either of the probate of wills or of any legal proceeding that must of necessity take place when there has been an intestacy, anything like the “grant of administration.”

Norman law.We may doubt whether the Normans brought with them to England any new ideas about these matters. They knew the post obit gift of land. It was possible for a man to say in a charter, “I have given this land after my death,” or “I have given it after the deaths of myself and my wife,” or “I have given the whole of it after my death if I leave no issue of my body, but half of it if I leave issue.”261 In all probability they knew the death-bed distribution of chattels. But that they had either accepted or rejected anything that could be accurately called a testament we do not know.

Edition: current; Page: [339]

The will under the Norman kings.In England after the Conquest there was no sudden change. A man could still make a post obit gift of land and sometimes made it with impressive solemnity. Thus in a charter which comes from the early years of the twelfth century we read—“And thereupon in the same chapter the said Wulfgeat after his death for the weal of his soul gave to the church of Ramsey ten acres of his own land. And after the chapter was at an end the monks together with the said Wulfgeat came together into the new church, and there when, as the custom was after a chapter, the prayers for the dead had been finished, the said Wulfgeat made a gift of the said land upon the portable altar dedicated to the Holy Trinity by a rod which we still have in our keeping.”262 Occasionally in such cases it was thought well that the donor should put himself under the obligation of paying a small rent to the abbey while he lived,263 but there was no necessity for a duplex process of feoffment and refeoffment, which would imply an analysis of the post obit gift such as men had not yet made.

Edition: orig; Page: [322]Post obit gifts of chattels.The vague conception that prevailed as to the nature of these transactions can be illustrated by certain dealings which are characteristic of the Norman age. We hardly know how to describe them. The result of them is to be that after a certain person’s death a church will take the whole, or some aliquot share, of his chattels. If we call them testaments, we say too much; if we call them present gifts, we say too much; if we call them covenants to give, again we say too much. Occasionally the language of contract may be employed. For example, a conventio is made between the Abbot of Burton and Orm of Darlaston; the abbot gives land to Orm, and Orm and his son agree that upon their deaths their bodies shall be carried to Burton, and with their bodies is to go thither the whole of their pecunia whatsoever and wheresoever it may be.264 Or land may be given by the monks “upon this convention,” that when the Edition: current; Page: [340] feoffee is dead he shall cause himself to be carried to the monastery for burial with his whole pecunia.265 Or one who holds land of a convent may endeavour to bind his heirs for all time to leave the third part of their chattels “by way of relief” to the house of Stanlaw.266 So we are told that Earl Hugh and his barons, when they founded the abbey at Chester, ordained that all the barons and knights should give to God and St. Werburgh their bodies after death and the third part of their whole substance; and they ordained this not only for the barons and knights, but also for their burgesses and other free-men.267 Such a transaction as this, in which the gift shades off into a law for the palatinate, is of great importance when we trace the growing claims of the church to distribute for pious uses the chattels of dead persons; but for the moment we are discussing the post obit gift, and, though words of covenant may sometimes be used, we seem to see that the transaction is conceived to be a present gift. “He gave himself to the church so that, should he wish to become Edition: orig; Page: [323]a monk, he would enter religion in no other place, and, in case he should die a layman in England, he should be buried here with a third of the whole pecunia which he should have in England.”268 When Earl Gilbert of Lincoln says in a charter, “Know ye that for the redemption of my sins, and for the special love that I have for the church of St. Mary of Bridlington, I have delivered myself (mancipavi me ipsum) to the said church, to the intent that wherever I may bring my life to a close I may receive a place of burial in the said church,”269 if we were to translate his curious words into modern terms, we might perhaps say that he is making an irrevocable will of his personalty for the behoof of his favourite church; still he Edition: current; Page: [341] thinks that he is making a present gift. Even in 1240 a man will say, “Know that I have given and confirmed by this charter to God and St. German of Selby all the lands that I now have or shall hereafter acquire, and one half of the chattels that I shall acquire during my life, to be received by the monks after my death.”270

Evolution of definite law.We have now to watch a complicated set of interdependent changes, which took place during the twelfth and thirteenth centuries, and which gradually established a definite law. In the first place we will describe in a summary fashion the various movements.

(1) The king’s court condemns the post obit gift of land and every dealing with land that is of a testamentary character; but it spares the customs of the boroughs and allows certain novel interests in land to be treated as chattels.

(2) By evolving a rigorously primogenitary scheme for the inheritance of land, it destroys all such unity as there has ever been in the law of succession. Henceforth the “heir” as such will have nothing to do with the chattels of the dead man, and these become a prey for the ecclesiastical tribunals.

(3) The church asserts a right to protect and execute the last will of the dead man. In her hands this last will (which now can only deal with chattels) gradually assumes under foreign influence a truly testamentary character, and the executor of it gradually becomesEdition: orig; Page: [324] the “personal representative” of the dead man, but has nothing to do with freehold estates.

(4) The horror of intestacy increases. The church asserts a right (it is also a duty) of administering the dead man’s goods for the repose of his soul. The old law which would have given the intestate’s goods to his kinsfolk, being now weakened by the development of the rule which gives all the land to the eldest son, disappears, or holds but a precarious position at the will of the church.

Of these four movements we must speak in turn, though they affect each other.

Feudalism and wills of land.The common belief that before the Conquest the landholder Edition: current; Page: [342] could give his land by will, and that this power was taken from him at a blow by the “feudalism” which came from France, we cannot accept. The post obit gift of land—and this we believe to have been all that had been sanctioned by the ordinary law of unconquered England—did not disappear until late in the twelfth century; it had been well enough known in Normandy; and the force that destroyed it in England cannot properly be called feudal.

Post obit gifts of land.From the point of view of the feudal lord a post obit gift is not much more objectionable than an out and out gift. We cannot in mere feudalism find any reason why the landholder should not make a post obit gift with the consent of his lord, and without the consent of his lord it is very doubtful whether he can make a gift at all.271 And so there need be nothing to surprise us in the following story. That great man Eudo the Dapifer was lying on his death-bed in Normandy, and, having received absolution, he made a division, or “devise” as we say, of all his property in the presence and with the advice and consent of King Henry I. And he commanded his folk, appealing to the fealty which they owed him, to carry his body to the abbey which he had built at Colchester. And with his body he bequeathed to that house the manor of Brightlingsea and a hundred pounds of money and his gold ring. He also gave a cup and his horse and his mule; but these the abbot had to surrender to the king in order that he might obtain a concession of the said manor: in order (to use the old phrase) that the cwiðe might stand.272

Edition: orig; Page: [325]Condemnation of the post obit gift.We are told by a plaintive monk that a few years after Glanvill’s book was written, some new rule was put in force at the instance of Edition: current; Page: [343] Geoffrey Fitz Peter, one of Glanvill’s successors in the justiciarship, so as to invalidate a gift which William de Mandeville, Earl of Essex, had made on his death-bed to Walden Abbey. The ministers of the devil had of late years established a law which until then had never been heard of, to the effect that “no one, even though he be one of the great, when he is confined to his bed by sickness, can bequeath by his last will any of the lands or tenements that he has possessed, or grant them to those men of religion whom he loves above all others.”273 We may well believe that there is some truth in this story, and that just at the time when Glanvill was writing and the last of the Mandeville earls was dying, the newly reformed king’s court was for the first time setting its face sternly against the ancient post obit gift of land.

The law in Glanvill.The reasons for this determination are not far to seek, for Glanvill was at pains to explain them at some length. In one place he says that only God can make an heir, not man.274 This remark takes us back to the “nullum testamentum” of Tacitus; but it is thrown out by the way, for of any institution of an heir in the Roman sense there never had been any talk in England, unless some new ideasEdition: orig; Page: [326] had of late flown hither from Bologna and threatened to convert the old post obit gift into a true testament.275 But in another passage we have earnest argument. “As a general rule, every one in his lifetime may freely give away to whomsoever he pleases a reasonable Edition: current; Page: [344] part of his land. But hitherto this has not been allowed to any one who is at death’s door, for there might be an immoderate dissipation of the inheritance if this were permitted to one who in the agony of approaching death has, as is not unfrequently the case, lost both his memory and his reason; and thus it may be presumed that one who when sick unto death has begun to do, what he never did while in sound health, namely, to distribute his land, is moved to this rather by his agony than by a deliberate mind. However, such a gift will hold good if made with the heir’s consent and confirmed by him.”276

Testamentary gifts abolished in the interest of the heir.And so the gift of land by a last will stood condemned; not because it infringes any feudal rule, for in this context Glanvill says no word of the lord’s interests, but because it is a death-bed gift, wrung from a man in his agony. In the interest of honesty, in the interest of the lay state, a boundary must be maintained against ecclesiastical greed and the other-worldliness of dying men. And that famous text was by this time ringing in the ears of all lawyers— “Traditionibus et usucapionibus dominia rerum, non nudis pactis transferuntur.”277 Rejecting the laxer practices of an earlier time, rejecting the symbolic delivery of land by glove or rod or charter,278 Edition: orig; Page: [327]they were demanding a real delivery of a real seisin. They were all for publicity; their new instrument for eliciting the truth, the jury, would tell them only of public acts. And so the old post obit gift perished. It was a gift without a transfer of possession. Henceforth if a tenant in fee would become tenant for life, there must be feoffment and refeoffment, two distinct transactions, two real transfers of a real seisin. The justices were fighting, not so much against a Roman testament, as against the post obit gift. They had the heir’s Edition: current; Page: [345] interest at heart, not the lord’s. Even the lord’s licence would not enable the tenant to disinherit his heir by a “devise” or a post obit gift. And these justices owed the heir something. They were on the point of holding that he had no right in the land so long as his ancestor lived. In their bold, rapid way they made a compromise.

Attempts to devise land.As a matter of fact, during the thirteenth century men not unfrequently professed to dispose of their lands by their last wills or by charters executed on their death-beds. It is a common story in monastic annals that so and so bequeathed (legavit) land to our church and that his heir confirmed the bequest.279 The monks hurried off from the side of the dying man to take seisin of some piece of his land; they trusted, and not in vain, that they would be able to get a confirmation out of the heir; “a father’s curse” was a potent argument.280 But as a matter of law no validity was ascribed to these legacies or imperfect gifts. What had happened, when analyzed by the lawyer, was either that the heir had made a feoffment, or that the monks having already taken seisin, he had released his right to them, and such a release would have been just as effectual if there had been no will in their favour, and if they had been—as in strictness of law they really were—mere interlopers. We have seen that for a short while in the middle of the thirteenth century it seemed very likely that a power to leave land by will would be introduced by that effective engine the forma doni. The court hesitated for a whileEdition: orig; Page: [328] and then once more it hardened its heart: land was not, and even the forma doni could not make it, bequeathable.281

Devisable burgages.Already in Glanvill’s day the burgage tenement was a recognised exception from the general rule. We are told that the assize of mort d’ancestor will not lie for such a tenement because there is another assize which has been established for the profit of the Edition: current; Page: [346] realm.282 These words apparently refer us to some ordinance of Henry II. which we have not yet recovered, but which may still be lurking in the archives of our boroughs. In the thirteenth century it was well-known law that under custom a burgage might be given by testament; but apparently the limits of this rule varied from town to town. Bracton seems to have been at one time inclined to hold that the burgage could be given by will when, but only when, it was comparable to a chattel, having been purchased by the testator and therefore being an article of commerce. However, while Bracton was writing the citizens of London and of Oxford came to the opinion that, even if the testator had inherited his burgage, he might bequeath it.283 In course of time this doctrine prevailed in very many boroughs, and if we may judge from wills of the fourteenth century, the term “borough” must in this context have borne its widest meaning. We may believe, however, that in the past a line had been drawn between the purchased and the inherited tenement; it is just in the boroughs that we find what foreign lawyers know as the retrait lignager, the right of the expectant heir to redeem the family land that his ancestor has alienated.284

Probate of burgage wills.If, as Bracton thought, the burgage could be bequeathed because it was a “quasi chattel,” the inference might be drawn that such a bequest would fall, like other bequests, within the domain of the ecclesiastical courts. This inference Bracton drew;285 but the boroughs resisted it and at length succeeded in establishing the principle that the bishop had nothing to do with the will, in so far as Edition: orig; Page: [329]it was a gift of a burgage tenement.286 In course of time some at least of the larger boroughs established registers of the wills that dealt with such tenements. The will had to be produced before the Edition: current; Page: [347] borough court and enrolled;287 some towns were also requiring the enrolment of conveyances. Occasionally in the fourteenth century the burgher would execute two documents, a formal “testament” dealing with his movables, and a less formal “last will” which bestowed his tenements; but we see no more than a slight tendency to contrast these two terms.288 It is before the borough court, not before the king’s court, that the man must go who desires to claim a tenement that has been bequeathed to him but is being withheld. However, to meet his case writs are devised which enjoin the officers of the borough to do him justice; from their first words they are known as writs Ex gravi querela;289 but they seem hardly to belong to the period which is now before us.

The chattel real.That the “marriage,” the “wardship” and the “term of years,” are quasi chattels for testamentary purposes is a doctrine which seems to have grown up rapidly in the first half of the thirteenth century. We have already endeavoured to explain it by saying that these things are regarded as investments of money.290 In this instance free play was given to the doctrine which likened them to movables; the legacy of a term of years, like the legacy of a horse or of ten pounds, was a matter for the spiritual tribunal, and it became settled law that the testator’s “chattels real” pass to his executors.

The church and the testament.In the course of the twelfth century our primogenitary scheme for the descent of land was established in all its rigour. It then became absolutely impossible that one system of succession should serve both for land and for chattels. We have indeed argued before now that in all probability our old law had never known the unity of the Roman hereditas, but may from the first have had one ruleEdition: orig; Page: [330] for land, another for chattels, one for a man’s armour, another for a woman’s trinkets. But in the twelfth century, just when there seems a chance that at the call of Roman law our lawyers will begin to treat the inheritance as a single mass, they raise an insuperable barrier Edition: current; Page: [348] between land and chattels by giving all the land to the eldest son. Henceforward that good word heir has a very definite and narrow meaning. What is to become of the chattels? They do not pass to the heir; they are not inherited. While the temporal law is hesitating, ecclesiastical law steps in.

Progress of ecclesiastical claims.For ages past the church had been asserting a right, which was recognized by imperial constitutions, to supervise those legacies that are devoted to pious uses. The bishop, or, failing him, the metropolitan, was bound to see that the legacy was paid and properly applied, and might have to appoint the persons who were to administer the funds that were thus devoted to the service of God and works of mercy.291 Among the barbarians, where in the past there had been nullum testamentum, the pious gifts were apt to be the very essence of the testament. The testator was not dissatisfied with the law of intestate succession, but he wished in his last hour to do some good and to save his soul. Thus the right and duty of looking after the pious gifts tended to become a jurisdiction in all testamentary causes. The last will as such was to be protected by the anathema.292

Jurisdiction over testaments.We may believe that for some time after the Conqueror had made his concession to the church, the clergy would have been satisfied if testamentary causes had been regarded as “mixed,” that is, as causes which might come indifferently before the lay or the spiritual tribunal. Elsewhere they had to be content with this. Our Norman kings did not renounce any such testamentary jurisdiction as was then existing. The king was prepared as of old to enforce the cwiðe. Henry I. in his coronation charter says293—“If any of my barons or men falls ill, I concede the disposition that he makes Edition: orig; Page: [331]of his fortune (pecunia); and if he meets a sudden death by arms or sickness and makes no disposition, his wife, children or liege men294 may divide his fortune (pecunia) for the good of his soul, as Edition: current; Page: [349] they shall think best.” The king, and now in general terms, grants that his baron’s cwiðe shall “stand,” and in dealing with a case of intestacy says nothing of the bishop, though we notice that already the intestate’s goods are no longer inherited; they are distributed for the good of the dead man’s soul.295

Victory of the church courts.It is well worthy of remark that Henry II. and Becket, though they sought for causes of dispute, did not quarrel about the testament. Quietly the judges of the royal court, many of whom were bishops or archdeacons, allowed the testament to fall to the share of the ecclesiastical forum. They were arranging a concordat; the ablest among them were churchmen. About many matters, and those perhaps which seemed the most important, they showed themselves to be strong royalists; in particular they asserted, to the peril of their souls, that the church courts had nothing to do with the advowson. But as regards the testament, they were willing to make a compromise. The spiritual courts might take it as their own, provided always that there were to be no testamentary gifts of land. This concession might well seem wise. Under the influence of Roman law men were beginning to have new ideas about the testament; it was becoming a true testament, no mere post obit donation or death-bed distribution. The canonist, being also a Romanist, had a doctrine of testaments; the English law had nothing that deserved so grand a name.

The lay courts and the last will.The concession was gradually made. Glanvill knows an action begun by royal writ by which a legatee can demand the execution of a dead man’s will. The sheriff is commanded to uphold, for example, the “reasonable devise” which the dead man made to the Hospitallers, if they can prove that such a devise was made. However, if in this action the defendant denied that the testament was duly executed, or that it contained the legacy in question, then the plea went to the court Christian, for a plea of testament belonged toEdition: orig; Page: [332] the ecclesiastical judge. For a short time therefore it seems as if the function of the spiritual forum would be merely that of certifying Edition: current; Page: [350] the royal court that the dead man made a valid will in such and such words, or that his supposed will was invalid in whole or in part. But this was only a transitional scheme. The writs to the sheriff bidding him uphold a testament or devise have dropped out of the chancery register at the beginning of Henry III.’s reign. Thenceforth the legatee’s action for his legacy was an action in the court Christian and the will was sanctioned only by spiritual censures, though of course there was imprisonment in the background.296

The will with executors.Meanwhile the type of will that had begun to prevail in England was the will with executors. One of the earliest documents of this kind that have come down to us is the will of Henry II.297 It takes the form of a letter patent addressed to all his subjects on both sides of the sea. It announces that at Waltham in the year 1182 in the presence of ten witnesses (among whom we see Ranulf Glanvill) the king made, not indeed his testament, but his division or devise (divisam suam) of a certain part of his fortune. He gives sums of money to the Templars and Hospitallers, he gives 5000 marks to be divided among the religious houses of England “by the hand and view” of six English bishops and Glanvill his justiciar; he gives 3000 marks to be divided among the religious houses of Normandy by the hand and view of the five Norman bishops, 1000 marks to be divided by the hand and view of the bishops of le Mans and Angers among the religious houses of Maine and Anjou; he gives other sums to be expended in providing marriages for poor free women in his various dominions; he charges his sons to observe this distribution; he invokes God’s curse upon all who infringe it; he announces that the pope has confirmed this “devise” and has sanctioned it with the anathema. We notice that this exceedingly solemn document, which no doubt was the very best that the English Edition: orig; Page: [333]chancery could produce, did not call itself a testament, did not use the terms do, lego, did not even use the term executor. It contained no Edition: current; Page: [351] residuary gift, no single legacy that was not given to pious uses.298 Still here indubitably we see executors, one set of executors for England, another for Normandy, another for Maine and Anjou; all of them, save Glanvill, are of episcopal rank. Then in Glanvill’s book we find the