CORNELL LAW LIBRARY

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(Sorn^ll Hauj ^rliool IGihtary

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THE HISTORY

OF

ENGLISH LAW

BEFORE THE TIME OF EDWARD I.

BY

Sir FREDEKICK POLLOCK, Bart., M.A., LL.D.,

OOKPUS PBOFESSOE OF JUEISPBUDENOE IN THE UNIVEBSITY OF OXEOED,

OP Lincoln's inn, babeisteb-at-law,

AND

FREDERIC WILLIAM MAITLAND, LL.D.,

SOMETIME DOWNINO PEOEESBOE OF THE LAWS OF ENGLAND IN THE DNIVBESITY OF CAMBEIDGE, OF LINCOLN'S INN, BAEEISTEE-AT-LAW.

SECOND EDITION.

VOLUME II.

CAMBRIDGE:

AT THE UNIVERSITY PRESS.

1911

/3 /^^ ll.

First Edition 1895

Second Edition 1898

Reprinted 1911

\

1 \^ ,■

CONTENTS. BOOK II.

CHAPTER IV.

Ownership and Possession, pp. 1 — 183.

§ 1. Rights w, land, (^^^^ 2 — -^9.

Distinction tetween movables and immovables, 2. Is land owned ? 2. Ownership and lordship, 3. Ownership and feudal theory, 4.

Tenancy in fee and hfe 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 la,w, 9. Seisin of tenant for life, 9. Tenants for life in litigation, 10.

The doctrine of estates, 10. 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, 16. The conditional fee, 17. History of the conditional fee, 18. Statutory protection of conditional gifts, 19.

Settlements in cent, xiii., 20. Joint tenancies, 20. Eeversion and remainder, 21. Kemainders after life estates, 22. Eeversion and escheat, 22. Remainders after conditional fees, 23.

Gifts upon condition, 25. The form of the gift and testamentary power, 26. Influence of the forma doni, 27.

Note on the conditional fee, 28.

§ 2. Sddn, pp. 29—80.

Seisin, 29. Seisin and possession, 29. Sitting on land, 30. Techni- calities of seisin, 31. Seisin and remedies, 31. Seisin of chattels, 32. Contrast between seisin and proprietary rights, 33. Seisin and enjoy- ment, 34.

Who is seised ? 34. Case of tenant in villeinage, 35. Case of termor, 36. Case of guardian, 37. Case of tenant for life, 38. Case of the

VI

Contents.

lord, 38. Case of reversioner, 39i Infants and communities, 40. General doctrine of seisin, 40.

Protection of possession, 40. Modern theories, 40. Possession and criminal law, 41. Possession and the law of tort, 41. Possession as a bulwark of property, 42. Possession as a kind of right, 42. Contrast between various principles, 43. The various principles in English law, 44. Disseisin as an offence, 44. Disseisin as a tort, 44. Possessory action against the third hand, 45. Proof of seisin and proof of owner- ship, 45. Seisin as a root of title, 46.

Introduction of possessory actions, 46. The novel disseisin, 47. Protection of wrongful seisin, 49. Relativity, pf seisin, 50. Novelty of the disseisin, 51. 'Unjustly and without judgment,' 52. Bigorous prohibition of self-help, 52. Trespass and disseisin, 53. Disseisin of absent possessor, 53. Scope of the assize, 54. The assize and the third hand, 55.

The mort d'ancestor, 56. A summary action, 56. A possessory action, 57. Seisin as of fee, 58. Exclusion of proprietary pleas, 58. Principle of the assize, 59. Is seisin heritable ? 60. Seisin in law, 60. Acquisition of seisin by an abator, 61. Scope of the assize, 61.

The writ's of entry, 62. The writ of right, 62. Invention of writs of entry, 63. Writs sw disseisin, 64. Scope of the action, 64. The English possessorium and the canon law, 66. Other writs of entry, 67. Historical evolution of these writs, 68. Their principle, 70. Active and passive transmission, 70. The doctrine of degrees, 70. Are these writs possessory? 72.

The hierarchy of actions and of seisins^ 74, 75. Is the writ of right possessory ? 75. Eelativity of ownership, 77. Ancient history of owner- ship and possession, 77. Seisin and 'estates,' 78. Seisin and title, 80.

§ 3. Qorvoeyoince, pp. 80 — 106.

Modes of acquiring rights in land, 80. No title by occupation, 80. No acquisitive prescription, 81. Alluvion etc., 82. Escheat, forfeiture, reversion, 82.

The gift of land, 82. Feoffment, 82. Expression of the donor's will, 82. Livery of seisin, 83. The ancient German conveyance, 84. Symbolic livery, 85. Anglo-Saxon land-books, 87. Law in the Norman age, 87. Demand for a real livery, 88. Practice in cent, xiii., 90. Eoyal conveya,nces, 90.

The release, 90. The quit-claim, 91. The surrender, 92. The change of estate, 92. Gifts when the donor is not in occupation, 93. Attornment, 93. Feoffinfents with remainders, 94. Charters of feoff- ment, 94.

The fine, 94. Origin of fines, 95. Practice in the Norman age, 96. Possession under a fine, 96. Fines in the Angevin age, 96. Procedure for levying a fine, 98. Form of the fine, 99. Advantages of a fine, 100. Evidence secured, 100. Action on a fine, 100. ' The preclusive bar, 101. The year and day, 102. Value of the bar, 102. The married woman's fine, 102. Conveyance of reversions, 103. Family settlements, 103, The fine and seisin, 103. A judgment gives no seisin, 103. A fine gives none, 104. The fine does not convey land, 104. Return to seisin, 105.

Contents. vii

§ 4. The Term of Years, pp. 106—117.

The term of years, 106. Attempts to treat it as ius in personam, 106. Inseoiirity of the termor, 107. Failure of the old doctrine, 107. The termor and the writ of trespass, 108. Further protection of the termor, 109. Seisin and possession, 110. Explanation of the termor's history, 110. Early leases for years. 111. Why the termor has no freehold, 113. The termor and the farmer, .113. Influence pf Roman theory, 114. The term as a chattel, 115. Chattels real, 116.

§ 5. The Gage of Land, pp. 117—124.

Gage and wed,- 117. Antiquity of gages^ 118. Mortgage and vifgage, 119. Glanvill's gage, 120. ' Disappearance of the GlanviUian gage, 120. The gage and the beneficial lease, 121. The Bractonian gage, 122. The classical mortgage, 122. The mortgagee in possession, 123.

§ 6. Incorporeal Things, pp. 124 — 149.

Incorporeal things, 124. Their thinglikeness, 124. The seignory as a thing, 125. Eights of lord against tenant, 125. Contract and thing, 126. Eights of lord against the world, 127. Seisin of services, 128. Conveyance of seignory, 128. Bents as things, 129. Various kinds of rents, 129. Non-tenurial rents, 130. Rents charge as things, 130. Rents owed by land, 131. The rent-owner and the world, 131. Creation and transfer of rents, 132. Annuities as things, 133. Corodies as things, 134. Ofl&ces as things, 135. Advowsons as things, 136. Actions for advowsons, 137. Conveyance of advowsons, 138. Seisin of advowsons, 139. Eights of common as things, 140. Possessory protection of rights of common, 140. Law of prescription, 140. In- corporeals acquired by prescription, 141. Possessory protection of in- choate rights, 142. Prescription for annuities, 143. Prescription for franchises, 144. Appurtenances and grosses, 144. Easements and pro- fits, 145. Liberty and serfage as things, 146. Marital rights and possession, 147. Wardships as things, 148. Landlikeness of the in- corporeals, 148.

§ 7. Movable Goods, pp. 149—183.

Ownership and possession of chattels, 149. Obscurity of the subject, 150. Chattel and cattle, 150. Pecuniary character of chattels, 151. Possession of chattels, 152. Is there any ownership of movables ? 153. Specific recovery of goods in England, 153. Foreign law : Mdbilia non habent seqiielam, 155. Explanations of this rule, 155.

The pursuit of thieves, 157. The bailee pursues the thief, 159. The bailor's action against the bailee, 159. Bracton's actio furti, 159. Procedure in the action, 160. Scope of the action, 161. Defences to

viii Contents.

the action, 162. Defence of birth and rearing, 163. Defence by voucher, 163. Defence of honest purchase, 164. Stolen goods recovered from the honest purchaser, 164. Transformation of the action, 165. Action of trespass de bonis asportaiis, 166. Scope of this action, 166. No action of trespass against the third hand, 167. Limitation of self-help, 168.

The baihnent, 169. The bailee and the wrong-doer, 170. Liability of bailees, 170. The bailor and the third hand, 172. Action of detinue, 173. Scope of detinue, 174. No real action for movables, 175. Has the bailor property? 176. Evolution of ownership, 177. Pecuniary character of chattels, 178. Uncertainty of legal theory, 180. Conveyance of movables, 180. Eeal and personal property, 181.

CHAPTER V. Contract, pp. 184 — 239.

Late development of a law of contract, 184. The real and the formal contract, 185. Fides facta : the formal contract, 186. The hand-grasp, 188. The church and the fides facta, 189. Oath and faith, 190. The written document as a form, 192. English law in cent, xii., 193. Me- dieval Roman law, 194. The canon law, 195. Evolution of a law of contract on the Continent, 195. Influence of Roman and canon law in England, 196. English law in cent, xiii., 197.

The pledge of faith, 197. Fidd laesio and the church courts, 197. Struggle between church and state, 198. Pledged faith in ecclesiastical law, 202. The king's court and the pledge of faith, 202.

The action of debt, 203. The recognizance, 203. The action of debt in Glanvill, 204. Rarity of actions of debt, 205. Proprietary character of the action, 206. Debt and sale, 207. Earnest and God's penny, 208. Law of sale, 209. Scope of the action of debt, 210. Doctrine of quid pro quo, 212. Gratuitous gifts and promises in early law, 213. Proof of debts, 214. Damages in debt, 215. Limit to the action, 216.

The^ action of covenant, 216. Covenants and leases, 217. Scope of the action, 218. Requirement of writing, 219. Action of account, 221. Covenants in the local courts, 222. Sealed 'documents, 223. History of documents, 224. The single bond, 225. Mercantile documents, 226.

Assignment of debts, 226. Agency in contract, 228. Agency and •uses,' 228. Chattels held to the use of another, 229. Lands held to the use of another, 230. The use of lands, 232. Feudalism and con- tract, 232.

Note on the early history of the use, 233.

Contents. ix

CHAPTER VI. Inheritance, pp. 240 — 363.

§ 1. Antiquities, pp. 240 — 260.

The history of the family : a controversial theme, 240. The family as a unit, 240. No clans in England, 241. No permanent organization of the blood-feud group, 242. That group not a permanent legal unit, 243. The kindred as a local group, 243. Land-owning groups, 244. The kindred no corporation, 244.

The household and land-ownership, 245. Forms of co-ownership, 245. Belative antiq[uity of co-ownership and ownership in severalty, 247. Co-ownership and aliquot shares, 247. Birth-rights, 248. History of birth-rights, 248. Birth-rights and inheritance, 248. Inheritance older than birth-rights, 249. Antiquity of inheritance, 249. Family owner- ship in England, 251. Birth-rights in England, 251. The restraint of alienation, 253. Partition of inheritances, 253. Appointment of heirs, 254. Eestraint of alienation before the Conquest, 254. Last words on family ownership, 255.

Nature of inheritance, 255. Inheritance and representation of the dead, 256. Bepresentation in modern law, 256. Kepresentation in ancient times, 257. Representation and religion, 257.' Inheritance of debts and credits, 258. The inheritance need not descend in one mass, 259. Transition to later law, 260.

§ 2. The Law of Descent, pp. 260—313.

Primary rules, 260. Preference of descendants, 260. Preference of males, 261. Influence of feudalism, 261. Primogeniture, 262. Primo- geniture before the Conquest, 263. Primogeniture in Normandy, 264. In later Norman law, 265. In English law of the Norman age, 266. The Anglo-Norman Leges, 267. Primogeniture under the Angevins, 268. In Glanvill and Bracton, 268. Partible lands, 270. Gavelkind, 271. Disgavelling, 272. Spread of primogeniture, 273. Inheritance by co- heiresses, 274. Coheirs and parage, 276. The law of parage, 277. The lord's interest in primogeniture, 278. Inheritance of villein lands, 278. Ultimiogenitiire, 279. Origin of ultimogeniture, 280. Impartible peasant holdings, 281. The peasant's one child, 282.

Representation in inheritance, 283. Influence of John's accession, 284. Casus Regis, 285.

The exclusion of ascendants, 286. The rule about lord and heir, 289. The question in Glanvill, 289. Efiect of homage on inheritance, 291. Why may not the lord inherit 2 292. The leaning towards equality, 293. Exclusion of the lord and exclusion of ascendants, 294. The ascendants in Scottish law, 295.

Inheritance among collaterals, 295. The parenteUc system, 297. Rules for collaterals of the same parentela, 298. Choice among ascending lines, 298. Faterna patemis, matema matemis, ^299. Choice among

Contents.

admissible stocks, 300. Worthiness of blood, 301. The half-blood, 302. Exclusion of the half-blood in modern law, 305. Co-parcenry and partition, 306. Limits of inheritance, 307.

Restraint of alienation in favour of expectant heirs, 308. Glanvill's rules, 308. The heir's consent to conveyances, 309. Disappearance of the restraint, 311. Causes of the change, 311. Eebutting effect of a warranty, 312. Suddenness of the change, 313.

§ 3. The Last Will, pp. 314^356.

Germs of the last will, 314. What is a will! 314, Ambulatory character of a will, 315. Hereditative character of a will, 316.

The Anglo-Saxon cvii'Se, 316. The post obit gift, 317. The post obit gift and the royal land-book, 318. The death-bed distribution, 318. The written cw«e, 319. The right to bequeath, 320. Wills and death- bed gifts, 321. Intestacy in Cnut's day, 322. The lord and the awiSe, 322.

Norman law, 323, The Tyill under the Norman kings, 323. Post obit gifts of chattels, 324. Evolution of definite law, 325.

Feudalism and wills of land, 326. Post obit gifts in the Normau age, 326. Post obit gifts of land condemned, 327. The law in Glanvill, 327. Testamentary power abolished in the interest of the heir, 328. Attempts to devise land, 329. Devisable burgages, 330. Probate of burgage wills, 330. Devises of chattels real, 331.

The church and the testament, 331. Progress of ecclesiastical claims, 332. The church victorious, 333. The lay courts and the last will, 333. The will with executors, 334. Origin of the executor, 335. The executor in England and elsewhere, 336. The medieval will, 337. Its form, 337. Its substance, 338. The testator's care for his soul, 339. Usual clauses, 340. Probate, 341. Prerogative probate, 342.

Control over executors, 342. The executor in temporal courts, 343. Executor and heir in Glanvill, 344. Executor and heir in Bracton, 345. The collection of debts, 346. The executor as personal representative, 347.

Limits of testamentary power, 348. Legitim in cent. xii. and xiii., 349. Legitim in Glanvill, 350. Legitim in Bracton, 350. Later history of legitim, 351. The king's court and legitim, 352. The church courts and legitim, 352. Legitim in wills, 353. Eeview of the history of legitim, 355.

§ 4. Intestacy, pp. 356 — 363.

Horror of intestacy, 356. Bracton on intestacy, 357. Stories of intestacy, 357. Desperation in Normandy, 359. The bishop and the kinsfolk, 360. Intestate succession, 360. The administrator, 361. The next of kin, 361. Letters of administration, 362. Separation of chattels from land, 362. Heirlooms, 363. Eeviews, 363.

Contents. xi

CHAPTER VII. Family Law, pp. 364 — 447.

§ 1. Mmrriage, pp. 364—399.

Antiquities, 364. The act of marriage, 365. Growth of ecclesi- astical jurisdiction, 366. Victory of the church courts, 367. Canonical doctrine of marriage, 368. No ceremony requisite, 369. Application of canon law in England, 371. The Queen v. Millis, 372. Law of the English church courts, 372. The temporal law and marriage, 374. Marriage and dower, 374. Marriage and inheritance, 375. Putative marriages, 376. Beoognition of de facto marriages, 380. The marital possessorium, 381. Keluctance to bastardize the dead, 382. Possessory marriage in the temporal courts, 383. Solemnization and possessory protection, 384. Unprovable marriages, 385.

The idea of marriage, 385. Impediments to marriage, 385. Con- sanguinity, 386. Prohibited degrees, 387. Affinity, 388. Marriage of infants, 389. Age of the parties, 390. Marriage of young children, 391.

Divorce and nullity, 392. Divorce from bed and board, 393. Divorce and temporal law, 394. A wife conveyed, 395.

Bastardy, 396. Mantle children, 397. Presumptive paternity, 398.

§ 2. Husband and Wife, pp. 399—436.

Variety in the law of husband and wife, 399, Community of goods, 400. No community in England, 402. English peculiarities, 402. Com- munity and equality, 403.

Final form of the common law, 403. (1) Wife's land, 403. (2) Hus- band's land, 404. (3) Wife's chattels, 404. (4) Husband's chattels, 405. (5) Husband's liability, 405. (6) Wife's contracts, 405.

Law in cent. xiii. ; its general idea, 405. Divorce of realty from personalty, 407.

The wife's land, 407. Husband and wife in court, 408. Husband's rights in wife's land, 409. Alienation of wife's land, 409. The wife's fine, 411. The husband as guardian, 414. Tenancy by the curtesy, 414. Tenancy per legem Angliae, 415. The law of England a courteous law, 416. The widower's free-bench, 418. Feudalism and curtesy, 419.

Dower, 420. The maximum dower, 421. Assignment of dower, 422. Wife's, rights during marriage, 422. Alienation by husband, 424. The husband in litigation, 425. Dower as a gift, 425. Dower and the church, 426. The villein's widow, 427.

Chattels of husband and vrife, 427. Germs of a community, 427. Husband's death, 428. Wife's death, 428. Wife's testament, 429.' The husband's intestacy, 430. Eejection of commimity, 432. English law and separation of goods, 432.

Payments to husband and wife, 433. Conveyances to husband and wife, 434. The wife's contracts, 434. The influence of seisin, 435. The personal relationship, 436. Civil death of husband, 436.

xii Contents.

§ 3. Infcmcy and Gtuzrdianship, pp. 436 — 445.

Paternal power in ancient times, 436. The tutelage of women, 437. Paternal power in cent, xiii., 438. Infancy and majority, 438. Pro- prietary rights of infants, 439. Infants in seisin, 439. Infants as plain- tiffs, 440. Infants as defendants, 442. Demurrer of the parol, 443. Law of guardianship, 443. The guardian no curator, 445. The king's guardianship, 445.

Review of English private law, 445.

CHAPTER VIII. Ceime and Tort, pp. 448 — 557.

§ 1. The Ancient Law, pp. 449—462.

Crime and wrong in old law, 449. Outlawry in old law, 449. Blood- feud, 450. The system of wite and h6t, 451. True punishment, 451. Kinds of punishment, 452. Crime and revenue, 453. Cnut's pleas of the crown, 453. Pleas of the crown in Domesday Book, 454. Norman pleas of the sword, 455. Pleas of the crown in the Norman age, 456. Crime and punishment in Domesday Book, 456. Criminal law in the Leges, 457. Changes in cent, xii., 458. Disappearance of wite and h6t, 459. Op- pressive character of the old system, 460. Arbitrary element in the old system, 461.

§ 2. Felony and Treason, pp. 462 — 511.

Causes of the change, 462. The king's peace, 463. Felony, 464. Import of felony, 467. Premeditated assault, 468. Malice aforethought, 469. The group of felonies, 470.

Culpability in ancient law, 470. Causation in ancient law, 470. Absolute liability for harm done, 471. Liability for the acts of slaves and beasts, 472. The deodand, 473. Eestriction of culpability, 474. Mem rea, 476. Eoman influence, 477.

The felonies, 478. Homicide, 478. Justifiable homicide, 478. Mis- adventure and self-defence, 479. Pardons for excusable homicide, 480. Practice in cases of excusable homicide, 480. Liability and misadventure, 481. The pardon and the offended kin, 482. History of misadventure, 483. Homicide by young children, 484. Limits of misadventure and self-defence, 484. Homicide unemendable, 485. Murder, 485. The murder fine, 487. Suicide, 488.

Wounding etc., 488. Rape, 490. Arson, 492. Burglary, 492. Rob- bery, 493. Larceny, 494. Manifest theft, 496. Petty larceny, 497. Definition of larceny, 498.

Treason contrasted with felony, 500. Treason and the statute of 1352, 502. Early history of treason, 503. Elements of treason, 504. Treason by levying war, 505. Compass of treason in cent, xiii., 506.

Accessories before the fact,* 509. Accessories after the fact, 510. Review of the felonies, 511.

Contents. xiii

§ 3. The Trespasses, pp. 511—543.

Classification of ofifences, 511. Trespass in the wide sense, 512. Minor punishments, 513. Amercements, 513. Imprisonment, 516. Fines, 517. Other minor punishments, 518.

Procedure against minor offences, 518. Civil actions, 519. Present- ments in local courts, 519. Presentments in the eyre, 520. Mis- demeanours, 521,

Penal damages, 522. Novelty of actions for damages, 522. Damages and specific relief, 523. Growth of actions for damages, 524. The days before damages, 525. Actions of trespass, 526. Limits of trespass, 527. Master's liability, 528. Eecent history of master's liability, 528. Liability of slave-owner and house-father in old law, 529. House-father's liability in Bracton's day, 530. Tort, crime and master's liability, 530. Identifi- cation of master and servant, 531. Respondeat superior, 533. Damage and injury, 534. Deceit, 534. Fraud as a defence, 535. Defamation, 536. "Wrongful prosecution, 539. Forgery, 540. Perjury, 541.

§ 4. Ecclesiastical Offences, pp. 543 — 557.

The sexual sins, 543. Heresy, 544. Heresy on the Continent, 544. England and continental heresy, 546. Heresy in England, 547. Heresy in the text-books, 549. Later cases of heresy, 549. Was heresy criminal ? 551. The writ for burning heretics, 551. Sorcery, 552. History of sorcery, 553. Sorcery in the text-books, 554. Cases of sorcery, 554. Sorcery in later times, 555. Unnatural crime, 556.

Inefficiency of the criminal law, 557.

CHAPTER IX. Peocbdueb, pp. 558 — 673.

§ 1. The Forms of Action, pp. 558—573.

Our formulary system, 558. An English peculiarity, 558. Growth of the forms, 559. The formulary system not of Roman origin, 559. Roman and English formulas, 560. Life of the forms, 561. Choice between the forms, 561. Little law for actions in general, 562. Modern and medieval procedure, 562. Formalism and liberty, 563. The golden age of the forms, 564. Number of the forms, 564. Statistics, 565. Differences between the forms, 568. Classification of the fornis, 569. Affinities between the forms, 569. Attempts to apply the Roman classification, 570. Roman and English lines, 571. Civil and criminal procedure, 572.

§ 2. Self-help, pp. 574—578.

Self-help in medieval law, 574. Distress, 575. Distress for rent, 576. Replevin, 577. Distress and seisin, 578.

XIV

Contents.

§ 3. Process, pp. 578—597.

Process, 578. Summary justice, 578. The hand-having thief, 579. Summary justice in the king's court, 579. Summary justice and outlawry, 580. Outlawry as process, 580. Arrest, 582. Summary arrest, 582. Arrest after accusation, 583. Mainprise, 584. Replevisable prisoners, 584. The king's court and arrest, 586. Eoyal control over justice, 587. The writ de odio et atia, 587. Origin of the writ, 587. Effect of the writ, 688. Later history of the writ, 588. Mainprise and bail, 589. Sanc- tuary and abjuration, 590. Civil process, 591. Forbearance of medieval law, .591. Process in real actions, 592. Process in personal actions, 593. Outlawry as civil process, 593. No judgment against the absent, 594. Specific relief, 595. Final process, 596. Costs, 597.

§ 4 Pleading and Proof, pp. 598 — 673.

Ancient modes of proof, 598. The ordeal, 598. Proof by battle, 600. Proof by oath, 600. Oaths of witnesses, 601. Allotment of proof, 602. Proof in cent, xiii., 603.

The plaintiff's count, 604. The offer of proof, 605. The suit, 606. Function of the suitors, 606. Number of the suitors, 607. The defence, 607. Thwert-ut-na^, 608. Examination of the plaintiff's suit, 609. The defendant's offer of proof, 610. Special pleading, 611. The exception, 611. Exceptions in assizes, 612. Spread of the exception, 614 Laxity Of pleading, 615. The exception and the jury, 616. Proof of exceptions, 616. Assize and jury, 617. The jury and the appeal, 618. Exception and denial, 618. The jury and the general issue, 619.

Composition of the jury, 621. The jurors as witnesses, 622. Arbitral element in the jury, 623. Communal element in the jury, 624. Quasi- judicial element, 624. Unanimity of the jury, 625. Verdict and evidence, 627. Fact and law, 629. Special verdicts, 630. Justices and jurors, 631. Popularity of the jury, 631. Fate of the older proofe, 632. Trial by battle, 632. Wager of law, 634. The decisory oath, 636. Trial by witnesses, 637. Other trials, 639. Questions of law, 640. Victory of the jury, 641.

The presenting jury, 641. Fama ptiblica, 642. Composition of the jury, 642. The coroner's inquest, 643. Presentments and ordeal, 644. Practice of the eyres, 644. Indictments for felony, 647. The second jury, 648. Eefusal of trial, 650. Peine forte et dure, 651. Presentments of minor offences, 652. The trial, 653. The collection of evidence, 655. The canonical inquisition, 656. English and foreign inquisitions, 658. Torture and the law of evidence, 659.

Miscellaneous points, 661. The king in litigation, 661. Criminal infor- mations, 662. " Voucher to warranty, 662. Appellate proceedings, 664 Attaint, 665. Certification, 665. Prohibition, 665. Eemoval of actions, 666. False judgment, 666. Error, 668. Records and courts of record, 669. Function of the judges, 670. Co»»iWmji«« of judgments, 671. Last words, 672.

2V

ADDITIONS AND CORRECTIONS.

p. 149. As to the ownership and possession of movables, the articles by Mr J. B. Ames in Harv. L. R. vol. xi. pp. 277 ff. should be consulted.

p. 360, note 1. As to the forfeiture of the goods of a man who dies desperate, see Art. 30 of the Preston Custumal (Harland, Mamecestre, vol. iii. p. xxxviii.).

p. 363, note 2. Add a reference to Records of Leicester, p. 219. In 1293 the burgesses decide that the heir is to have the best cauldron, the best pot and so forth. In Scotland the 'heirship movables' were of considerable importance. In the seventeenth century the heir would take, among other things, ' the great House Bible, a Psalm-book, the Acts of Parliament.' See Hope's Minor Practicks, ed. 1734, p. 538.

p. 372, note 1. An interesting historical account of the Scottish law of marriage by Mr F. P. Walker wUl be found in Green's Encyclopsedia of the Law of Scotland. Pre-Tridentine cathohcism seems to find its best modern representative in this prptestant kingdom.

Pk 485, note 5, and p. 636, note 2. The Annals of Winchester, p. 25, and Thomas Wykes, p. 235, differ about the number of the compurgators, which may have been 25 or 50.

p. 500, side-note, should read ' Treason contrasted with felony.'

p. 537, note 5. So the burgess of Preston who has charged a married woman with unchastity must proclaim himself a liar holding his nose with his fingers : Harland, Mamecestre, vol. ilL p. xl.

CHAPTER IV.

OWNERSHIP AND POSSESSION.

[p.i] We have already spoken at great length of proprietary The law of rights in land. But as yet we have been examining them only P'°^®' ^' from one point of view. It may be called — though this distinc- tion 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 deca- dent. 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 6i property in land is being evolved, which has before it an illus- trious 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.

p. M. II. 1

Ownership and Possession. [bk. ii.

§ i. Rights in Land. [p-2]

Distinction One of the main outlines' of our medieval law is that which movables divides material things into two classes. Legal theory speaks movables, of the distinction as being that between ' movables ' and ' im- movables'; the ordinary language of the courts seldom uses such abstract terms, but is content with contrasting ' lands and tenements ' with ' goods and chattels'.' 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 'heredita- ments ' 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 Bractori — 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^. Bracton discourses at length about the ownership of things {rei~um), and though now and again he has to distin- guish 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 what- ever 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 proprie- tatem rei. That the law of England knows no ownership of land, or will concede such ownership only to the king, is a dogma that has never entered the head of Glanvill or of Bracton. Island We may well doubt whether had this dogma been set [p-3]

owned ? °

1 But in certain contexts it is common to speak of movable and immovable goods ; in particular the usual form of a bond has ' obUgo omnia bona mea mobilia et immobilia.'

' See for example Crlanvill, x. 6 ; Bracton, f . 61 b.

CH. IV. § 1.] Rights in Land.

before 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 ruler- ship, 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 land-ownership, were more patent arid more im- portant 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 6r 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 land-owners ; 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.

And again, any difficulty that there is can be shrouded Omiership from view by a favourite device of medieval law. As we shall' lordsMp. 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

1—2

4 Ownership and Possession. [bk. ii.

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 immediate lord owns a seignory ; there may be other lords with other seignories; ultimately [p-fl 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 land-owner's ownership of his corporeal thing'. Ownership By some such arguments as these Bracton might endeavour theory. * to defend himself against those severe feudalists of the seven- teenth 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 things Only three courses were open to

' See, for example, Bracton's emphatic statement on f. 46 b. The tenant makes a feofEment -without his lord's consent. The lord complains that the feoffee has 'entered his fee.' No, says Bracton, he has not. The lord's fee is the 'service' (the seignory) not the land.

2 The double meaning of dominus is well illustrated by a passage in Bracton, f. 58, where in the course of one sentence we have capitalis dominus meaning chief lord, and verus dominus meaning true owner. A gift made by a vervs dominus [= true owner] is confirmed by the capitalis dominus [=the owner's immediate lord] vel ab alio non domino [ = or by some one else who is not the owner]. We shall have to remark below that the English language of Bracton's day had not the word ownership, nor, it may be, the word owner. In a sense therefore the law knew no ownership either of lands or of goods. We are only

CH. IV. § 1.] Rights in Land.

[p- 5] them : (1) to deny that any land in England is owned : (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 arrears The tenant, again, might use or abuse or waste the land as pleased him best. If the lord entered on the land, Tinless 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". 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". The feudal casualties might indeed press heavily upon the tenant, but they need not be regarded as restrictions on ownership. An infant land-owner must be in ward to some one, and to some one who as a matter of course will be entitled to make a profit of the wardship*; 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

contending that the lawyers of the time see no great gulf between rights in movables and rights in land. In Anglo-French the owner of a chattel is le teignur de la chose; see e.g. Britton, i. 60.

1 See above, vol. i. p. 352. ^ Braoton, f. 217.

' See above, vol. i. p. 329. * See above, vol. i. p. 322.

Tenancy in fee and life tenancy.

6 Ownership and Possession. [bk. ii.

it may well be that this same lord (since he enjoys the franchise known as catalla felonurn) will take them. It is very possible that Bracton saw the Roman land-owner of the classical age ■ holding his land 'of the emperor by homage and service; it [p-6] was common knowledge that the modern Roman emperor was surrounded by feudatories; but at any rate there was no un- fathomable 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 any- thing better than an unmeaning expletive^?

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 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 him- self 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,

^ Foreign feudists attempted to meet tlie diflSculty by tlie terms directum and utile, which they borrowed from Eoman law. The lord has the dominium directum, the vassal a dominium utile. This device is quite alien to the spirit of English law. The man who is a tenant in relation to some l;5rd, is verm dominus (true owner) in relation to the world at large. We shaU'bereafter raise the question whether English law knew any property eithe.i in land or goods that was absolute, if we mean to contrast absolute with relative. We shall also have to point out that the ownership of lands was a much more intense right than the ownership of movables.

CH. IV. § 1.] Rights in Land.

the rights of the tenant in fee may be such that they can he inherited only by heirs of a certain class, in particular, [p. 7] only by his descendants, 'the heirs of 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 Bractoh'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.

A person who is entitled to hold land in fee and demesne T^^ \^n3.ni

_ .in fee.

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 pro- prietary action.

The riffhts of a person who is entitled to hold land for The life

° ■*■ . . tenant.

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 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'a, life; or he has simply given land 'to jB' and said nothing about B'a 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 ^ Then on B's death, the land will ' go back ' or ' revert ' to A. Very ' See above, vol. i. p. 308.

8 Ownership and Possession. [bk. ii.

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's lord ; B will hold the land of ^ ; an oath of fealty can [p. 8] 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 serviced' 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 G and his heirs. Here B will be tenant for life, and G will be tenant in fee; but B will not hold of 0; there will be no tenure between the tenant for life and the •remainderman'; both of them will hold of J.. 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 G 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 Now any one who had been looking at Koman law-books for Me™' must 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 ^ ; 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. ' See above, vol. i. p. 238.

" Bracton, f. 30b: 'propter servitutem quam flrmariuB sibi aoquislvit...de usu fruotuum habendo ad terminum vitae vel annorum.' And so ou f. 82 b. Usually however Bracton reserves the term usufncctuary for the tenant for years.

CH. IV. § 1.] Rights in Land.

In the first place, it seems probable that in the past a Tenant foi tenant for life has been free to use and abuse the tenement as the law of [p. 9] 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 dow£r and tenant by the curtesy — might lawfully waste the land unless he was expressly debarred from so doing by his bargain^ This .opinion seems too definite. For some little time before the statute actions for waste had occasionally been brought against tenants for life^. 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'. At any rate, repeated legislation was required to make it clear that the tenant for life must behave quasi bonus pater familias.

Secondly, for all the purposes of public law, the tenant for Tenant for life in possession of the land seems to have been treated much public law. as though he were tenant in fee. He was a freeholder, and indeed the freeholder of that land, and as such he was subject to all those public duties that were incumbent upon free- holders. ("V Thirdly, his possession of the land was a legally protected Seisin of

- • -»T 1 • , , J 1 1 i -i , , 1 tenant for

seism. JNot merely was it protected, but it was protected ufe. 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 ill fee^.

1 Stat. Marlb. c. 23 ; Stat. Glouo. o. 5. See Coke's comments on these chapters in the Second Institute, and Co. Lit. 53 b, 54 a ; also Blackstone, Comm. ii. 282. The matter had been already touched by Prov. Westm. c. 23.

2 Note Book, pi. 443, 540, 607, 1304, 1371. It is possible also that the reversioner had a remedy by self-help, might enter and hold the tenement until satisfaction had been made for past and security given against future waste : Braoton, f. 169; Britton, i. 290.

3 Bracton, f. 315 ; Note Book, pi. 574.

* See e.g. Braoton, f. 17 b : ' desinit esse feodum et iterum incipit esse liberum tenemeutum.' The estate ceases to be a fee and becomes a [mere] freehold.

10 Ownership and Possession. [bk. ii.

Tenants ^ Fourthly, in litigation the tenant for life represents the litigation, 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 remain to B in fee. Now if X sets up an adverse [p- lo] title, it is A, not B, whom he must attack. When A is sued, it will be his duty to 'pray aid' of 5, 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 \ 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 can not here discuss at any length the eifect which in the various possible cases such a recovery of the land bj' X would have upon the rights of B ; it must be enough to say that in some of them he had thence- forth 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^.

We see then very clearly that a tenant for life is not thought of as 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.

J

The We thus come upon a characteristic which, at all events for

estates.^ " 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 J 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 funda- mental difference. In short, to use a term that we have as yet

*

' Braoton, i. 393 b.

' Littleton, Geo. 481. Before Stat. Westm. II. c. 3 : ' If a lease were made to a man for term of life, the remainder over in fee, and a stranger by a feigned action recovered against the tenant for life by default, and after the tenant died, he in remainder had no remedy before the statute, because he had not any possession of the land.' The remainderman can not use the writ of right because neither he, nor any one through whom he claims ty descent, has been seised of the land. See Second Institute, 345. Even the reversioner could be driven to the cumbrous and risky writ of right in order to undo the harm done by a collusive "recovery against tenant for life.

CH. IV. § 1.] Rights in Land. 11

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 [p-ii] does not belong to the age of Bracton. On the other hand, so soon as we begin to get Year Books, we find it in use among lawyers^ As already said^, 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 simpUd ; but a very curious twist has been given to that word. The process of contortion can not 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.

In the second half of the thirteenth century this calculus is The estate just beginning to take a definite shape; but in all probability /omo 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 ex- pressed at the moment of alienation — in other words, by the forma donv — 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

1 See, for example, Y. B. 20-1 Edw. I. p. 39.

2 See above, vol. i. p. 408.

12 Ownership and Possession. [bk. il.

powers of this kind seem to be implied in its notion of owner- ship. Not that land has been easily alienable; seignorial and family claims must be satisfied before there can be any alienation at all; but when a man is free to give away his land, [pl2] he is free to do much more than this ; he can impose his will on that land as a law that it must obey^ The poffor In this context we ought to remember that the power to gift '^ 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". 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 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'. This haze we believe to be very old ; it is not exhaled by feudalism but is the environment into which feuda- lism 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*. 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

' Bracton, f. 17 b : ' Modus enim legem dat douatioui, et modus teneadus est contra ius commune et contra legem, quia modus et conventio vinount legem.'

^ See above, vol. i. p. 346.

' See Brunner's two essays. Die Landsohenkungen der Merowinger, and Ursprung des droit de retour, which are reprinted in his Porschungen zur Gesohichte des deutschen und franzosisohen Eechts. Also, Maitland, Domesday Book, 299.

* The exception is when there is ' substitution ' not ' subinfeudation.'

CH. IV. § 1.] Rights in Land. 13

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 -vyill be a ' gift,' and precisely the same two [p. 13] verbs will be used to describe the transaction; the donor will say 'I have given and granted (sciatis me dedisse et con- cessissey.'

If then 'the form of the gift' can decide whether the donee '^}^fj°^^

. 01 the gift

is to hold in fee or for life, whether he is to be a heavily a law for burdened lessee, or whether we must have recourse to some- thing 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 can not do ; for the gift can do whatever is not forbidden.

One of the first points about which the law has to make up The gift to its mind is as to the meaning of a gift to a man • and his heirs.' his heirs. The 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^ 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 earl^ 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

* The medieval ' gift ' is almost as wide as our modern ' assurance. ' Bracton, f. 27 : ' Item dare poterit quis alioui terram ad voluntatem suam et quamdiu ei plaouerit, de termino in terminum, et de anno in annum.' However Bracton, f. 17, says that a lease for years is rather a grant (concessio) than a donatio and gradually the scope of dare is confined to the alienation or creation of freehold estates ; one demises or bails (Fr. bailler) for a term of years.

2 Of this more fully below in the chapter on Inheritance.

of a fee.

14 Owner ahip and Possession. [bk. ii.

it by inheritance and not as a person appointed to take it by the. form of the gift^ Duration This left open the question whether the donee's estate was [p- w]

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^' 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'. However, this special rule for gifts to bastards 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*.

1 Braoton, f. 17 : 'et sie aociuirit donatoiius rem donatam ex causa donationis, et heredes eius post eum ex causa successionis ; et nihil acquirit [heres] ex donatione facta antecessor], quia cum donatorio non est feofCatus.'

^ Generally in a collection of charters we shall find two changes occurring almost simultaneously soon after the year 1200: — (1) the donor's expectant heirs no longer join in the gift ; (2) the donee's ' assigns ' begin to be mentioned.

= Bracton, f. 12 b, 13, 20 b, 412 b ; Note Book, pi. 402, 1289, 1706 ; Britton, i. 223 ; ii. 302.

* Alienation would chiefly be by way of subinfeudation, and Braoton on more than one occasion discusses the case in which a mesne lordship escheats but leaves the demesne tenancy existing ; f . 23 b, 48. But unless the donor expressly contracted to warrant the donee's. ' assigns 'he was not bound to warrant them;- f. 17 b, 20, 37 b, 381. See also Note Book, pi. 106, 332,. 617, 804, 867, 1289,, 1906 ; also Chron. de Melsa, ii. 104. The position of a tenant who had no warrantor was very insecure, for he could be driven to stake his title on battle or the grand assize ; hence the great importance of ' assigns ' in the clause of warranty. It was important also in the grant of an advowson : Braoton, f. 54. Apparently too it might be valuable if the donor's apparent heir was convicted of felony : Ibid. f. 134. But by this time the worfi in its commonest context was becoming needless : Y. B. 33-5 Edw. I. p. 363. The writer of the Mirror (Selden Soo.), pp. 175, 181, holds that no one should be. able to alienate unl^ess his assigns have been mentioned. On the whole we

CH. IV. § 1.] Rights in Land. 15

Another matter that required definition was the effect of Limited attempts to limit the descent of the land to a special class [p. 15] of heirs, to the descendants of the original donee, ' the heirs of his body.' It is possible that the process which made benefida 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 kins- men, can claim the ordinary /eot^Mm, if no descendants be forth- coming. But a peculiar rule arose concerning the marriage portions of women.

It is necessary here to make a slight digression. Our The mari- 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'. Even in England her father was entitled to give her one, and this at a time when as a general rule he could 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 objection- able 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, thojigh he would not inherit the land in demesne, might inherit an equivalent for it. To this state of things it ap- parently is that the term 'frank-marriage' (liberum marita- gium) takes us back. A father may provide his daughter, not merely with a maritagium, but with a liberum maritagium : — his sons can not object to this. If land is given in frank- marriage it Avill be free from all service ; as between donor and donee it will even be free from the forinsec service until it has can not doubt that the use of this term played a large part in the obscure process which destroyed the old rules by which alienation was fettered. See Williams, Eeal Property, 18th ed., pp. 66-70.

1 Trte anoien cotitumier, pp. 10, 83 ; Ancienne coutumq, p. 84 ; Somma, p. 83.

16 Ownership and Possession. [bk. ii.

been thrice inherited by the heirs of the body of the donee \

When that degree has been passed, the tenant will be bound to

do homage to the donor's heir and perform the forinsec service, [p- 16]

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 ^.

Gifts to a Meanwhile about the year 1200 gifts expressly limited to

the- heirs the donee 'and the heirs of his body' and gifts made to a

° ^ " y- husband and wife ' and the heirs of their bodies ' begin to

grow frequent '. Before the end of Henry III.'s reign they are

1 Braeton, f. 21 b.

^ The maritagium appears already in D. B., e.g. i. 138 b : ' dedit cum nepte sua in maritagio.' It appears in Henry I.'s coronation charter as maritatio ; see also Bound, Ancient Charters, p. 8, for an example from 1121. Glanvill discusses it in lib. i. 18 ; Braeton, f. 21-23. During the period between Glanvill and Braeton it causes a good deal of litigation ; see cases in Note Book, indexed under 'Marriage Portion' and Select Civil Pleas (Selden Soc), pi. 184. It has been said that ' Frank marriage is the name not of a species of tenure but of a species of estate' (Challis, Beal Property, 2nd ed. p. 12). This is hardly true of the early period with which we are dealing. The most striking feature of the liberum maritagium is a tenurial quality, namely, tenure which for three generations is tenure without service. The term maritagium points, -we may say, to a peculiar kind of estate ; but liberum maritagium points also to a highly peculiar kind of tenure. See Y. B. 30-31 Edw. I. 388. In later days the gift in frank marriage is deemed to create an estate in special tail for the husband and wife, and the main interest of it lies in the creation of such an estate without any words of inheritance ; see Challis, Real Property, 2nd ed. pp. 12, 265. But from an early time it was usual, as a matter of fact, to employ words marking out a line of descent, and in Braoton's day this was not alwavs that of an estate in tail special for husband and wife. The maritagium may be given to husband and wife and the heirs of their two bodies, or to the wife and the heirs of her body, or to the husband and the heirs of his body ; and there are other variations. See Braeton, f. 22, 22 b. So long as feudal services are grave realities it is important to maintain that the marriage portion, whichever of these forms it may take, may be a liberum maritagium. In 1307 counsel urges that a gift to a woman and the heirs of her body can not be frank marriage. A judge replies 'Why so? If I give you a tenement in frank marriage can I not frame the entail as I please ? ' See Y. B. 33-5 Edw. I. p. 398.

» Fines (ed. Hunter), i. 34, 85, 95, 102, 110, 160, 251 ; ii. 78, 91, 100. These are instances from the reigns of Eichard and John. An instance of a royal marriage settlement is this : — in 1252 Henry III. gave land to his brother Eiohard, to hold to him and his heirs begotten of his wife Sanchia, with an express clause stating that the land was to revert on the failure of such heirs to the king and his heirs ; Placit. Abbrev. 145.

CH. IV. § 1.] Rights in Land. 17

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 Dp- 17] gifts seems to have been that which designated as its 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^ 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.

Now before the end of Henry III.'s reign the judges seem to The con- have adopted a very curious method of interpreting these gifts, lee. They 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 be 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 2.

1 Calendariam Genealogicum, i. Ill ; Eobert de Queney before 48 Hen. III. enfeoffed the Earl of WineheBter and the heirs male of his body.

a The preamble of Stat. West. 11. c. 1 has been supposed to show — and this

P. M. II. 2

18 Ownership and Possession. [bk. ii.

History How the lawyers arrived at this odd result we do not [p-i8]

conditional 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 V 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 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^ 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 ^ The lean- But explain the matter how we will, we can not explain it

fevonr of sufficiently unless we attribute to the king's court a strong bias

aliena-

Dility. jggg ChaUis, Eeal Property, 2nd ed. p. 239) is now the received opinion — that in

certain cases the birth of issue of the prescribed class made it possible for the estate to descend to issue outside the prescribed class. This goes further than Bracton would have gone; see Braoton, f. 22. As to the second husband's curtesy, see Bracton, f. 437 b, 438 b; Note Book, pi. 487, 1921.

' See for example Bot. Cart. Job. p. 209 : charter of king John (1215) : gift to H to hold to him and his heirs, and we will that if he has an heir begotten on a wife he shall hold as aforesaid, but if not the land is to revert to us. Pines (ed. Hunter), i. 85, 95, 110, 160, 251 ; Note Book, pi. 429, 948.

2 Braoton, f. 18, 47. Braoton was evidently familiar with gifts of this kind. It is to be remembered that in the past the maxim Nemo est heres viventis had not been observed. In the most formal documents an heir apparent or pre- sumptive had been simply Mres.

3 This is no new explanation ; it is given in Plowden, Comment, p. 235. The transition may have been made the easier by the clauses which attempted to define the event upon which a reverter is to take place : — ' but if he shall not have — but if he shall not leave — but if he shaU die without leaving — without having had — an heir of his body, then the laud shall revert.' Such a clause might be regarded as defining a condition. When the deed says that the land ia to revert if the donee never has an heir of his body, we may argue that only in this case is there to be a reversion ; also that a man has an heir of his body directly he has a child.

CH. IV. § 1.] Rights in Land. 19

m 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 [p. 19] been left undisposed of by his ancestor ; 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 \ 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 doubtfaP. But that step also was taken at the latest in the early years of Edward I.* Gifts in ' marriage ' and gifts to the donee and the heirs of his body were to be treated as creating ' conditional fees.'

But this doctrine was not popular ; it ran counter to the Statutory

1 11 1 • protection

intentions of settlors ; ' it seemed very hard to the givers that of oon- their expressed will should not be observed.' Abeady in 1258 gjftg, there was an outcry*. In 1285 the first chapter of the Second Statute of Westminster, the famous De donis conditionalibus, laid down a new rule*. The ' conditional fee ' of former times became known as a fee tail (Lat. feodum talliatum, Fr. fee tailU), 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 can not be discussed here".

1 Bracton, f.' 17 b ; Note Book, pi. 566. ^ Bracton, f. 17 b.

= The clearest contemporary authorities are Stat. West. II. c. 1 and Y. B. 32-3 Edw. I. 279=Pitzherbert, Formedon, 62.

» Oxford Petition, c. 27 (Select Charters). This is one of the first proofs that these dona are being regarded as conditionalia. The petitioners seem to complain not of this, but of some doctrine which they regard as permitting an infringement of the ' condition.'

5 Stat. 13 Edw. I. 0. 1.

" It seems that the term fee tail was already in use before the statute was passed ; it occurs in the statute (c. 4) though not in the famous first chapter. We have found it on a roll slightly older than the statute ; De Banco Eoll, Mich. 11-12 Edw. I. m. 70d: 'Emma non habuit...nisi feodum talliatum secundum formam donationis praedictae.' At any rate it was in common use within a very- few years afterwards. See e.g. Y. B. 21-2 Edw. I. 365, 674, 641. It is about the same time that fee simple, alternating with (Fr.) fee pur, (Lat.) feodum purum becomes very common. In Bracton we read rather of donatio pura or donatio simplex as opposed to donatio conditionalis. The modern learning of 'conditional fees at the common law' can be found in Co. Lit. 18b; Second

2—2

20

Ownership and Possession.

[bk. it.

Settle- ments in cent. xin.

Joint- tenancies.

These are the three principal elements which the settlors [p-20] of the thh;teenth 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 for a long time have been doubtful, but; we can see that a good deal could be done.

Something could be done by the creation of co-ownership or co-tenancy. 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 ^ Already conveyancers had hopes of circumventing the lord; already the legislator had set himself to defeat their schemes'^- But

Inst. 331 ; Paine's Case, 8 Eep. 34 ; Barkley's Case, Plowden, 223 ; and is excellently summed up in Challis, Eeal Property, o. 18. On the whole it is well borne out by such authorities as we have from the thirteenth century. These are chiefly Bracton, f. 17 b, 47 ; Britton, i. 236 ; ii. 152 ; Fleta, f. 185 ; the cases in the Note Book indexed under ' Fee Conditional,' of some of which a partial knowledge descended through Fitzherbert to Coke; a few cases of Edward's reign collected by Fitzherbert under ' Formedon,' several of which with others appear now in Horwood's Year Books ; and lastly the long and important recital in the statute. About one small point we speak in a note at the end of this section.

1 Coke, 2nd Inst. 110.

^ Stat. Marlb. o. 6. Even by taking a joint tenancy with one's wife something could be done to hurt the lord. Gilbert of Umfravill holds of the king in chief in fee simple. He and his wife have a sou who is one year old. He wants to enfeoff a friend and take back an estate limited to himself and his

CH. IV. § 1.] Rights in Land. 21

we must pass to more ambitious enterprises, devices for making one estate follow upon another, [p. 21] Two technical terms are becoming prominent, namely, Eeversion ' revert ' and ' remain.' For a long time past the word reverti, mainder. 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 '■. 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". 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 not ' come back ' to the donor or lessor, but should ' remain,' that is, stay out for, some third person^. The verb remanere was a natural contrast to the verb reverti or redire*; 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^, 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

wife and their heirs. An inquest finds that this will be to the king's damage. If Gilbert dies in his wife's lifetime the king may lose a wardship. Cal. Geneal. ii. 650.

1 See, e.g. Kemble, Cod. Dipl. vol. iii. p. 4 : 'ad usum primatis redeat ' ; Ibid. p. 22 : ' ad usum revertatur praesulis.' In these leases redeat and resti- tuatur are the common terms.

2 Nov. 7, cap. 3, § 2 : in the Greek iiraviivai : in the Latin redeat : in the 'Authentic ' reverti. For the connexion between this Novel and the practice of the English prelates, see Maitland, Domesday Book, 303.

3 See the will (a.d. 960) of Count Eaymond of Toulouse, in MabiUon, De Be Diplomatica, p. 572, where numerous remainders are created by use of the verb remanere. Thus : ' et post decessum suum R. filio suo remaneat, et si iJ. mortuus fuerit, B et uxori suae A remaneat, et si infans masculus de illia pariter apparuerit ad iUum remaneat, et si illi mortni fuerint qui infantem non habuerint, H remaneat, et si if mortuus fuerit...' See also Hiibuer, Donationes post obitum (Gierke's Untersuchungen, No. xxvi.), p. 70.

* This contrast appears in the classical Roman jurisprudence. TJlpiani Fragmenta, vi. §§ 4-5 : ' Mortua in matrimonio muliere, dos a patre profecta ad patrem revertitur Adventicia autem dos semper penes maritum remanet.'

5 Thus Bracton, f. 18 b, uses reverti where we should expect remanere. So in Hunter, Fines, i. 99 (temp. Bio. I.), we may find what we should describe as the converse mistake.

22 Ownership and Possession. [bk. ii.

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 dayS are coined and become technical; at a yet later date we have ' reversioner ' and ' remainderman''.' Eemain- When creating a life estate, it was usual for the donor to [p. 22]

life estates, 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 ; 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 Kving at the time of the gift'. Eeversion If an estate in 'fee conditional' came to an end, then the escheat, 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 'fevert' 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

1 T. B. 33-5 Bdw. I. p. 429.

^ As a matter of history it is a mistake to think that a remainder is so called beoauBe it is what remains after a ' particular estate ' has been given away. The verb is far older than the noun and is applied to the land. Indeed in our law Latin the infinitive of the verb has to do duty as a noun ; a remainder is a 'remanere.' The words ' reversioner ' and ' remainderman ' are yet newer. In the thirteenth century one says ' he to whom the reversion or remainder belongs ' or ' he who has the reversion or remainder.'

" An early case of successive life estates will be found in Cart. Bams. i. p. 150,

CH. IV. § 1.] Rights in Land. 23

estate^ ; 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 [p. 23] heirs of the body of the other fail, the land goes back to one who 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^.

According to the orthodoxy of a later age what the donor Eemain-

... . ders after

has when he has created a conditional fee is not a reversion conditional 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', and before the end of Henry's reign a writ for this purpose seems to have taken its place among the writs of course*. But it is further said that after the

■• If the king made a feoffment he was both lord and donor.

2 Braoton, f. 23, speaks plainly of an absolute fee simple reverting to its donor on failure of the heirs of a tenant. And on the other hand gives, f. 160 b, a writ of escheat suitable for a case in which tenant in fee conditional dies without an heir of his body. In a MS. Eegistrum Brevium of Henry III.'s reign a writ which answers the purpose of ' formedon in the reverter ' — and we have seen no earlier specimen of any such writ — is called a writ of escheat : H. L. E. iii. 170. Fitzherbert, Formedon, 63, gives a record of 13 Edw. I. (the year of Ve donis) : ' T. petit versus A. unam caruoatam terrae in quam non habet jngressum nisi per E. cui praediotus T. illam dimisit in liberum maritagium Buum cum A. filia sua et heredibus qui de praedicta A. exierint, et quae ad ipsum reverti debet tanquam eschaeta sua eo quod praedicta A. obiit sine herede de se.' It is to be remembered that even in later days the writ of escheat contained the words reverti debet: Eeg. Brev. Orig. 164 b. Also we may observe that the word escheat {excadere) had no special aptitude for expressing a seignorial right. In medieval French law land descends to a lineal, but escheats to a collateral heir ; Beaumanoir, vol. i. pp. 225, 296.

3 Note Book, pi. 61=Fitz. Formedon, 64.

* Stat. Westm. II. u. 13 and see above note 2. Coke in Co. Lit. 22 a, b, seems to say that even after the Statute De donis, there had been a doubt as to whether there could be a reversion on a fee tail. The references to ancient authorities that he gives in his margin seem for the more part to be misprinted; as they stand they are beside the mark. The Second Statute of Westminster itself (c. 4) speaks of a reversio where there is a feodum talliatum. So far as we

24 Ownership and Possession. [bk. ii.

conditional fee there could be no remainder. To this, without the slightest wish to disturb the well settled law of later days^, we can not unreservedly assent. In the first place, such a remainder had come before the court as early as 1220 and to all appearance had not shocked it''. In the second place, Bracton [p. 24] 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'. 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 that estate. To judge by these fines, of which many hundreds are preserved, a remainder on a conditional fee was commoner than a re- mainder on a life estate. In the fourth place, directly the Year Books begin — and they begin about seven years after the statute Be donis — the lawyers are treating a remainder after a conditional fee or estate tail as a very natural thing*. 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*. Lastly, Bracton distinctly says that the remainderman has an action to obtain the land when the previous estate has expired. This action, he says, can not 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^'

have observed in the Year Books of Edward I. and II. (which were not printed in Coke's day) the lawyers invariably speak in this context of a reversion, never of a 'possibility of reverter.' See e.g. 21-2 Edw. I. pp. 58, 187 ; 30-1 Edw. I. p. 124 ; 32-3 Edw. I. p. 100.

1 OhaUis, Eeal Property (ed. 2), Appendix II.

2 Note Book, pi. 86.

' Bracton, f. 18 b. On f . 18 he has spoken of a gift to husband and wife and their common heirs, and if such heirs fail then to the heirs of the survivor.

* T. B. 21-2 Edw. I. pp. 58, 196, 266. Three oases from two terms.

» T. B. 38-5 Edw. I. pp. 20, 130, 157. The last two of these oases are formedon in the remainder on the expiration of an estate tail. The first is formedon in the remainder on the death of tenant for life. Of this hereafter.

' Bracton, f. 69, and again on f. 262 b. 263.

CH. IV. § 1.] Rights in Land. 25

However, it must be confessed that though Bracton says Their va-

, 1 , . . 1 p 1 • • 1 1 lidity ques-

that he is going to give us the words of this writ', he does not tionabie.

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

[p. 25] that statute the remainderman 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 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 ^

But — to leave this disputable point — the creation of re- Gifts upon

• 1-1 -n -PI (■ 1 r 7 • condition.

mamders is only one illustration oi the power oi the jorma dom. 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 speci- fied event, to wit, the non-payment of the debt at a certain date, would swell into a fee^ Again, it was becoming a common prac- tice for a feoffor or a lessor to stipulate that if the services due

' Bracton, f. 96 : ' breve autem tale eat ut liq^nere poterit ' ; no writ follows. In the Digby ms. a large blank space is left at this point as if for the reception of the writ. See Bracton and Azo, 243.

2 See the note at the end of this section.

* See below, the section on The Gage of Land.

26 Ownership and Possession. [bk. ir.

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 ex- press condition that rent should be duly paid. Again, the liberty of disposition which the king's courts had conceded to land- holders 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^, sometimes that the land shall not be conveyed to men of religion", sometimes that it shall not be [p- 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 sell, nor exchange, nor mortgage the land, nor transfer it to any religious house without the consent of the monks'. 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*. 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 On the other hand, the form of the gift, if it could restrain

and testa- alienation, might give to the donee powers of alienation that he powe"^ 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

1 Cart. Glouo. i. 222. See also Cart. Earns, ii. 279.

" Cart. Glouc. i. 302 ; Chrou. de Melsa, i. 361.

3 Cart. Glouo. i. 179, 181, 188, 194, 195, 837, 870. See also Chron. de Melsa, i. 376 : Jf gives to the abbot the homage and service of T, who pledges faith that he wiU not mortgage or sell, or permit any of his freeholders to mortgage or sell, save to the abbot (a.d. 1210-1220).

■* Bracton, f. 46, 46 b. At one point a doubt is expressed as to the necessity for some words expressly giving the donor power to reenter on an unauthorized "alienation. This hardly assorts with the rest of the text and may be an addition.' But at any rate if apt words be used, the land can be made inalienable. See Note Book, pi. 18, 36, 548, 680.

CH. IV. § l.J Rights in Land. 27

heirs, assigns and legatees^ 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 [p. 27] them. At another he thought them ineffectual, and we may guess that this was his final doctrine^. However, just in his time a famous case occurred 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'- 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 ^ 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.

We have dwelt for some while on the potency of the forma influence

. . , . . . , 1 of the

dom. To our minds it is a mistake to suppose that our common /oma^ni. 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

1 An early example from John's reign is found in Eot. Cart. 160. Almost any monastic cartulary which contains deeds of the middle of the century will give instances, e.g. Gloucester, i. 204 ; Malmesbury, ii. 101 ; WhaUey, i, 319 ; Sarum, p. 217 ; Note Book, pi. 1906 ; Northumberland Assize Bolls, p. 198.

■' Bracton, f. 18 b, 49, 412 b.

" Foedera, i. 417, 475, 482.

^ The clause appears in a precedent book compiled after 1280 ; but at that date it may have been a belated form : L. Q. E. vii-. 63-4.

28 Ownership and Possession. [bk. ii.

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 /orma doni will beat in vain^

We have now taken a brief survey of those 'estates,' those [p.i modes of ownership, which were known to the law. Much yet remains to 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 imprinted 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 ChaUis, 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 mart 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 mart 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 mart 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 cP ancestor. (3) As said above, we have seen no instance oi 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. 33-5 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 moTt d'ancestor, are competent only to one who can allege a seisin in himself or in some ancestor from whom he claims by hereditary right.

1 To take one more example, Braoton (f. 13) distinctly contemplates the possibility of a gift to unborn children ; Britton follows him ; a glossator of the fourteenth century has to point out that this is against the law. See the interesting note to Britton, i. 231.

CH. IV. § 2.] Seisin. 29

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 Be 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 [p. 29] issue of the first marriage. 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

Eobert Maungevileyn = Alice = William Malecake (dead) I (dead)

Mabel Joan Loretta

(dead) Alan

WiUiam fitz Nicholas

Ingeram enfeoffed Robert and Alice and the heirs of their bodies. In an assize of mort d'aneestor brought by Mabel, Joan and William fitz Nicholas against William Malecake, to which Alan was also made a party, it is adjudged that Alan can not 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 be- gotten by her first hiisband, 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 Seisin, 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 we may almost say that the whole system of our land law was law about seisin and its conse- quences'.

Seisin is possession. A few, but only a few words about Seisin and etymology may be ventured. The inference has been too hastily

' Jianglois, Le rdgne de Philippe le Hardi, 267 : ' La saisine avait, au moyen

^ervatje valeur extraordinaire, sup^rieure mfime, en quelque Borte, k celle

t de propri^t^. ' Among students of medieval law on the Continent few

_ as have been more debated than those which we touch in this section.

iiier WO,g anfficient to refer here to Heusler's Gewere, and the same writer's

iscussioionen.

30 Ownership and Possession. [bk. ii.

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 to sit there. Thus seisin [p. 30] seems to have the same root as the German Besitz and the Latin possessio. To our medieval lawyers the word seisina sug- gested 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 acqidescere^.' Sitting on The would-be Latin words seisina, seisire, came in with the Conqueror ; but in all probability they did but translate cognate English terms. When in a famous passage the Saxon Chronicle tells us that 'ealle tha landsittende men' swore fealty to William", 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

1 6 Co. Eep. 57 b. Skeat, s. v. seize, thinks that ' to seize or seise ' in the sense of ' to grasp ' is posterior to ' to seize or seise ' in the sense of ' to put into possession.' Diez, s. v, sagire, holds that the idea of taking to oneself probably preceded that of putting into possession. See also Brunner, Gesohichte d. Eom. u. Germ. XJrkunde, p. 242, where the earliest instances of the word are given. The problem can not be worked out on English soil ; but in the time immediately following the Norman Conquest, the verb meaning 'to put into possession ' was commoner than the verb meaning ' to take possession' ; e.g. in D. B. i. 208 : ' oomitatus negat se vidisse sigillum vel saisitorem qui eum iude saisisset ' ; in D. B. the ' saisitor ' is one who delivers seisin to anotherV" -'"he

use of the one verb may be illustrated from Mag. Carta, 1215, c. 9 HlS

nee ballivi nostri seisiemus terram aliqnam ' ; that of the other from Glan^**^^ *^

' Praeoipio tibi quod seisias M. de una hida terrae ' ; the latter disaf'"^ °^ *^' in course of time in favour of 'facias M. habere seisinam.' | See th(

2 A.-S. Chron. ann. 1085.

CH. IV. § 2.] Seisin. 31

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. '

Now in course of time seisin becomes a highly technical Technica- word ; but we must not think of it having been so always, seisto? Few, if any, of the terms in our legal vocabulary have always been technical terms. The licence that the man of science can [p. 31] allow himself of coining 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.

The process by which words are specified, by which their Seisin and 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 pos- session 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 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.

What those remedies were it will be our duty to consider. Possession. 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 tha:t 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

chattels.

32 Ownership and Possession. [bk. ii.

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 those of the [p. 32]

patron who is seised of the advowson'.

Seisin of 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^. It may well

be, as some think, that the ideas of seisin and possession are

first 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^ Sometimes we meet with the phrase ' vested and

1 For a somewhat similar reason it is not uncommon to speak of a guardian as having possession of the wardship, while the ward is seised of the land. Plac. Abbrev. p. 165 : 'in paeifica possessione custodiae praediotae. '

" Maitland, The Seisin of Chattels, L. Q. E. i. 324. Numerous other instances will be found in the indexes to Braoton's Note Book, and to 7ols. i., ii. of the Selden Society's Publications.

^ Heusler, Institutionen, i. 333, discoursing of the German equivalent for our seisin {Gewere), says that one never spoke of a man having the Gewere of a movable, though one said that it was in his Gewere. So in England as regards chattels it seems to have been much commoner to say ' equus fuit in seisiua sua,' or ' seisitus fuit de equo ' than ' habuit seisinam de equc'

CH. IV. § 2.] Seisin. 33

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^- [p. 33] When we say that seisin is possession, we use the latter Contrast term in the sense in which lawyers use it, a sense in which seisin and possession is quite distinct from, and may be sharply opposed rf^hts?*^'' 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 watch- maker for repair, and is asked whether he gtill possesses a watch, whether the watch is not in the watchmaker's pos- session, 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' imper- tinences. Even if the watch has been stolen, he is not very wilUng to admit that he no longer possesses a watch. This is instructive : — in our 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' — 1 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 Eoman 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

' Note Book, pi. 1539 : a thief is ' vested and seised ' of some stolen tin. This phrase appears more frequently in French than in Latin. The Latin rolls give seisitm, where the precedents for oral pleadings give vetu et seisi. Jnvestwa or invettitura is occasionally found, but rather in chronicles than in legal documents. Hist. Abingd. ii. 59 : ' investituram, id est saisitionem accepit.' Madox, Formulare, p. ix., supplies some instances. As yet we are far from any talk of ' vested estates.'

P. M. II. '^

34 Ownership and Possession. [bk. ii.

be seised, the person who is seised may not be seised of

right*.

Seisin and The idea of seisin seems to be closely connected in our enjoyment. ,.n -ii-i n ■ a ■•

ancestors minds with the idea ot enjoyment. A man is m

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 [p. 34] the church ; he is seised of freedom from toll when he success- fully 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 com 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". In order that a seisin may have all its legal effects it 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' Who is Law must define this vague idea, and it can not find the

whole essence of possession in visible facts. It is so now-a- days^. We see a man in the street carrying an umbrella ; we can not 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 theiowner's servant, we shall probably

^ The terms possessio and propHetas are used even in judicial records, e.g. Note Book, pi. 240 : ' differtur actio Euper proprietate quousque disoussum fuerit super possessione.' Indeed the wold possession is frequently used in describing a possessory writ; it is 'bref de possession'; rarely, if ever, is it 'bref de seisine.' See e.g. Y. B. 33-J Edw. I.^. 469: 'We are in a writ of possession, not a writ of right, and it is sufficient wisu? to maintain possession.'

2 Skeat, Diet., s f. explicit, exploit. The nistory of these words begins with the Latin explicar^ '"•-

» Braoton, f. 4A, 284, 373^^te Book, pi. 186S. ~i^ Pollock Md Wrightf*l^ession in the Common Law, p. 11.

I?

CH. IV. § 2.] Seisin. 35

deny his possession. If he is a borrower, we may have our doubts j the language of e very-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 to say at once that we require [p. 35] to know how he came by the things 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 dififerently — whether posses- sion shall be attributed to the borrower or to the lender, to the letter or the hirer

When deciding to whom it would attribute a seisin, our Seisin ana medieval law had to contemplate a complex mass of facts and land law. 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 pro- prietary 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.

In the thirteenth century certain lines have been firmly Case of drawn. The royal remedies for the protection of seisin given villeinage.

1 A servant who is carrying his master's goods can not become a possessor of them by merely forming the intent to appropriate them. If we say that he must be supposed to have an honest intent until by some act he shows the contrary, we are introducing a fiction.

3—2

36 Ownership and Possession. [bk. ii.

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 libera 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 free man 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'.' It is not intended, it would not be suffered, that a man holding in villeinage, even though [p.3G] personally liher 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 pro- tected 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 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 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 ac- quiring 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 1 Charter, 1216, o. 39; Charter, 1217, u. 35.

CH. IV. § 2.] Seisin. 37

and his lessor^ 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 introduction of 'possession' as a fc.37] 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.

An infant's guardian, though the wardship was a profitable, Case of the vendible'right, was not seised of the infant's land ; his occupa- tion of the land was the infant's seisin". It is true that about this matter language might hesitate and fluctuated 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 ^

1 Note Book, i. p. 91; L. Q. E. i. 341.

2 Braoton, f. 165, 167b; Britten, i. 287. Y. B. 30-31 Edw. I. p. 245: 'oar nous tenoms la seisine le gardeyn lor seisine'; so also Y. B. 21-2 Edw. I. p. 369.

3 This is due to the fact that the current language has no term whereby to express that ' occupation' or ' detention ' which is not a legally protected seisin. Hence we are driven to such phrases as 'The seisin of the termor, or the guardian, is the seisin of the lessor, or ward.' Bracton endeavours to meet the case by distinguishing between esse in seisina and seisitus esse : the guardian est in seisina, the ward seisitus est. But this slip of Eomanism does not take root in England.

^ See e.g. Note Book, pi. 1709. The law of Glanvill's time speaks of the guardian as 'seisitus de terra ilia ut de warda': Glanv. xiii. 13, 14. This phrase gives way to 'seisitus fuit de custodia' or 'habuit custodiam terrae illius,' or ' fuit in possessione custodiae illius.' But the guardian is seised of the ward as well as of the wardship, 'seisitus de corpore heredis.'

38 Ownership and Possession. [bk. u.

Case of As to the tenant for life-^including under that term tenant

life. 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 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 [p-38] may be said to be seised 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'. We have here to remember that if the feudal idea of seignorial justice had been permitted 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 principled But then Henry II. had re- strained 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'. It is possible that at one time by ejecting Ralph, a stranger would have disseised both Ralph and

' For this use of words see Braeton, f. 81, 392.

" Heusler, Institutionen, ii. 32. ' Braeton, f. 217-8.

CH. IV. § 2.] Seisin. 39

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 person- ality of his tenant. If Ralph is ejected by Roger, the earl can not 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'- More and more an incorporeal thing or group of in- [p-39] corporeal things supplants the 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 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^. So a stranger by compelling Ralph to pay rent to him instead of to the earl, can be guilty of disseising the earP. 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 incor- poreal thing.

This sort of seisin could be attributed to a ' reversioner,' for Case of the

rever-

in truth a reversioner was a lord with a tenant below him. sioner. 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*. On the other hand, we can not find that any sort or kind of seisin was as yet attributed to the remainderman. He was not seised of the

1 If the lord's tenant is disseised and dies out of seisin and without heirs, it seems doubtful whether at this time the lord has any action by which as against the disseisor, his heirs or feoffees, he can insist on his right to an escheat. Note Book, pi. 422; The Mystery of Seisin, L. Q. B. ii. 487.

2 Bracton, f. 203 ; Britton, i. 275, 281.

3 Bracton, f. 169, 203 b. * Biaoton, f. 161 b.

40 Ownership and Possession. [bk. ii.

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 can not find that our law ever saw the slightest diffi- culty in an attribution of seisin to infants or to communitates. It is common also to speak of a church as being seised.

General 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 ser- vants, guardians, tenants ia 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 certain particular ways. If, how- [p-^O] ever, 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 More remains to be said of the nature of seisin, especially of

of posses- 11 .... ' r J

sion. that element m 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. ■

Modem 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 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

CH. IV. § 2.] Seisin. 41

that some definite body of law shojild 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 that Henry II. when he instituted the possessory assizes was not without thought of the additional strength that [p. 41] would accrue to him and his successors, could he make his subjects feel that they 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.

In the first place, the protection given to possession may be Possession merely a provision for the better maintenance of peace and quiet, nai law. 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.

Others would look for it, not in the law of crimes, but in the Possession law of torts or civil injuries. The possessor's possession is of tort, protected, not indeed because he has any sort of right in the thing, but because in general one can not disturb his possession without being guilty, or almost guilty, of some injury to his

42 Ownership and Possession. [bk. ii.

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 are an extension of that protection which the law throws around the person^.' Possession A very different theory, that of the great Ihering, has gained •warkof ground in our own time. In order to give an adequate pro- prope y. j ^gg^^Q^ ^q Ownership, it has been found necessary to protect [p. 42] possession. To prove ownership is difficult, to prove possession comparatively easy. Suppose a land-owner ejected from posses- sion ; 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 diflSculty 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 unfor- tunate 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. asTkin™ There is yet another opinion, which differs from the last, of right, tbough 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. 1 Rogers v. S;pence, 13 Meeson and Welsby, 581.

CH. IV. § 2.J Seisin. 43

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 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.

An attempt might be made, and it would be in harmony pont^st

• 1 T-iTiipi between

With our fcinglish modes of thought, to evade any choice varions between these various ' abstract principles ' by a frank pro- ^"""'^ ^^ fession of the utilitarian character of law. But the success which awaits such an attempt seems very doubtful ; for, granted [p. 43] that in some way or another the protection of possession pro- motes 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.

44

Oionership and Possession.

[bk.

II.

The various principles in English law.

Disseisin as an offence.

Disseisin as a tort.

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 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 [p- 44] continued conflict, some of them are victorious at the expense of others.

A glance at the law books of the thirteenth century is sufiicient 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' 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^ 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.

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 man who merely possessed land

1 Braoton, f. 161b, 186 b, 187. " Bracton, f. 236; Stat. Mert. c. 3.

CH. IV. § 2.] Seisin. 45

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^ [p. 45] But in the third place, the possessory assizes extend far Possessory beyond what is necessary for the conservation of the peaoe and against the reparation of the wrong done by violent ejectment; Sup- ^^^^^ pose that A is seised; B disseises A and enfeoffs G; A can bring the assize of novel disseisin against B and G jointly; against B it is an action for damages founded on tort ; against G it is an action for the recovery of the land ; G 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 G must be treated as a participator in B's guilt ; but in any case G will have to give up the land". 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.

There is a great deal in our ancient law that countenances a Proof of different theory, namely, that which looks upon possession as 'an pr'c^of^ outwork of property.' In the thirteenth century the proprietary ownership, action for land is regarded as cumbrous and risky. It has been urged' 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 modem times ; but our ancestors would not have accepted the

' Bracton, f . 164 b, 175 b-179, 187. This doctrine comes out strongly in a small tract found in MSS. (e.g. Camb. Univ. Lib. LI. 4. 17, f. 181) Articuli qui in narrando indigent observari : 'Item breve novae disseisinae cnrrit in dominico tantum, quum breve illnd supponit arduam transgressionem ; et ne quis ex tam recenti iniuria videatur commodum portare, conceditur in odium spoliatoris seu disseisitoris quod disseisitus statum suum, etfam non coloratum de feodo aut iure, propter personale factum illatum sibi disseisito, possit recuperare, dum- • modo per assisam seu per recognitionem constet de abiectione.'

a Bracton, f. 175 b. ' Holmes, The Common Law, 211.

46

Ownership and Possession.

[bk.

II.

Seisin as a root of title.

Introdnc- tion of

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 unfore- knowable 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^-

But in the fourth place, the protection of seisin and of [p«] 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 ; G disseises B ; G has a title good against all but A and B ; and so on ; ^ 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'& heir but a better title than (7's heir. English law both medieval and modem seems to accept to the full this theory : — Every titlfe 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 dominiwin while the other has possessio ; we may have to deal with an indefinitely large number of titles relatively good and relatively bad. This by way of preface. We must now trace the growth of

possessory ^ Set of definitely possessory actions, actions for the protection actions, ^f geigin 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''. Where- ever it appears, whether in France or Germany or England, it

1 Thus in the popular tract Cum sit necessarium : ' In omni easu de placito terrae ubi aliquis petit tenementum aliotuod de seisina propria vel per deseensum hereditarium potest fieri breve de recto patens quod est omnium aliorum in sua natura supremum. Set propter istius brevis de recto nimiam dilacionem et manifesta pericnla evitanda possunt fieri per alia brevia remedia oeleriora,'

" Heusler, Gewere, 256.

CH. IV. § 2 ] Seisin. 47

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 tp.47] gross injustice. Both A and B assert a title to 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 OT B had the better right. The possessory question would heie anpear as a mere preliminary to the proprietary question. Id '.- ~'.<T^ at n:r;^nn law without foreign help got as far as this, 'I r' , 'e ■ji^, sages in the Ze^es JTewWci which suggest that this is biuO'-of English law also'. Even the definitely possessory actions which Henry II. made general both in Normandy and in England, may have had forerunners".

Be this as it may, in Henry II.'s day, and seemingly in the The novel year 1166', we came by a distinctly possessory action, the assize

1 Leg. Hen. 29, § 2 : ' et seisiatus placitet.' Ibid. 61, § 21 : 'at nemo plaoitet dissaiaiatus.' Ibid. 53, § 3 : ' Nullus a domino suo inplegiatus, vel inlegiatus, vel iniuste dissaisiatus ab eodem implacitetur ante legitimam restitutionem.' Ibid. 53, § 5 : ' Et nemo dissaisiatus plaoitet, nisi oiroa ipsam dissaiaiationem agatur.' But even these passages seem to show the influence of the canonists' exceptio spolii. William of Malmesbury, Gesta Eegum, ii. 553, makes the legate say to King Stephen, ' Eex itaque faciat quod etiam in forensibus iudiciis legitimum est facere, ut revestiat episeopos de rebus suis; alioquin iure gentium dissaisiti non plaeitabunt,' This is the exceptio spolii, and apparently by ius gentium is meant the temporal law.

2 Bigelow, Plaoita, 128. ' See above, vol. i. p. 145.

48 Ownership and Possession. [bk. ii.

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\ 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. Asnmmary It was, according to the notions of the time, and it would [p. 48] 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 plaintiif 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". 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'. The question 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 jurorp. 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

^ The terms 'iniuste et sine iudioio' point to the actio spolii. They are to be found in the Leges Henrici, 74, § 1, though oddly enough in connexion with homicide: 'qui iniuste vel sine iudicio fuerint occisi.' They occur also in a writ of Henry I. ; Bigelow, Placita, 128, 130 : ' unde ipsi sunt iniuste et sine iudioio dissaysiti.' A similar phrase often occurs in John of SaUsbury's legal correspondence with the Pope touching English ecclesiastical causes; thus e.p. Opera, ed. Giles, i. p. 5, ' violenter et absque ordine iudieiario expulisset ' ; p. 10,

•spoliatum absque iudicio'; p. 13, 'violenter et sine iudicio destitntus';

p. 18, ' absque ordine iudieiario spoliatum.'

'' Glanvill, xiii. 38 ; Bracton, f. 179 ; Summa, p. 220 ; Ancienne ooutume, 0. 94 (ed. de Gruchy, p. 214).

' Brevia Plaoitata, ed. Turner, p. 27.

CH. IV. § 2.J Seisin. 49

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\ 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'*. In all these ways what were [p.49j by this time regarded as questions of law, were being with- drawn 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 mono- syllable.

But the most important point for us to observe is that in Protection Bracton's day this assize protects a thoroughly wrongful, un- seisin. titled and vicious possession. Any special pleas that are regarded as pleas of proprietary right are strictly excluded'. 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 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

' Bracton, f. 183 b.

^ The distinction between a verdict given in modo assisae and one given in modo iuratae was of great importance in Bracton's day (1 288 b, 289 b), for in the former case the jurors might be attainted, while in the latter there could be no attaint, since both parties had put themselves upon the verdict.

3 This has been argued at length in The Beatitude of Seisin; L. Q. E. iv. 24.

P. M. II. 4

50 Ownership and Possession. [bk. ii.

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'. 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 theij 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 A so soon as he is ejected has ceased to possess corpore, but [p-so] he has not ceased to possess animo; he has lost the possesdo 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 dis- regarded in practice, the disseisor, and the disseisor who had no title whatever, could still somewhat easily acquire a ' seisin of frefe tenement,' a seisin protected by the assize, even as against the ejected owner".

Eeiativiiy Protected even as against the ejected owner — this we sav. ofeeism. ~ . , „,,...

tor in the very moment oi the disseism, 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*. Here we come upon a very

curious idea, but one which is to become of great importance

1 L. Q. K. iv. 30. 2 L. Q. E. iv. 287.

» Bracton. f. 209 b.

CH. IV. § 2.] Seisin. 51

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.

The disseisin must be ' novel.' In Normandy the action Novelty must be brought within a year after the wrongful act. The aissekin. question for the jurors is whether the defendant has disseised the plaintiff since the last harvest '. 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 Gianvill was writing, the king's last passage to Normandy fixed the boundary ; and this can hardly have given the disseised even a [p. 51] year for his action^. But kings forget to make such 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'. No change was made until 1275, when a day in 1242 was chosen, and that day limited the assize of novel disseisin until the reign of Henry VIII.*. Somewhat the same fate had befallen the mort d'ancestor. In Normandy it was an annual action*. In England it was never so straitly limited. When Gianvill wrote, a plaintiff could still go back to 1154°. In 1236 or 1237 he was allowed to go back to 1210'. In 1275 he was allowed to go back to 1216, and this he might do

1 Somma, p. 220; Anoienne coutume, u. 94 (ed. de Gruohy, pp. 214, 218).

"■' Gianvill, xiii. 32, 33. Henry crossed to Normandy in February 1187; returned to England in January 1188, and crossed once more in July 1188.

3 Stat. Merton c. 8 (Statutes, i. 4) ; Note Book, i. p. 106 ; iii. p. 230. The best evidence points to Britanniam not Vasconiam.

* In 1236 or 1237 Henry's first voyage to Britanny was mentioned ; in 1275 by Stat. West. I. c. 39, his first voyage into Gascony. Now in 1230 Henry went to Britanny and passed thence through Anjou and Poitou into Gascony; but this can not we think be the first voyage to Gascony of the Statute of 1275. We take that voyage to be the expedition of 1242. Coke, Sec. Inst. 238, speaks of a voyage to Gascony in 5 Hen. III. There was no such voyage.

5 Somma, p. 239 ; Anoienne coutume, o. 99.

8 GlanviU, xiii. 3. ' Note Book, pi. 1217.

4—2

52

Ownership and Possession.

[bk.

ir.

'XJniustly and with- out judg- ment.'

BigoTous prohibition of self- help.

until 1540'. 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.

The words of the writ charge the defendant not merely with a disseisin, but with a disseisin perpetrated ' unjustly and with- out a judgment.' We might think perhaps that the word iniuste left open a door for plea^ 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''. At any rate, in Bracton's day the [p-M] 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'. As to the words sine iudicio, which are equi- valent 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*.

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 can not say that the judges of Bracton's age, or Bracton himself, always hardened their hearts suffici- ently, 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

1 Stat. West. I. 0. 39 ; 32 Hen. VIII. o. 2.

' Inst. iv. 15. 6; Bracton, f. 210 b. However, the Norman assize seems to have been denied to one who obtained possession by force; Somma, p. 234; Ancienne coutume, c. 95. It is possible that the words of the Institutes may have influenced the English practice.

s Note Book, i. p, 85-6. « Bracton, f. 205 b.

CH- IV. § 2.] Seisin. 53

T

disseisin than that which we are endeavouring to explain, and /the thought that violent self-help is a contempt of the king's J court helped to prevent any wide aberrations from this theory i.

A few other traits of this action deserve notice. Besides Trespass serving as ' an interdict for the recovery of possession/ it will seisin!^ 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 [p. 53] attempting to eject, one troubles the possessor in hig" possession, this will often be disseisin enough, if he chooses to treat it as such". An action in the king's courts founded on mere trespass and aiming merely at the exaction of damages is a compara- tively 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 repeated trespassing can be so treated, if the possessor elects to consider himself disseised'. To meet that troubling of posses- sion 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 neighbour- ing soil, there has all along been an ' assize of nuisance ' which is a supplement for the novel disseisin*. Law endeavours to protect the person who is seised of land, not nierely 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.

In the first age of its operation the novel disseisin seems to Disseisin of have been directed against acts which could be called ejectments possessor, in the strictest sense of the word, though, as just said, any persistent interference with possession might fall within it.

1 Occasionally Braoton suggests an examination of the plaintiff's causa possidendi, which can not be justified by his general principle. See in particular f. 169 b. A woman is in seisin as doweress ; then it is proved in an ecclesiastical court that she was never married; she may be ejected, for her causa poseidendi is proved to be false. This is a very dangerous decision if the assize is to keep its possessory rigour. '■

" Bracton, f. 161 b. The ' disseisin at election' of later law was an elaborate outgrowth of this idea.

3 Bracton, f. 216 b: 'Frequentia enim mutat transgressionem in disaeisinam.' T. B. 20-1 Edw. I. p. 393.

" GlanvUl, xiii. 3<-5-6; Bracton, f. 233 ; Eeg. Brev. Orig. f. 198 b.

54 Ownership and Possession. [bk. i'j;_

^ y

English law was perfectly ready to say with the Roman tex\ that, if a man goes to market and returns to find on his land an\ interloper who resists his entry, he has been ejected'. 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 disseising But it had to consider other cases, cases in which some person who is in occupation of the land, but who is not seised of it, takes upon himself to deliver seisin to another, [p. 54] 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 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'. The scope A Still more momentous matter is the treatment of those who have come to the possession of the land after the perpetra- tion 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 fromX?

1 Bracton, f. 161b; Dig. 43, 16, 1, § 24.

' Bracton (see f. 38 b, 39), adopting wbat is now regarded as a misinterpre- tation of a famous passage of Paulus, Dig. 50, 17, 153, would liold that the man who has once been seised can retain seisin animo solo, and so remain seised though he never cultivates nor goes near the land. It seems very doubtful whether a man could (or can) get rid of a seisin once acquired, except by delivering seisin to some one else.

s Stat. West. II. c. 25 ; 2nd Inst. 412 ; Ibid. 154 ; L. Q. B. Iv. p. 297. The law of Bracton's day provides for these cases writs of entry — even for the case where the feoffor is a mere bailiff ; Bracton, f. 323 b. These writs afterwards * dropped out from the Begister ; see Eeg. Brev. Orig. p. 231, where it is noted that the writ of entry on alienation by a villein has given way to the assize; for the actual use of such »■ writ see Note Book, pi. 713. We raay say pretty confidently that in Bracton's day no one would ever have used a vjrit of entry if he could have brought the assize. But Bracton, f. 161 b (this passage is marginal in some MSS.), is coming to the opinion that a feoffmeiit by guardian or termor is a disseisin, and even that a feoffment in fee by tenant for life is a disseisin of the reversioner. '

of the

CcH. IV. §2.] Seisin. 55

" 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 dis- seisor 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 [p. 55] ilf will fall the punishment due to disseisors. Whether X also has laid himself open 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, if enfeoffed X during the time allowed to A for self-help — normally, 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 can not be punished. But — and this is what chiefly concerus us — in any case if X is sued along with M, he can be compelled to restore the tenement to .4^

Now here our law is answering a vital question. It is ■*■ posses- decreeing that a person who has come to the possession of land against the fairly and honestly and by feoffment, one who, as it admits, is no disseisor", 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 insti- tuted 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

1 Bracton, f. 175 b-177.

' Bracton, f. 175 b : ' quia illi non sunt disseisitores.' Yet the writ will distinctly charge them with having joined in a disseisin.

56 Ownership and Possession. [bk. ir.

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'. 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 against those who have been guilty of no disseisin. Meanwhile we will follow the chronological order of [p-56] development and speak of the second possessory assize. The assize The mort d'ancestor is a few years younger than the novel

ofmort / . .•' ° ^^

d'aucestor. disseisin^ and is a much more distinctive product of JMorman and English law ^ 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^

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

Asummary The action is summary; not indeed so summary as the novel disseisin; there may be more essoining and the de- fendant 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

» Note Book, pi. 336. '^ See above, vol. i. p. 147.

' We are not aware of any foreign model after which this assize was fashioned. The plaint of nouvelle dissaisine, or more briefly of nouvelletg, became a well-known action in French customary law. On the other hand, we do not know that the mort d'ancestor is found outside Normandy. Bracton, f. 103 b, 104, while he compares the one to the unde vi, sees in the other a possessoria hereditatis petitio. However ingenious this may be (see Ihering, Besitzesschutz, pp. 85-87), it is probably an afterthought.

'' Glanvill, xiii. 3 ; Bracton, f. 253 b. There are variations adapted to the case of civil death by monastic profession and death on pilgrimage.

CH. IV. § 2.] Seisin. 57

can be taken and the plaintiff can get judgment even though the defendant does not appear.

It is regarded as a strictly possessory action. The plaintiff The mort

, ,, , .,, . " i _ •' i d'ancestor

asserts tnat, within some recent time fixed by ordinance, one, possessory, 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. [p-57] But in the history of our forms of 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 tenants 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 can not 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''.

' Assize of Northampton, o. 4. The words of this ordinance do not expressly give the assize against any one but the lord, and as a matter of fact the lord was a common defendant.

' Braeton, f. 281-2; Note Book, pi. 1215. These new actions do not take the shape of formulated assizes ; they begin with a Praecipe quod reddat. Even they did not cover the whole ground. Braoton, f. 281, seems to have thought that an action might be brought on the seisin of any lineal ancestor however remote, ' ad triavum et ulterius si tempus permittat.' But at a little later date we find it said that one can not go back further than one's besaiel, one's grand* father's father ; Nichols, Britton, ii. 164, 300 : Northumberland Assize Bolls, p. 260. Ultimately, so it would seem, one might go back to one's tresaiel, but no further; Fitzherbert, Natura Brevium, f. 221. This q^uestion can hardly have

58 Ownership and Possession. [bk. ii

Seisin as 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 defeodo). 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, 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^ Exclusion Consequently the defendant is not suffered to urge pleas [p.68] tary™fe"t (exceptiones) of a proprietary character. To insist on this is the more necessary, for at a yet early time this assize gives OGcasion for a good deal of special pleading^ In the first place, the defendant may wish to plead and establish some fact incon- sistent 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'.' 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

had any interest so long as the action was confined by a decent statute of limitations. It had the same limit of time as the mort d'anoestor.

^ Bracton, f. 264 : ' Item dioitur ut de feodo ita quod ut ponatur pro quasi et denotet similitudinem, vel quod ut denotet ipsam veritatem. Ipsam yeritatem, Bicut de ipsis dici poterii qui iustum habent titulum, et iustam causam possidendi ab eis qui ius habent conferendi ; et tunc pro sicut ut supra. Item similitudinem, pro quasi, sicut de illis dici poterit qui ingrediuntur sine causa et sine iusto titulo.' And see the strong words on f. 262 : it matters not what sort of seisin the ancestor had, whether by disseisin or by intrusion, whether acquired from an owner or from a non-owner, if only he was seised quasi of fee.

" Glanvill, xiii. 11. " Bracton, f. 270 b.

CH. IV. § 2.] Seisin. 59

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'. But here there is no proprietary pleading ; the defendant does not seek to go behind the 'seisin as of fee' of the ancestor. 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^' [p. 59] The principle then which is the foundation for this assize Principle seems to be this, that whenever a man dies seised and did not assize. 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'.

1 By means of a special plea, to take another example, the defendant may allege that the ancestor's fee was a fee conditional (estate tail), and thus the heir per formam doni may protect himself against the heir general ; Bracton, t. 268 b, 277 b, 283.

2 Bigelow, Hist. Procedure, 178: 'Even in the time of Glanvill the

course of a cause begun by a writ for the trial of a question of seisin could be entirely deflected by the defendant's plea on the appearance of the recognitors. From a simple question of seisin, the cause might turn into a question of the right of property.' With this we can not wholly agree. No one of the pleas to the viort d'ancestor suggested by Glanvill or Bracton is proprietary ; no one of them goes behind the seisin of the ancestor at the time of -his death. Such pleas as, ' You have released to me,' 'You have already brought an assize against me and failed,' 'You were seised since your ancestor's death,' and the like, are possessory. Of course, however, the plaintiff may consent to the introduction of a proprietary question.

a Bracton, f. 262.

60

Ownership and Possession.

[bk. II.

Is seisin heritable ?

Seisin in law.

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 be covered by the novel disseisin. The stranger who entere'd 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 [p. 60] the heir and entered on a vacant tenement, the ' abator ' of later law, could not by any procedure be forced to make compensation in money for what he had done'. Secondly, in an assize of mort d'ancestor the objection that the plaintiflF 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^.

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'. We can not find that the law of Bracton's day held this language*. 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,

1 Braoton, f. 253 b, 285, would have liked to give damages. They were given as against the lord by Prov. Westminster, c. 9, and Stat. Marlb. o. 16.

'' Glanvill, xiii. 11; Bracton, f. 273. An heir ejected almost immediately after his ancestor's death might have his ohoioe between the two assizes.

3 Littleton, sec. 448.

* Bracton, f. 434 b : ' Et quandoque dividitur ius proprietatia a possessione, quia proprietas statim post mortem antecessoris descendit heredi propinqniori

...sed tamen non statim acquiiitur talibus possessio quia alius se pouere

in seisinam.'

CH. IV. § 2. J Seisin. 61

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 about this matter'. He thinks himself bound by the authority of Paulus^ to hold that a man can not 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'. The heir again acquires seisin with [p. 61] great ease; so soon as he sets foot on the land he is seised; still he must enter^ Seisin is not heritable ; but the man who dies seised as of fee transmits a heritable 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^

The ' abator ' — that is, the person who excludes the heir — Acquisition does not very easily acquire a seisin that is protected against an abator, 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*.

This assize can be brought against any person who is Against holding the land, however remote he may be from the original the assize •abator.' He is not accused of having been guilty of an ®^

1 Bracton, f. 51b, 262. ' 2 Dig. 50, 17, 153.

3 T. B. 33-5 Edw. I. 53-5.

" Y. B. 33-5 Edw. I. 53-5: 'sola pedis posieio vero heredi seisinam contulit.'

* The general opinion seems to be that the French saisine and the German Gewere, unlike the Boman possenio, were heritable. See Heusler, Gewere, 172. Ihering, Besitzwille, p. 33, has good remarks on the controversy as to whether what passes to the possessor's heir should be called possession or a right to possession.

6 Bracton, f. 160 b, 161; Britton, i. 288; ii. 2; Somersetshire Pleas, pi. 1433 a case decided by Bracton.

62 Ownership and Possession. [bk. ii.

unlawful act ; he may 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 placed 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 [p.i usurpation of the 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".

The writs We See then our common law starting on its career with en ry. ^^^ 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 can not 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.

Thewiit 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 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

pe,

^iiori 1 Glanvill, xiii. 11; Braoton, f. 266; Britton, ii. 115. -

3 Bracton, f. 267 b, 268, 282, 327 b. '

of right.

CH. IV. § 2.] Seisin. 63

"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 \ 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 {ahiudicata) from the other [p. 63] 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.

The law is too hard upon a demandant, who, it may well ^^J''™ be, has .recent and well-known facts in his favour. This is of entry. keenly felt and a remedy is provided. The change, however, is eiFected 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 of Praecipe quod reddat, which is the commencement of a proprietary action. That writ bids the tenant give up the land which the de- mandant claims, or appear in the king's court to answer why he has not done so. All the new writs have this in common

^^.. 1 It seems that occasionally a demandant could drive the tenant to an issue pospf fact ; Note Book, pi. 17 ; but as a general rule he could not. The whole B'evelopment of special pleas in writs of right seems to be post-Glanvillian and a caair a long time they are by no means common.

64

Ownership and Possession. [bk. ii.

Entry sur disseisin.

Scope of ttie action.

that they add some definite suggestion of a recent flaw in the tenant's title. This they do by the phrase : —

'in quam [terrain] 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.

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 D?-' employed if both the disseisor and the disseisee 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.

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' in the autumn of the year 1205'. Very soon after this, we may find a writ for the heir of the disseisee ^ For a while such actions seem only to have been allowed where an assize of novel disseisin had been begun, but

^ Eot. Cl. Job. p. 32 : ' Hoc breve de cetero erit de cursu.' But already in Eiohard's day we find 'in quam eoolesiam nullum habet ingressum nisi per ablatorem suum.'

2 Note Book, pi. 383 (a.d. 1280) ; pi. 993 (a.d. 1224).

GH. IV. § 2.] Seisin. 65

had been brought to naught by the death of one of the parties'. 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 the heir's feoffee, the feoffee's heir, the feoffee's feoffee; but it will go no further; it is only [p. 65] effectual within these ' degrees".' Why so ? We must probably find our answer to this question in politics rather than in juris- prudence. 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'. Some barriers must be maintained against them and the legal logic which impels them forward. A tem- porary defence 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 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^ But in truth this frontier was not defensible. Bracton was for

1 This seems the state of things represented by Bracton, f . 218 b, and the Note Book.

" Bracton, f. 219b: 'usque ad tertiam personam inclusivam.' The first stage is 'into which he had not entry save by (per) X, who demised it to him and who had disseised the demandant [or his ancestor].' The second stage is 'into which etc. save by {per) X, to whom {mi) Y demised it, who had disseised etc' The first form is » writ in the per, the second in the per and cut.

3 Charter, 1215, c. 34: 'Breve quod vocatur Praecipe de oetero non fiat alicui de aliquo tenemento unde liber homo amittere possit curiam suam.' But the writ of entry does begin with Praecipe.

* See below, p. 70.

P. M. II. 5

66 Ownership and Possession. [bk. ii.

crossing it^ and the statute of Marlborough crossed if. That

statute gave the disseisee or his heir ' a writ of entry sur

disseisin in the posti an action, that is, in which he might

allege that his adversary ' had no entry into the land save after

(jpost) 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 Thus by a series of gradual concessions we arrive at the

posses- result that if a disseisin has been committed and the time —

and'the an ever lengthening time — allowed for an action based upon

canou ^jjg^^ disseisin has not yet elapsed, an action can be brought for

the recovery of the land by the disseisee or his heir against [p-66] any person who has come 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 me- morable decree'. It often happens, he said, that because the despoiler transfers 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

1 Braoton, f. 219 b, as is often the ease, suggests his own opinion under a ' nisi sit qui dioat.'

2 Stat. Marlb. c. 29 : Second Institute, 153.

» 0. 18. X. de restitut. spol. (2. 13) ; Lateran Council of 1215. To some modern Romanists this famous canon is the abomination of desolation. To Ihering it is an exploit worthy of the greatest of the popes, a genuine develop- ment of Boman law : Besitzwille, p. 459.

CH. IV. § 2.] Seisin. 67

this ; they found or thought that they found in ancient texts authority enough for a possessory action even against the bona fide possessor'. 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 difficuUatem probationum^.' [p. 67] The possessory character of the English action by ' writ ofDl«st™-

T ■ ■ , 11 11 „ tionoftlis

entry sur disseisin can be best shown by means of a very English 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 suc- cessor of a disseisor, and he is precluded from going behind the disseisin and pleading proprietary right'.

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 actions of which we have been speaking are possessory The other

writs of entry.

' By the side of the action given by the canon of Innocent III. (oondictio ex, 0. 18) they develop a oondictio ex c. Bedintegranda, which they trace back to a passage in the Decretum, c. 3. C. 3. qu. 1. The process is described at length By Bruns, Eeoht des Besitzes, 168-262.

■ ^ Bracton, f. 282 b. It would, says Bracton, be hard to send a man to his writ of right when he has on his side so recent a seisin; 'quod grave esset petenti de tarn recenti seisina.'

3 Bracton, f. 219 ; Fleta, p. 364 ; Britton, ii. 299. Later law met some of the cases in which a man having good title came to the laud under a bad title, by holding that when once he was seised he was 'remitted' to his good title. See Littleton, lib. 3, cap. 12. But this seems to belong to the future.

5—2 "

68 Ownership and Possession. [bk. ii.

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 can not 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 pre- suppose any violation of seisin, not even of a ' seisin in law.' The Most of these writs suggest that the person who is attacked

forms of 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 bailifif or a [p.( tenant in villeinage, 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 laiid 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. Historical Some of these cases attracted attention at an early time, of th'e'°" ^ tenant in fee lets or pledges (vadiare) the land for a term of writs. 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 diflScult 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'. But

' Norman law has a reoognition Utrum de feodo vel de vadio, another Utrum de feodo vel de firma, another Utrum de feodo vel de warda, also an Utrum de maritagio which answers to our Cui in vita. See Brunner, Schwurgerichte,

CH, IV. § 2.] Seisin. 69

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'.' This form was flexible. Any kind of in- [p. 69] valid '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 posses- sory action was given to her for this purpose. These two are old forms, the ad terminwm 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 alien- ated in fee and had diedl 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

c. 15. Glanvill, xiii. 26-31, knows some of these recognitions ; but in general the writs which direct them to be taken are 'judicial' rather than 'original' writs : that is to say, litigants came to these recognitions only in the course of actions begun by other writs. In very early plea rolls a jury summoned in course of the pleadings is occasionally called an assize.

1 The evolution of the writ ad terminum qui praeteriit which supplies the place of several Norman recognitions can be traced in the earliest plea roUs, e.g. Curia Eegis Bolls (Pipe BoU Society), 50, 66, 67, 74, 123; Eot. Cur. Eegis (Palgrave), i. 341; ii. 37, 38, 85, 211, 227; Select Civil Pleas (Selden Society), pi. 143, 192 ; and so on into Bracton's Note Book where the fully developed form appears. The evolution of the cui in vita may be similarly traced ; already in John's reign its characteristic formula is seen; Eot. Our. Eegis (Palgrave) ii. 168. These are for a while the commonest writs of entry.

' They are ad communem legem to distinguish them from the writ (in cam, proviso) given by Stat. Gloucester, 6 Edward I. o. 7, and other writs {in consimili cam) framed after its likeness, which enabled one to insist that an alienation in fee by tenant in dower, tenant by the curtesy, or tenant for life, was a forfeiture of the alienor's estate.

70

Oivnership and Possession.

[bk. II.

Principle of these writs.

Active trans- mission.

Passive trans- mission.

The

doctrine of degrees.

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*. The scheme of writs of entry had crystallized; what more could he done for it was done explicitly by statutes of Edward I.

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 ?

To the first part of this question we answer that as a general [p. 70] 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 without using it, her heir has an action (sur cui in vita) for the same purpose "''.

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 Marl- borough otherwise ordained, a writ of entry could only be brought ' within the 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

1 Braoton, f. 317 b. As already said, writs of entry on alienations by bailiffs, guardians, termors, and tenants in villeinage went out of use, since in such cases alienor and alienee could be treated as disseisors.

^ There seems to have been some doubt as to the possibility of a writ of entry in case the demandant would have had to go back for a seisin to his grandfather's grandfather. See Nichols, Britton, ii. p. 300. Such a case would be exceedingly rare ; but in 1306 a man has attempted to get from the chancery a writ on the seisin of his great-grandfather's grandfather, and failed in his endeavour: T. B. 33-35 Edw. I. 125.

" Bracton, f. 318 : ' Nou enim excedit tertinm gradum.'

CH. IV. § 2.] Seisin. 71

it' 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-.

1 Stat. Marlb. c. 29. This speaks only of writs but disseisin ; but seems to have been construed to give a general authority for writs ' in the post.' See Fleta, p. 360; Britton, ii. 297.

" The boundary set by the common law to the writs of entry we can not thoroughly explain, but a suggestion about it may be ventured. Braoton, f. 320 b, 321, seems to connect it with two rules, (1) that vouching to warranty never goes beyond the fourth degree, (2) that in a writ of entry the tenant may only vouch the persons named in the writ. This latter rule is of some interest. A widow (A) charges 0 with having come to the land as feoffee of N, who was the feoffee of her husband M. Now the only person whom O may vouch is N (or N'b heir), and the only person whom N may vouch is M'e heir. The reason is that 0 could only be entitled to vouch another person, e.g. X, if 0 acquired' the land from X, and the mere assertion that he acquired it from X would be an' answer to A'b aotion,for it would deny the entry by N, on which jl relies. This rule was still observed after the Statute of Marlborough and served to differentiate the old action ' within the degrees' from the statutory action 'beyond the degrees.' In the latter you might 'vouch at large,' vouch whom you would ; in the former you could only vouch along the line of alienors mentioned in the writ. See Stat. 'West. I. u. 40. So much as to Bracton's second rule. As to the rule which would bring the process of voucher to an end when the third warrantor had been called, we are not certain that Braeton means to lay this down as a general rule which will extend even to writs of right, for he elsewhere (f. 260, 388) suggests that the chain of warrantors may be traced to infinity. But the rule seems to have existed in all its generality both in Normandy and in Scotland ; it had been applied in England to the case of chattels ; similar mles are found in Lombardy, Prance, Germany, Anglo-Saxon England, Scandi- navia, Wales (Ancienne contume de Normandie, c. 101 ; Somma, p. 132 ; Begiam Maiestatem, i. 22 ; Quoniam Attachiamenta, c. 6 ; Glanvill, x. 15, where quotum warrantum should be quartum warrantum ; Laws of Cnut, n. 24 ; Leg. Henrici,, 64, § 6 ; Brunner, D. B. G. ii. 502 ; Ancient Laws of 'Wales, i. 439). NoW; assuming these two rules, namely, (1) there may be three vouchers but no more, and (2) the defendant may only vouch along the line suggested in the writ of, entry, we come to the result that this line must be limited in length. There are difficulties in the way of this explanation, for apparently our writs within the degrees allow only two vouchers; thus, in the case put above, when 0 has vouched N, and N has vouched the husband's heir, there can seemingly be no further vouching, unless the chance of rebutting a demandant by his own or his ancestor's warranty is reckoned as a third voucher. There is something to be

72 Ownership and Possession. [bk. ii.

Are the Now Were these actions possessory or were they not ? The [p. 7i]

entry pos- lawyers of the thirteenth century hardly knew their own sessory/ j^jjjjjg 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^ 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^ Fleta and Britton tell us that the causes, [p. 72] pleaded by writs of entry have something of possession in them, but in part ' savour' of property'. About the same date a lawyer says that a writ of entry is a writ mixed of right and possession 1 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 viola- If it be of the essence of a possessory action that the

possession plaintiff complains of a violated possession, then none of the necessary. g^p^^Q^g ^£^jj ^ijich we have been dealing are possessory, except the assize of novel disseisin and the writs of entry sur dis- seisin, 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 When, however, we are speaking of actions in which the is limUed^ 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

discovered in this obscure region; we can not profess to have- thoroughly explored it. It is darkened by inconsistent methods of counting the degrees.

1 Bracton, f. 218 b, treats the writs sur disseisin as mere supplements for the assize: so also, f. 160, the writs of intrusion; but, f. 317b, the other writs of entry lie ' in causa proprietatis.'

" Placit. Abbrev. 183 (Kane).

8 Fleta, p. 360 ; Britton, ii. 296.

■> Y. B. 20-21 Edw. I. p. 27. So in Y. B. 83-5 Edw. I. p. 125: ' our action is mixed in the possession.' Ibid. 421: 'the writ is mixed, to wit, in the poBsessiou and in the right.'

CH. IV. § 2. J Seisin. 73

nimself 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 plaintifif has better right to the land than the vanquished defendant.

Now in this sense all our writs of entry seem to be posses- The writs sory. We will put a case : Alice who was seised in fee simple pos"eS>ry. 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 through Roger to whom Adam her [p. 73] husband (whom in his lifetime she could not contradict) demised it'.' Now William is at liberty to deny 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^. 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 AUce, 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 ^' All this William may do; but there

1 In the writs of entry the term ' demise' is used in its very largest sense : it win e.g. cover a feoffment in fee.

" Bracton, f. 319 b: 'remanebit tenens in seisina quousque petens sibi perquisierit per breve de recto.' And yet Bracton treats these writs of entry as being rather proprietary than possessory.

3 This is all that Bracton means when he says, f. 320 b, 'Item exoipi poterit contra petentem quod alius ius maius habet quam ille qui petit.' He does not

74 Ownership and Possession. . [bk. ir.

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 par- ticular 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 fi-om asserting in this action rights which he really has, rights which to-morrow he can assert [p. 74] in another action. The writ of entry does not finally decide the dispute between the parties; the vanquished tenant may hereafter be a victorious demandant'.

^e A graduated hierarchy of actions has been established.

of actions. ' 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 afiinities 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''. Ultimately we ascend to the writ of right. Actions are higher or lower, some lie ' more in the right ' than

mean that every iua tertii can be pleaded. The only ins tertii that can be pleaded is one that is inconsistent -with the demandant's possessory claim.

1 A good illustration occurs in T. B. 33-5 Edw. I. p. 859: 'Maud first disseised Bobert while she was sole and then took a husband, who alienated to Hicholas ; Nicholas was seised ; Bobert released and quit-claimed to Nicholas ; Maud's husband died, and she deraigned these tenements from Nicholas by the eui in vita. ' Nicholas had a better right than Maud, for by the release he had Eobert's right ; but he could not set this up in Maud's action ; he had come to the land by an alienation made by her husband which she could avoid.

" As to the conversion of the writ of entry into a writ of right, see Bracton, f. 818, 819. This doctrine seems to have become obsolete and so the possessori- ness of the writs of entry became more apparent.

CH. IV. § 2.] Seis{7i. 75

pthers. 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 rights

Now we can not consent to dismiss these rules about writs Tlie of entry as though they were matters of mere procedure. They of seisins. seem to be the outward manifestation of a great rule of substantive law, for this graduated hierarchy of actions corre- sponds 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 have no better, because [p. 75] they have no older, rights We have gone far beyond the pro- tection 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 : — G's title is good against all but B and A; B's title is good against all but A ; A's "title is absolute.

But is even A's title absolute ? Our law has an action Is the writ which it says is proprietary — the writ of right. As between posses- the parties to it, this action is conclusive^i 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,

1 The final form of this doctrine will be found in Ferrer's Case, 6 Eep. 7 a.

2 Of course to generate a hereditary right the seisin must he 'as of fee.' But there are writs of entry that can be used even by one who has been seised as life tenant ; Bracton, f. 326.

7Q Ownership and Possession. [bk. ii.

whether the demandant or the tenant has the greater right to the land'. 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"". 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 [p. 76] the demandant but to some third person. This needs some explanation, for appearances may be against what we have here said.

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 hefr. 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 can not do is this, he can not 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 can not, for example, say, 'Adam your ancestor got his

1 This form goes back to the first days of the grand assize ; Glanvill, ii. 18.

2 The exception against him will be not exceptio rei iudicatae, but exceptio ex taeiturnitate ; Braoton, f. 435 b; Co. Lit. 254 b.

CH. TV. § 2.] Seisin. 77

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 ofusV

Thus our law of the thirteenth century seems to recognize EeiativUy in its practical working the relativity of ownership. One story ship, [p. 77] is good until 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 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.

The question whether this idea — ' the relativity of proprietary Eemote right' — should be called archaic, is difficult^ A discussion of it ownership might lead us into controversies which are better left to those session! "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 can not 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 can not 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

^ It is very difficult to offer any direct proof of this doctrine, more especially as Bracton never finished his account of the writ of right. But see the remarkable passage on f. 434 b, 435, which culminates in 'plura possunt esse inra proprietatis et plures possunt habere mains ins aliis, secundum quod fuerint priores vel posteriores.' After reading the numerous cases of writs of right in the Note Book and many others as well, we can only say that we know no case in which the tenant by special plea gets behind the seisin of the demandant's ancestor. As to later times there can be no doubt. See e.g. Littleton, sec. 478, quoted below, p. 78. See also Lightwood, Possession of Land, 74.

- Dr Brunner in a review of the first edition of our book (Political Science Quarterly, xi. 540) gave an affirmative answer, and vouched early Frankish law.

78 Ownership and Possession. [bk. ii.

rdmanized 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^, 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 I Bracton more than once protests with Ulpian that possession has nothing in common with property', and yet has to explain how successive possessions beget successive ownerships which all live on [p. 78] together, the younger being invalid against the older'- 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^ Seisin and We can now say our last word about that curious term 'estate'.' 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

1 Bracton, f. 434 b.

'^ It is probable that the Latin ius merum is a mistaken translation of the Anglo-French mere ireit, or as it would stand in modern French majeur {*maire) droit. We have Dr Murray's authority for this note.

' Bracton, f. 113, 284 : 'nihil commune habet possessio cum proprietate.' Dig. 41, 2, 12, § 1.

^ Bracton, f. 434 b, 485.

^ Holmes, Common Law, p. 215 ; Pollock and Wright, Possession, 93-100 ; Lightwood, Possession of Land, 104-127. One of the most striking statements of this doctrine is. in Littleton, sec. 478. ' Also if a man be disseised by an infant, who alien in fee, and the alienee dieth seised and his heir entreth, the disseisor being within age, now it is in the election of the disseisor to have a writ of entry dum fuit infra aetatcm or a writ of right against the heir of the alienee, and,' which writ of them he, shall choose, he ought to recover bylaw.' In other words, a proprietary action is open to the most violent and most fraudulent of land-grabbers as against one whose title is younger than his own ; 'and he ought to recover by law.'

' See above, vol. ii. p. 10.

' estates.'

' CH. IV. §2.] Seisin. 79

incorporeal things must not be changed during his minority'. A person ahready 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, titles which have various degrees of validity. It is quite possible that two of these titles should meet in one man and [p. 79] yet maintain an independent existence. If a man demands to be put into the possession 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' ? 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.

1 Braoton; f. 423 b, 424.

2 A good example is given by T. B. 33-5 Edw. I. p. 197 : 'By his entering into wai-rantry he is, as it were, in the estate which he received by the feoffment of Eustace and of that estate he pleads.' ' By your entering into warranty alone you are in your first estate.' Ibid. p. 467: 'Although you had alienated the estate that you had by Simon and had afterwards retaken that estate. ..you are in your first estate.'

80 Ownership and Possession. [bk. ii.

Seisin and 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*.

§ 3. Conveyance.

Modes of De acquirendo rerum dominio — this is the title of what is [p. so]

r^htfSf printed as Bracton's second book. In the main that book deals

land. ^^}j |j^^ j^Q 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 Of the Occupation of unowned land we have not to speak,

occupation, f^j. j^^ jg^^^ j^g qj. ^g^^ |jg 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

^ In closing this section we have to say that the account here given of the relation of the writs of entry to the possessory assizes is utterly at variance with the traditional doctrine sanctioned by Blackstone (Comment, iii. 184), which makes ' our Saxon ancestors ' acquainted with writs of entry. Now, however, that large selections from the early plea rolls have been printed, there can be no doubt at all that the assizes are older than the writs of entry, though even a comparison of Bracton with Glanvill should liave made this clear. To this must be added that throughout the thirteenth century there is no writ of entry for the disseisee against the disseisor. No one would think of using such a writ, because the assize of novel disseisin is far more summary. At a much later period when the assize procedure was becoming obsolete — obsolete because too rude — such a writ of entry, ' the writ in the nature of an assize, ' or ' writ in the quibus ' was invented. But in Bracton's time the writs of entry presuppose the assizes. The credit of having been the first to explain the relation between the assizes and the writs of entry is due to Dr Brunner's Eutstehung der Schwurgerichte.

CH. IV.

3.] Conveyance. 81

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 iold the land in demesne^ 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 G (saying nothing of G's heirs), for his (5's) life, thus making G ' tenant pur autre vie ' ; and suppose that G dies during B's lifetime; who is entitled to enjoy the land while B still lives ? Not O'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 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 [p.8i] to the thirteenth century. Bracton has 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 ; G can dispose of it by will, and, if he fails to do this, the land will revert to B\ Thus even here there was no room for a lawful occupation.

Again, our law knew no acquisitive prescription for land, it No acquisi- merely knew a limitation of actions. Even to the writ of right scrip^ion. a Hmit 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'. 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.

1 Bracton, f. 382, § 5.

2 Braeton, f. 13 b, 27, 263; Fleta, p. 193, 289. In Hengham Parva, o. 5, there is a transitional doctrine: — If "■ tenant for his own life alienates, the alienee, the tenant pwr autre vie, has a freehold. If a tenant in fee demises for his own life, the lessee has a freehold 'according to some'; but the question seems to be open.

s Note Book, pi. 280, 1217; Stat. Merton, o. 8; Stat. West. I. c. 39.

P. M. II. 6

82

Ownership and Possession. [bk. it.

Alluvion etc.

Escheat,

forfeiture,

reversion,

The gift of land.

Feoffment.

The ex- pression of the donor's will.

Bracton copies from the Institutes and Azo's Summa passages about alluvion and accession, the emergence of islands and the like^ 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^.

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 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 by the wide word 'gift,' which, as already said', will cover sale, exchange, gage [p.i and lease.

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 is a species of the genus gift*. 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' {feoff are); 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.

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

^ Bracton, f. 9 ; Bracton and Azo, 99.

^ Smyth, Lives of the Berkeleys, i. 112, gives a curious and early case touching land torn by the Severn from one of its banks, added to the opposite shore and afterwards restored.

' See above, vol. ii. p. 12.

* Britton, i. 221: 'Doun est un noun general plus qe n'est feffement.'

CH. IV. §3.] Conveyance. 83

expression should take the form of a written documents 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''. 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 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 The donee in person or by attorney must come upon the land. selsL. 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 [p. 83] gift is a house, the donor will put the hasp or ring of the door into the donee's hand (tradere per haspam vel anulum) ; if there is no house, a rod will be transferred (tradere per fastem et baculum) or perhaps a glove'. 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 feofifee made an actual entry on it while the feoffor was yet alive, this was a sufficient feoffments But a livery of seisin either on the land or ' within the view ' was necessary.

1 Braoton, f. 33 b.

2 See e.g. Y. B. 20-1 Edw. I. p. 32, and Stat. Marlb. o. 9. 8 Braoton, f. 40 ; Britton, i. 261-2.

* Bracton, f. 41: 'Ex hoc enim quod patior rem meam esse tuam ex aliqna causa, vel apud ifce esse, videor tradere. Idem est de mereibus in orreis. Idem etiam dioi poterit et assignari, quando res vendita vel donata est in oonspeotu, qnam venditor vel donator dicit ae tradere, ut si ducatur in orreum vel campum.' This is romanesque and goes back to Dig. 41. 1. 9, g 6, and Dig. 41. 2. 1, § 21; but it probably fell in with English ideas ; and the requirement that in such a case the feoffee must enter while the feoffor is still alive— a requirement to be discovered rather in later law than in Braoton's text — is not Eoman. In 1292 (y. B. 20-1 Edw. I. p. 256) Cave J. asks the jurors whether the feoffor was so near the land that he could see it or point it out with his finger.

6—2

84 Ownership and Possession. [bk. ii.

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 ^. Nor does the donatio by itself create even a contractual right and bind the donor to deliver seisin. The charter of feofiftnent, which professedly witnesses a com- pleted gift, will not be read as an agreement to give". Until there has been livery, the feoffee, if such we may call him, has not even iris ad rem. Furthermore, the courts of Bracton's "^ day are insisting with rigorous severity that the livery of seisin shall be no sham. Eeally and truly the feoffor must quit possession; really and truly the feoffee must acquire posses- [p. 84] sion. 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^ The It seems probable that in this respect our law represents

ancient -, ■ /^ i i ■ i

German Or reproduces very ancient German law, that m the remotest

convey- ance.

age to which we can profitably recur a transfer of rights in- volved of necessity a transfer of things, and that a conveyance without livery of seisin was impossible and inconceivable. Of

^ Braoton, f. 40, 44, holds that, in such a case, if the donor dies without having objected to the donee's assumption of seisin, he may be deemed to have ratified it.

2 In Edward I.'s day a covenant to enfeoff was not uncommon ; it formed part of the machinery of a settlement by way of feoffment and refeoffment ; but tbe courts seem never to think of reading a charter of feoffment as a covenant to enfeoff.

s In the Note Book and the earliest Year Books hardly a question is commoner than whether there was a real and honest chajige of possession. The justices examine the jurors about the relevant facts and will not be put off with ceremonies. See e.g. Note Book, pi. 780, 871, 1209, 1240, 1247, 1294, 1850; Somersetshire Fleas, pi. 1440, 1491, 1497.

CH. IV. § 3.] Conveyance. 85

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 trans- ferred ; 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. 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 [p. 85] the donor has taken off from his hand the war glove, gauntlet or thong, 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 {cur- vatis 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^

We are told that at a yet remote time this elaborate ' mode SymboUo

1 Heusler, Gewere, p. 7fE.; Heusler, Institutionen, ii. 65; Brunner, Ge- schiohte derEom. u. Germ. Urkunde, i. 263 ft.; Schroder, D. B. G., 59, 270. The talk ahout ' vesting' can be traced back to the sixth century. As to broken and twisted knives, see BaUdon, Select Civil Pleas, p. xv. The gesture with curved fingers was a Saxon practice; it is described by Schroder op. cit. p. 59, and was employed in Holstein within recent years.

86 Ownership and Possession. [bk. ii.

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 can not come to the field, the field must come to the saint. In miniature it can do so ; turf and 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 sodg 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^. When, under Roman influence, the written docu- ment comes into use this also can be treated as a symbol; it, is delivered in the name of the land; the effectual act is not the [p.i 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^' 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 per- formed there ; the donor or vendor call 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. K^y°on I* seems to be now generally believed that long before the

toent™ Norman conquest of England this stage of development had

^ Heusler, Gewere, 18.

* Brunner, Gesohiohte d. Urkunde, 104, 303.

CH. IV. § 3.] Conveyance. 87

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 con- sidered as proved, though, had our fully developed common law stood alone, we might have come to another conclusion.

As regards the Anglo-Saxon law, our evidence is but very Anglo- slight. We know nothing about the conveyance of any land law. 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'. Occa- sionally, though but rarely, we hear of a turf being placed upon the altar".

For some time after the Norman Conquest the shape that Law of the our law will take seems somewhat uncertain. In the first age. [p. 87] place, throughout the Norman period we often come upon royal and other charters which assume the air of dispositive docu- ments 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^' 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*.' Often it is clear

1 Brunner, op. cit., 149-209.

2 Pollock, Land Laws, 3rd ed., p. 199. This, or something equiyalent, may well have been done in other oases where it is not mentioned.

' For one instance see Bound, Ancient Charters, p.'6 ; but there are many examples among the earliest charters in the Monastioon.

• Oartulaire de I'abbaye de la Sainte Trinity du Mont de Bouen (Documents in^dits), p. 455 : ' Haeo donatio facta est per unum cultellum, quem praefatus Bex ioonlariter dans Abbati quasi ejus palmae minatus infigere, Ita, inquit, terra dari debet.'

88 Ownership and Possession. [bk. ii.

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 terrain super altare per cultellmny. Charters are preserved which still have knives attached to them, and in some cases a memorandum of the gift is scratched on the haft of the knifel 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'. 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*. It is thus that a chronicler describes how a dispute between the Abbot of St Albans and the Bishop of Lincoln was compromised in the king's court : 'Then the bishop arose and resigned into the king's hand by [p.i 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'.' 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 When all this has been considered — and it is not of rareties

reqn&ed. *^^* ^^ ho-^Q 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

1 Madox, Formulare, p. x. ; Cart. Gloue. i. 164, 205 ; ii. 74, 86 ; Cart. Bams. i. 256 ; ii. 262. But examples are numerous.

2 Selby Coucher Book, ii. 325.

3 Hist. Abingd. ii. 100, 168; Winohoombe Landboo, i. 212: 'et per oultellum super altare posuerunt signum pactionis huius.'

■* This is so even in records of the king's court. Thus so late as 28 Hen. Ill, it is recorded that John de Bosell came before the barons of the Exchequer and in their presence put Eobert Gardman in full seisin of lands and houses in Lincoln ; Madox, Formulare, p. xii.

» Gesta Abbatum, i. 156. For the Imra see E. C. Clark, Enghsh Academical Costume, p. 39.

CH.

IV. § 3.] Conveyance. 89

of possession and a ceremony performed upon the land'. We have not far to seek for such a force. In bygone times Roman influence had made 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^. 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 eflScacy, 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^' — no text could be more emphatic. At the same time there is a great deal in our law, especially in the [p. 89] law relating to incorporeal things, which shows that English- men 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*-

^ In Edward I.'s day there were some jurors, ' simplioes personae, qui cum non essent cognosoentes leges et oonsuetudines Anglicanas,' supposed that a charter might suflSce without livery of seisin : Calendar. Genealog. ii. 659.

2 Bruuner, op. cit. p. 113 ff. The conveyance with reservation of a, nominal usufruct evaded the traditio as the conveyance by ' lease and release ' evaded the livery of seisin.

3 Cod. 2. 3. 20 ; Braoton, f. 38 b, 41.

* Ecclesiastical law knew the symbolic investiture. Jocelin of Brakeland (Camden See), p. 69, tells how the pope appointed judges delegate to hear the

90

Ownership and Possession. [bk. ii.

Practice in cent. xiii.

Eoyal con- veyances.

The release.

As a matter of fact, in the first half of the thirteenth cen- tury 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'. 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 de- scribed 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 pos- session".

No exception was made in the king's case. Even a royal [p-M] 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*.

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

cause of the Coventry monks. The monks were successful and 'a simple seisin' was given to them in court by means of a book, the corporal institution being delayed for a while. So, Chron. de Melsa, i. 294, in John's day judges delegate restore land per palmam viridem, and some time after corporali$ posseesio is delivered in their presence. In our own day the ceremonies observed at the induction of a parson are good illustrations of medieval law.

1 See the Brinkbum Cartulary (Surtees Soo.) passim, where many of the charters are witnessed by the sherifE of Northumberland.

2 The Winchcombe Landboc in particular is full of evidence of these accumulated ceremonies. Very often there is a transaction before the county or the hundred court of a renunciatory character. In 1182 (p. 197), on the day after the ceremony on the land involving a perambulation of boundaries with one set of witnesses, the donor attends the chapter house and executes his charter before another set of witnesses, then he goes into the church and ' renews his gift ' on the altar of St Eenelm. Note Book, pi. 375, seisin is given in the county court ; pi. 754, in the hundred court and afterwards on the land. In Abbrev. Placit. 266, there is an odd and untranslatable story; a man delivers seisin of a house per haspam, ' et reversus versus parietenf cepit mingere.' Was this a renunciatory act ?

3 Braoton, f. 56 b.

CH. IV. § 3.] Conveyance. 91

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 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'. In the thir- teenth century English law is meeting these cases by holding that A can pass his rights to Z 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, dimit- tere, quietum clamarey. Hereafter ' release ' (relasoare, relaxatio) will become the technical word, and there will be subtle learn- ing about the various kinds of releases. The curious term The quit- quietum clamare, the origin of our ' to cry quits,' is extremely [p.9i] common, especially when the right that is to be transferred is an 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'.

^ Bractou, f. 41 : ' Qaaudoque sine traditione transit dominium et sufiScit patientia ; nt si tibi vendam quod tibi accommodavi, aut apud te deposui vel ad firmam vel ad vitam, et si quod ad vitam, vendo tibi in feodo, et sic mutaverim casum [corr. cansam] possessionis, hoc fieri poterit sine mutatione possessionis.' This passage is based on Dig. 41. 1. 9, § 5, but is in harmony with English practice. See Littleton, sec. 460 : ' for it shall be in vain to make an estate by a livery of seisin to another, where he hath possession of the same land by the lease of the same man before.'

' See e.g. the releases in Madox, Formulare ; also Bracion, f. 45. Littleton, Bee. 445: 'And it is to be understood that these words remfsiss« et quietum clamasse are of the same eSect as these words relaxasse etc'

" As to the grammatical use of the term, what I quit-claim is usually my right, thus I quit-claim my right {ius meum) in Blackacre to William ; but I may also be said to quit-claim the land to William, or, but more rarely, to quit- claim William. It would seem from Ducange that the term was hardly in use out of England and Normandy, but elsewhere quietare was used in much the same sense. A solemn 'abjuration' of claims in court or in church had been common in England, as any cartulary will show; e.g. Melsa, i. 309: 'et illam postmodum

92

Ownership and Possession. [bk. ii.

The surrender.

Change of estate.

Another case in which a feoffment would have been un- necessary, 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 in- formal fashion without deed or other ceremony^ But deeds of surrender are by no means uncommon. The verbs that were commonly used for this purpose seem to have been reddere et quietwm clamare'.

For what may be called the converse case to that in which the release was used our law made no special provision. Sup- pose, 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 feoff- ments ; he must enfeoff X in order that X may re-enfeofif him. In Edward I.'s day this machinery is being frequently employed for the manufacture of family settlements'. To take one famous [p-92] example, the earl marshal surrenders office and lands to the king in fee simple, and after a. few months is re-enfeofied 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^ 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 instru- ment to transfer the fee while retaining a life estate, and to make those donationes post ohitum 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".

sicut ius proprium nostrum in pleno wapentagio de Hedona, iactis sacrosanctis evangeliis, coram omnibus penitus abiuravit. Insuper se et heredes suos carta sua obligavit etc' For the use of a stick, see Guisborough Cartulary, p. 71: 'Noveritis me...Ungno et baculo reddidisse.' But this is common enough,

^ It was so in later law ; Co. Lit. 338 a.

2 See e.g. Guisborough Cartulary, pp. 60-3-4-5, 70, 156.

' See e.g. Calendar. Genealog. ii. 650, 702. The feoffee does not make the refeoffment until he has had a 'full and peaceful seisin.'

* Foedera, i. 940-1.

' Of this more hereafter in our section on The Last Will,

CH. TV. § 3.] Conveyance. 93

Another case which requires some special treatment is that Gifts when

,.,., ^ '■ . . the donor

in wdich neither the donor nor the donee is in occupation of the is not in 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 congre- gated ; 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^ If, however, the [p. 93] tenant on the land was a freeholder whether for life or in fee, the case was 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 trans- action*— but this leaves the transaction incomplete ; the tenant who is on the land must attorn himself to the grantee ; pro- Attom- bably an oral acceptance of his new lord is enough; often a nominal payment is made'. In most cases he can be compelled to attorn himself; if he will not do it, the court will attom him* ; but, until there has been attornment, the transaction is incomplete and ineffectual. The case in which the tenant is a termor stands midway between the two that we have already mentioned. He has a possession, or even a certain sort of

1 Note Book, pi. 524.

" Among ancient documents it is difficult to distinguish those which, according to later theory, are deeds of grant from those which are charters of feoffment. All are charters of gift and commonly employ the same verbs: 'Sciatis me dedisse, et concessisse, et hac mea carta coufirmasse.'

' An oral statement was enough in later days: Littleton, sec. 551.

* See above, vol. i. p. 347.

94 Ownership and Possession. [bk. ii.

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 others However, in later days, the lord could not proceed by way of feoffment, un- less he obtained the termor's consent or waited for some moment when the termor and all his family were absent from the land''.

Feoffments When making a feoffment it was possible for the giver to

mainders. impose Conditions or to establish remainders, and all this by [p.94] 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 hLs has ever been seised. Thus if his rights are to be protected he must have special remedies.

Charters of 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 cyro- graphata.

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 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". We may describe it briefly and

1 Bracton, f. 27, 44 b, 220 b; Note Book, pi. 1290.

'■' Litt. seo. 567; Co. Lit. 48 b; Bettisworth's Case, 2 Co. Eep. 31, 32.

5 See the so-called Statute de Mode levandi Fines (Statutes of the Bealm, i. 214); the Statute de Finibus levatia, 27Edw. I. (Ibid. 126); Plaoit. Abbrev. 182j Eot. Pari. i. 67.

CH. IV. § 3. J Conveyance. 95

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.

• ' For the antiquity of fines,' says Coke, ' it is certain that ^^^^ °^ they were frequent before the Conquest\' 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 [p. 95] English fine became the commonest, some say the only^, 'mode of assurance.' The advantages 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 trans- action. 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^ ? But the courts of old times had been local courts ; the freeholders of the district had beeu 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 ^'

' Second Institute, 511. Plowden, Comment, 369. The lawyers of the Elizabethan age seem to have been imposed upon by some of the forgeries that proceeded from Croyland. See Madox, Pormulare, p. xiii ; Hunter, Fines,

i. p. 11.

^ See Heusler, Institutionen, ii. 88. ? Bracton, f. 435 b.

* It has been customary among English writers to find ' the origin of fines ' in the tramactio of the civilians and canonists. But this leaves unexplained the one thing that really requires explanation, the peculiar preclusive effect of a fine, or rather of seisin under a fine.

96 Ownership and Possession. [bk. ii.

Practice in In England after the Conquest we soon begin to see men manage, 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 Oxford- shire against the Abbot of Winchcombe. The abbot obtained a royal charter confirming this 'reasonable fine' of the suit, and [p.! 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^' Possession Evidence of a transaction is one thing ; a special protection fine. 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 ' ; thai is to say, some blows wer6 interchanged, but then the justices or the friends of the parties intervened and made peace, ' a final peace,' between them^. 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 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'. Fines in But our interest has its centre in the king's court. After

some tentative experiments* a fixed form of putting com- promises on parchment seems to have been evolved late in

1 Winchcombe Landboe, i. 186-192.

» Note Book, pi. 147, 168, 316 ('concordati fuerunt in campo'), 363, 815 ('concordati fuerunt in campo'), 851, 1035, 1619. Chron. de Melsa, ii. 99 (compromise while the battle is being fought) ; Ibid. 101 (the battle has been going on all day; our champion is getting worsted; Thurkelby J., who is a friend of ours, intervenes).

3 For example, in Camb. Univ. Lib. Ee. iii. 60, f. 206 b, a regular fine levied in the court of the Abbot of St Edmunds in the seventh year of John. Guis- borough Cartulary, ii. 333. Madox, Formulare, p. xv. Dngdale, Origines, 93. See also Note Book, pi. 992, 1223, 1616, 1619.

* See e.g. Note Book, pi. 1095 ; Dugdale, Origines, 50.

the An- gevin age.

CH. IV. § 3.] Conveyance. 9/

Henry II. 's reign, just about the same time when the first plea- roll was written. From the year 1175 onwards we begin ta 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'.' Glanvill writing a few years afterwards has already much to say of these [p. 97] final concords^. Then there is happily preserved for 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*. 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 is to be a tri- partite 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 finiwm which stretches away into modern times and afibrds the best illustrations that we have of medieval conveyancing*. Soon the fines became very numerous ;

1 See Eonnd, Feudal England, 509, and E. H. E. xii. 293. Some other early fines were mentioned in Select Pleas of the Crown, Selden Society, p. xxvii. Since then others have come before ub. The Winohcombe Landboc, i. 201- 211 has six. There are five more in a Begister of St Edmunds, Camb. Univ. Lib. Ee. iii. 60, f. 183 d, 187, 189, 205. All these fines ought to be collected in one place.

2 GlanvUl, lib. viii.

3 Feet of Fines, Hen. n. and Eich. I. (Pipe Eoll Soc.) p. 21: 'Hoc est primum cyrographum quod factum fuit in curia domini Eegis in forma trium cyrographorum secundum quod...dominum Cantuariensem et alios baroues domini Eegis ad hoc ut per illam formam possit fieri recordum. Traditur Thesaurario ad ponendum in thesauro, anno regni Eegis Eicardi vi" die dominica proxima ante festum beate Margarete coram baronibus inscriptis.' The fine itself is dated on the previous day. The Pipe Boll Society is publishing such of the fines of Eichard's reign as are not in Hunter's collection. That collection (2 vols. Eecord Commission) contains fines of Eichard's and of John's day ; it will be of great service to us.

* This suggestion as to the origin of the 'foot' is due to Horwood, T. B. 21-2 Edw. I. p. x; but, so far as we are aware, the pes was always the lowest

P. M. II. 7

98 Ownership and Possession. [bk. ii.

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' ; but the usual phrase is, not that the litigants levy a fine, but that a fine levies between them^ Procedure An action was begun between the parties by writ. Many [p.i

when Si fin p. .

is to be different forms of writ were used for this purpose, but ultimately levied. ^^g ^j ^j^g jggg cumbrous actions, the writ of covenant, or the writ of warcmtia cartae, was usually chosen'. In the earliest period the parties seem often to plead and to go so far. as the summoning of a grand assize*; 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 com- promise their supposed dispute {petunt licentiwm 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°. Having obtained the requisite permission, the litigants state to the court (four justices at least should be present) the terms of their compact".

' part ' of the indenture, and our phrase ' the foot of the page ' deserves consideration. Akeady in Henry in.'s reign we have 'quesiti. sunt pedes cyiographorum...et nuUus pes inveniri potuit': Plaeit. Ahbrev. 182.

' See above, p. 86.

' The common phrase on the rolls of Edward 1 seems to be ' et finis levavit [not levavit se] inter eos.' Coke, Second Institute, 511, remarks that ' finis se levavit ' is better than ' J. S. levavit finem.'

5 In Eiohard's and John's reigns the action is often a mort d'aneestor, often a vrait of right. Coke, Tey's Case, 5 Eep. 39, says that any writ by which land is demanded, or which in any sort concerns land, wiU do. Warantia cartae and Covenant are according to thirteenth century ideas personal actions, and the process in them is simple. There is in manuscript {e.g. Camb. Univ. Add, 3097 ad fin.) a tract on the practice of levying fines, which seems as old as the fourteenth century. It should be printed.

* Fines, ed. Hunter, i. 89, 91, 109 etc,

" The payments due to the king as ultimately fixed are described by Coke, Second Institute, 510. He gets in all a quarter of one year's value of the land.

6 Modus levandi Fines, Statutes of the Eealm, i. 214. This document was long called a statute of 18 Edw. I. In the Commissioners' edition it has been relegated to the Tempus Incertwm. Its style and the fact that we have no better warrant for it than private MSS. make its statutory origin exceedingly doubtful. It may however have been sanctioned by the judges and have been what we should call a rule of court. It is to be distinguished from the

CH. IV. § 3.] Conveyance. 99

Throughout the middle ages the justices exercise a certain Bupervision 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 [p. 99] faulty instruments^ Then the indenture is drawn up by 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^

A fine is generally a bilateral instrument: that is to say, Form of each of the parties professedly does something for the other. The one 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'; 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,

unquestionable Statute de Finibua Levatis of 27 Edw. I. In the last years of Henry III. many fines were levied before but two justices.

1 Many instances of fines rejected for irregularity can be found in the Tear Books. Some are collected in Fitz. Abr. tit. Fines. See Tey's Case, 5 Eep. 38 b ; also Barkley's Case, Plowden, 252, where great weight is given to the argument that the fine in question would never have been received by such learned judges as Brian and his fellows if it had been invalid on its face.

^ This is but a, rough statement. The somewhat complicated relationship between the 'concord,' the 'note,' and the 'foot' as described in Tey's Case would be of no interest here ; it must be enough to say that for some purposes the fine is vaUd before the chirograph has been drawn up. This was so already tinder Edward I.: Y. B. 33-5 Edw. I. p. 487.

s Fines, ed. Hunter, i. 60, 128.

7-2

100

Ownership and Possession.

[ek. ir.

Advan- tages of a fine.

Evidence secured.

Action on the fine.

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 (Z) by some service more or less onerous. Thus a way is opened for family settlements, for we can sometimes see that Z 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 be- tween the various classes of fines^.

Of the advantages that could be obtained by the use of a [p.ioo] fine a little can now be said.

(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''. In the old days, 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'. When, however, the practice of retaining pedes had been introduced, a search in the treasury would settle this question for good and all*.

(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

1 In the early fines either the demandant (D) or the tenant (T) may be the conveyor ; thus in Hunter's collection, D quit-claims to T (p. 1), grants to T (p. 6), confesses to T (p. 14), while T quit-claims to D (p. 6-7), grants to D (p. 109), confesses to D (p. 8). An early specimen of a settlement effected by fine is this from 1202 (Hunter, p. 34): — Bartholomew demandant, Maria tenant; Maria confesses the land to be the right of Bartholomew ; in return he grants half of it to Maria for life, with remainder to her son Hugh and the heiis of his body, with remainder to her son Stephen and his heirs.

s Placit. Abbrev. 182.

» Glanvill, viii. 5-8 ; Note Book, pi. 715, 1095.

« Placit. Abbrev. 182.

CH.iv. §3.] Conveyance. 101

to find security for the future : but at any rate he could be im- prisoned \ At a time when contractual actions, actions on mere covenants, were but slowly making their way to the royal court, the action Quod temat ei finem factum was already popular'.

(3) We come to the most specific quality of the fine. Like The pre- 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 halve this preclusive efifect, it is necessary that one of the parties to it be seised : a seisin acquired by. wrong will be good enough, but a seisin [p. 101] there must be. It is not to be suffered that a man who is in peaceful seisin of land in Yorkshire, and who may be the true owner, should be done out of his rights by a collusive cere- mony 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 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^ 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''. Seisin under the order of the king's court ; seisin under the king's ban, — it is this rather

1 GlanTill, viii. 5 ; Note Book, pi. 454, 496. ' Note Book, vol. i. p. 186.

3 Stat, de Finlbns Levatis, 27 Edw. I. See Coke's commentary in Second Institute, 321 ; also Bracton, f . 436 b.

* See Coke, 1 Eep. 96 b, 97 a, and the books there cited.

102

Ownership and Possession.

[bk. II.

The year and day.

Value of the bar.

The

married woman's fine.

than the mere compromise of an action that, if we look far enough back, seems the cause of preclusion '.

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^. A little later we find that year and day are allowed', and as this was the period allowed from of old in Germany*, we may perhaps infer that the judges of Bracton's day had been attempting to abbreviate an ancient term". In order to prevent his right being barred, a man must either bring an action or else enter his claim upon the pes of the fine. On ancient pedes it is [p. 102] common to see a claim entered, or even two or three claims; this seems to show that what went on at Westminster was soon noised abroad °.

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.

(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'.

1 And therefore it is that we find it doubtful whether judgment in a writ of right in favour of the tenant can have a preclusive effect; Y. B. 7 Edw. m. f. 37 (Trin. pi. 41). 2 Bracton, f. 436.

3 Pleta, p. 443 ; Modus levaudi. Statutes of the Eealm, i. p. 214.

* Labaud, Die vermogensrechtlichen Klagen, 295 ; Heusler, Gewere, 237.

^ Throughout the Note Book those who plead ' non-claim ' make no mention of year and day. It seems possible that an old rule was for a while thrown into confusion by the new practice of making chirographs and retaining pedes.

" On the back of the pes we read ' A Ae B apponit clamium suum.' In later days one might assert one's right by action, by claim on the pes, or by entry. In Bracton's day entry would have been dangerous owing to the severe prohibi- tion of self-help.

' Bracton, f. 321 b. Of the married woman we speak in a later chapter.

CH. IV. § 3. J Conveycmce. 103

(5) If what was to be conveyed was a seignory or a Convey- reversion, a fine was useful^ It was possible that the tenant reversions 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 com- pelling 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 refusaP.

(6) Lastly, it might seem that family settlements could be I'amiiy set- 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 body, or the like, he may be able to effect this \S- 103] by enfeoffing X in order 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.

This leads us to speak of the relation between the law about '^^f ^e.

. . . ana seisin.

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 can not be conveyed without a traditio rei, a transfer of seisin ?

To the first of these questions we must answer. No. Seisin A jndg- is for the men of the thirteenth century a fact ; the physical give no element in it is essential. It can not 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'. And so the preclusive term, the year and

1 Britton, f. 229.

" There seem to be in Bracton's day two writs for this purpose : — Per quae senritia and Quid iuris elamat; proceedings upon them are common in the Note Book ; see vol. i. p. 184-5. There is some learning about the latter of them in Tey's Case, 5 Eep. 39 b.

* See e.g. the strong statement of Berwick, J. in T. B. 20-1 Bdw. I. p. 52 ; also T. B. 33-0 Edw. X. p. 200. Whether a judgment can confer the Gewere (seisin) has been a question much debated among the Germanists. See Hensler, Gewere, p. 186.

104 Ownership and Possession. [bk. ii.

day, does not begin to run in favour of a victorious demandant

until he has been put in seisin.

A fine gives It is SO also with the fine. It does not transfer seisin of the

no seisin, j^^^ ^^ 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 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 [p-i04]

we shall see if we turn from our first to our second question.

The fine Just because the mere fine is incapable of transferring seisin,

conre"'' ^* ^^ 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*, or goes further and

confesses (what is not true) that he, A, has given it to X by

feoffment'' ; 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'. 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

1 This is the fine sur conusance de droit tantum.

^ This is the fine sur conusance de droit come ceo que il ad de son don,

» Braoton, f. 242 b. At all events if the conusee after the conusor's death

entered and forestalled the heir, the heir would have the assize of mort d'anoestor

against him ; Bracton, f. 262.

CH. IV. § 3.] Conveyance. 105

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'. 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 firom a statute of 1299 which alters the law ; it takes away this 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 those who stand in A's shoes, [p. 105] 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 state- ment with which we started, namely, that a fine is a conveyance ^-

Thus have we once more been brought back to seisin. Our Betum to conception of the seisin of land which our law knew in the thirteenth century is being made clearer by negative proposi- tions. Seisin of land can not pass from man to man by

1 This would be a fine sur grant, don et render.

' This is the best opinion that we can offer about a difficult matter. The Statute de Finibus Levatis, 27 Edw. I., states that for some time past, during the present king's reign and that of his father, the parties to fines and their heirs have been suffered to annul them by the plea of continuous seisin. This practice, it says, was contrary to the old law. A tradition current in Edward IIL's reign ascribed the innovation to 'the maintenance of the great': CoTse improved upon this by an allusion to the Barons' War. See Y. B. 6 Edw, ni. f. 28, Pasch. pi. 75 ; Second Institute 522. But the heir's plea is sanctioned by Bracton, f. 242 b, 262, 270, and can be traced back to very near the beginning of Henry III.'s reign ; Note Book, pi. 125, 778, 853. See also T. B. 33-5 Edw. I. pp. 201, 435. The Statute speaks of the plea as having been used not merely by the heir, but even by the person who was party to the fine. This may have been a recent innovation, and one hardly to be reconciled with sound principle ; for certainly it seems strange that a man should be allowed to dispute a solemn confession that he has made in court. We seem to see here as elsewhere that the justices of the first half of the century have been insisting rigorously on a traditio rei as an essential part of every conveyance. In this in- stance they may have overshot the mark. But further investigation of this obscure tract of history is needed. In later days a large mass of intricate learning clustered round the fine. Here we have merely tried to find its original germ.

106 Ownership omd Possession. [bk. ii.

inheritance, by written instrument, by confession in court, by judgment ; it involves a de f(wto 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. Hie Term of Yea/rs.

The term 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 hands of our law^ ; 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 that the lessee's rights [p.ioe] 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 At the end of the twelfth century the law was apparently temS*a endeavouring to regard the termor as one who has no 'real' ^erTOiial 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 in- vented chiefly for the enforcement of what we should call leasesl 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'. Frequently, if not always, the termor enjoys the benefit of a warranty. If he is evicted by some third person, he can claim fi-om the lessor an equivalent for the benefit of which he

^ See above, vol. i. p. 357, vol. ii. p. 36.

2 A plea of covenant appears on the earliest plea roll : Curia Eegis Eolla (Pipe Boll Soc), p. 58. The writ occurs in very early registers : Harv. L. E. iii. 113, 169. Actions of covenant are fairly common in the Note Book ; see vol. i. p. 186.

' Note Book, pi. 1739 (a.d. 1226) : ' et ideo oonsideratum est quod convencio teneatur et quod Hugo habeat seisinam suam usque ad terminum suum decern aunoruiu.'

cii. IV. § 4.] The Term of Years. 107

has been deprived i. 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^- 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 for damages against mere trespassers who stop short of ejectment, we can not 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, [p. 107] Even if no ejector appeared from without, the termor was Insecurity not very secure in his holding. His rights had to yield to those termor. 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'. 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 'deferredV 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.

But, at all events in this last particular, the law was not Failure of expressing the common sense of mankind. About the year (loctrine. 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 praised 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

^ Note Book, pi. 106, 638. The doctrine that a demise for years implies a warranty seems to flow as a natural consequence from the original character of such a demise. The lessor gives the lessee no right in the land, but covenants that the lessee shall enjoy the land ; this covenant he must fulfil in specie, if that be possible : otherwise he must render an equivalent.

^ Hengham Parva, c. 7.

« Bracton, f. 312; Note Book, pi. 658, 767, 970; Y. B. 33-5 Edw. I. p. 267.

* Bracton, f. 30 : ' oustodia non adimit terminum sed differt.' Britton, ii. 8.

^ Bracton, f. 220 ; Maitland, History of the Eegister, Harv. L. B. iii. 173, 176; Note Book, pi. 1140.

108 Ownership and Possession. [bk. ii.

a termor is as unjustifiable as to disseise a freeholder'. How- ever, 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 his object by the mediation of a collusive purchaser, and contrives that an action on the covenant shall be of no valued The new writ in the form which it takes when it crystallizes in the register, contains [p.ios] words which strike directly at this particular case. It supposes that the defendant has purchased the land firom the lessor. In spite of what Bracton says, the golden opportunity has been missed. This action can not be used against ejectors in general ; it will only lie against one who has purchased from the lessor*. The termor For protection against ejectors who were in no way con- writ of nected with his lessor, the termor had to look to another respass. qua^tej.. 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*. 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

1 Braoton, f. 220.

* See the reasoning in the printed Eegister : Beg. Brev. Orig. 227 : ' Et quia multotiens contingit quod dimisor non habet unde conrentionem teneat, et fraus et dolus nemini debent patrooinari.' The printed book ascribes the writ to William of Merton, apparently a person compounded out of William of Ealeigh and Walter of Merton. The older MSS. speak of Ealeigh.

3 It is remarkable that while Pleta, f. 275, follows Bracton pretty closely, Britton, i. 417, apparently denies the existence of any writ that will avail the ejected termor against his lessor's feoffee. Perhaps there were some who had doubts as to the validity of the writ. In Y. B. 18 Bdw. II. p. 599 there is question as to whether the allegation of sale to the defendant is traversable or no.

* Braoton, f. 413.

CH. IV. § 4.] The Term of Years. 109

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 say in this context that the land in question was 'his' closed 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 [p. 109] chosen 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^.'

In another quarter a statute of 1278 gave the termor some Further mtich needed protection. In the old actions for land he had no of the '"" 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

1 If the lessor attempts to eject the termor, the latter may use force in the defence of his possession : Hengham Parva, u. 7. We may argue a fortiori that he may use force against the mere trespasser who endeavours to eject him; and from the concession of a right to maintain possession by force to the con- cession of an action for damages, the step seems short.

^ It seems to us that the relation between. the two writs is often misrepre- sented in modem books owing to a mistake which can be traced to Pitzherbert. He knew from the note about 'WOliam of Merton' in the Eegister that the Quare eiecit was a modern action, but seems to have supposed that De eiectione firmae was primeval. This has led Blackstone (Comment, iii. 207) to represent the Quare eiecit as a mere supplement for the De eiectione. But the writ whose invention is recorded by Bracton and Fleta is the Quare eiecit, while the growth of the action of trespass is post-Braotonian. In the MS. Eegisters the Quare eiecit appears long before the De eiectione firmae.

110 Ownership and Possession. [bk. ii.

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 protec- tion of his interest. This statute required a supplement in Henry VIII.'s reign ; but during the interval a vigilant termor who had a written lease was fairly well defended against the easiest devices of chicaned Seisin and F)*om 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^. There is the old seisin protected by the assize, there is the new possession protected [p.uo] by the writ of trespass. 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'. Explana- It is natural therefore that we should ask how it came about

termor's that in the twelfth century the courts arrived at the conclusion history. ^^^^ ^j^g 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 incli- nation. It does not require of the man to whom it attributes

1 Stat. Glouc. 0. 11 ; Stat. 21 Hen. VIII. u. 15 ; Co. Lit. 46 a.

2 In Braoton's day and much later seisin is habitually ascribed to the termor ; e.g. Note Book, pi. 1739 : ' et ideo oousideratum est quod oonvenoio teneatur et quod Hugo habeat seisinam suam usque ad terminum suum decern annorum.' See L. Q. B. i. 332. As already said, in pleadings and judgments the word possessio is rare. See above, p. 31.

* See Pollock and Wright, Possession, p. 49.

CH. IV. §4.] The Term of Years. Ill

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 this inclination is not manifested, then the operation of a Roman influence may be suspected'.

The requisite explanation we shall hardly find in the mere Early rarity of tenancies for terms of years. No doubt in the year years. 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 can not 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 in England and on the continent [p. Ill] 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 cond/uctio of land disap- peared; it was overwhelmed by the precarium which tended to become a heneficium or a lease for life". We can not say for certain that none of the locationes and commendationes terrae mentioned in Domesday Book were leases for years'; such leases begin to appear very soon after the Conquest*; 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 rent of a hundred shillings :

1 Heusler, Gewere ; Heusler, Institutionen, ii. 22 ff.

2 Brunner, D. E. G. i. 210. The precarinm (so-called) for a fixed term of years was not utterly unknown.

' v. B. i. 260 : ' ibi ij. homines reddunt iiij. solidos de locatione terrae.' * Cart. Burton, 21, 23 : temp. Hen. I., two manors are already leased for sixteen years.

112 Ownership and Possession. [bk. ii,

such at least was the story current at St Albans^. In the reign of Kufus land is being let for years to secure a debt of £20°. In the twelfth century the beneficiariease 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'. A little later the abbot obtains a lease of thirteen bovates for forty years at the cost of a heavy sum^ In 1181 a gross sum is paid down for a lease for twenty-nine years and no rent is reserved °. What is more, as we shall see [p.ii2] 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". 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'. Nor is the sub-lessee unknown, and the sub-lessee may be an abbey ^ 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', and it would certainly have been very dangerous to make a longer lease by word of mouth, for, when the witnesses to the transac- tion were dead, the termor would have been much tempted to claim the fee and drive his lessor to battle or the grand assize"".

1 Gesta Abbatum, i. 43. * Hist. Abiugd. ii. 40.

* Chron. de Melsa, i. 174-5.

' Ibid. i. 231 : ' acceptis inde multis denariis.' Oart. Bams. ii. 268 (a.i>. 1149 ) lease for seven years to the abbot ; he is to educate the lessor's sou ; in return he pays thirty marks.

* Newminster Cartulary, p. 73.

* The writ of entry ad terminum qui praeteriit is conamon on early plea rolls. See above, p. 69.

' Select Civil Pleas, pi. 177 : lease of sixty acres for seven years in con- sideration of 5 marks paid down. Note Book, pi. 106 : lease of a manor for seventeen years at a rent of £16. Ibid. 638 : lease for twenty-two years. Ibid. 970 : lease of a house for forty years. Ibid. 1140 : lease of a messuage and thirty acres for twenty years in consideration of 50 marks paid down. Madox, Formulare, No. 220 : lease for thirty years. Ibid. 122 : lease for two years ; no rent ; consideration, 20 shillings paid down. Ibid. 223 : lease for thirty-two years at a rent of a mark per year, but the whole 32 marks are paid in advance. Ibid. 228 : lease for two years in consideration of 24 shillings paid down.

' Whalley Ooucher, i. 24 (a.d. 1271) ; Chron. de Melsi, ii. 183 (a.d. 1286i).

» Mirror (Selden Soc), p. 75; Blaokstone, Comment, ii. 142, i» Braoton, f. 318 b, 319.

CH. IV. §4.] The Term of Years. 113

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^; and in 1270 such a lease was granted^ 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 can not 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 ?

Assuredly in asking this question we must not lay an Why has , accent on the word ' free.' The termor's tenement, if he can no free- be said to have one, is in no sense unfree. Abbots of West- [p.ii3] minster, Newminster, Meaux, men who have paid large sums for their leases, have not done anything 'unworthy of a free man.' Nor can we dispose of them as 'mere farmers or husbandmen... who were considered as the bailiffs or servants of the lord^' 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^ On the other hand, it seems fairly plain that the tenant for years swore fealty^.

We must further notice that the language of everyday life Arbitrary and the language of pleading refused to fit in with the only tiong_ ' theories 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

1 Bracton, f. 27; Britton, ii. 302.

" Gloucester Corporation Eecords, ed. Stevenson, p. 253.

3 Blaekstone, Comm. ii. 141.

" Bracton, f. 77 b.

- Bracton, f. 80; Co. Lit, 67 b.

P. M. II. 8

114 Ownership and Possession. [bk. ii.

boldly that he holds a tenements 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^ What is more, they have a word in common use which throws rent-paying termors into one class with rent- paying freeholders. People who pay full rents are farmers, Jirmarii. This word describes an economic fact. But many firmarii are not termors ; they are freeholders holding for life or in fee. Through this natural class of firmarii a hard [p.n4] line is drawn, an arbitrary line, for many termors hold on far easier terms than those to which the fee farmer is subjected'. As a matter of economic fact it is untrue that while the free- holder always holds nomine propria, the termor always holds nomine alieno. inflnence Lastly, the only explanation that the lawyers have to give is

theory. 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 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, directum 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*. In an evil hour the English judges,

^ It is possible to find talk of asufruot in a few very early deeds : but there it will stand for a life tenancy. Thus in Cart. Bams. i. 121 (a.d, 1088).

' Braoton, f. 27: 'si autem fiat donatio ad terminnm annorum oonoedere

ad terminum annornm.' Note Book, pi. 1140 (a.d, 1235-6) : A termor pleads-r- 'Bobertus tradidit et concessit ei,..mesuagium et fecit ei donum.. .its, quod positus fuit inde in seisinam...et fuit in seisina.' Ibid. pi. 1739 : a leaseholder recovers his seisin. On the other hand, a feoffment could be made by the word ■• demise ' ; see Second Institute, 295.

' For the fee farmer, see above, vol. i. p. 293.

* See Bruns, Becht des Besitzes, 106-8 ; Heusler, Gewere, 300. Some of the Italian jurists come very near to our English result. The vassal possesses,

OH. IV. § 4.] The Term of Years. 115

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 usufrdctuary who does not possess the land but has ' quad possession ' of a servitude. But they can not 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 can not 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*. [p. 115] Some compensation was made to the termor, and at the The term same time the gulf that divided him from the freeholder was ohatteL 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^; soon they were saying boldly that it is a chatteP. 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 ecclesi- astical courts from meddling with lay fee Qaicvmfi feodum), but the termor's interest was no ' lay fee,' and, if he bequeathed it by his will, the spiritual tribunal would not 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

at least naturaliter; the colonus does not possess, at least unless he has a long lease ; whether the usufructuary possesses or no is for them very uncertain.

^ The most instructive passage on this matter is Bracton, f. 220 b, where a Tomanizing gloss has invaded the text. See L. Q. B. i. 341. The gloss ig from Paulus, Dig. 50. 16. 25 pr. So in Bracton, f. 167 b, the termor does not possess, because he is an usufructuary. Bracton there says that the firmarius does not possess, but has immediately to qualify this by allowing possession to the fee farmer.

2 Bracton, f. 407 b.

' I. B. 33-5 Edw. I. p. 165 : ' la terme nest qe chattel.'

8—2

real.

116 Ownership and Possession. [bk. ii.

the king quasi catallum^. 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 firmay. Chattels At first sight it is strange that the termor should be able to

do what the tenant in fee can not do, namely, to give his right by testament. We can not 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'. When a wardship falls to feUB] 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*. The analogy between his right and that of the termor is very close. The purchaser of the ward- ship, though he is in occupation of the land, has no seisin of free tenement ; he can bring no assize. On the other hand, he obtains possessory protection by the writ Quare eiecit de cus- todia', 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'^. Already

> Braoton, f. 131.

2 Sonuna, p. 284; Ancienue ooutume (ed. de Gruohy), o. 114.

8 Y, B. 32-3 Edw. I. p. 245. In a writ of wardship the demand is for ' no more than a chattel. '

* Eot. Cart. Joh. p. 108.

" For an early example see Note Book, pi. 1709.

^ In the Jewish mortgage deeds the principal sum is the catallum, the interest is lucrum'i bo in Magna Carta, 1215, o. 10.

GH. IV. §5.] The Gage of Land. 117

in the year 1200 sums of money that we must call enormous were being invested in the purchase of wardships and marriages'. 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^ If this explanation be thought untrue — and perhaps it runs counter to some traditional theories — we must once more ask attention to the close similarity that there [p. 117] 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'.

§ 5. The Gage of Land.

Closely connected with the lease for years is the gage of The; land. A single root has sent out many branches which over- shadow 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

1 See above, vol. i. p. 324. ^ See above, vol. ii. pp. 111-2.

' Eot. Cart. Job. p. 108. For some long leases granted in the thirteenth century, see Gloucester Corporation Eeoords, ed. Stevenson. The doubts, expressed by some modern lawyers as to whether a term of years is a 'tenement,' imply a conception of a metaphysical 'tenement' which Bracton had not apprehended. See Challis, Eeal Property, 2nd ed. p. 65 and App. i.

118 Ownership and Possession. [bk. ii.

them. Tl.t) rijtion expressed by the word seems to be that expressed u_y 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^ Antiquity . Such transactions had long beeii known. We read of them of gages. £^ some of the Anglo-Saxon land-books, and it is highly pro- bable 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 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". Already in Domesday Book we may see land in the possession of one to whom it has been gaged*. Soon afterwards the duke of [p.ns] the Normans had gaged his duchy to the king of the English*. 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

^ The term pignus is occasionally used both of movables and immovables, e.g. by Braoton, f. 268 : and impignorare sometimes takes the place of the common invadiare, e.g. Cart. Guisborough, 144. The term hypotheca ■will hardly be found except in instruments executed in favour of foreigners; the Abbot of Winoheombe hypothecates lands and goods to the pope ; Winchcombe Landboo,. i. 25S. The chapter of York binds a manor ypotecae seu pignori to secure money lent by the succentor; Historians of Church of York, iii. 174. What is seized by the distraining landlord is more frequently a namium than a vadium, but divadiare or devadiare often describes the act of distraining, e.g. in Leg. Benrici. In Germany Pfand seems to have covered the wide field of our Kadium, and the genommenes Pfand has to be distinguished from the gesetztes Ffand : Franken, Franzosiohes Pfandreoht, 11. See also Wigmore, The Pledge Idea, Harv. L. B. vol. x. xi. , for the early history of gage and pledge in various systems of law.

2 Brunner, Zur Eechtsgesohiohte der rom. u. germ. Urkunde, 193 ; Brunner, Political Science Quarterly, xi. 541; Crawford Charters, ed. Napier and Stevenson, pp. 9, 77.

' D. B. ii. 137, 141, 217; in the last of these cases one Eadric has gaged land to the Abbot of St Benet ; in the first a woman is ready to prove by ordeal that a debt, for which land was gaged, has been paid.

^ See Freeman, William Eufus, i. 156. The chroniclers differ widely in their accounts of this transaction. According to some theie was rather a rent- less lease for three years than a gage.

CH. IV. § 5.] The Gage of Land. 119

William .Fossard had gaged his land to the Jews for some twelve hundred pounds^

The forms which these early gages took are not in all Glanviii's respects so clear as might be wished. Glanvill, who perhaps ^"d'^*^^ leaves out of sight the conditional feoflfment which required '^'^eage. no special treatment, draws several distinctions. One of these is famous : that between the mort gage and the vif gage'. 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". 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 mistakeHj was very willing to run such risk [p. 119] of sin and punishment as was involved in the covert usury of the mortgage. The plea rolls of 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 Glanviii's sense of that term*.

1 Chron. de Melsa, i. 173.

* Mortgage seems to imply vifgage, and the latter term occurs in the Norman Grand Coutumier, ed. de Gruchy, p. 274 : but we know of no direct proof that it was used in England.

' The words ' dead ' and ' living ' seem to have been applied to the gage in several difEerent senses. To Glanvill (x. 8) the deadness of the mortgage consists in the fact that the gaged thing is not by its profits reducing the debt. Beaumanoir, c. 68, § 11, agrees with this. See also Somma, pp. 54, 279. Littleton (sec. 332) has a different explanation. If the debt is not paid off, the land is dead to the debtor ; if the debt is paid off, the land is dead to the creditor. Then, by way of contrast, we find that the German Todsatzung is the gage which is gradually 'amortizing' or kiUing the debt. As to all this see Franken, Franzosisches Pfandreeht, 8, 123. Glanviii's words about the validity of the mortuum vadium are not quite plain. A bargain which provides for the reduction of the debt by the profits which the creditor receives 'iusta est et tenet.' The other sort of bargain 'inhonesta e6t...sed per curiam domini Eegia non prohibetur fieri.' Having said this, he speaks of the forfeiture of the chattels of the usurer who dies in his sin. The next following words ' cetera serventur ut prius de vadiis in rebus mobihbua consistentibus dictum est ' (in which case 'stabitur oonventioni, ' c. 6. ad fin.) appear to mean that the court •will enforce the terms of the mortuum vadium. Compare Dial, de Soao. lib. ii. e. 10 ; Somma, p. 54.

* An early instance of a Jewish gagee accounting for profits in reduction of

120 Ownership and Possession. [bk. n.

Glanvill's 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 things It will be noticed that we have here something very like those ' decrees of foreclosure' which courts of equity will make in much later days. Disappear- But of the practice described by Glanvill we know exceed- fflan^an ^^S^J little ; it is not the root of our classical law of mortgage, gage. which starts from the conditional feofifment^ 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 pos- session 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 enforced So the gagee must be put into \s-' possession. His possession is called a seisin, a seisina ut de vadio*. For all, this, however, it is unprotected. If a stranger

the debt is found on the Pipe Roll of 10 Rio. I. : see Madox, Formulare, No. 142, See also the very interesting transaction in Round, Ancient Charters, p. 93.

1 Glanvill, x. 8 : compare Auoienne coutume, o. Ill (ed. de Gruohy, p. 269); Somma, p. 277.

^ Glanvill, it will be seen, gives the creditor something that is not very unlike an ' equity of redemption ' : that is to say, there are forms of gage which compel the creditor to go to court before he can become owner of the gaged thing, and the court will give the debtor a day for payment. For this purpose the gagee has a writ calling upon the debtor to 'acquit' the gage (Glanvill, x. 7). We can not find this writ even in the earliest Registers.

» Glanvill, x. 8. * Glanvill, xiii. 28.

CH. IV. § 5.] The Gage of Land. 121

casts the gagee out, it is the gagor whd has the assize. But more; if the gagor casts the gagee out, the gagee can not 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 rights

Now, if a court of law could always compel a debtor to pay Position his debt, there would be sound sense in this argument. Why GianTillian should the court give a man a security for money when it can ^*^®®' give him the money ? But a court can not 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 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^.

Soon after this English law seems to abandon the attempt Later law. 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. To 1211 Now in our records it is not always easy to mark off the The gage

r. ■ 1 \ c ^ ■ ^ *or years

gage for years from those beneficial leases ot which we have and the

beneficial lease.

1 Glanvill, x. 11.

2 If it be urged that Boman law would have taught them that the creditor with a pignus has possession, the reply is that the Eoman law of the Italian glossators would have taught them the reverse. At all events Plaoentinus denied the creditor possession: Savigny, Besitz, § 24; Bruns, Eeoht dea Besitzes, p. 106. Bracton, f. 268, follows this lead ; the usufructuary (termor^ and the creditor do not possess.

122 Ownership and Possession. [bk. ii.

spoken above'. Both of them will serve much the same pur- pose, 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". It was particu- larly 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 But the true gage for years is a different thing : — In con-

gage for sideration of money lent, A demises land to X for a term of y^*™- 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 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'. 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^ The At a later time straiter notions prevail. In substance the

mortgage 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 gulf which lies between the 'mere [p.:

1 See, e.g. Note Book, pi. 50, 370, 1140, 1770. The transaction that is called an invadiatio seems in some cases to be a beneficial lease. See Eemble, Cod. Dip. 924 (iv. 263) for an early instance of this kind.

^ See above, vol. ii. p. Ill,

s Braoton, f. 20, 268-9; Britton, ii. 125-9; Madox, Formulare, No. 509; Cart. Guisborough, p. 144 ; Note Book, pi. 889. Variants on this form may be found in Madox, I'ormulare, No. 230 ; Chron. de Melsa, i. 303 ; Bound, Ancient Charters, No. 56. It appears in Y, B. 21-2 Edw. I. p. 125.

< Bracton, f. 268 b.

CH. IV. § 5.1 The Gage of Land. 123

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'. 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".

The gage, whatever form it took, could be effected without ^^^f J J T I. -L- 1 • • mortgagee

deed. In the thirteenth century it is not uncommon to find a in posses- dispute as to whether or no there has been a gage, and yet neither disputant produces a charter*. We believe that as a general rule the gagee, 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^ 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 fi-om her husband". But the Jew in these matters was a highly privileged person, privileged because what beloiiged 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

■1 See the long discussion in Co. Lit. 216-8. The thirteenth century lawyers have hardly come in sight of the difficulty. See Fitz. Abr. Feffements, pi. 119.

2 It is very possible that this form of gage, the conditional feoffment, had been in use from an early time, but that the text-writers found little to say of it, because it fell under the general doctrine of conditional gifts.

' See e.g. T. B. 30-1 Edw. I. p. 210, where the gagee has a charter testifying an absolute feoSment, but the gagor establishes a condition by the country,

* Chron. de Melsa, ii. 183 (a.d. 1286).

' Madox, Formulare, p. xxii., from a chirograph of , 1207 or thereabouts. Madox mentions this among demises ' which appear pretty singular.' See alsQ Bound, Ancient Charters, No. 66.

124 Ownership and Possession. [bk. ii.

the gagor never went out of possession for a moment. Very early in the thirteenth century we may see an abbot searching [p.] the register, or rather the chest, of Jewish mortgages at York in quite modem fashion^ A little later an abbot of the same house, when buying land, has to buy ujj many incumbrances that have been given to Jews, but has difficulty in doing so because some of them have been transferred^ The debts due to Israel- ites were by the king's licence freely bought and sold when as yet there was no other traffic in obligations'. 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.

§ 6. Incorporeal Things.

Incorpo- The realm of medieval law is rich with incorporeal things.

real things. ^^ 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*.

Their A complete list of incorporeal things would be long and

thinglike- . ,, -r>, i ^ , t ^ ■

ness. miscellaneous. Jtslackstones list may serve us as a startmg

point. ' Incorporeal hereditaments are principally of ten sorts ; ' advowsons, tithes, commons, ways, offices, dignities, franchises, » corodies or pensions, annuities and rents'.' Now with such a

1 Chron. de Melsa, i. 377. » Ibid. ii. 115.

8 Cuiia Regis EoUs (Eeo. Office), No. 115, m. 10 (18-9 Hen. III.). Com- plaints are made against Bobert Passelew, justice of the Jews. The ' ark ' has been tampered with; 'pedes quorundam cyrographorum exposita fuerunt venalia apud Weschep per garoiones ipsius Eoberti.'

* Bracton, f. 53 ; f. 10 b. ■> Comment, ii. 21.

CH. IV. § 6.] Incorporeal Things. 125

catalogue before us, one which puts the ' way ' next to the [p. 124] 'ofiBce/ 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 origiu 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 ' thinglike- ness.' They are thinglike rights and their thinglikeness is of their very essence'.

We may begin by observing that the line between the The corporeal and the incorporeal thing is by no means so clear in a thing. medieval law as we might have expected it to be, could we not remember that even our modern institutional writers have shown some uncertainty as to its whereabouts". 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'. 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 under- stand 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.

(1) The tenant will not perform his services ; they are in Eights arrear. The lord can distrain him ; but distress is not always a against safe or easy remedy, more especially if there is reason to fear '™a"*- that the tenant will deny his liability. The lord must have an action. He has an action : thei writ of customs and services

> See Heusler's treatment of the incorporeal things of German law (Inatitutionen, i. 329). Almost every item in our English list has its parallel in Germany. We have to envy our neighbours such a word as Dinglichkeit.

2 Joshua Williams, for example, treated 'reversions and remainders' in land as incorporeal things; and this treatment is inevitable if we say that whatever 'lay in grant' was an incorporeal thing.

* See above, vol. i. p. 233 ; vol. ii. p. 38.

126 Ownership and Possession. [bk. ii.

(de consuetudinibus et servitiisy. It is an action of the ' realest ' [pi25] kind, closely similar to the proprietary action for land that is begun by the writ of right. The lord — we will suppose thalt he can not 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". 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'. In the thirteenth century the lord has often to use this cumbrous and dilatory, because proprietary, action. But he enjoys pos- sessory 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 ad- verse claimant*. Whether in the latter case he will not also be forfeiting his tenancy, that is another question which he should seriously consider^ ; in the past he would have left himself open to a charge of ' felony V 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 We have here no enforcement of an obligation ; we have the

lord'ana recovery of a thing. Of course between lord and tenant there

tenant.

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. Never- theless, the idea of a personal obligation or contract plays but

1 Glanvill, ix. 9 ; Braoton, f. 329 j for numerous instances see Note Book, vol. i. p. 177.

2 See e.g. Note Book, pi. 895, 1738. " Note Book, pi. 960. * Bracton, f. 169, 203 ; Note Book, pi. 1239 ; Britton, i. 281, 290. » Bracton, f. 203 b ; Note Book, pi. 109.

» Note Book, pi. 1687,

CH. IV. § 6.] Incorporeal Things. 1 27

[p. 126] a subordinate part in the 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'.

(2) After all that has been said, it will be needless to Eights repeat that the lord has rights which are good against thcagatost 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 pro- prietary 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 demand- ing from X a manor, just as though it were a physical object Uke 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^ 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

^ Very grudgingly onr law in later days allowed an action of debt for rent due from a freeholder in some cases in which there was no other remedy ; see OgneVs Case, 4 Coke's Eeports, 48 b; Co. Lit. 47 a; Blaokstone, Comment, iii. 231, and (for the doctrine has been important even in recent years) Thomas v. Sylvester, L. E. 8 Q. B. 368 ; In re Blackburn etc. Society, 42 Ch. Div. 343. See also Cyprian WiUiams, Incidence of Bent, Harv. L. E. xi. 1. and L. Q. E. xiii. 288. Even the action of debt against the termor, which became common, seems rare in Bracton's day. As early as 1225, Note Book, pi. 946, it is brought after the term has expired.

= When a writ of right for land is brought against X and he wishes to plead non-tenure, i.e. to escape from the action by alleging that he does not hold the land, he has to say that he holds it neither in demesne nor in service. Bracton, f. 438; Note Book, pi. 102, 1067, 1164.

128 Ownership and Possession. [bk. ii.

speaks there were no freeholders, and that his ancestor held every parcel of the land in demesne ; he will mean that of this [p.i27] composite thing, the 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 pre- cincts of the manor he was seised in service^. The county palatine of Chester^, nay, for the matter of that, the kingdom of Scotland, can be demanded in a proprietary action, just as Blackacre can be demanded. Seisin of Very often, however, there is no need for a proprietary

services. j^^^Jqjj^ 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 ^ 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*. The wrong complained of is not in our modern phrase ' a malicious inter- ference 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 natu- rally 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°. 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. OonTey- (3) Then as to the conveyance of the lord's rights, we

seignory. have but to repeat once more° 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

^ See Littleton, sec. S87-9, which are full of instruction as to the sort of seisin and disseisin that there can be of that composite entity a ' manor.'

2 Note Book, pi. 1227, 1273.

3 Bracton, f. 203 b ; Co. Lit. 323 b, * Note Book, pi. 1239.

' Littleton, sec. 589. ° See above, vol. ii. p. 93.

CH. IV. § 6.] Incorporeal Things. 129"

its accompanying right to services, we can naturally say that' [p. 128] there has been such a transfer when the occupier of the landl has confessed that, instead of holding it under the grantor, he now holds it under the grantee^

In the case that we have been discussing we see an incor- ^^nts aa poreal 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 de- scribe 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 J.^'™"^ to cover several things which were of different kinds. In other rents, 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 seek, redditus siccus, a dry rent. Bracton knew these distinctions, though he had not the names that mark them in after ages^

1 The word feoffment is sometimes applied to such a transaction even in formal pleadings. Northumberland Assize Bolls, p. 271: 'ipse feoftavit praedictmn Johannem de servitio praediotorum tenementorum reoipiendo per manus ipsius Angnetis.'

2 Bracton, f. 203 b, after dealing with rent due from tenant to lord (rent eervice) says : ' Si autem sit redditus qui detur alicui ex tenemento...aut datur cum districtione (rent charge) vel sine (rent seek)... Si autem redditus sit

proveniens ex camera (personal annuity)' The terms rent service and rent

charge were already current in Edward I.'s day : T. B. 33-5 Bdw. I. p. 211, 352.

P. M. 11. ^

130 Ownership cmd Possession. [bk. ii.

Non-tenu- A non-tenurial rent often comes into being by virtue of a [p. 1291 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 charge ; otherwise there is a rent seek. The creation of a rent charge was by no means uncommon. The purchase of a rent was a favourite 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 con- stituted 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 seek. Thus A, who has a rent-paying tenant M, may grant the rent to X, but continue to be If' 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^ Bents Now these non-tenurial rents, whether they be rents charge

things. or rents seek, 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 seek 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 seek is very truly a thing.

1 Littleton, sec. 225.

CH. IV. § 6.] Incorporeal Things. 131

(1 ) In the first place the governing idea is that the land is Eents bound to pay the rent, and it is by no means necessary to the the^and.

[p. 130] existence of the rent that any person should be bound to pay it. Jn later days the creator of a rent seek 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^- 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^. 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 terra 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 con- tractual 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'.

(2) The assize of novel disseisin enables the rent-owner to The rent- coerce the tenant of the land into paying the rent as it becomes rights due. It also protects him as against the world at large in the ^^rldf ^^^ 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

1 Littleton, sec. 220-1. See Cyprian Williams, The Incidence of Eeut, Harv. L. E. xi. 1, and L. Q. B. iii. 288.

^ The breve de annuo redditu is mentioned in Bracton, f. 203 b. We do not think that the Note Book supplies a single instance of it, unless pi. 52, which hovers between 'debt' and 'annuity,' be one. It seems to get into the Eegister late in Henry ni.'s reign. Harv. L. E. iii. 173.

' Littleton, sec. 233 and Coke's comment. Heusler, Institutionen, i. 347, asserts the same principle for Germany. The rent-owner's action against the terre tenant is a real, not a contractual action. Its foundation is not ■ dare miVii debes,' but 'malo ordine retines.'

9—2

132 Ownership and Possession. [bk. ii.

perhaps alleges that he has been unlawfully disseised. Every sort of action that can be brought for the recovery of land can be brought for the recovery of rent ; one has but to put in the writ ten shillingsworth of annual rent instead of ten acres of [p.isi] land\ Even a writ of entry can be used ; there is not the least impropriety in saying that a man entered into a rent charge', or was ejected from it^ Creation (3) Next we see that in order to create one of these

transfer of non-tenurial rents a transaction that is closely akin to a livery rents. ^j 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 feofiinent ; 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 feoffments 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 seek, 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^ 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 F. 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 or any means whatever of exacting a rent seek. The

^ Littleton, sec. 236 and Coke's comment. 2 See e.g. T. B. 18 Edw. II. p. 588.

* Northumberland Assize Rolls, p. 151.

* See the model charter in Britton, i. 270. Ab to the use of the word feoffment see Pike, L. Q. R. v. 29-32.

'■ Littleton, sec. 235, 565.

CH. IV. § e.] Incorporeal Things. 133

terre tenant A must pay something to Y in name of seisin of the rent. The right is not completely transferred until there [p. 132] has been some act that can be regarded as a manual transfer of the things

We have been gradually leaving the land behind us. The Annnitiea

. ° as things.

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 seek 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^. 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 incon- ceivable. 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^ 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.

Our materials give us but little information as to the Annnities treatment of these personal annuities by the law of Bracton's tWngUke- 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 to serve for the recovery of these ' chamber rents.' The writ of novel disseisin was inapplicable,

1 The great repertory of learning about the seisin of rents Is Bevill's Case, 4 Coke's Eeports, 8. The general rule is, 'As to an avowry [i.e. right to distrain], seisin in law is sufficient ; but as to have an assize, actual seisin is requisite.'

2 Eeg. Brev. Orig. f. 158 b.

» Braoton, f. 180, 203 b ; Note Book, pi. 52, 439. We find the writ of annuity called Bref de rente de chambre : Camb. Univ. MS. Ee. i. 1. f. 247 b. See also Brevia Plaoitata, ed. Turner, 31.

134 Ownership and Possession. [bk. n.

because there was no land of which a view could be given to the jurors. The grantor's chamber was no fixed place'- There- fore the person who is deforced of such a rent has not been disseised of his free tenement; therefore such a rent is not a [p. 133] tenement". 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 ia 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 ^ Corodies Qne class of annuities has an instructive history of its own.

as things. . " .

It consists of the corodies {conrema) 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 wood- ward, 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*. Treatment In Bracton's day the temporal courts were leaving the o coro es. ^q^q^j alone. It was very like a rent seek. 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

' Eot. Cart. p. 14: King John grants an annuity of forty marks 'to be received from our chamber until we assign them in some certain and competent place.'

2 Braoton, f. 180, 203 b. Cf . Heusler, Institutionen, i. 343, as to the ' chamber rent ' in Germany.

3 See e.g. Y. B. 21-2 Edw. I. pp. 129, 541.

* The Winchoombe Landboc has many good specimens of corody deeds.

CH. IV. § 6.] Incorporeal Things. 135

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'.

[p. 134] A new rule was introduced by statute in 12851 A tern- Disseisin of , , . . « , 1 11- ■ corodies.

poral action was given tor 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.

If rights that appear to us to be merely contractual are thus Offices as dealt with, we shall not be surprised to find that where the contractual element is wanting, incorporeal things are very easily created. If ' oflSces ' are to fall within the pale of private law at all, if they are to be heritable and vendible, perhaps we can not 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". Be that as it may, at the end of the century the assize which protects the possessor of land seems the natural 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 pos- session of rights ' into almost every province of jurisprudence.

^ Braoton, f. 180. * Stat. West. II. e. 25.

8 Coke, Second Institute, 412 ; Coke, 8 Beports, 47. We have not found an assize for an office before the statute ; but in 47 Hen. III. a Praecipe quod reddat was brought for the stewardship of a manor: Placit. Abbrev. 154.

136

Ownership and Possession.

[bk. II.

The ad- vowson as a thing.

Where is the ad- vowson ?

By a famous decretal the Archbishop of York gained a pos- sessory and provisional protection for the right, if right it were, of carrying his cross erect in the province of Canterbury ; and in days when the two primates were hardly to be kept from [p. 135] fisticuffs, this iuris quasi possessio made for decency^

But we shall learn most about the thinglikeness of our incorporeal things if we turn to the advbwson. The advowson is a thing of great value and importance, the subject-matter of frequent litigation and copious law. Generally'' 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'. The law of the thirteenth century regards the advowson as being normally an appurte- nance 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 ad- vowsons 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 in- dependent existence*.

We may see Bracton struggling with the notion that such a right can not 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

1 0. 1. X. 2. 16 ; Bruns, Eeoht des Besitzes, 208 ; Historians of the Church of York, iii. 73. The Abp. of York asserted that he had been despoiled < de possessione huius rei.'

" Of coUatives and donatives we need not here speak.

' See above our section on Corporations aud Churches.

* The phrase ' this advowson is a gross ' seems older than the to us more familiar 'it is in gross.' See e.g. Y. B. 21-2 Edw. I. p. 609. So too it was but slowly settled that an advowson is appendant rather than appurtenant to a manor. See Co. Lit. 121 b.

CH. IV. § 6.] Incorporeal Things. 137

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' ? 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^, [p. 136] If, however, the advowson is incorporeal it is none the less Actions for 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'. In the second place, there is definite possessory protection for the possessor of the advowson. This takes the form of an assize of darrein present- ment (de ultima presentatimie) which is almost, if not quite, as old as the analogous novel disseisin^. 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 success- ful 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 can not 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 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

1 Braoton, f. 378 b.

2 Braoton, f. 53 ; Note Book, pi. 1418. See c. 7. X. 3. 24 (Innocent HI. to the Bp. of Ely).

s GlanviU, ii. 18; iv. 2; Note Book, vol. i. p. 178; Eeg. Brev. Orig. f. 29 b. The classical writ of right of advowson is a Praecipe quod reddat, which at once brings the case before the king's court ; but in an early Begistrum a breve de recto tenendo addressed to the feudal lord may be found, though it is there eaUed a rare writ. See Harv. L. B. iii. 170.

'' Glanvill, xiii. 18; Bracton, f. 287 b; Summa, p. 265; see above, vol. i. p. 148.

138 Ownership and Possession. [bk. ii.

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 already in Glanvill's day such a grant will entitle the grantee to the next presenta- [p. 137] tion^ 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". Probably it was for this reason that, while the novel disseisins and mort d'an- cestors 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'. For all this, however, the action was a purely possessory action. The de- fendant 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.

Convey- An advowson can be conveyed by one person to another.

advowsons. 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 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^' However, the common practice certainly was that a deed should be executed. But the

1 Glanvill, xiii. 20. " Note Book, vol. i. p. 184.

' Charter of 1217, o. 16, amending Charter of 1215, o. 18. « T. B. 43 Edw. III. f. 1. (Hil. pi. 4) ; Pike, Livery of Incorporeal Things, Ii. Q. E. V. 35 ; Pollock and Wright, Possession, p. 54.

CH. IV. § 6.] Incorporeal Things. 139

mere delivery of the deed can not be for all purposes a sufficient conveyance. In Bracton's eyes such a deed transfers a 'ficti- tious' or 'imaginary' seisin*. 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 ft). 138] darrein presentment brought by Alan he can protect himself by 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 ivipedit, a possessory action invented for the sake of those who can not (and William can not) use the assize °. But we will suppose that, before the church falls vacant, William by a deed grants the advowson to Koger. 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^ Alan is entitled to present. The ' quasi-possession,' the imagi- nary or fictitious seisin, that his deed gave to William was not transferable, and therefore Roger has got nothing. On the other 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.

But further, the grantee until he has successfully presented Seisin of ' 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 can not allege — and this in a writ of right he would have to do — that either he or some ancestor of

1 Bracton, f. 54, 55, 242-3, 246.

" Coke, Second Institute, 356, finds the Quare impedit in Glanvill ; we can not see it there; but it appears very early in the thirteenth century and is eommou in, the Note Book. See Bracton, f. 245.

' Bracton, f. 54, 54 b, 242 b, 243. Most of his cases are in the Note Book. The law is the same if the advowson has been given aa appendant to a manor.

140 Ownership and Possession. [bk. n.

his has heen 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'. Eights of The same ideas are applied to other incorporeal things, more

common as . ■ i i-

things. 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 [p. 139] 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^ It may be that he has at the moment no beasts to turn out ; it may be that the season of the year duriag 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^ To this we must add that, so long as his seisin is fictitious, he has nothing that he can convey to another. Such at all events is the case if the right of pasturage was granted to him 'as a gross^'

Possessory Then again, there is a possessory protection for these ia-

protection , , . mi i t • ■ p o ,

of rights of corporeal thmgs. ihe novel disseism tor common oi pasture

comm n. j^ coeval with the novel disseisin for land^ The practice of Bracton's day was extending the same remedy to rights of turbary and fishery ^ 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 enforciag these rights is to protect those who are seised of them'.

Law of Seisin itself is protected, seisin of the incorporeal thing.

tion. " 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,

^ Braoton, I.e. ; Stat. West. II. o. 5 ; 7 Anne, o. 18 ; Blaokstone, Comment, iii. 243-4.

2 Braoton, f. 225. s Bracton, f. 223 b. " Braoton, f. 225.

' Glanvill, xiii. 37 ; Harv. L. E. iii. p. 114. There are good illustrations in Mr Chadwyok-Healey's Somersetshire Pleas.

« Braoton, f. 231 ; Note Book, pi. 1194, 1915.

' Stat. West. n. 0. 25 ; Second Institute, 411.

CH. IV. § 6.] Incorporeal Things. 141

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 eifects of long-continued user Bracton speaks somewhat obscurely ; his romanesque terms, usucapio and the like, perplex his doctrine\ We must, however, draw a marked line between [p. 140] land and incorporeal things. Our medieval law knows no acquisitive 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 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^ Thus a limit is set to the action. Mere lapse of time may serve as a shield for the tenant, but it can not serve as a sword for the demandant. He can not 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 can not 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 can not say with certainty that this was so in Bracton's day; but at a later time 'it is commonly said that a right can not die'' and this we may well believe to be an old, as well as a common, saying.

By way of contrast we may see that many incorporeal things Incor- can be acquired by prescription, by long-continued user*. In aoquiredby

presorip- 1 Bracton, f. 51 b, 52. When Braoton is speaking of this matter, it is not tion. always easy to say whether he is dealing with the acquisition of good right or with the acquisition of protected seisin. He has a, to us misleading, habit of calling the short period which protects the disseisor against the self-help of the disseisee (it may be but four days) ' longum tempus,' ' longum intervallum,' etc. « Bracton, f. 373 ; Note Book, pi. 1217. * Littleton, sec. 478.

* See Salmond, Essays in Jurisprudence, p. 99.

142 Oionership and Possession. [bk. ix.

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^. 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 ahd 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 the great resettlement of the land one must not go; on the [p.iii] other hand one can, to all seeming, be required to allege a continuous seisin ever since that remote event".

This is a proprietary action; but it is fairly evident that

protection . in ^ j^ ^ ■ p ■

of an a man can acquire a legally protected possession oi an m- right,"^'^* corporeal 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 can not 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'. This idea of a purely possessory protection for those who are enjoying 'incorporeal things,' but who can not yet

1 Bracton, i. 229 b ; Note Book, i. 185.

a Note Book, pi. 223, 274, 392, 628, 971, 1624. In pi. 818 (a.d. 1293) the assertion ' Seised since the Conquest' is met by 'No, seised only since the war of 1216.' In pi. 135 the defendant only goes back to Henry II. 's day. In pi. 848 a way is claimed by user since the Conquest.

3 Bracton, f. 230: 'Cum igitur quis per indicium seisinam suam Tecupera- yerit per assisam propter usum, amittere debet illam, nisi doceat quo iure illam exigat.' So on f. 52 b, a man by continuous user obtains possession of a servitude 'ita quod taliter utens sine brevi et iudicio eici non debet.'

CH. IV. § 6.] Incorporeal Things. 143

say that those things are their own, is one that can not 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 exists But the lawyers of the thirteenth century made a strenuous endeavour to pursue this idea through all speculative difficulties". [p.i42] It is by no means certain that both prescription and the Can possessory protection of inchoate ' things ' were not extended be pre- to ' things ' which in our eyes consist wholly or in part of the 1^ j ^ 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'. 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 pro- tection of inchoate things*; and English law would take little account of the canonist's requii'ement of hona 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.

1 See Pollock, First Book of Jurisprudence, 184.

^ We have been dealing with a case which in Holmes, Common Law, 241, 384, is rightly treated as a good test of the so-called ' possession of rights,' and we believe that, if this test is applied to the law of Braoton's age, the result is that an user which falls far short of establishing an indefeasible right obtains a possessory protection.

3 Y. B. 49 Edw. III. f. 5 (Hil. pi. 9).

* Bruns, Becht des Besitzes, p. 123 : Azo, as advocate in a cause, argued that there could be no possession of a rent until that rent (which had not been created in any other way) had been created by prescription; but the great canonist Huguocio, who was acting as judge, overruled this argument.

144 Ownership and Possession. [bk. ii.

Even when seisin does not beget a right, it will often be good evidence that the right exists. Presorip- How far prescription can be carried in another direction,

franchises, 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^. As regards these, Nullum tempus occurrit Regi. They can only be ac- quired by express grant ; a grant will be construied in a manner favourable to the king; if once acquired they are inalienable*; they are very easily lost. The man who has the franchise of [p. 143] utfangthief, for example, must be vigilant in acquiring and retaining a seisin thereof; 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*; many of the franchises, even many of the jus- ticiary franchises, became prescriptible ; but so long as they were of any real importance there were frequent debates about this matter. Appurte- 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 difiSculties to encounter. Where can the advowson be, if it is not inherent in a manor"? 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 cwm 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. 13s. 4d (this instance of a great sale for ready money

' Braoton, f. 56 ; Select Pleas in Manorial Courts (Selden Soc. ), p. xxiv.

2 Note Book, pi. 1271-2.

5 Ann. Tewkesbur. p. 511 : An amusing and spirited story tells of the difficulties that the abbot had to meet before he could hang John Milksop, ii being doubtful whether the right had not been lost by non-user.

* Select Pleas in Manorial Courts, p. Ixxvii.

■> See above, vol. ii, p. 130.

nances.

CH. IV. § 6.] Incorporeal Things. 145

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, vine- yards, 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 ease- ments and commodities within the vill and without'.' A manor is a highly complex and organized aggregate of cor- poreal and incorporeal things. This aggregate may be broken up, but, while it remains intact, the thought that it is a single [p. 144] 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^.

One large class of incorporeal things consists of rights to be Easements exercised in alieno solo. Normally these inhere in a dominant *" ^™ tenement ; but our law does not deny the possibility of their existing as 'grossest' 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 stand-point 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*.' A distinction is being established between the ' easement ' which does not authorize one to take anything, and the ' profit ' that

1 Cart. Bams. ii. 339.

2 Braoton, f. 243 b ; Note Book, pi. 49 ; Holmes, Common Law, pp. 382-6.

2 In Bracton's exposition the rights in gross fall into the background, though they are visible. He likes to speak of ' servitudes,' ' dominant and servient tenements,' and so forth. The common in gross he will hardly call common, it is rather a right of 'herbage.'

< Note Book, pi. 720 (a.d. 1225) : ' asiamentum de aqua de Pittes.'

P. M. II. 10

146 Ownership and Possession. [bk. ii.

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 {communJoL) 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 that might be turned out and the other terms of the bargain'. Nor is it very rare to find the grant of a right to take wood ; this is often limited to such wood [p.U5] 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^. 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'/ The main needs of the agri- cultural economy of the age can be met in this manner without the creation of any personal obligations. Liberty ' Liberty,' again, and ' serfship ' can be treated as things of

as thtagaf* which there is possession or seising The lord of a villein owns a corporeal thing and ought to be seised of it, and in the thir- teenth century, though a feoflfment 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

1 The Meaux chronicle (Chron. de Melsa) has much about rights of way and of pasture,

' Winohcombe Laudboo, p. 81 : 'hnsbote et heibote et huswerminge.'

' Sometimes the language of the charter is curiously materialistic; e.g. Winchcombe Landboo, p. 205 : 'I have granted you twelve beasts in my pasture ' ; this means— 'I have granted you a right to turn out twelve beasts in my pasture.'

* See above, vol. i. p. 417.

CH. IV. § 6.J Incorporeal Tilings. 147

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 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, he can, it would £p.U6] seem, be lawfully treated as a villein, be tallaged, for example, or set in the stocks'.

But even to the conjugal relationship the idea of seisin is The extended. Possibly we might expect that a husband would be reSJion- seised of his wife ; but, as a matter of fact, we more commonly p^s^g^™ read in our English records of a wife being seised of her protection, 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^. 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 pro- prietary rights'.' The position of defendant is coveted and medieval judges will not decide a question of best right if they can help it.

1 The attempt , to treat the villein himself as an 'incorporeal hereditament' belongs to a later age.

2 Brans, Eeoht des Besitzes, 191.

' Note Book, pi. 642, 1142 ('seisinam habuit de oorpore ipsius Thoraldi ante^uam traditum esset sepulturae'), 1564, 1597, 1703 ; Bracton, f. 306.

10—2

148 Ownership and Possession. [bk. ii.

■Wardships 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 posses- sion of this custodia, but this will not give one a seisin of the land. For testamentary purposes the custodia is an incorporeal chattel. Landlike- For the more part, however, our incorporeal things are

Sfcor° ^ conceived as being very like pieces of land. Gradually a word poreais. jg being told off 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 time the word terra will [p.i47] hardly cover more than the arable land^ But tenementum will also comprise any incorporeal thing which can be holden by one man of another. Thus in particular it will comprise an advow- son, 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". 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 seek, rights of common, become tenements. Statutes of Edward I.'s day gave the word a sharper edge^ On the whole the analogy is persistently pursued; the incorporeal thing as regards proprietary and

' In writs and other legal documents of the thirteenth century terra is constantly used in the narrow sense; e.g. a demandant claims 'xx. acras terrae et V. aoras prati. ' Y. B. 33-5 Edw. I. p. 149 : meadow can not be demanded as 'land.'

2 See Co. Lit. 85 a.

" In particular Sttit. Westm. II. o. 1 de donis conditionalibus, and c. 24 extending the scope of the novel disseisin. Under the influence of the first of these chapters the word 'tenement' becomes more metaphysical. It becomes possible to say that a termor has no tenement because he has nothing that he can entail. See above p. 117, note 3. This is a spiritualizing doctrine; the first tenement was of the earth earthy.

CH. IV. § 7.] Movable Goods. 149

possessory remedies, as regards conveyance, as regards succes- sion, 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 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 ' heredi- tament ' 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 movable goods ; but we [p. 148] can not 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.

Of the manner in which our English law of the thirteenth Ownership century treated the ownership and the possession of movable sion of 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 land-owner 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 iills 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

150

Ownership and Possession.

[bk. II.

Obscurity of the snbject.

The

medieval

chattel.

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 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^ 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.

In part our ignorance may be explained by the fact that [p. 149] 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^. 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 investi- gator. 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 over- whelmed 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.

A few characteristics of the typical medieval chattel demand our attention. In the first place, we can speak of a typical

' The chattels of the yilleins are sometimes expressly mentioned in the charter which testifies to the feoffment of a manor; e.g. Cart. Bams. ii. 340: ' et cum villanis, oatallis, sequelis et cum consuetudinibus eorum.'

^ In Henry XL's day for forty shillings one might have bought some thirteen oxen or eighty sheep : Hall, Court Life, p. 221.

CH. IV. § 7.] Movable Goods. 151

chattel; the very word chattel tells us this. The typical chattel is a beast. 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.' Time was when oxen served as [p. 150] 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 deostrarius, 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 \ 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.

We are not arguing that the typical chattels of the middle Pecuniary ages were indistinguishable from each other, or were supposed of chattels. to be so by law.. When now-a-days we say that ' money has no ear-mark,' we are alluding to a practice which in all probability

1 As to what the law understands by a hawk, see Dialogns, ii. c. 25.

152 Ownership and Possession. [bk. ii.

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'. 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 In one other particular a chattel dififers 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 fp. 151] law can attribute 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 gi-eat 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\ 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 pheno- menon, 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 utter- most the forces of our immature jurisprudence. The ownership of a chattel may be divorced, not only from possession, 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 ? Englishmen are accustomed to hear it said that our medieval

1 SeeHomeyer.Haus-undHofmarken; Ihering, VorgescMohte, 30 ; Brunner, D. E. G., ii. 500. Modern Australia seems to have reproduced some very ancient phenomena. At all events in romances, the bush-ranger who has confined his operations to the taking of 'clear-skins' (unmarked beasts), and therefore has not been put to the risky process of 'faking a brand,' is pretty safe.

2 Note Book, i. p. 92.

CH. IV. §7.] Movable Goods. 153

law knew, and even that our modern law knows, no absolute Is there ownership of land. To many of them the statement that our ship of 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^ [p. 152] In the course of our investigation, we must distinguish English two questions, the one about a remedy, the other about a recovery

of goods.

1 As to the words owner and ownership -.—Bi Murray has kindly informed us that the earliest known example of the former oeours in 1340 : Ayenbite of Inwyt, p. 27. The verb to own, dynian, dhnian, can be traced much further back and, says Dr Murray, ' there is no etymological reason why djnere, owner, should not have been formed from it and used in Old English, but no examples appear to be known.' After 1340 it is increasingly common. ' Of ownership, wliich might, etymologicaHy, have been formed so soon as owner existed, had there been a want felt for it (since -ship has been a living movable suffix for a thousand years or more), we have no instance before 1583.' Coke therefore is making an early use of it when he says (Co. Lit. 17 b), ' Of an advowson wherein a man hath an absolute ownership and propertie as he hath in lands or rents.' So far as we are aware, the term absolute ownership was very new when Coke thus applied it to the tenant in fee of English land. In the past the place of owner and ownership seems to have been filled in common discourse by such terms and phrases as 'possessor,' 'possessioner,' 'he to whom the thing belongs or pertains,' 'he who has the thing.' In the translation of Isaiah i. 3, where the A. V. gives 'The ox knoweth his owner' one of the Wicliflte ver,sipns gave welder [wielder, governor, from A.-S. gewealdan] and the other gave lord. So these versions speak of the lord of the ox (Exod. xxi. 28), the lordis of the colt (Luke xix. 33), the lord of the ship (Acts xxvii. 11). In the A. V. neither ownership nor property appears (teste Cruden) ; on the other hand possess and its derivatives are exceedingly common. The things that a man owned were often described as his possessions. This usage of possessiones is very ancient ; witness Paulus, Dig. 50, 16, 78 ; it runs through the middle ages. The Bankruptcy Act of 1623 (21 Jae. I. c. 19) did much towards giving legal currency to the term owner by its famous 'order and disposition clause'; but it occurs in an English statute as early as 1487 (4 Hen. VII. c. 10, sec. 3) ; in 1494 a statute speaks of the owner of land (11 Hen. VII. o. 17) ; in 1580 we find owners and occupiers of ground (21 Hen. VIII. c. 11). As to property, though throughout the middle ages the French and Latin forms of this word occasionally occur, and the use of it is insured by the writ de proprietate probanda, we believe that uutU the last century it was far less frequent than would be supposed by those who have not looked for it in the statute book. Instead of property in the vaguer of the two senses which it now bears, men used possessions and estate. In a narrower sense property was used as an equivalent for best right (e.g. Co. Lit. 145 b : 'But there be two kinde of properties ; a generaU propertie, which every absolute owner hath ; and a speciall propertie '), but in the Tear Books it is by no means common. We find owner or proprietary in 1509 (1 Hen. VIII. c. 5, sec. 4).

154 Ownership and Possession. ^k. ii.

substantive right. Our common law in modern times has refused, except in rare cases, to compel the restitution of a chattels 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 judg- ment was that the plaintiff should recover from the defendant [p.i53] the chattel or a sum of money that a jury had assessed as its value. This left to the defendant the choice between deliver- ing up the thing and pajdng 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 imper- fection 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 thoughf*. It has maintained that, except in the case of a sale in market overt — an exception which was more im- portant in the later middle ages than it is in the present century — the owner can not 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 possess. The owner, A, lends, lets, deposits, pledges, his chattel, — in short he ' bails ' it — to B; ii B, in breach of the contract between him and A, sells this chattel to G, the sale, unless it took place in market overt, will not deprive A of his ownership, even though G has acted with the utmost good faith, paid a full price and made every inquiry that he could be expected to make.

' The first statutory inroad on this rule was made in 1854 by Stat. 17-8 Vic. c. 125, see. 78. In stating the rule quite accurately it would be necessary to take notice of the writ for the restitution of stolen goods ; but this writ was given by common law only where there was an appeal of larceny ; it was given in the case of an indictment by Stat. 21 Hen. VIII. u. 11. Also the Court of Chancery in exercise of its equitable jurisdiction would sometimes compel restitution of a chattel of exceptional value.

' Legislation adverse to owners and favourable to those who in good faith deal with possessors, begins with the Factors' Act of 1823, Stat. 4 Geo. IV. c. 83. Even at the present day (52-ii Vie. c. 45) such legislation has not gone very far.

CH. IV. § 7.] Movable Goods. 155

If, however, we may draw inferences from foreign systems, Foreign we may say with some certainty that the favour thus shown to MoMUa ownership can not be very ancient. When French and German "egueta!* law take shape in the thirteenth century, they contain a rule which is sometimes stated by the words Mobilia non Jiabent sequelam (Les meuhles 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 free will [p. 154] 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 -4 ; ii 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\ '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 iona 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''.

To account for this state of things many ingenious theories Bxplana- have been devised. It has been contended that we have to the rule. deal with an imperfect conception of ownership. The owner who of his own free will parts with the possessioii of his chattel, parts also with the ownership of it. In exchange he takes a

1 Any one who by testamentary or intestate suooession represents the bailee, is not a 'third possessor' for the purposes of this rule.

2 Heusler, Gewere, 487; Heusler, Institutionen, ii. 209; Laband, Die Vermbgensreohtlichen Klagen ; Sohm, Process der Lex Salioa, p. 55 ; Hermann, Die Gmndelemente der Altgermanisohen Mobiliarvindioation ; Schroder, D. E. G., 266, 682; Brunner, D. E. G. ii. 495; Jobb^-Duval, Eevendication des meubles. The meaning of Sand mvss Hand wahren seems to be that the bailee's hand wards the bailor's hand ; it is only from the bailee's hand that the bailor can demand restitution. The same doctrine, to all appearance, may be found in the Ancient Laws of Wales, 1. 249.

156 Ownership and Possession. [bk. ii.

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 diflScult 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. There may come a time when [p.i55] 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 im- portant particular different from the ownership that is known to us. English 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 can not be explained unless we suppose that the rule Mdbilia 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*. But more than this has been said. It has been pointed out that in the Year Books ' possession has largely usurped not only the sub- stance but the name of property",' and that the justices have a perplexing habit of ascribing the propretie to the trespasser and even to the thief. A thorough treatment of this difficult topic is impossible to those who are debarred from discussing

1 Holmes, Common Law, Leot. v.; Laughlin in the Essays in A.-S. Law, 197 f.

2 Pollock and Wright, Possession, p. 5.

3 Ames, Disseisin of Chattels, Harv, L. B., vol. iii.

law.

CH. IV. §7.] ^ ^ Movable Goods. 157

in detail the texts of the later middle ages. Still something about it must be said'.

I. Leaving out of sight for a while the cases in which there The has been a bailment, we may consider the position of the owner „? the tMef whose goods have been taken from him, in order that we may if possible come to some understanding of that puzzling pheno- menon, 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 Ancient the Anglo-Saxon dooms and the parallel 'folk laws' of thcfor'the continental nations are ever recurring. If only cattle lifting "^eo^Tery of [p. 156] could be suppressed, the legislators will have done all or almost goods, all that they can hope to do for the protection of the owner of movables. 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 can not 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 before him, have been taken from me. Even if we can not catch a thief in the act, the trail is treated as of great import:^, ance. If it leads into a man's land, he must show that-it leads out again ; otherwise it will ' stand instead-ef 'a'?oreoath ' ; it is an accusing fact". If the -pessesseriias 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

1 Had Braoton finished Ms work with chapters on the personal actions, oar position would have been very different. As it is, he has given us a valuable account of the actio fwrti, but as regards the bailments we have only some romanesque generaUa in which we dare not place a perfect trust.

a .Ethelst. V. 2.

158 Ownership and Possession. [bk. ii.

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 biilih 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'.

The Now at length there may be proceedings before a court

.procedure ° ii-i-i

in court, of law. The possessor must produce this third person m court; [p. 157]

he has 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 he bought it honestly". Sales and purchases

ought to take place before oflScial witnesses, and the possessor

who has neither warrantor nor witness has himself to blame

if he is treated as a thief.

^ For this seizure of the ear see Brunner, D, B. G., ii. 500, and (for the ceremony appears in Celtic as well as in Teutonic law) Ancient Laws of Wales, ii. 725.

2 However in the very early laws of Hlothoere and Eadrio, 0. 16, the man who has puhlicly bought in London need not give up the goods unless the price that he paid is offered to him. This seems a curious testimony to the commercial importance of London. Liebermann, Gesetze, p. 11.

' It will be sufficient to refer to Brunner, op. eit. p. 495, where this old procedure is fully described and due attention is paid to the Anglo-Saxon texts.

CH. IV. §7.] Movable Goods. 159

When there has been a bailment and the chattel has been The bailee taken from the bailee's possession, it is natural that, so long the ttdef. 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^ [p. 158] Of any other procedure for the recovery of goods we read The little or nothing in our old dooms. No doubt the bailor had action some action against the bailee for the return of the goods ; but ^^f' *''® 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".

In the thirteenth century this ancient procedure was not Bracton's yet obsolete ; but it was assuming a new form, that of the "° *" :' ""^ ' appeal of larceny. Bracton called it the actio furti^. We should do wrong were 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*. We are wont to think of the appeal as of a criminal prosecution, though one that was

The A.-S. verb which describes the Toucher is timan. The team of the Anglo- Norman charters seems to be the right to hold a court into which foreigners, i.e. persons not resident within the jurisdiction, may be vouched. See Acta of Parliament of Scotland, i. 742:

' Brunner, op. cit. ii. 510.

2 Essays in A.-S. Law, pp. 199, 200. The two passages there cited as bearing on this action are (1) Alfred, Introd. c. 28, which comes from the book of Exodus, (2) William, i. 37," which is a reminiscence of the Lex Rhodia de iactu. But we might argue from analogy that there must have been an action for the restoration of the res praestita; Lex Salica, c. 31 (ed. Hessels, col. 334) ; Sohm, Process der Lex Salica, 34.

1 Bracton, f. 151 b.

* Dial, de Scac. lib. ii., cap. 10. In the twelfth century the owner who prosecuted the thief to conviction might still obtain 'double value.' Of this we shall speak in our chapter on Criminal Law.

160 Ownership and Possession. [bk. ii,

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 con- stantly spoken of as a remedy competent to the man whose goods had been stolen : it would restore those goods to him'. 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. Procedure The trail has not yet lost its importance. The sheriff and action of uien of Shropshire were wont to trace it into the borough of

theft.

Bridgenorth and to charge the burgesses with the difficult task [p-i59] of showing its exit". The summary mode of dealing with 'hand-having' thieves, thieves who are 'seised of their thefts' was still maintained; the prosecutor in such a case bore the ancient name of saheher; 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 sakeher*. 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

' See e.g. Y. B. 4 Hen. VII. f. 5 : 'I'appel est a reaver ses bieus et affirme propriety continualment en le party.'

' Select Pleas of the Crown, pi. 173.

' Bracton, f. 150 b, 154 b; Fleta, f. 54; Britton, i. 56. In the note by Mr Nichols to the last of these passages the meaning of the mysterious word sakeber is discussed. See also Spelman's Glossary. The true form of the word seems to be very uncertain. A Scottish book, Quoniam Attachiamenta (Acts of Pari. i. 647), speaks of the pleas of wrong and unlaw which are prosecuted per sacreborgh. In this form the last syllable seems to be the word borh, which means a pledge. In the English books the term sakeber is applied to the prosecutor. In very early FranMsh law the saeebaro appears as an officer of some sort ; little is known of him, and the name disappears on the Continent at a very remote date. Oddly enough however it does appear in our English Quadripartitus, while sagemanmis occurs both there and in Leg. Henr. 63. See Brunner, D. B. G., ii. 161-4 ; Liebermann, Quadripartitus, p. 32. Of summary justice we shall speak in another chapter.

CH. IV. § 7.] Movable Goods. 161

of the neighbourhood' and proclaim his loss'. At the next county court the appellor must make, and at court after court he must repeat his appeal, until the accused eitheir 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 prose- cuted with the utmost diligence^ [p. 160] A far more important point is this, that an actio furti, we Scope of may almost say an appeal of larceny, may very properly be of theft"" 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'. 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*. 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 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 momeat in 1233 we catch a glimpse of the court of the royal manor of Windsor. Edith of Wackford charged

' Bracton, f. 139 b. Even in very late precedents for appeals the allegation of pursuit is retained; 'dictusque J. ipsum W. recenter inseeutus fuit de villa in viHam usque ad quatuor villas propiuquiores.' As to the ' four neighbouring viUs,' see Gross, Coroners' EoUs, pp. xxxvii.-xl.

^ Any coUeotion of criminal oases from this age will show many appeals quashed for want of » timely and incessant prosecution. The Statute of Gloucester, c. 9, mitigated the requirements of the common law.

3 Bracton, f. 150 b, 140 b; Fleta, f. 55 ; Britton, i. 57.

* In the Norman books as well as our own, adiratum, (adirS) is contrasted ■with, furatum (embU); Somma, p. 28. It occurs elsewhere in French law-books. '■ It is said to have its origin in «. low Latin adextratum, meaning 'that which is gone from my hand'; but whether in legal texts it means specifically 'lost by accident' or more generally 'lost, whether by accident, wrongful taking, or otherwise' seems to be a moot point. See Jobb6-Duval, Eevendioation, pp. 91-4 ; also T. B. 21-2 Edw. I. p. 467.

P. M. II. 11

162 Ownership and Possession. [bk. ii.

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\ 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''. But a regular [p.iei] appeal might be 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".' We may expand this charge. ' 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 Jurti can be effectually used against one who is no thief, but an honest man. Defences We have to consider the appellee's means of defence. The

action of appellor offers battle, and to all appearance the appellee can theft. always, if he pleases, accept the offer*. In later days he can

1 Note Book, pi. 824.

" Gloucestershire Pleas of the Crown (ed. Maitland), p. 6. The practice known as levying a man from an oath (a sacramento levare) is referred to in Glanvill, x. 5. When he is just going to swear, you charge him with being on the point of committing perjury or theft by perjury, and thus what has as yet been a civil is turned into a criminal suit. The procedure is described by Brunner, D. E. G., ii. -434. Another early instance of it occurs in Eot. Cur. Eeg. (Palgrave) i. 451 ; the hand which the would-be swearer has stretched out is seized by his adversary and the charge of attempted perjury is made. Late in Henry III.'s day the Brevia Plaoitata (Camb. Univ. Lib. Ee. i. 1. f. 243 b) still teaches us how to catch our adversary's hand when he is on the brink of the oath, and to make the charge of perjury against him with an offer of battle.

' Select Pleas of the Crown," pi. 192 : ' nescivit alium latronem quam ipsum Edwardum.' Note Book, pi. 1539 : 'quod ipse fuit latro vel latronem nominare solvit.' Fleta, p. 55: 'latro est aut latronem inde sic [can. scit] nominare.' See the A.-S. oaths, Schmid, App. z.

* Bracton, f. 140. It would be otherwise if the appellor were maimed or too old to fight.

OH. IV. § 7. J Movable Goods. 163

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 proof of [p. 162] honest and open purchase. Of each of these modes of meeting the action a few words must be said.

(i) The appellee says that the goods have been his from Defence of the first : for instance, that the horse in question was the foal of rearing," his mareV 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^

(ii) But what is regarded as the common defence is the Defence by voucher of a warrantor'. The appellee asserts that he acquired the goods from a third person, whom he calls upon to defend the appeal. There is a writ enabling him to compel the ap- pearance of the vouchee*. 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. If he admits that the goods passed from him to the appellee, then the appellee retires from the action'. 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 '^. The warrantor can vouch another warrantor. The process of voucher can be repeated until a third, or perhaps a

1 Biaeton, f. 151. In Welsh law, which in its treatment of this subject is very like English law, the proof of birth and rearing' is one of the three normal defences.

2 Note Book, pi. 1115.

» Glauvill, X. 15 ; Bracton, f. 151 ; Fleta, p. 55 ; Britton, i. 57.

* GlanviU, x. 16 ; Braotoa, f. 151. = Note Book, pi. 1435.

• GlanviU, x. 15 ; Bracton, f. 151 ; Britton, i. 59. ' Select Pleas of the Crown, pi. 192.

11—2

164 Ownership and Possession. [bk. ii.

fourth, warrantor is before the court' 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^ 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 ; but meanwhile the first ap- [p.:

pellee has gone quit; he is no thief, but he has lost the

chattel*.

Defence of (iii) If the appellee can produce no warrantor, and can not

purchase, 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, 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

can not prove a purchase in open market ; but the man who can

not allege such a purchase is, says Bracton, in peril.' He

will probably have to fight if he would escape the gallows*.

Stolen We have spoken at some length of these ancient modes

recovered of meeting the actio furti, because they are soon overwhelmed

honest ^7 *^® verdicts of jurors, and because they enable us to lay

pui-chasers. down a proposition about the substantive law of the thirteenth

century, which, regard being h.ad to what will be said in later

days, is of no small value : — Stolen goods can be recovered by

' Glanvill, x. 15 : read ' ad quartum (not quotvun) warrantum erit standum.' In such reckonings it is never very clear whether the original defendant is reckoned as one of the warrantors.

2 See above, p. 71.

8 Actual instances of warranty are Select Pleas of the Crown, pi. 124, 192 ; Note Book, pi. 67, 1138, 1435,, 1461. By the kindness of Dr Jessopp we are enabled to give the following entry from a manorial roll of 1259 : ' Postea venit praediotus Willelmus et oalumpniavit, dicens quod praedictus bidens ei furatus fuit ;... Johannes de venditione dictae pellis vooavit ad warantum praedictum David; qui venit et wareutizavit. Et pro distanoia inter praedictos Willelmum et David tradita fuit Thomae le Cu in equali manu ad custodiendnm.' We see here the deposit of the debatable chattel ' en uele main,' according to the practice described in Leg. Will. i. 21, § 2.

* This recovery of stolen goods from an appellee who has proved honest purchase is attested by Glanvill, x. 17 ; Braoton, f , ' 151 ; Fleta, p. 55 ; Britton, i. 59, 60.

CH. IV. § 7.]. _^ Movable Goods. 165

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.

Now this old procedure, which is Glanvill's petitio rei esc Transfer-, causa furtiva'^ and Bracton's actio furti, underwent a further Se'lTctioi 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 [p. 164] definite lines of defence-; 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 ili 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 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 ^; if he is appealed, then the appellor will perhaps, if he has shown himself a diligent subject, receive a prize for good

1 GlanviU, x. 15.

2 This was altered by Stat. 21 Hen. Vni. o. 11.

166 Ownership and Possession. [bk. ti.

conduct". 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^. Action of But more than this must be said before we can understand [p. 165]

d*Ss the ascription of property to a thief or other wrongful takers asportatis. ^^ j^^g g^ ^j^g qJ^j 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 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, how- ever, we look back at the oldest precedents, we shall see that the destruction or asportation of goods was generally com- plained 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*. Scope of It is a semi-criminal action. The procedure against a

of trespass, 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\ In the case of I

* The law is well stated in Staunford, Pleas of the Crown, lib. iii, o. 10. Bee also Ames, Disseisin of Chattels, Harv. L. B. iii. 24.

^ That the thief does not really get property in the 'goods is proved by this, that if a second thief steals from the first thief, the owner can still obtain restitution by appealing the second thief. T. B. 13 Edw. IV. f. 3 (Mich. pi. 7) ; 4 Hen. VII. f. 5 (Pasoh. pi. 1). The result is curious, for the owner has had no action against the second non-felonious trespasser.

* Two striking illustrations are given by Ames, Harv. L. E. iii. 24.

* See Placit. Abbrev. for the last years of Henry III.

» There may have been a brief hesitation about this ; Maitland, Harv. L. B. iii. 173.

CH. IV. §7.] Movable Goods. 167

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 [p. 166] the old actio furti ; but at 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 goodsj^ 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'.

This is not all. Whatever subsequent ages may think, an No action action of trespass de bonis asportatis is not an action that should agafast the be brought against the third hand, against one who has come to ^^^^ ^™^" the goods through or under the wrongful taker, or against one who has wrongfully taken them from one who is not the plaintiffs. 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

1 Britton, i. 123, cautions his readers against the appeal; it is perilous ;-. the •writ of trespass is safer.

a See Ames, Harv. L. E. iii. 29.

168 Ownership and Possession. [bk. ii.

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^gainstthe original takers A lamentable result we call this, not so much because it may have done some injustice to men who are long since [p.i67] 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^ 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 m set phrase he claime_iit. 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

1 In the case of two felonious takings I can still obtain restitution by appealing the second thief. See above, p. 166. We shall see hereafter thai for a long time 'detinue' can not be brought against any but the plaintiff's bailee, and to say that the owner has neither trespass nor detinue, is to say that he has no action against the third hand, unless there be felony. Gradually ' detinue ' is extended and 'trover' is invented ; but a great deal of harm has been done in the meanwhile.

' In the foregoing paragraphs we have had in view Mr J. B. Ames's papers on the Disseisin of Chattels, Harv. L. B. vol. iii. The two criticisms that we have to make on those masterly articles are these. (1) Their learned author has hardly offered a sufScient explanation of the fact that at one point the analogy between land and chattels breaks down. The disseisee of land has, the disseisee of chattels has not, an action against the third hand. (2) It seems to UB that this difference can not be regarded as being of vast antiquity or as having its origin among the ideas of substantive law. The old actio furti vrith its chain of warrantors shows that the disseisee once had an action against the twentieth hand. Whatever may be thought of our argument about the scope of trespass, it seems to us clear that at this point we have to deal, not with a defective conception of ownership, but with an unfortunate accident, which has momentous effects because it happens just at the time when the vrrits are crystallizing for good and all. The old action disappears ; a new one is put in its place, but can not fill that place.

CH. IV. § 7.] Movable Goods. 169

say) ' we will that every one shall have recourse to judgment ratherjthajL to Jgrce'.' Our common law, which in later days has allowed a wide sphere to recapture* — a sphere the width of which would astonish foreign lawyers — seems to have started in the twelfth and thirteenth centuries with a stringent prohibi- tion of informal self-help, and a rigorous exclusion of proprie- tary "pIeaFlSoinTEe~possessbry action of trespass. Thus far it applied a common rule to land and to chattels ; but while in the [p. 168] 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 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 -wrong- fully taken. We have now to speak of a more vital rule and one that appears in many lands besides our own.

II. Hitherto we have supposed that the thing in question The 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 pur- pose 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 owner- ship, when he delivers a sold thing to the buyer, or when he makes a ' loan for consumption ' (mutui datioy. Iq 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

' Britton, i. 115-6.

2 Bladen v. Higgs, 10 0. B. n. s. 713 ; PoUook, Law of Torts (5th ed.), p. 362. It is far from clear that the decision would now be approved by a higher Court.

' A plaintiff who sues for a money debt usually counts that he 'bailed' a certain sum to the defendant ; e.g. 7. B. 21-2 Edw. I. p. 29S.

170 Ownership and Possession. [bk. n,

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 re- garded as having much in common; one term will stand for them all\ And all these transactions were known in the thii^eenth century: for example, the deposit for safe custody [p. i69] of those valuable chattels, the title-deeds of land was not - uncommon. The bailee Now if goods were unlawfully taken from the possession of action^ the bailee, it was he that had the action against the wrong- against doer; it was for him to bring the appeal of larceny or the floer. action of trespass". 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 Th6 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

1 Even the mutuum is not kept apart from the commodatum, though Bracton, f. 99, knows the difference. Very often the lender is said commodare or accommodare pecuniwm, which the borrower is said mutuare ; see e.g. Note Book, pi. 568, 830. To this day we Englishmen are without words which neatly mark the distinction. We lend books and half-crowns to borrowers ; we hope to see the same books again, but not the same half-crowns ; still in either case there is a loan. Gibbon, Decline and Fall, c. 44 : ' The Latin language very happily expresses the fundamental difference between the commodatum and the mutuum^ which our poverty is reduced to confound under the vague and common appel- lation of a loan.'

' Braoton, f. 151 ; ' et nou refert utrum res quae ita subtracta fuerit, exti- terit illius appellantis propria vel alterius, dum tamen de custodia sua,'

CH. IV. §7.] Movable Goods. 171

England'- 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^. Glanvill holds that the commodatary is absolutely bound to restore the thing or its valued 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 may escape, though we can not be very certain as to the limits of the liability that Bracton would [p. 170] cast upon him^ There is much in later history to make us believe that Bracton's attempt to state this part of our law in romanesque terms was premature °; 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". 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

' Holmes, Common Law, p. 175. To the contrary, Beale, Harv. L. E. xi. 158.

2 Select Civil Pleas (Selden Society), pi. 8. ' Glanvill, x. 13.

" Bracton, f. 62 b, 99; Fleta, p. 120-1; Guterbook, Bracton and his Eelation to Eomau Law (tr. Coxe), pp. 141, 175; Soruttou, Law Quarterly Beview, i. 136. We have examined many mss of Bracton's work for the purpose of discovering the true reading of the well-known passage on f. 99 ; but, so far as we can see, the vulgate text is right in representing him as applying to a case of commoda- tum the words which the Institutes apply to a case of mutuum. See Bracton and Azo, p. 146.

' Holmes, Common Law, p. 176.

" In 1299 the Prior of Brinkburn brings detinue for charters bailed to the defendant for safe custody. The defendant alleges that the charters had been seized by robbers along with his own goods, and that they cut off the seals ; he tenders the charters which have now no seals. The Prior confesses the truth of the defence and the action is dismissed. See the record in Brinkburn Cartulary, p. 105.

172 Ownership and Possession. [bk. ii.

and was liable because he had the action^ 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 more than mere possession, some interest iii the thing, some responsibility for its safety. But as yet it has not gone very far". The bailor That the bailor has no action against any person other than [p. 171] third hand, 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 Mohilia non habent sequelam. Nevertheless, we can hardly doubt that this is the startiug- 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' : (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

' Mr Justice Holmes, Common Law, p. X67, maintains the priority of the rule that gives the action to the bailee. But we may at all events believe that at an early date the refusal to the bailor of an action against the taker was justified by the argument that he must look to his bailee. It seems to be this argument that is embodied in the German proverb Hand muss Hand wahren. See Heusler, Gewere, p. 495.

2 Braoton, f. 103 b, 146, more than once seems to require that the appellor shaU complain of a theft of his own goods or of goods for which he has made himself responsible, for which intravit in solutionem erga dominum suum. This phrase is actually used by appellors in 1203, Select Pleas of the Crown, pi. 88, 126. It is to be remembered that at this time the limit between the servant's custody and the bailee's possession is not well marked; both are often called custodia. The law has to be on its guard to prevent masters from setting their servants to bring appeals which they dare not bring themselves. A servant is not to bring an appeal for the theft of his master's goods unless he has in some definite way become answerable for their safe keeping. But it is also to be remembered that Bractou is thinking of lust. 4. 2. 2, where it is required of the plaintiff in an action bonorum raptorum that he shall have some interest in the thing, 'ut intersit eius non rapi.' See Braoton and Azo, p. 183.

3 At present the action of replevin needs no mention, for its scope is very limited. See Ames, Harv. L. B. iii. 31.

CH. IV. § 7.] Movable Goods. 173

ample reasons for believing that the taker could be successfully attacked by the bailee and by him only\

But at first sight there seems to be one action open to the The action 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 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 [p. 172] were the plaintiff seeking the restoration of certain 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^' This was the formula of ' debt in the debet et detinet,' a formula to be used when the original creditor sued the ori- ginal 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'.' At the same' time the claim for a particular chattel is being distin- guished 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.

1 A century later, in 1374, Y. B. 48 Edw. in. f. 20 (Mich. pi. 8), it is allowed that either the bailor or the bailee can sue in trespass. See Holmes, Common Law, p. 171. But this applies only to a bailment at will. If the bailment was for a fixed term, the bailor could not bring trespass.

^ A few cases of debt are to be found in the Plea EoUs of Bichard I .; Eot. Cur. Beg. (Palgrave), i. 39, 880 ; ii. 9, 106 ; and of John ; Select Civil Pleas (Baildon), pi. 38, 83, 102, 146, 173, 174. They become commoner in the Note Book, yet commoner on the latest rolls of Henry III. The writ appears in the earliest Eegisters ; see Harv. L. E. iii. 112, 114, 172, 215. We shall speak of it again in the next chapter.

8 Beg. Brev. Orig. 139 b.

detinue.

174 Ownership and Possession. [bk. ii.

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 dehet, 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 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 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 explain why he has not done so. But so soon as [p. 173] 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 can not be compelled to deliver the chattel — let us isay 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 : memor- able 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 forth- coming 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,

CH. IV. §7.] Movable Goods. 175

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'.'

For a moment we may think that Brae ton has gone astray No real among the technical terms of a foreign system. We may argue morabies. 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 [p. 174] considered. Bracton says nothing about 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 ia our eyes it will be strange, j 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 re- present his bailee by testate or intestate succession* In later days there are but two modes of 'counting' in detinue^. The plaintiff must say either, ' I lost the goods and you found them,' or, 'I bailed the chattel to you'.' The first of these counts {detinue sur trover) was called a 'new found haliday' in the fifteenth century*. We have, however, some reason for believ- ing that it had been occasionally used in earlier times'. 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 agaiQst 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 resTilt that this action will not lie against the third i-

1 Braoton, f. 102 b ; Bracton and Azo, p. 172.

^ We may here neglect tlie action by the widow or child for a 'reasonable part' of a dead man's goods.

' A variation on the latter count will be required in an action against the bailee's executor or administrator.

* Y. B. 33 Hen. VI. f. 26-7 (Trin. pi. 12) ; Holmes, Common Law, p. 169.

» Y. B. 21-2 Edw. I. 466 ; 2 Bdw. HI. f. 2 (Hil. pi. 5) ; Ames, Harv. L. E. iii. 33. In yet earlier times the finder who did not take the witness of his neighbours to the finding would have stood in danger of an actio fu/rti.

176 Ownership and Possession. [bk. ii,

hand. In other words, A bails a chattel to M, and M wrong- fully 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 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^. 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". 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. Has the How shall we explain this ? Shall we say that the man who [p-i'S]

property? ^^ails 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*. Indeed the current language of

^ Already in 1292 we see a sligM tendency to regard the detainer rather than the bailment as the gist of the action. T. B. 20-1 Edw. I. p. 192: it is not enough to say, '"You did not bail to me'; one must add, ' and I do not detain from " you.' But there are much later oases which show that it is impossible, or at least extremely hard, for the bailor to fashion any count that will avail him against the third hand: Y. B. 16 Edw. H. f. 490 ; Ames, Harv. L. E., iii. 33.

2 Select Cases in Chancery (Seld. Soe.) p. 113.

" Bracton, f. 151: 'et non refert utrum res quae ita subtracta fuerit, extiteiit

CH. IV. §7.] Movable Goods. 177

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' ; but he would not have been at pains to tell us that a man can not 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 bailments' 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 [p. 176] punishing fraudulent bailees as thieves. But to us the con- vincing 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.

The explanation we believe to be that the evolution of legal Evolution remedies has in this instance lagged behind the evolution of ghip™®"^' 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 then entertained was adequately expressed in a mere protection against theft. From century to century the

alius appellantig propria vel alterius, dum tamen de custodia sua.' So Glanvill, X. 13; 'Ex causa quoque commodati solet res aUqua quandoque deberi, ut si rem meam tibi gratis commodem ad usum inde percipiendum in servitio tuo ; expleto quidem servitio, rem meam mihi teneris reddere.'

1 Glanvill, a. 13. ^ Mirror (Seld. Soc), p. 169.

P. M. II. 12

178 Ownership and Possession. [bk. ii.

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 can not at will displace from our minds the dilemma ' in rem or in personam ' which seems to have been put there by natural law. We can not 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' character of chattels may give us some help in [p.i^T] our effort to represent the past. Pecuniary We have Seen that when a man claims a chattel our law of battels, ^ill 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 satis- fied, and the thing itself may be left to the wrong-doer. Absurd as this rule might seem to us now-a-dafys, it served English- men well enough until the middle of the nineteenth century ; it showed itself to be compatible with peace and order and an abundant commerced In older times it was a natural rule be- cause of the pecuniary character of chattels. If one 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

1 See above, p. 154. Though the Court of Chancery was prepared to compel the delivery of chattels of exceptional value, applications for this equitable remedy were not very common.

CH. IV. § 7.] Movable Goods. 179

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 'bail- ments' 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'. But then, this is the result, some- times of a modem statute", 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 £p.i78] appropriating the bailed chattel, then we shall see that a bailment of coins can hardly be 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 wUl 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 abori^nal, 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 actioja for a debt created by contract.

' Pollock and Wriglit, Possession, 161-3.

2 Stat. 20-1 Vic. c. 54, sec. 4 ; 24-5 Vie. o. 96, sec. 3. The doctrine that a bailee might be guilty of theft if he 'determined the bailment' before he misappropriated the goods, has not been traced back beyond the celebrated carrier's case in 1474 (T. B. 13 Ed. IV. f. 9, Pasch. p. 5), where it seems to lave been forced upon the judges by the chancellor for the satisfaction of foreign merchants.

12—2

180 Ownership and Possession. [bk. ii.

An demen. ^q must not be wise above what is written or mare precise

tary ques- . '^

tion. 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 can not bind herself by contract ? This is bhe way in which that question is discussed : —

Huntingdon. 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.

Lowther. 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

Spigurnel. 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.

Howard. 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.

Lowther. We repeat what we have said\

Any one who attempts to carry into the reign of Edward I. [p.i791 a neat theory about the ownership and possession of movables must be prepared to read elementary lectures on 'general jurisprudence ' to the acutest lawyers of that age. Convey- There are other questions about movables that we should

movables, like 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^- In order to transfer the ownership of any corporeal thing we must transfer

1 Y. B. 20-1 Edw. I. p. 191. The question what was the nature of the action of detinue remained open till our own time. See Bryant v. Herbert, 3 C. P. D. 389.

' Bracton, f. 38 b ; f . 41 : ' idem est de mercibus in orreis.

CH. IV. § 7.] Movable Goods. 181

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^, 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 refine- ments of ' constructive delivery ' were unthought of, at all events in the thirteenth century. Of sales we shall speak in the next chapter.

In dealing with chattels we have wandered far from the land and beaten track of traditional exposition. Had we followed it we should have begun by explaining that chattels are not 'real property,' not '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 seems a somewhat superficial phenomenon, [p-180] 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 modem experience shows, a very true and intense ownership of goods can be pretty well protected by

1 Y. B. 7 Ed. IV. f. 20, pi. 21.

182 Ownership and Possession. [bk.

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 cleaj^ enough that this ' personalness' of 'personal property' is^^a superficial phenomenon. Again, in the thirteenth cenpry — this we shall see hereafter — ^the distinction which i^ 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 im- portance, 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 ia 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 dominiimi rises above dominium ; a long series of lords who are tenants and 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 com/patiuntwr 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 diflScult 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, [p.iai] We may call 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

CH. IV. §7.] Movable Goods. 183

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.

CHAPTEE V.

CONTRACT.

Latede- The law of Contract holds anything but a conspicuous [P-i

olu^of pl^ce among the institutions of English law before the Norman contract. 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 telLus 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'. 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 tedm 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 need no explanation had perished in the general breaking up of the

I Sohmid, Gesetze, Glossar, s. v. Mwrktreckt,

BK. II. CH. v.j Contract. 185

tp.l83] Roman system, and had to be painfully reconstructed in the middle ages. Further, it is not free from doubt (though we have no need to dwell upon it here) how far the Romans them- selves 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. Sa;le, for example, was a Real, not a Consensual transaction. All recent inquirers seem to concur in accepting this much as having been conclusively established^

Beyond this there is much ground that is debatable, and we TheBeal have no reason for believing that the order of events was exactly Formal the same in all the countries of western Europe ; indeed it is Contract. 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, vadiwm, gagium), or as we should now call it a pledge, will sometimes be given^. Even in these cases, however, it is long before any idea of contractual obligation

' Sohm, Eecht der Bheschliesaung; Heusler, Institutionen, ii. 225 ; Schroder, D. K. G., p. 283 ; Franken, Franzosisches Pfaudreoht, 43 ; Esmein, !^tudes sur les contrats dans le trte-ancien droit frangais ; Viollet, Histoire du droit civil frangais, 599; Pertile, Storia del diritto italiauo, iv. 465: Amira in Paul's Grundriss der Germanischen Philologie, vol. ii. pt. 2, p. 161.

2 In modern times we use the word pledge when a thing is given by way of security. But throughout the middle ages such a thing is a gage, a vadiwm. On the other hand the word pledge, which answered to the A.-S. iorh, was reserved for cases in which there was what we now caU suretyship ; the plegius was a surety. Thus the common formula Pone per vadium et salvos plegios would, according to our modem use of words, become 'Exact a pledge and safe sureties.' In this chapter we shall give to gage and pledge their old meanings : a gage is a thing, a pledge is a person.

186 Contract. [bk. n.

emerges. The lender claims not what has been promised him Dp. 184] 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 {mutwum); we have already seen how slowly these two cases are distinguished'. 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 h6t ; 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^' 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. Fidesfac- Whether this transition from the 'real' to the 'formal' can formal be accomplished without the intervention of sacral ceremonies contrac . gggj^g 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'. Others see in it a little bit of stick on which imprecatory runes have been cut*. 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 specu- lations which derive the Eoman stipulatio from stipula^. Our

^ See above, vol. ii. p. 169.

2 Wigmore, The Pledge Idea, Harv. L. E. x. 326 ff.

» Schroder, D. E. G., p. 60.

" Heusler, Institutionen, i. 76.

^ Heusler, Institutionen, i. 77. It is not unknown in England that in the surrender of copyholds a straw will sometimes take the place of the rod. A straw is inserted in the top of the document which witnesses the surrender of a copyhold and is fixed in that place by seals. The person who is making the surrender holds one end of the straw when he hands the document to the steward. We owe this note to Dr Kenny.

CH. v.] Contract. 187

English documents come from too late a time to throw much [p. 185] light upon these archaic problems. The Anglo-Saxon is con- stantly finding both wed and horh ; but what his wed is we do not know. In later times ' the rod' plays a part in the convey- ance of land, and is perhaps still more often used when there is a ' quit-claim,' a renunciation of rights' ; 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", and we find the free miner of the Forest of Dean making his faith upon a holly stick'. 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 h6t 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 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

^ See above, vol. ii. p. 91.

' Hengham Magna, cap. 6 : ' affidatis in manibus vel super virgam olama- toris.' The clamator is the crier of the court.

" See the Book of Dennis, a oustumal of the Forest, of which we have only an English version made in 1673 from an ancient original. It is printed by H. G. Nicholls, Iron Making in the Olden Times (1866), p. 71. ' And there the debtor before the Constable and his Clarke, the Gaveller and the Miners, and none other Folke to plead right but onely the Miners, shaE be there and hold a stick of hoUy and then the said Myner demanding the debt shall putt his hand upon the sticke and none others with him and shall Bweare upon his Faith that the said debt is due to him.'

grasp.

188 Contract. [bk. ii,

the other^. The festuca with its runes may be rationalized into a tally sticks If sticks and straws will do, why not any [p.: 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. Thehana- In many countries of western Europe, and in other parts of the world also, we find the mutual grasp of hands (palmata, paumde, Handschlag) as a form which binds a bargain. It is possible to regard this as a relic of a more elaborate cere- mony 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, Bins fidius — if I break faith 'in this thing '^ Whether the Germans have borrowed this symbolic act from the Roman provincials and have thus taken over a Koman practice along with the Roman term fdes, or whether it has an independent root in their own heathen religion, we will not dare to decide*. However, the grasp of

1 This is the SelbstMrgschaft of German writers; Heusler, Institutionen, iL 242 ; Schroder, D. E. G., p. 286.

2 Heusler, Instit., i. 76, 92. ° For the special connexion of Fides with Japiter, see Ennius, ap. Oic. OS,

3, 29, 104: '0 Fides alma apta pinnis et iusiurandum lovis.' Cp. Leist, Altarisches lus Civile, pp. 420 S. Leist has no doubt (p. 449) that the hand itself was the gage. Promises by oath were said to have been put by Numa under the protection of all the gods, ib. 429. Cicero's comment, 'qui ius igitur iurandum violat, is fidem violat ' etc., deriving the force of a formal oath from the natural obligation of fides implied in it, is a reversal, perhaps a conscious reversal, of the process of archaic morality. Other passages in Cicero show that the cult of Fides was treated as deliberate ethical allegory by educated Bomans of his time.

' There is abundant authority to show that the Boman custom was both ancient and popular. Fides is the special name of imtitia as applied creditis in rebus: Cic. Drat. Part. c. 22, § 78, of. Dig. 12, 1, 1. '[Populus Eomanus] omnium [virtutum] maxime et praecipue fidem coluit ' : Gell. 20, 1. See Muirhead, Private Law of Borne, 149, 163; Dion. H. 2, 75; Livy, 1, 21, § 4; and (as to the right hand) Plin. H. N. xi. 45, 103; Servius on Aen. 3. 607; Pacohioni,

CH. v.] Contract. 189

hands appears among them at an early time as a mode of [p. 187] contracting solemn, if not as yet legally binding, obligations'. Probably we ought to keep the mutual grasp apart from an- other 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=. But at any rate the feudal, or rather the vassalic, contract is a formal contract and its very essence is fides, faith, fealty.

We must, however, remember that agreements sanctioned The by sacral forms are not of necessity enforced by law ; indeed and the 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 f^,es facta and makes it her own. She was glad to find a form which was not an oath, but 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 disappro- bation 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 im- precations. This process was very slow ; the heathen oaths

Actio ex sponsu (repr. from Arohmo Giuridioo) Bologna, 1888, on the distinct history of the Stipulation. Brunner, Eom. u. Germ. Urkunde, 222, holds that very possibly the Franks found the provincials using the phrase fidem facere to describe the ceremony of stipulation, and borrowed it (they borrowed the word stipulatio also) for the purpose of describing their own formal contract. Caesar, B. G., iv. 11, makes certain Germans employ the phrase iureiurando fidem facere ; Esmein, ifitudes sur les eontrats, 73.

1 See Ducange, s. v. Dextrae. Esmein, Etudes sur les eontrats, 98.

' Laws of Edward, ii. 6. If a thief forfeits his freedom ' and his hand on hand sylle {et manum suam in manum mittat),' he is to be treated as a slave. See Brunner, D. E. G. ii. 270.

190 Contract. [bk. ii.

on weapons and on rings lived on, though they now occupied a secondary place in the hierarchy of assertions ; men would still swear upon a sword in Christian England'. True also [p.iss] 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". Oath and 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".' A new and a Christian tinge is therefore given to the old contract with wed and horh. It may look like an oath; we may think that it implicitly contains 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*. 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". An 'age of faith'

1 Brunner, D. E. G. ii. 428; Sohmid, Gesetze, App. vn. 1 §4: when a blood feud ia being eompromised the peace is sworn ' on &num wsepne.' The oath on the sword was itself invested with a Christian character by association with the cross of the guard. In the 16th century the oath of admission to the gild of Spanish fencing-masters was taken 'super signum sanctae crucis factum de pluribus ensibus'; Eev. arch^ol. 7i. 589.

^ Theodore's Penitential, i. 6 (Haddan and Stubbs, iii. 182): 'Qnis periurium facit in aecclesia, ii. annos peniteat. Qui vero necessitate coactus Bit, iii. quadragesimas. Qui autem in mana hominis iurat, apud Graecos nihil est. Si vero iuraverit in manu episoopi vel presbiteri aut diaooni seu in alter! \corr. altari] sive in cruce consecrata, et mentitus est, iii. annos peniteat.'

' Laws of Wihtroed, 18. So after several centuries, ' Clericus non debet iurare in iudicio coram iudicibus saecularibus ' ; Protest of Grosseteste, Ann. Burton, 426.

* The process whereby in England the word affidavit has come to imply an actual oath upon the gospels would be worthy of investigation. But ii does not fall within our period.

" Eievaulx Cartulary, p. 164 : Henry archbishop of York declares to his successors and to the cathedral chapter how in his presence Bobert de Eos

^H. v.] Contract 191

[p. 189] uses daring phrases about these matters.' When a man makes a vow to God he will place his faith upon an altar and will nnd sureties who are to have coercive power over him^ But more, when he makes a promise to another man, he will sometimes offer God as his surety^ 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 hands and can constrain him to redeem it by ecclesiastical censure or temporal distress'. 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

confirmed to Bievaulx Abbey the lands given by Walter Espeo; 'et primum haec omnia Sacramento firmavit, deinde Ghristianitatem in mana mea qua se obsidem dedit et me plagium constituit de bis omnibus ' ; therefore if he infringes the pact, he is to be coerced by ecclesiastical censures. Another good instance will be found in Madox, Formulare, p. 3. See also Ducange, a. v. Christianitas, For some political pacts sanctioned by affidation, see Bound, GeoHrey de Mandeville, p. 384.

^ Eadmer. Hist. Nov. p. 31: Eufua in a moment of terrified repentance promises to restore the good laws ; ' spondet in hoc fidem suam, et vades inter se et Denm facit episcopos suos, mittens qui hoc votum super altare sua vice promittant.'

2 Letters of John of Salisbury, ed. Giles, ii. 224: Henry II. promises to forgive Becket; 'primo Deum et (ut dici solet) Ghristianitatem suam obsidem

dabat; deinde patruum suum et omnes qui convenerant constituebat

fideiuBsores.'

" Eievaulx Cartulary, 33 : Eoger de Mowbray says, ' Hano donationem [a gift to Eievaulx] ego et Nigellus filius meus manu nostra affidavimus tenendam in manu Eoberti Decani [Eboracensis]...et ipsam ecclesiam Eboraoensem testem et fideiuBsorem inter nos et monaohos constituimuB, ita ut si aliquando ego vel heredes mei ab hac conventione deviaverimus ipsa ecclesia ad haec exequenda nos ecclesiastica revocet disoiplina.' For other instances see ibid. pp. 37, 39, 159, 169.

192 Contract. [bk. ii.

fused with that mutual grasp of hands which, as already said, may have had a somewhat different origin. And like a man's religious faith, so his wordly honour can be regarded as an tp.i90] 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\ 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 horh. 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''. The Meanwhile the written document is beginning to present

document itself as a validating form for transactions. To the eye of the

as a fonn.

barbarians the Roman provincials seemed to be conveying land by means of documents and to be stipulating by means of documents'. It is broadly stated that according to the ' Lex Bomana ' any one who contravenes or will not perform a written agreement is infamous and to be punished". The written document, which few have the art to manufacture, is regarded with mystical awe ; it takes its place beside the festuca^. The act of setting one's hand to it is a stipulatio" ; it is delivered over as a symbol along with twig and turf and glove'. For a long time, however, it is chiefly used as a means of creating or

' Kohler, Shakespeare vor dem Forum der Jurisprudenz, p. 62.

^ See an article by Sir Edward Fry, Speeiflo Performance and Laesio Fidei, L. Q. E. V. 235. The godborh should be compared with the practice of ' taking God to witness ' and inscribing His name at the head of a list of witnesses who attest a charter. See the ancient Welsh documents written in the Book of St Chad and reproduced by Gwenogvryn Evans in his edition of the Liber Landavensis, p. xlv, where the first witness is 'Deus Omnipotens.'

* See Brunner, Bom. u. Germ. Urkunde.

* Eozi6re, Eeoueil des formules, i. 152 : ' Eomanamque legem ordinantem ut quicumque in aetate perfeota pactionem vel diffinitionem per scripturam fecerit, et hoc quod fecit implere neglexerit, aut contra cam ire praesumpserit, infames yocetur et ipsam causam agere non permittatur, atque poenam statutam cogetur exsolvere.' See Esmein, Etudes, 17.

" Heusler, Institutionen, i. 87-92.

" Brunner, Urkunde, 224. Kemble, Cod. Dip. vol. v. p. 54 (a.d. 791): 'cunotis astipulantibns et confirmantibus nominatis atque infra desoriptis.' Charter of Henry I., Monastioon, iv. 18: 'Hano donationem conflrmo ego Henricus rex et astipulatione sanctae ciucis et appositions sigilli mei.'

' See above, vol. ii. p. 86.

CH. v.] Contract. 193

transferring rights in land by way of gift, sale, lease or gage ; it IS rarely used for the purpose of creating or attesting the [p. 191] creation of purely personal rights i. But it has a future before it. The 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^. 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 ^

It would be idle to inquire what stage of development these English various institutions had attained in the England or the cent! xii. Normandy of the year 1066. The God-borh flits before us in Alfred's laws*, and we have other evidence that a 'wedded' promise was under the sanction of the churchy We may see the solemn contract of betrothal" and may read of promises secured by oath and wed and borh''. But, for example, we can not 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.

^ See Eoziere's collection of formulas passim.

2 Bracton, f. 100b; Bracton and Azo (Selden Soc), 155. It should be remembered that Justinian (Inst. 3, 21) had done his very best to lead the medieval lawyers astray.

' Cart. Eievaulx, p. 410; a bond given in 1275 by the abbot to a Florentine

firm: 'promittimus et tenemur per legitimam stipulationem tenemur per

praediotam stipulationem.' Camb. Univ. Libr. mb. Ee. 6. 31, f. 12 b; the convent of Christ Church, Canterbury, gives a bond to the Prescobaldi : ' Nos vero dictas xxx. marcas vel consimiles praedictis Johanni, Coppo, Eutto et Tedaldo stipulantibus tam pro se ipsis quam pro praedictis Gyno et aliis sooiis

suis promittimus reddere.' In 1214 the Earl of Ferrers becomes a surety

for a debt due by King John to the Pope; in his charter he says 'constitui me

fideiussorem per soleiSapnem stipulationem promittens quod satisfaciam ';

Eot. Pat. Joh. p. 139. j

" Alfred, 38. I ^ Alfred, 1. §8.

8 Sohmid, Gesetze,/App. vi.

' Schmid, Gesetze,! Glossar, s. v. Eid, wed, borh.

P. M. II. ' 13

194 ■ Contract. [bk. ii.

Medieval In the twelfth century the revived study of Justinian's

law"™ books, though it urged men to rediscover or to construct some

general law about the validity of agreements, tended also to [p-i92] confirm the notion that something more than a formless expres- sion of agreement must be required if an action is to be given'. 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". 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 (palmarwn ictus) whereby men were wont to bind a bargain'. Even in countries where 'the imperial laws' had a claim to 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. Bractoh 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*. It is a scholastic exer- cise 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 com,modatum 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".

1 Seuffert, Geschichte der obligatorisohen Vertrage.

' Azo, Summa Cod. de pactis (2, 3), paints for us a shivering pact which nestles among the furs, the ' vair and grise,' of some well-dressed contract and becomea pactum adiectum. Bracton and Azo, 143.

' Azo, I. c. : 'vel dioitur [pactum] a percussione palmarum; veter'es enim consentientes palmas ad invioem percutiebant in signum non violandae fidei.'

* Salmond, Essays in Jurisprudence, p. 174.

° As to the character of this part of Bracton's work, see Bracton and Azo (Selden Soc), 142 fi. Brittou, i. 156, and Fleta, p. 120, repeat the learning of vestments. Fleta, however, has some valuable passages about the action of debt. It is not unlikely that Bracton intended to give a chapter to that action.

CH. v.] Contract. 195

[p. 193] We have seen that ecclesiastical law gained a foot-hold The canon 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 sufificient 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^ 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 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 ^-

From this point onward the process of arriving at a general Evolution law of contract was different in England and on the continent, contract on although some curious particular coincidences may be found, tufent." 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 extent checked by the difficulty

1 See below, the section on Marriage.

^ cc. 1. 3. X., de pactis, 1. 35 ; Seuffert, op. cit. 47. One of the first writers who proclaim this doctrine is that Hostiensis, who (see above, vol. i. pp. 122, 214) had made himself but too well known in England. Hostiensis, ad tit. de pactis. § quid sit effectus : ' Ut modis omnibus servetur, etiamsi sit nudum

secundum oanones quia inter simplicem loquelam et iuramentum non faoit

Deus diflereutiam.' See SeuSert, op. cit. p. 50.

13—2

196 Contract [bk. ii.

of stating it in a Koman form of plausible appearance, even for [p. 194] 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^. 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". In England the Courts Christian were early in occupation of the ground and bold in magnifying their jurisdic- tion, 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 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 pot 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 In Italy we find some jurists holding that an action de dola

andcMiOTi "will lie for damage caused by breach of an informal pact'. England '^^^^ 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 ' cloth- ing ' 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 principle [p.i^^l

^ Seuffert, op. cit, passim,

2 Franken, Das franzosiaohe Pfandreoht, pp. 43 ft.

8 Seuffert, op. cit. 77, 80.

CH. v.] Contract. 197

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^ 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.

Our task now becomes that of tracing the fortunes of three English different institutions, the germs of which we have already seen, centum, 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'''.

(1) We have seen how ' an interposition of faith ' accom- (i) The plished by some manual act could be converted into a vestment Litif^ " for pacts, and how this vestment was sanctified by a doctrine which saw in the faith that was pledged the pledgor's Christi- anity. This interpretation brought the ceremony within the cognizance of the ecclesiastical tribunals, which in the twelfth [p. 196] century were seeking to 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

1 Seuffert, op. cit. ad fin.

■■= Glanvill, x. 8 : ' Curia domini Regis huiusmodi privatas conventiones de rebus dandis vel accipiendis in vadium vel alias huiusmodi, extra curiam, sive etiam in aliis curiis quam in euria domini Eegis, factis, tueri non solet nee warantizare.' Ibid. x. 18: 'Praedietos vero contractus qui ex privatorum consensu fiunt breviter transigimus, quia, ut praedictum est, privatas con- ventiones non solet curia domini Regis tueri.' See also the passage from Bracton, cited below, p. 218, note 3.

198 Contract. [bk. ii.

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\ 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\

Then came the quarrel between Henry and Becket.

The We hardly need explain, after all that we have elsewhere

inrisdio- said, that there was no question of a war all along the line ■

o-Tbroken^^ between the spiritual and the temporal power. The king

faith. 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.'

Struggle We can not be certain about the precise meaning that

eooksfasti- *'^^ king's advisers attributed to these words. Becket and his

cai and friends interpreted them to mean that the ecclesiastical tribunals

temporal .

justice. were deprived of all jurisdiction of every kind over breaches of '^ oath or breaches of faith". This article was among those that [p. 197]

1 Northumberland Assize Rolls (Surtees Soo.) 56: in 1253 a marriage settlement is secured by faith deposited in the hands of the abbot of Newminster and the prior of Hexham. Winohcombe Landboc, i. 204 : A. W., on quit-claiming land to the abbot, pledges his faith in the hands of E. R. Eievaulx Cartulary, 39: S. and his wife, releasing land to their lord, pledge faith in the hands of the lord's steward in full court : they then go before the sheriff and pledge faith in his hands. See ibid., 69, 76, 77, 89, 100-1-2, 139.

2 Letters of John of Salisbury, ed. Giles, vol. i. pp. 1, 3, 8, 21 etc.

" Hoveden, i. 238, and Materials for the Life of Becket, v, 294 : ' Quod nou lioeat episcopo coercere aliquem de periurio vel fide laesa.' See also Materials, ii. 380, vi. 265. William Fitz Stephen (Mater, iii. 47) gives this version :— ' Ne

CH. v.] Contract 199

the pope condemned'. 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*. 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 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 °; still there can be little doubt that during the thirteenth century clerks were often sued upon their contracts in the courts Christian*.

But what concerns us here is the assertion of a criminal The writs jurisdiction to be exercised in foro externa over all causes of hftition. 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 matri- monial and testamentary causes ^ How wide a province was Op. 198] 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

omnis oontroversia de fidei vel sacramenti trangresaione sit in foro eoolesiastioo ; sed tantum de fide adaota pro nuptiis vel dote vel huiusmodi, quae non debent fieri nisi in facie ecclesiae. De aHter dato fidei saoramento, ut de debitis vel sic, Btatuit rex causam esse in foro laioo.' Anonymus II. (Mater, iv. 102) says : ' Quod apud iudioein ecclesiae non conveniatur aliquis laicus super laesa fide vel perinrio de peeunia.'

1 Materials, v. 79. " GlanviU, x. 12. ' See above, vol. i. p. 446.

" In John of Oxford's collection of precedents (circ. 1280) the example of an ecclesiastical libel (Uttera editionis) is one in which a plaintiff, who has transcribed a book for the defendant, claims an unliquidated sum, the amount of which is to be determined by the estimate of good men; Maitland, A Conveyancer in the Thirteenth Century, L. Q. B. vii. 67.

5 GlanviU, xii. 21, 22; Select Civil Pleas (Selden See.), pi. 83. History of the Begister, Harv. L. B. iii. 112, 114 ; Beg. Brev. Orig. f..34. The ordinaries must not hold plea concerning chattels or debts ' quae non sunt de testamento vel matrimonio.'

200 Contract. [bk. ii.

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*. 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 renunciatory clauses which are not uncommon in the charters of this age I 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 pecu- niary matter if it were not of a testamentary or matrimonial character^. Certainly these writs were always buzzing about the ears of the ecclesiastical judges*; they retaliated with ex- communications, and we may see Northampton laid under an interdict because its mayor enforced a prohibition^ Circum- ^ document attributed to the year 1285, which in after

^""^^ days was ranked among the statutes, the Gircumspecte agatis, suggests that at some time or another some concession was made in this matter by the lay power"- This document may

1 Note Book, pi. 351 : ' quia ibi maturius iustioiam habere potuit.' ^ Bracton, f. 401 b. In 1303 Bereford J. remarks that not long ago suoh clauses had been frequent in mercantile documents, but that they were against law ; T. B. 30-1 Edw. I. 493. Sometimes the promisor had expressly obliged himself ' sub poena anathematis ' ; Selby Coucher, ii. 140.

5 Grosseteste's articles (1258), Ann. Burton, 423 : ' Item sub colore pro- hibitiouis placiti in curia Christiauitatis de pecunia, nisi sit de testamento vel matrimonio, impedit et perturbat [Bex] prooessum in foro eoclesiastioo super fidei laesione, periurio in magnum animarum detrimentum.'

* Note Book, pi. 60, 351, 670, 683, 1361, 1464, 1671, 1893. 5 Note Book, pi. 351.

* Statutes of the Eealm, i. 101. The editors of this volume seem to have tailed to find any authentic text of this writ. It certainly ought to be enrolled somewhere. The author of the Mirror treats it as a statute. Possibly Britton, i. 28, alludes to it. A reason for giving it to the year 1285 is that it appears to be issued in consequence of a petition presented in that year by the bishops ; Wilkins, Concilia, ii. 117. In this they complain in general terms that they are prohibited from entertaining causes defidei vel sacramenti laesione.

CH. v.] Contract. 201

[p. 199] be described as a royal circular sent to the judges; perhaps it was issued along with a set of 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 Mis quae sunt mere spiritualia); and it is laid down as already settled that violent lajring 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 is the object of the suit. The words about breach of faith may possibly be authentic'; but there were lawyers in the fourteenth century who protested that this document was concocted by the prelates and of no authority^. 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 eveu where there has been no lesion of faith^, and it seems plain that the ecclesiastical judges did not care to in- quire whether a complainant could have found a remedy in a lay court*. On the other hand, the king's justices would

[p.20O] concede but a small territory to the canonists; their doctrine is that the only promises that are subjects for spiritual juris- diction are promises which concern spiritual matters^ That

/ 1 Such MSB. aa we have consulted leave this very douhtful. Curiously enough Cote gives while Lyndwood, p. 97, omits the important words. The Artiouli Cleri of 1315 (Statutes, i. 171) mention assaults on clerks and defamation as offences proper for ecclesiastical punishment, but say no word of breach of faith. See also Makower, Const. Hist., 434.

* Fitzherbert, Abr. Jurisdiction, pi. 28. See also Prynne, Eecords, iii. 336.

* Bot. Pari. ii. 319 : ' eaux ont encroohS plee de dette ov une addition q'est appeUe fide-lesion la ou uncies nul ne fust.' This injures the lords who have courts.

* Thus in 1378 Eichard vicar of Westley is cited in the bishop of Ely's court at the instance of a Cambridge tailor to answer for perjury and breach of faith which apparently consist in his not having paid a loan of eight shillings . Eegister of Bp. Arundel (in the Palace at Ely), f. 88 b. See the oases from Hale's Precedents and Proceedings collected in Harv. L. E., vi. 403. Also Depositions and other Ecclesiastical Proceedings in the Courts of Durham (Surtees Soc), p. 50 (a.d. 1535) ; the agreement enforced is for the purchase of a horse.

•■' Lib. Ass. f. 101. ann. 22. pi. 70 ; Y. B. 2 Hen. IV. f. 10 (Mich. pi. 45) ; 11 Hen. IV. f. 38 (Trin. pi. 40) ; 36 Hen. YI. f. 29 (Pasch. pi. 11) ; 20 Edw. IV. i. 10 (Mich. pi. 9) ; 22 Edw. IV. f. 20 (Trin. pi. 47) ; Second Inst. 493.

202 Contract. [bk. ii.

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 Within the limits assigned to their civil or non-penal iuriS'

pledge of , . . . , . . .

faith ill the diction the English courts Christian were in all probability able cai court, 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 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^. The king's One curious result of this bickering over ' faith ' seems to the pledge 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 faiths In other words, the grasp of hands will not serve as a sufiScient 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 happen to him than Dp-SOI] the loss of the gage^. This prevents our treating the dehvery 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

'■ Depositions and other Boolesiastioal Proceedings in the Courts of Durham (Surtees Soc), 50 ; iu 1535 a deponent in a case of breach of faith says that he heard the oral agreement made ; ' et desuper idem [reus] fidem fecit dict6 aotori — vidit dictum reum ponentem manum auam dextram in manu dextra ipsius actoris in supplementum promissi sui.'

2 GlauviU, X. 12 : ' creditor ipse si non habeat iude vadium neque plegium, neque aUam disrationatlonem nisi sola fide, nulla est haec probatio iu cijria . domini Begis.'

» Glanvill, i. 6. 7.

CH. V.J Contract 203

used. This sphere we may call that of the 'procedural con- tract ' 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 engage- ments 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 they 'waged' battle, or ' waged ' their law, or ' waged ' an amercement, by the delivery of a glove^ or some other symbol'. In the exchequer'' and in other courts men were constantly pledging their faith (affidare) that essoins would be warranted, that pleas would be prosecuted and the like'; 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^ ; 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) We must now turn to the action of debt. But first (2) The

.,.,■,., 1 action of

we ought to notice that m the thu-teenth century a prudent debt, creditor was seldom compelled to bring an action for the recovery of money that he had lent. He had not trusted [p. 202] his debtor's bare word nor even his written bond, but had obtaiaed 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 Therecog-

' Pone per vadium et salvos plegios — when the sheriff is bidden to do this, he, so far as we can see, merely exacts pledges (sureties). Of the wager of law we have this account in ms. Brit. Mus. Egerton, 656, f. 188 b : ' II gagera la ley de sun gaunt plyee e le baylera en la meyn oely e puys reprendra arere sun gaunt, e dunke trovera ilplegges de la ley.' When in later times we find that the glove is ' thrown down ' as a gage of battle, we may perhaps suspect that some act of defiance has been confused with the act of wager.

" Dialogus, ii. 12, 19, 21, 28.

' See e.g. Hengham Magna, c. 6 : Select Pleas in Manorial Courts (Selden Soc), p. 6.

* Blackstone, Comm. ii. 448 : ' Antiently, among all the northern nations, shaking of hands was held necessary to bind the bargain ; a custom which we still retain in many verbal contracts.'

204 Contract. [bk. ii.

there is upoB the plea rolls what purports to be the com- promise of an action of debt. The defendant confesses {cog- noscit, recognoscit) that he owes a sum of money, promises to pay it upon a certain day and ' grants ' that, if he does not paj' it, the sheriff may levy it from his lands and goods ; in return the plaintiff is sometimes said to remit the damages which are supposed to be already due to him from his debtor^ Still more often the parties go into the 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 im- portance 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 entrj'- 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. The action Glanvill knows an action of debt in the king's court". The \s-' Glanvili.'^ 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

1 Select Civil Pleas {^elden Soo.), pi. 102. This has begun as early as 1201.

2 Glanvill, x. 2.

CH- v.] Contract. 205

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 ' 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 repay- ment of an equivalent sum of money to the restitution of specific land or goods. To all appearance our ancestors could not conceive credit under any other form. The claimant of a j 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 \nxa\ 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 modem lawyer".

Though Glanvill gives a writ of debt and though the action An action of debt occasionally appears on the very earliest plea rolls*, it the king's 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 lusticies*, seems to be regarded as a luxury which the king is entitled to sell at a high price. Even in the earlier years of [p. 204] Henry III.'s reign the plaintiff must often promise the king a quarter or a third of all that he recovers before he will get his writ^ That men are willing to purchase the king's interference at this extravagant price seems to tell us that the justice of the

1 See LangdeU, Contracts, §§ 99, 100.

2 The doctrine that we are here maintaining about old English law had, we believe, become the orthodox doctrine about old German law. Of late Dr Heusler (Institutionen, i. 377-396) has vigorously attacked it, declaring that the German at a very remote time saw a difference between real and personal rights and between real and personal actions. We wish that he had considered the English actions of debt and detinue. What we have here said is in accord with Holmes, Common Law, p. 252 ; Salmond, Essays on Jurisprudence, 175.

3 Bolls of the King's Court, (Pipe Boll Soo.) pp. 24, 25 ; Eot. Cur. Eeg. (ed. Palgrave), i. 5. See above, p. 173.

^•A Praecipe brings the case to the royal court, a lusticies commits it to the sheriff.

^ Maitland, Eegister of Original Writs, Harv. L. E., iii. 112, 114 ; Excerpta e Bot. Fin. i. 29, 49, 62, 68 ; Glanvill Revised, Harv. L. B., vi. 15.

the action.

206 Conttact. [bk. ii.

local courts is feeble and that credit 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 ^ 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 ^ First from the Jew, then from the Lombard, Englishmen were learning to lend money and to give credit for the price of goods. Proprie- We may see the action gradually losing some of its pro-

acterof prietary 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 ' deforces ' 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*. 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*. They were beginning to feel that the two forms of ' loan,' the commodatum and the mutuwrn, 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". One ought not to say dehet when there is a commodatvmi. But further — ^and \s-' this is very curious — even when there is a money loan the word dehet should only be used so long as both parties to the transaction are alive; if either dies, the money may be

1 StaHordshire HiBtorioal Collections, vol. iv.

■■' Curia Eegis Boll for Pasoh. 55 Hen. III. (No. 202).

s Select Pleas in Manorial Courts, 140, 144, 150, 152.

* See above, vol. ii. p. 173.

" In the language which the royal chancery employs in describing the loans of money made to the ting by Italian bankers a change occurs about the middle of Henry III. 's reign ; commodare gives place to mutuo tradere, mutuo Hberare and the like. See Arohesologia, xicviii. 261.

CH. v.] Contract. 207

'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 \ 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".

Bv far the commonest origin of an action of debt is a loan of Debts money. But soon we begin to see the same action used for the from sale. price of goods. The contract of sale as presented by Glanvill is thoroughly Germanic^ 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*. 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 : — the man who bought [p. 206] cattle without their testimony was exposed to criminal charges. In substance the conditions mentioned by Glanvill 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 ia writing'-

1 Y. B. 21-2 Bdw. I. p. 615 ; 30-1 Edw. I. p. 391 ; 33-5 Edw. I. p. 455. In the last of these cases it is said that the heir of the original creditor is not a creditor, and therefore he can not say debes mihi. In the early records of debt and detinue the active party does not complain (queritur) he demands (petit) ; in other words he ia a ' demandant ' rather than a ' plaintiff ' and the action is 'petitory.' See Note Book, pi. 645, 732, 830.

' So in French customary law obligation has a similar narrow meaning : Esmein, 6tudes sur les contrats, pp. 151, 177.

' Glanvill, x. 14; Bracton, f. 61b. In this instance Bracton has worked into his book almost, the whole of Glanvill's text.

* GlanvUl, x. 14: 'Perficitur autem emptio et venditio cum effeotu ex quo de pretio inter contrahentes convenit, ita tamen quod secuta fuerit rei emptae et venditae traditio, vel quod pretium fuerit solutum totum give pars, vel saltern, quod arrhae inde fuerint datae et receptae.'

' Stat. 29 Car. II. u. 3. sec. 17 : ' except the buyer shall accept part of the

208 Contract. [bk. ii.

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*, 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 with- draw 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^ In Fleta the law merchant is said to be much more stringent, in fact prohi- bitory, the forfeit being five shillings for every farthing of the earnest, in other words 'pound for penny^.' It is among the merchants that the giving of earnest first loses its old character and becomes a form which binds both buyer and seller in a [11.207] contract of sale. To all appearance this change was not accom- plished without the intermediation of a religious idea. All aver western Europe the earnest becomes known as the God's penny or Holy Ghost's penny {denarius Deiy. Sometimes we

goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made' etc. These words appear almost unchanged in sec. 4 of our new Sale of Goods Act, 56-7 Vic. c. 71.

1 Heusler, Institutionen, i. 76-86 ; ii. 253-7.

2 Bracton, f. 61b, 62; Fleta, pp. 126-7. Braeton here uses the words of Inst. 3. 23, and it is possible that this definition of the vendor's liabiUty is due to Boman influence. Glanvill was uncertain as to the penalty that should be inflicted upon him. But the rule that the defaulting vendor shall lose the same sum that the buyer has risked is not unnatural. At any rate we can not think that the law of earnest as known to Glanvill and Bracton is derived from the Eoman law books, though this is the opinion expressed by Sir Edward Fry in Howe V. Smith, 27 Ohan. Div. 89, 102. The origin of the word earnest or ernes seems very obscure. The editors of the Oxford English Dictionary think that it may be traced to arrula, a diminutive of wrra, through the forms arles, erles, ernes.

^ A penalty of five solidi is denounced by French law books of this age in a somewhat similar case ; Franken, Das franzosische Pfandrecht, 57.

* For England see Select Pleas in Manorial Courts, p. 151; for Germany,

CH. v.] Contract. 209

find that it is to be expended in the purchase of tapers for the patron saint of the town or in works of mercy'. 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 sufiicient 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^ proclaimed that among merchants the God's penny binds the contract of sale so that neither party may • resile from it'. At a later day this new rule passed from the law merchant into the common law^. *

Returninar however to Glanvill's account of sale, we must ^*^ °* notice that m case a third person claims the object as stolen tinned, from him, the seller must be prepared to warrant the buyer's [p-208] right, or, if he refuses to do this, to be himself impleaded by the buyer, and in either case there may be a trial by battle °, 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". That

Heusler, Institutionen, ii. 255 ; for France, Esmein, Etudes sur les oontrats, 24 ; Franken, op. cit. 61 ; for Italy, Fertile, Storia del diritto, iv. 473.

' St Trophimus had the benefit of it at Aries; St Lawrence at Salon.

" Thus in the statutes of Avignon (quoted by Esmein, op. cit. 24) : ' Item Btatuimus quod quaelibet meroadaria, cuiuscumque rei emptio, et in re looata, et in quolibet alio contractu, postquam pro eis contrahendis oontrahentes inter se dederint rel alius pro eis denarium dei, firma et irrevocabilis habentur, et oontrahentes teneantur precise solvere precium et rem tradere super quam celebratus est contractus ultro citroque adimplere.'

' Munimenta GildhaUae, ii. 206 : ' Itejn quod quilibet contractus per ipsos meroatores cum quibuscunque personis undecunque fuerint, super quocunque genere mercandisae initis, iirmus sit et stabilis, ita quod neuter praedictorum mercatorum ab illo contractu possit discedere vel resilire postquam denarius dei inter principales personas oontrahentes datus fuerit et receptus.' See also the charter for the Gascon wine-merchants, Lib. Bub. Scac. iii. 1061.

* Noy, Maxims, c. 42: 'If the bargain be that you shall give me ten pounds for my horse, and you do give me one penny in earnest, which I do accept, this is a perfect bargain ; you shall have the horse by an action on the case and I shall have the money by an action of debt.' In Madox, Form. Angl. No. 167, we find a payment of a penny racione ernesii mentioned in a deed relating to the sale of growing crops which are not to be carried away until the residue of the price is paid. This from 1322 ; the earnest is here spoken of as though it were part of the price. This happens in some earlier cases also ; Select Pleas in Manorial Courts, p. 140.

» Glanvill, x. 15. " See above, vol. ii. p. 164.

P. M. II. 14

210 Contract. [bk. n.

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'. Unless there was some special agreement to the contrary, the risk remained with the party who was in possession of the goods". 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', it is but slowly that an owner of goods who is not also the possessor of them acquii-es 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'a day. Scope of Even in Edward I.'s time, whatever may have been the

of debt, ^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 (j)le- gius), and (5) a debt confessed by a sealed document*. We can not say that any theory hemmed the action within these narrow limits. As anything that we should call a contract was not its essence, we soon find that it can be used when- ever a fixed sum, 'a sum certain,' is due from one man to another. Statutory penalties, forfeitures under by-laws, amerce- ments inflicted by inferior courts, money adjudged by any court, can be recovered by it. This was never forgotten in England so long as the old system of common law pleading was [p.: retained". Already in 1293 the bailiff of one of the bishop of

^ Bracton, f . 62 ; Fleta, p. 127 : ' quia revera qni rem emptor! nondum tradidit adhuc ipse dominus erit, quia traditionibus et usucapionibus etc'

' GlanviU, x. 14. Bracton, f. 62, with Glanvill and the Institutes both open before him, deliberately contradicts the latter and copies the former.

' See above, vol. ii. pp. 170 ff.

< In a few cases it would perhaps be used to recover arrears of a freehold lent; but this was exceptional. See above, vol, ii. p. 127.

' In the sixteenth century, however, the word contract had acquired a special association with the action of debt. See Fitz. Abr. Dett, passim.

CH. v.] Contract. 211

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'. 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". 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'. 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 agaiost him*. 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 can not 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 Ip.2io] century the action extended beyond those cases iu which the defendant had received some material thing or some service from the 'plaintiff'.

' Y. B. 21-2 Edw. I. p. 39. This was a notable action. The count in it is 2)reserved in a collection of precedents, ms. Lansdowne, 652, f. 223 b.

" Y. B. 21-2 Edw. I. p. 699.

'' This is given as a precedent in ms. Lansdowne, 652, f. 223 b. We shall . speak of this action in another chapter.

* So late as 1314 (Y. B. 7 Edw. 11. f. 242) an action of debt is brought against a surety who has not bound himself by sealed instrument. See Holmes, Common Law, pp. 260, 264, 280 ; Salmond, Essays in Jurisprudence, 182.

i> In 1292 (Y. B. 21-2 Edw. I. p. Ill) we find an action which departs from the common precedents. The plaintiff let land to the defendant for fourteen years ; the defendant was to build a house worth £14 and in default was to pay

U— 2

212 Contract. [bk. ii.

The Any formulated doctrine of quid pro quo was still in the

quid pro future. Therefore we are not concerned to explore the history *"*■ of the generalization which in aft6r 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' whs^t belongs to him. It Ihas 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 pro- pounding 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 promised 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".' Our English writers give us nothing so succinct as this, because unfortunately the Italian glossators have led them astray with a theory of 'vestments ' which will not fit the English facts; but we can not 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 on loan, or sale, or some other similar transaction. At a later time, various transactions have been [p.2iij 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

that ^Um, or (so it seems) such part of it as was not covered by the value of any house that he had huilt. He built a house worth £6. lOt. The plaintiff brings an action of debt for £7. 10s. The objection that this- is a case of covenant, not debt, ia overruled.

1 Glanvill, x. 3 : 'Is qui petit pluribus ex causis debitum petere potest, aut - enim debetur ei quid ex causa mutui, aut ex causa venditionis, aut ex commodate, aut ex loc^to, aut ex deposito, aut ex alia iusta debendi causa. '

2 Summa, p. 215 ; Aucienne coutnme (ed. de Grnchy), e. 91 (90). The French text says — 'Aulcun n'est estably debteur pour promesse qu'il face, seil ny eust droicte cause de promettre.' The whole of the chapters relating to debts and contracts is very instructive.

CH. v.] Contract 213

That this should be found in quid pro quo is not unnatural. Gratuitous We may take it as a general principle of ancient German law pomLea that the courts will not undertake to uphold gratuitous gifts or {"^f'^y to enforce gratuitous promises^ 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^. 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 ; 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', [p. 212] Perhaps we may doubt whether in the thirteenth century a purely gratuitous promise, though made in a sealed instrument,

^ Hensler, lustitutionen, i. 81; Schroder, D. B. G. 61. The statement current in English books of recent times that the solemnity of a deed 'imports consideration ' is historically incorrect, but shows the persistence of this idea.

" This is the Lombard launichild (Lohngeld) ; see Heusler, Institutionen, i. 81 ; Val de LiSvre, Launegild und Wadia. Is the modern custom of nominally selling, not giving, a knife or other weapon or weapon-like thing to be regarded as a mere survival of this? Or has the launichild coalesced with some other and perhaps even older superstitious form? Dr Brunner, Pol. Soi. Quarterly, ix. 542, suggests that if the donee were cut by the knife, he might under ancient law hold the donor answerable for the wound.

' See Fines, ed. Hunter, passim. When a fine is levied in favour of a religious house, the ' consideration ' stated in the chirograph is very often the admission of the benefactor into the benefit of the monks' prayers; see e.g. Selby Couoher, ii. 329, 333. The sparrow-hawk is a ' common form ' in fines of Edward I.'s day.

debt.

214 Contract. [bk. ii.

would have been enforced if its gratuitous character had stood openly revealed'. 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 cawa de- bendi 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 I Proof of In the action of debt, unless the plaintiflf relied on a sealed

document, 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*. 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 charge by demanding that the ' suitors ' [p. 213] wbo were produced by the plaintiff should be examined, and, if

' The ordinary bond of this period generally states that there has been a loan of money, and, even when both parties are Englishmen, it often contains a renunciation of the exeeptio non numeratae pecuniae. See, e.g. Selby Coucher, ii. p. 243, where this occurs in a quit-claim. This probably was an unnecessary precaution learnt from the Italian bankers; for see Bracton, f. 100b. But in any case the bond is no mere promise ; it is the confession of a legal debt. It says, Sciatis me teneri. As Bracton puts it, the obligor scrvpsit se debere and is bound by his confession.

' We can not accept the ingenious theory advocated by Mr Justice Holmes, Common Law, pp. 255-9, which would connect the requirement of quid pro quo with the requirement of a secta, and this with the requirement of transaction witnesses. The demand for a secta is no peculiarity of the action of debt. The plaintiff who complains {e.g.) of an assault, must produce a secta, but hia suitors will not be ' o£Scial witnesses.' Again, the action to recover money lent is for a long while the typical action of debt ; but we have no reason to believe that money loans were contracted before oificial witnesses. Lastly, we have no proof that the official witnesses were ever called in by the plaintiflf to establish a contract ; they were called in by a defendant to protect him against a charge of theft. The history of ' consideration ' lies outside the period with which we are dealing. Few points in English legal history have been more thoroughly discussed within recent times.. See. Holmes, Common Law, Lecture vi. ; Salmond, Essays in Jurisprudence, iv. ; Hare on Contracts, oh. vii. ; Ames, History of Assumpsit, Harv. L. B. ii. 1, 53 ; Jenks, Doctrine of Consideration ; Pollock, Principles of Contract, App. Note E ; Esmein, Un ohapitre de I'histoire des cOntrats en droit anglais, Nouvelle revue historique de droit franpais et stranger, 1893, p. 555. Mr Ames has put the subject, from the fifteenth century downwards, on a new footing.

8 Even in debt for rent when there is no deed a wager of law is permitted; y, B, 20-1 Edw. I. p. 304.

CH. v.] Contract. 215

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^. Eiforts 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 exe- cution of a charter could be proved". The common law, how- ever, 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 ^ 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^ The ease with which the defendant could escape was in the end the ruin of this old action.

In the action of debt the plaintifif demands a sum of money Damages

together with ' damages ' for the unjust detention. The damages

claimed by the plaintiff are often very high", and he has a

chance of getting all that he claims, for if the defendant wages,

[p. 214] but fails to make his law, there will be no mitigation or

1 Note Book, pi. 1693; Fleta, p. 138, allows an examination. So late as 1324 a plaintiff fails because he has no 'suitors' ready; T. B. 18 Edw. II. f. 582.

' Fleta, p. 138 ; this boon was conceded to merchants ' ex gratia principis.' Select Civil Pleas, pi. 146 ; Note Book, pi. 645 ; Y. B. 20-1 Edw. I. p. 305 ; 21-2 Edw. I. p. 457 ; 30-1 Edw. I.' p. 235; 32-3 Edw. I. p. 185. A ooUeotion of cases, ms. Harley, 25. f. 179, 188, contains an interesting discussion about sealed tallies. Plaintiff, produces a tally. Defendant wishes to wage his law. Plaintiff asks 'Is this your deed?' Defendant answers 'We need not say.' Then a judge says ' Coment qU seient tailUs, vus les avez aforc§ par le planter de vostre seel, et icy vostre fet.' To this it is replied that in the time of Sir John Metingham (temp. Edw. I.) a sealed tally was admitted but the judgment was reversed.

» Fleta, pi. 138.

* Munimenta Gildhallae, i. 203. In the Laws of Alfred, 33, we read of an oath in four churches outsworn by an oath in twelve.

' See e.g. Northumberland Assize Bolls, p. 169 : the plaintiff claims seven marks, the price of a horse sold about four years ago, and ten marks damages. At a little later time the civic court in London by general rule allowed damages at the rate of 20 per cent, per annum unless the debt was confessed at the first summons. See Munim. Gildh. i. 471.

216 Contract. [bk. ir.

'taxation' of the amount that the plaintiff has mentioned^ 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 One boundary of the action of debt is fixed from the first

and can not 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 (3) The writ of covenant (breve de conventione) is not men- nant^^ tioned by Glanvill ; but it appears within a short time after the publication of his book^ 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'. 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*. But the popularity of the writ is due to the fact that men are by this time commonly employing it when they want to convey land by way of fine'. 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

1 T. B. 33-5 Edw. I. p. 397. Hence a would-be verse found in ms. precedent books : ' Qui legem vadiat, nisi lex in tempore fiat, Mox condemnetar, taxatio nou sibi detur.'

" Bolls of the King's Court (Pipe Eoll Soc), p. 53 (a.d. 1194, the earliest extant plea roll) ; an essoin is cast in a ' placitum convencionis per ciro- graphum ' ; but this may be an action on a fine. Select Civil Pleas (Selden Soc), pi. 89 (a.d. 1201) seems an indubitable specimen. Brevia Placitata, ed. Turner, 21.

* Maitland, Register of Writs, Harv. L. B. iii. 113-6. The writ first appears in the Eegisters as a lusticies, which can be had as of course when the annual value of the land is worth less than 40 shillings. See also Exoerpta e Bot. Jin. i. 31.

■* Curia Eegis Bolls (Bee. Off.), No. 202, Pasch. £5 Hen. III.

' See above, vol. ii. p. 98. The writ of warantia cartas is for this purpose its principal rival. Blaekstone, Comm. ii. 350, mentions as alternatives the warantia cartae and the de consuetudinibus et aervitiis.

CH. T.] Contract. 217

[p. 215] final concord. 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.

The specific want that this action has come to meet is that Covenants

. • /■ 1 ■ 1 T i? "■"" leases,

■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'. At a little later time

it finds another employment. Family settlements are being

made by way of feofiment 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^ 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'.

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

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

^.216] feoffeC. However, in 1284 the Statutum Walliae made it

1 See above, vol. ii. p. 106. = See above, vol. i. p. 405.

-" Note book, pi. 1739 ; action by ejected termor : ' Et ideo consideratum est quod conventio teneatur et quod Hugo habeat seiainam auam usque ad terminum suum x. annorum.'

* See Note Book, pi. 36. Bracton, f. 46; if a feoffment be made upon condition that the feoffee is not to alienate, the lord can eject one who purchases from the feoffee 'propter modum et conventionem in donations appositam.' Bracton does not here distinguish between condition and covenant. See also T. B. 21-2 Edw. I. p. 183, where the objection is taken that one can not recover a freehold in a writ of covenant ; and Note Book, pi. 1656, where the action is refused to one who could bring the novel disseisin. In Y. B. 80-1

218 Contract. [bk. ii,

clear that a feoffment can not thus be set aside in favour of an earlier conventio, and specified this case as one of those in •which the freehold can not be recovered and judgment must be for damages ^

Bcopeof The same great statute assures us that in an action of

the action. ° . .

covenant sometimes movables, sometimes immovables are de- manded, also that the enforceable covenants are infinite in numbet so that no list of them can be made* ; 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 bad a free hand in the enforcement of 'private conventions' and might in this par- ticular do more than they were actually doing". We can produce a few examples in which the plaintiff is not claiming land or an incorporeal thing such as a rent or an advowson*.

Edw, I. p. 145, we read how ' this action is personal and is given against the person who did the trespass and the tort.' Thus the conception of the writ has been fluctuating between opposite poles. The statement that a breach of covenant is ' tort ' and ' trespass ' is of some importance when connected with the later history of assumpsit.

^ Statutes of the Eealm, vol. i. p. 66.

' Ibid. : ' et quia infiniti sunt contractus conventionum difficile esset facere mentionem de quolibet in speciali.'

' Bracton, f. 34, 100 ; Bracton and Azo, p. 152 : < ludicialis antem poterit

esse stipulatio, vel conventionalis Oonventionalis, quae ex conventione

utriusque partis conoipitur et quarum totidem sunt genera, quot paene rerum

contrahendarum, de quibns omnino curia regis se non intromittit nisi aliqnando de gratia.' It is not very plain whether by this last, phrase, which is a reminiscence of OlanvUl, z. 8, Bracton means to say that the court sometimes as a matter of grace enforces unwritten agreements, or that it only enforces written agreements occasionally and as a matter of grace. On the same page, following the general tendency of medieval Boman law, he explains that a stipulatio may well be made per scripturam. In the passage here quoted the , printed book gives poenae instead of paene, which (though every MS. of this age

would give pene even if the word was poenae) Is indubitably the true reading ; see Inst. 3. 18. § 3.

* T. B. 21-2 Edw. I. p. Ill : it is said that an action of covenant will lie for not building a house. Y. B. 21-2 Edw, I. p. 183 : a Prioress has convenanted to provide a chaplain to sing service in the plaintiff's chapel. But even here there is ' a chantry ' of which ' seisin ' is alleged. T. B. 20-1 Edw. I. p. 223 : covenant to return a horse that has been lent or to pay £20. But for reasons given below (p. 220) some doubt hangs over this case. Note Book, pi. 1058 (a.d. 1225) : covenant that the plaintiff and his wife may live with the defendant, and that, if they wish to depart, he will cause them to have certain lands.

CH. v.] Contract. 21.9

[p. 217] However, in the Statute of Wales we have a sufficient decla- ration 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 ap- parent, and is curious. The action of covenant can not be employed for the recovery of a debt, even though the existence of the debt is attested by a sealed instrument. A debt can not 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*.

But what of form? Before the end of Edward I.'s reign The the king's court had established the rule that the only conventio must^be' 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 simt servanda was in the air; Pactum serva was Edward's chosen motto. The most that the Komanist could do for the written 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 Eoman 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 qf 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

Note Book, pi. 1129 : covenant that plaintiff may have a hundred pigs in a certain wood. But here the plaintiff seems to be claiming a 'profit.' Warranties or agreements of a similar kind seem to be oooasioually enforced by writ of covenant; but usually they are enforced either by voucher or by the writ of warantia cartae. In Edward I.'s time it is thought that there are some cases in which a plaintiff can choose between debt and covenant; T. B. 20-1 Edw. I. p. 141 ; 21-2 Edw. I. pp. Ill, 601.

1 Ames, Harv. L. E. ii. 56: 'The writer has discovered no case in which a plaintiff succeeded in an action of covenant, where the claim was for a sum certain, antecedent to the seventeenth century,'

220 Contract. [bk. ii,

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 [ii-2i8] require a charter 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' (especiaW, 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 ' deedV

1 The period of hesitation is illustrated by Note Book, pi. 890, 1129, 1549. But aa early as 1234-5 we have found (Eeoord Office, Curia Eegis Boll, No. 115, m. 7) a fairly clear case of an action of covenant dismissed because the plaintiff has' no deed: 'et quia dictus H. non protulit cartam nee cyrographum de praedicta terra, consideratum est quod loquela iUa vacua est.' On the roU for Pasch. 34 Hen. III. (Becord Office, Curia Begis Boll, No. 140), m. 15 d, W. E. sues the Abbot of Evesham ' quod teneat ei conventionem'; the plaintiff counts that the abbot came before the justices in eyre, granted the plaintiff an elaborate oorody, and further granted that he would execute a deed (ctmficeret cartam) embodying this concession ; suit is tendered and no appeal is made to any record. The abbot confesses the conventio, denies the breach and wages his law. In Y. B. 20-1 Edw. I. p. 223— as late therefore as 1292 — ^we seem to see that whether ' suit ' will support an action of covenant is still doubtful, while it will support an action of debt. (See however, p. 487; we can not be quite certain that one of the reporters has not blundered.) In Y. B. 21-2 Edw. I. p. 621, a defendant sets up an agreement by way of defence; on being asked what he has to prove the covenant, he appeals to 'the country.' 'Nota' says the reporter ' ke la ou uu covenant est alegg^ cum chose incident en play yl put estre detri^ par pays.' In Y. B. 32-3 Edw. I. p. 297, an action of covenant is brought against tenant pur autre vie for wasting the tenement; he demands judgment as the plaintiff has nothing to prove the covenant or the lease ; bat is told to find a better answer. This case shows the point of contact between the covenant and the lease. Ibid. p. 201, a writ of covenant is brought against

CH. v.] Contract. 221

[p. 219] One other action remains to be mentioned, namely, the The actiou 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'.' The earliest instance of this action known to us dates from 1232": the Nvrit seems to come upon the register late in Henry III.'s reign', and much pf its efficacy in later times was due to the statutes of 1267 and 1285^ These statutes sanctioned a pro- cedure 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", 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

a teimor who is holding beyond his term; he promised to execute u written agreement, but has not ; the defendant at first relies on the want of a ' specialty,' but is driven to claim a freehold. The rule that what is done by 'deed' can in general only be undone by 'deed' appears in T. B. 33-5 Edtr. I. pp. 127,

331, 547. See Bracton, f. 101: 'eisdem modis dissolvitur obligatio quibus

contrahitur, ut si conscripserim me debere, scribat creditor se aooepissc.' This is romanesque (see the passages collected by Moyle in his comment on Inst. 3. 29) but is quite in harmony with English thought, and was rigorously enforced. See Ames, Specialty Contracts and Equitable Defences, Harv. L. B. ix. 49. The technical use of the word deed seems the outcome of the very common plea Nov. est factum meum, Nient man fet, i.e. I did not execute that document. As a word which will stand for the document itself, it slowly supplants carta ; it is thus used in Y. B. 33-5 Edw. I. p. 331 : 'nous avoms vostre fet.' ■ As to specialty (aliquid speciale), this comes to the front in quo waranto proceedings; the claimant of a franchise must have something special to show for it. In relation to contract, the demand for specialty seems a demand for some proof other than a verdict of ' the country.'

' Langdell, Survey of Equity Jurisdiction, Harv. L. B. ii. 243.

2 Note Book, pi. 859.

2 Maitland, Begister of Original Writs, Harv. L. E. iii. 173. Brevia Hacitata, ed. Turner, 23.

* Stat. Marlb. c. 23; Stat. West. U. o. 11.

» See above, vol.. i. p. 322.

222 Contract. [bk. n.

Englishmen were beginning to learn a little about partnership'. 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 convenient [p.i 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 modem examples. But on the whole it did very little for our law of contract, poj™^' We have been speaking of actions in the king's court ; but

courts. 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^ It is possible that these 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 com- prehensive 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

1 Y. B. 32-3 Edw. I. p. 377, where 'la manere de la companye des Lombars' iB mentioned ; 33-5 Edw. I. p. 295.

2 Select Pleas in Manorial Courts, p. 157: action in the Fair of St Ives (A.D. 1275) by a master against a servant who has left his servicej the breach of contract ia admitted ; the judgment is that John do serve Bichard to the end of the term ; no written document ia mentioned. See also The Court Baron (Selden Soc), p. 113 ; unwritten agreement enforced in a manorial court of the bishop of Ely. We have seen several auch oases on the rolls of the court of Wisbech now preserved in the palace at Ely. In one case of Edward I.'s time the plaintiff alleges an agreement (conventio) for the sale of two acres of land for one mark. The plaintiff has paid the price but the defendant has refused to enfeoff him. No word ia said of any writing. The defendant denies the agreement and asks for an inquest. The jurors find that the agreement was made, and the plaintiff has judgment for damages. For the civic courts in London, see Munimenta Gildhallae, i. 214 ; Fitz. Nat. Brev. 146 A. For Nottingham, see Becords of Nottingham, i. 161, 167, 207. We may well believe that in the larger towns unwritten covenants were commonly enforced.

CH. v.] Contract. 223

agreement tHough, as we should say, made for valuable consideration, finds no remedy in the king's court.

The English formal contract, therefore, is no product of The sealed ancient folk-law. The ' act and deed ' that is chosen is one that '1°'='™^"'- [p. 221] in the past 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'. 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^ 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. The unsealed ' books ' of the Anglo-Saxon kings are called in question if they have not been confirmed by a sealed document'. Gilbert de Balliol called in question the charters granted by his ancestors to Battle Abbey ; Eichard de Lucy the justiciar replied that it was not the fashion of old time that every petty knightling should have a seal*. 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

' Bresslau, Urknndenlehre, i. 521 ff; Giry, Manuel de diplomatique, 636 fE.

" The Monastieon testifies to the existence of many charters granted by the Norman kings, including Stephen, which either bore no seals, or else were also signed with crosses in the old fashion. Maitland, Domesday Book, p. 265. The Exeter Charter of William I. (Facsimiles of Anglo-Saxon Charters, vol. i. no. 16) will serve as a specimen. Sometimes the cross is spoken of as more sacred than the seal ; see Monast. ii. 385-6 : ' non solum sigillo meo sed etiam sigillo Dei omnipotentis, id est, sanctae orucis.'

" Gesta Abbatum, i. 131. In Henry II. 's time the unsealed charters of St Albans are considered to be validated by the sealed confirmation obtained from Henry L

* Bigelow, Plaoita, 177 : ' Moris antiquitus non erat quemlibet miUtulum sigillum habere, quod regibus et praecipuis tantum oompetit personis,'

224 Contract. [bk. n.

procuring the apposition of his lord's seal'. 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 [p.: lawful man usually had a seal. It is commonly assumed that jurors will as a matter of course have seals. We must not thinik 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^, '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 In the twelfth century charters of feoffment had become documents, common ; they sometimes contained clauses of warranty. In the next century leases for years and documents which dealt with easements, with rights of pasturage, with tithes and the like, were not unfrequent; they sometimes contained penal clauses which were destined to create money debts'. Occasion- ally 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^ 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 Kemfrey invokes perpetual disherison on himself should he adhere to

^ Beaumanoir, o. 35. § 18 : ' Trois manieres de lettres sunt : le premiere entre gentix homes de lor seaus, oar il poent fere obligation contr'eus par le tesmognage de lor seaus ; et le second, si est que tons gentil home et home de poeste poent fere reconnisances de lor convenances par devant lor seigneurs desBoz qui il sont conquant et levant, ou par devant le sovrain.'

" The trial by collation of seals is illustrated in Note Book, pi. 1, 61, 102, 234, 237 etc.

' Winohoombe Landboo, i. 239 : if J. S. breaks the water pipe of the abbot of Winchcombe, which runs through his land, he will repair it, and in default of repair will pay half a mark for each day's neglect. Beg. Malmesb. ii. 83 : if rent falls into arrear the lessee will pay an additional 10 shillings ;pro misericordia.

' Winchcombe Landboo, i. 239: the sheriff may distrain and take a half- mark for the king's use. Newminster Cartulary, 98 : a penal sum to be paid in subsidium terrae sanctae. See also the precedents of John of Oxford, L. Q. E. vii. 65 ; Madox, Formulare, p. 359, and Archeeologia, xxviii. p. 228,

CH. v.] Contract. 225

Magna Carta which the pope has quashed'. But documents of a purely obligatory character were still rare. They seem to come hither with the Italian bankers. They generally took the form of the 'single bond"'; the bond with a clause of The single 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 or after the lapse of so many days Dp. 223] 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 (interessey ; 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'^ sworn or unsworn assertion shall fix their amount*. 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 there- abouts, the debt was to bear interest at sixty per cent.° Often the debtor had to renounce in advance every possible 'excep- tion' 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'. Often the

1 Hot. Cart. Job. pp. 191, 221.

" See Blackstone, Gomm. ii. 340. Not one of the commentators, so far as we know, has rightly nnderstood this term in the place where Shakespeare has made it classical (Merch. of Venice, Act i. Sc. 3). Shylock first offers to take a, bond without a penalty, and then adds the fantastic penalty of the pound of flesh, ostensibly as a jesting afterthought.

' Cart. Eiev. p. 410 : the abbot is to pay one mark on every ten marks for every delay of two months, i.e. sixty per cent, per annum 'pro recompensatione, interesse, et expensis.' This pact is secured by recognizance in the king's court. See also Mat. Far. Chron. Maj. iii. 330.

* See e.g. Begistr. Falatin. Buuelmense, i. 91: 'super quibus iurameuto eorundem vel eorum unius socii, fidem volumus adhiberi.' Madox, Formulare, p. 359 : ' damnis et expensis quae vel quas se simplioi verbo suo dixerint Eustinuisse.'

'^ Prynne, Eecords, ii. 1034 ; see also ibid. 845.

" Begistr. Paiatin. Dunelmense, i. 276 (a.d. 1311) : ' Et ad haeo omnia fideliter facienda obligamus nos et omnia bona nostra mobilia et immobilia, ecclesiastica et mundana, nbicuuque locorum inventa, iurisdictioni et coercion!

P. M. II. 15

226 Contract. [bk. ii.

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 The clause which promises payment to the creditor ' or his ocnmen s. g^^^Qj^^gy ' 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 contracts 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 right unless that right is embodied in some corporeal thing. The history of \s-' 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". 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'. 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*. Assign- In the case, however, of the mere debt there is nothing that

^bts ° 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

cuiuscunque iudicis ecclesiaatici vel civilis quern idem dominas G-ilbeitus adire vel eligere voluerit in hao parte : exception! non numeratae, non traditae, non solutae, nobis pecuniae, et in nostram et ecclesiae uostrae utilitatem non conversae, et omni iuri soripto oanonico et oivili, ao omni rationi et privilegiO per quam vel quod contra praemissa, vel aliquod praemissorum, venire posse- tnus, renunciantes penitus et expresse.' The finest specimen of a renunciatory clause that we have seen is in a bond given in 1293 by the abbot of Glastonbury to some merchants of Lucca for the enormous sum of £1750 ; Arcbaeologia, xxviii. 227 ; it must have been settled by a learned civilian. A good instance of a bond for the delivery of wool sold by the obligor is in Prynne, Records, iii. 183.

' PoUoci, Principles of Contract, App. Note F ; Brunner in Holtzendorff's Enoyklopadie (5th ed.) p. 279.

" See above, vol. ii. p. 139. » Note Book, pi. 804. < See Braoton, f. 37 b.

CH. v.] Contract. 227

has been begun, then and not until then, an attorney can be appointed^. The idea of representation is new'' ; it has spread outwards from a king who has so many afifairs that he can not 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 repre- sentative 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 in the form of a ' power of attorney,' that he is the attorney of the original creditor^ It seems probable that the process which in Ip.225] the end enables men to transfer mere personal rights has taken advantage, 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*.

1 See above, vol. i. p. 213. ' Heusler, Inatitutionen, i. 203.

' On a, roll o£ 1285 we read how the executors of the countess of Leicester have attorned Baruneino Gualteri of Lucca to receive certain moneys due to lier; this in consideration of a loan from Baruneino. When he demands payment he will have to produce 'litteras praedictorum exeoutorum dictam .assignatipnem testificantes.' See Archaeologia, xxviii. 282. By this time the iing is frequently ' assigning ' the produce of taxes not yet collected.

* The clause ' vel suo certo attornato [vel nuntio] has litteras deferenti ' is quite common, The only English instance that we have seen of a clause which ■differs from this is in Select Pleas in Manorial Courts, p. 152, where in 1275 a merchant of Bordeaux sues on a bond which contains a promise to pay to him 'vel cnicunque de suis scriptum obligatorium portanti.' But here the person who demands the debt can apparently be required to show that he is a partner or the like {de suis) of the creditor named in the bond. For the history of such •clauses, see Brunner, Forschungen, p. 524 fol. ; Heusler, Institutionen, i. 211 ; Jenks, Early History of Negotiable Instruments, L. Q. B. ix. 70. Apparently 3racton, f. 41 b, knew these mercantile documents under the name missibilia.

15—2

228

Contract.

[bk. ir.

Agency in contract.

Agency and 'uses.'

The whole law of agency is yet in its infancy. The king indeed ever sinde John's .day has been issuing letters of credit empowering his agents to borrow money and to promise re- payment in his name^ A great prelate will sometimes do the like'. It is by this time admitted that a man by his deed can appoint another to do many acts in his name, though he can not appoint an attorney to appear for him in court until litigation has been begun': Attorneys were appointed to deliver and to receive seisin ^ 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 in- formal agency, of any implied agency, we read very little". We seem to see the beginning of it when an abbot is sued [p.! for the price of goods which were purchased by a monk and came to the use of the convent*.

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 em- ployed with a technical meaning in legal documents is derived, not firom the Latin word usus, but from the Latin word opus^ which in old French becomes os or oes''. 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 Jahannis or ad usum

1 Archaeologia, xxviii. 217.

^ Begietr. Falatin. Dnnelmeuse, i. 69 (a.d. 1811) : appointment of an agent to contract a large loan.

' One can not do homage by attorney ; Note Book, pi. 41,

* Bracton, f. 40. The passage in which Bradtpri, f. 100b, tells us 'per qnaa personas acquiritur obligatio ' is a piece uf inept Bomanism. See Bracton and Azo, p. 160.

" Note Book, pi. 873: a plaintiff claims a -wardship sold to her by the defendant's steward : ' et quia ipsa nihil ostendit quod ipse Bicardus [the defendant^ ei aliquid inde concesserit, oonsideratum est quod Eicardus inde sine die.'

6 Y. B. 33-5 Edw. I. p. 567. Already in Leg. Henr. 23 § 4, we read that the abbot must answer for the acts of the obedientiaries (i.e. the cellarer, chamberlain, sacrist, etc.) of the house. The legal deadness of the monks favours the growth of a law of agency.

' L.Q.E. iii. 116.

CH. v.] Contract. 229

Johannis indifferently, or will perhaps adopt the fuller formula ad opus et ctdMSum; nevertheless the earliest history of ' the use' is the early history of the phrase ad opUsK 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 dis- tinguish what they receive for their own proper use (ad opt^s suum proprimn) 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 [p. 227] is what to our eyes is an informal agency, this term ad 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 c^r agent ; John does not receive money or chattels 'as agent for' Roger; he receives it to the use of Koger (ad opus Bogeri).

Now in the case of money and chattels that haziness in Chattels the conception of ownership to which we have often called „ae of* * attention^ 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 per- sonal 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

' See the note appended to the end of this chapter. Mr Justice Hohnes, L. Q. E. i. 162, was the first to point to the right quarter for the origin of 'uses.' * See above, vol. ii. pp. 153, 177. . ,

230 Contract. [bk. ii.

oxen, John can bring an appeal or an action and call the beasts Ms own proper chattels. We take it that he himself can not steal the beasts ; even in the modern common law he can not steal them until he has in some way put them in his employer's possession*. We are not very certain that, if he appropriates them to his own use, Eoger 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 Eoger's, not John's, is growing and des- tined 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 ' con- verts to his use' (ad opus suum proprium) the goods of an- other ; 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.

Iiandsheld It is not SO in the case of land, for there our old law had [p.!

of another, 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". Along one line of development we may see this third person, this ' saleman,' becomifig 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'. Freeholders, it is true, have soon acquired so large a liberty of

1 See Mr Justice Wright's Btatement and authorities, in Pollock and Wright, Possession, p. 191.

'■ Lex Salica, tit. 46, De adfathamire. Heusler, Institutionen, i. 215. ^ See above, toI. i. p. 845.

CH. v.] Contract. 231

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 can not but call permanent ' 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 'inter- position 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 [p. 229] the use' of the library or 'to the 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.

232 Contract. [bk. ii.

The ' use ' 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 for the benefit of another. Such transactions seem to have been too un- common 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 protection in the 'equitable' jurisdiction of the chancellors. If in the [p- 230] 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 sub- mission 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 owner- ship.' Feuaaiiam We have been laying stress on the late growth of a law of contract, 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

CH. v.] Contract. 233

was governed by the law of contract'. There is no paradox here. In the really feudal centuries men could do by a con- tract, by the formal contract of vassalage or commendation, many things that can not be done now-a-days. 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.

l^ote on the phrase ' ad opus,' and the Early History of the Use.

[p. 231] I, The employment of the phrase ad opus meum (tuum, supm) as meaning on my (your, his) behalf, or for my (your, his) prpflt or advantage, can be traced back into very early Frankish formulas. See Zeimier's quarto edition of the Formulae Merovingioi et Karolini Aevi (Monumenta Germaniae), index s. v. opus. Thus, e.g. : —

p. 115 'ut nobis aliquid de silva ad opus ecclesiae nostrae . . . dare itibeatis.' (But here opvs 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 . . . done'

p. 315 (An emperor is speaking) 'telonium vero, exoepto ad opus nostrum inter Q et D vel ad 0 [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, Ludovioi Pii 40 (p. 538): 'Ut de debito quod ad opus nostrum fuerit wadiatum talis consideratio fiat.'

' Maine, Ancient Law, 6th ed. pp. 170, 303.

234 Contract. [bk. n.

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

Cenwulf of Meroia, a.d. 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 , . .'

Beomwulf of Meroia, A.D. 822, Kemble, Cod. Dipl. v. 69 : ' Rex dedit ecclesiae Christi et Wulfredo episcopo ad opus monachorum .... villam Godmeresham.'

Werhard's testament, A.D. 832, Kemble, Cod. Dipl. i. 297 : the arch- bishop acquired lands for the use of the cathedral convent : ' ad opus . . , famUiae [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 regiuae duas uncias auri . . . et 1. 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 oalumniatae sunt.'

D. B. ii. 311 : ' Sooa 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 oil francs hom .... seit mis en forfeit el cunt^ afert al os le vescunte en Denelahe xl ores . . . . De ces zxxii. 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 cent. xii.

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 chescun seignur bailW a tenir a sa volunt^ par vileins services de emprouwer al oes le [p. 232] 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. (Arohaeologia, 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 RoU 53 Hen. III. (Arohaeologia, xxviii, 271): Order by the king for payment to two Florentines of money lent to him for 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, pi. 177 (a.d. 1222) : A defendant in an action of debt con- fesses that he has received money from the plaintiff, but alleges that he ■was steward of Roger de C. and received it ad opus eiusdem Bogeri. He vouches Roger to warranty.

Selby Coucher Book, ii. 204 (a.d. 1285): ' Omnibus ... R. de Y. baUivus domini Normanni de Aroy salutem. Noveritis me recepisse duodeoim libras . . . de Abbate de Seleby ad opus dicti Normanni, in quibus idem Abbas ei tenebatur . . , Et ego . , . dictum abbatem . . , versus

CH. v.] Contract. 235

dominum meum de supradicta pecunia indempnem conservabo et ad- quietabo.'

Y. B. 21-2 Edw. I, p. 23 : ' Richard ly bayla les ohateus a la oeus le Eveske de Ba.'

Y. B. 33-5 Edw. I, p. 239 ; ' II ad contd qe eux nous livererent meymo largent al oes Alice la fiUe B.'

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

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

Biu1;on Cartulary, p. 21, from an ' extent ' which seems to come to us from the first years of cent, xii.: 'tenet Godfridus viii. bovatae \corr. bovatas] pro viii. sol. praeter iUam terram quae ad ecclesiam iacet quam teuet cum ecclesia ad opus fratris sui parvuli, cum ad id etatis yenerit ut possit et debeat servire ipsi eoolesiae.'

Eamsey Cartulary, ii. 257-8, from a charter dated by the editors in 1080-7 : ' Hano conventionem fecit Eudo scilicet Dapifer Regis cum Ailsio Abbate Bameseiae . . . . de Berkeforde ut Eudo habere deberet ad opus sororis suae Muriellae partem Sancti Benedioti quae adiacebat ecclesiae Eameseiae quamdiu Eudo et soror eius viverent, ad dimidium servitium unius militis, tali quidem pacto ut post Eudonis sororisque decessum tarn partem propriam Eudonis quam in eadem viUa habuit, quam partem ecclesiae Eameseiae, Deo et Sancto Benedict© 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 Eamesy].' So here we have a 'Domesday tenant' as 'feoffee to uses.' Q).233] Ancient Charters (Pipe EoU Soc.) p. 21 {eirc. a.d. 1127); Eichard 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 manuteneat et ab omni defendat iniuria.'

Curia Eegis 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, pi. 999 (a.d. 1224): R, who is going to the Holy Land, commits his land to his brother W. to keep to the use of his (^B's) sons (commisit terram illam W. ad opvs puerorum suorum); on B'b 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.

236 Contract. [bk. ii.

Note Book, pi. 1683 (a.d. 1225) : R is said to have bought land from 0 to the use of the said G. Apparently R received the land from Q on the understanding that he {R) was to convey it to G and the daughter of R (whom O was going to marry) by way of a marriage portion.

Note Book, pi. 1851 (a.d. 1226-7) : A man who has married a second wife is said to have bought land to the usfe of this wife and the heirs of her body begotten by him.

Note Book, pi. 641 (a.d. 1231) : It is asserted that E impleaded R for certain land, that R confessed that the land was BPa in consideration of 12 marks, which M paid on behalf of E, and that M then took the land to the use {ad opus) of E. Apparently M was to hold the land in gaga as security for the 12 marks.

Note Book, pi. 754 (a.d. 1233) : Jurors say that R desired to enfeoff his son P, an infant seven years old j he gave the land in the hundred court and took the child's homage ; he went to the land afid delivered seisin ; he then committed the land to one X to keep to the use of P (ad cttetodiendum ad opus ipsius Petri) and afterwards he committed it to Y for the same purpose; X and T held the land for five years to the use of P.

Note Book, pi. 1244 (a.d. 1238-9): A woman, mother of H, desires a house belonging to R; H procures from R a grant of the house to £■ to the use {ad opus) of his mother for her life.

Assize Roll No. 1182, m. 8 (one of Bracton's Devonshire rolls) : 'lura- tores dicimt quod idem Bobertus aliquando tenuit hundredum iUud et quod inde cepit expleta. Et quaesiti ad opus cuius, utrum ad opus proprium vel ad opus ipsius Bicardi, dicunt quod expleta inde cepit, sed nesciunt utrum ad opus suum proprium vel ad opus ipsius Bicardi quia nesciunt quid inde fecit.'

Chronicon de Melsa, ii. 116 (an account of what happened in the middle of cent. xiii. compiled from charters) : Bobert confirmed to us monks the tenements that we held of his fee; 'et insuper duas bovatas [p-231] 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 da 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 dispo- nendum 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 vesiitum monachorum, to the use of the sacrist, cellarer, almoner or the like, and sometimes this appropriation was designated . by the donor. Thus, e.g. Winchoombe Landboc, i. 55, ' ad opus librorum ' ; i. 148, ' ad usus in- firmorum monachorum ' ; i. 73, certain tithes are devoted ' ' in usum operationis ecclesiae,' and in 1206 this devotion of them is protected by

CH..V.]' Contract. 237

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 eniendum) ' ; 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 Kegis Roll No. 115 (18-9 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. ' Eoolesiae de Estreia et de Munechetun .... ad usus pauperum provide deputatae fuissent, et a . . . praedecessoribus nostris eisdem usibus conflrmatae . . . Monemus quatenus . , . praescriptas ecclesias usibus illis restituas.' Again, the prior and convent are to ad- minister certain revenues which are set apart 'in perpetuos usus lumi- narium, 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 saoriatae.' See Epistolae Cantuarienses, pp. 5, 38, 95.

XL 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 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 oontulit 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 ateam communitati civium appropriavit, fratrum autem usum- fruotum eiusdem pro libitu dominorum devotissime designavit . . . Ricardus [p. 235] le Muliner oontulit aream et domum communitati villae [Oxoniae] ad opua fratrum.' This account of what happened in or about 1225 is given by ft contemporary.

238 Contract. [bk. ii.

Prima Fundatio Fratrum Minorum Londoniae (Monumenta Francis- cana, 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 musing] 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 Eoman 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 distinction 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 Hia 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, 129-154.

XIV. It is very possible that the case of the Franciscans did much towards introducing among us both the word v^us and the desire to discover some expedient which would give the practical benefits- of owner- ship 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 con- troversy, who had heard how some of their foreign brethren had gone to the stake rather than suflfer 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 ?««t«s and 2«sm/}'mc<!«. It seems to have been thought at one time that the case could be met by allowing the friars a usus or usufruetus, these terms being employed in a sense that would not be too remote from that which they had borne in the old Eoman texts. Thus it is possible that there was a momentary contact between Eoman law — medieval, not classical, Eoman 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 exceedingly like, dominium. But we hardly need say that [p. 236}-' the use of our English law is not derived from the Eoman 'personal

CH. v.] Contract. 239

servitude ' ; the two have no feature in common. Nor can we helieve that the Boman fideicommusum has anything to do with the evolution of the English iise. In the first place, the English use in its earliest stage is Beldom, if ever, the outcome of a last will, while Viiefideicommisiwm, belongs essentially to the law of testaments. In the second place, if the English v^e were a fdeicommissum, 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 Fidei- commiss to modern German inquirers as an approximate equivalent. Where Roman law has been ' received ' the fdeicommissum 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 honorum possessio to make a comparison between the two instructive ; but an attempt to derive the one from the other woiild be too wild for discussion.

CHAPTER VI.

INHERITANCE.

§ 1. Antiquities.

The If before we speak of our law of inheritance as it was in IJP'237]

oUhe^ t^® twelfth and thirteenth centuries, we devote some small co^rover- ^P**'® *° ^^^ antiquities of family law, it will be filled rather sini theme, by warnings than by theories. Our English documents contaia little that can be brought to bear immediately or decisively on those interesting controversies about primitive tribes and savage families in which our archseologists 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 in- terpretation of many a historic text must be uncertain. The family It has become a common-place among English writers that as an umt. ^j^g 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 strangers in blood to the members of every other clan. But

CH. VI. § 1.] Antiquities. 241

[p. 238] let us see what this grouping implies. It seems to imply- almost of 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.

Now it is not contended that the Germans, even when they No clans in 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^ So soon as we begin to get rules about inheritance and blood-feud, the dead man's kinsfolk, those who

[p. 239] must bear the feud and who may share the wergild, consist in part of persons related to him through his father, and in part of persons related to him through his mother.

1 Tacitus, Germania, c. 20 : ' Sorornm filiis idem apud avunculum qui apud patrem honor.' The other stronghold of the upholders of ' mother-right ' is the famous tit. 59 of the Lex Salica (ed. Hessels, ool. 379). This in its oldest form gives the following order of inheritance : (1) sons, (2) mother, (3) brothers and sisters, (4) mother's sister, thus passing by the father. The force of the passage is diminished by the omission of the mother's brother. One can not tell how much is taken for granted by so rude a text. Among modern Germanista 'mother-right' seems to be fast gaining ground; but the evidence that is adduced in favour of a period of exclusive ' mother-right ' is sparse and slight. The word matriarchy should be avoided. A practice of tracing kinship only through women is perfectly compatible with a man's despotic power over his household. See Dargun, Mutterrecht und Vaterreoht, p. 3.

P. M. II. 16

242 Inheritance. [bk. ii.

Spear-kin It was SO in the England of Alfred's day; the maternal a?e-km. 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'. 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, ven- geance was not to be taken on ' the innocent family ' of her husband^. 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". 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^ 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 per- From this it follows that the 'blood-feud group' cannot be

organiza- a permanently orgamzed unit. If there is a feud to be borne blood-feud Or wer to be paid or received, it may organize itself ad hoc; group. ^j^^ ^jjg organization will be of a fleeting kind. The very next deed of violence that is done will call some other blood- feud group' into existence. Along with his brothers and pa- ternal uncles a man goes out to avenge his father's death and [p. 240] is slain. His maternal uncles and cousins, who stood outside the old feud, will claim a share in his wer.

1 Alf. 27 ; atheist. 11. 11 ; Leg. Henr. 75 § 8-10 ; Sohmid, App. vn. 1, § 3. The passage in the Laws of Alfred is an exceedingly difficult one, because it introduces us to those gegyldan of whom no very satisfactory explanation has ever been given. But, especially if read along with the Leges Henrici, it seems to tell us that, if the slayer has both paternal and maternal kinsfolk, the paternal pay two-thirds, the maternal one-third. See Brunner, D. B. Cr. i. 218.

2 Schmid, App. vi. § 7 ; Leg. Henr. 70 § 12, 13, 23. ' Schmid, App. vi. § 7.

' See Gierke, Oenossenschaftsreoht, i. 27.

CH. VI. § 1.] Antiquities. 243

This is what we see so soon as we see our ancestors. About The biood- what lies in the prehistoric time we can only make guesses, is not a Some will surmise that the recognition of the kinship that fg g™f* n*i"* 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 domi- nation 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.

It is quite possible that in England men as a matter of fact The dwelt together in large groups tilling the land by co-operation, akcal that the members of each group were, or deemed themselves to s^°"P- 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 ^thelstan legislating against the mcB£fS that is so strong and so mickle that it denies the king's rights and harbours thieves. The whole power of the country is to be called out to ride against these offenders \ The law will, if possible, treat such a mceg^ as an ' unit ' by crushing it [p.2ii] 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 1 iEthelst. VI. 8 § 2, 3.

16—2

244 Inheritance. [bk. ii.

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 Again, if we accept the common saying that the land-owning

land-own- unit was not an individual but a mwg^, a clan, or gens, we must mg urn . jjjgg^ ^jjg 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''. Already in the eighth century the .Anglo-Saxon- thegn wishes to create something like the estate in tail male of later times ^ And the law takes his side ; it decrees that the form of the gift shall be respected'- 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 land- owning 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 We must resist the temptation to speak of ' the mcsg^ ' as if

corpora- i* were a kind of corporation*, otherwise we have as many *'""• corporations as there are men and women. The collective word

mcegS is interchangeable with the plural of the word mdeg, which signifies a kinsman. When a man has been slain, those who are bound and entitled to avenge his death will, it is probable enough, meet together and take counsel over a plan of cam- paign ; 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. There is in the first pkce a sum called the healsfang, which is due only to those who are [p.i very closely related to the dead man' ; 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

1 See the instances collected by Kemble, God. Dipl. i. p. xxxiii.

2 Kemble, Cod. Dipl. 147 (i. 177) ; 299 (ii. 94).

' Alf. 0. 41. * See Heusler, Institutionen, i. 259.

s Brunner, D. B. G. i. 219.

CH. VI. § 1.] Antiquities. 245

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'. 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^ But such texts do not authorize us to call up the vision of a mwg^ 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'.

We turn to the popular theory that land was owned by The house- families or households before it was owned by individuals, land.*' This seems to mean that at a time when a piece of land was o'™™- never owned by one man, co-ownership was common. Now [p. 243] co-ownership may take 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^. 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

1 ^thelstan, ii. 2. ° Hloth. and Ead. 6 ; Ine, 38.

3 Heusler, Institutionen, i. 259, argues that the German sib does not show ns even the germ of a juristic person. The contrary, and at one time more popular, opinion is stated with special reference to the Anglo-Saxon evidence by Gierke, Genossenschaftsrecht, i. 17 ff. When Braoton, f. 87 b, says that an infant sokeman is sub custodia consanguineorum morum propinquorum, we do not see a family council ; why should we see one when a similar phrase occurs in an Anglo-Saxon doom?

* We are speaking briefly, and are therefore supposing that the co-tenants hold in fee simple.

246 Inheritance. [bk. n.

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 can not 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 modem system of law, and in many a system that is by no means modern \ 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, perhaps in many, these powers are of recent origin^ Let us [p.i 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 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'. Let the number of co-tenants increase

^ Heusler, Institutionen, i. 240. In India there are traces of a period when partition could not be enforced, and ' in Malabar and Canara, at the present day, no right of partition exists ' : Mayne, Hindu Law, § 218.

2 It is not until the reign of Henry VHI. (Stat. 31 Hen. VIII. c. 1) that one of several joint tenants can compel his fellows to make partition. But the co-parcener has had this power from a remote age. This is remarkable : the co-ownership created by inheritance can, the co-ownership created by the act of a feoffor can not, be destroyed against the wish of one of the co-owners.

* Some such plan of a repeated redistribution per capita among brothers, first-cousins and seoond-eousins seems to have prevailed in Wales ; but the redis- tributions of which we read in Welsh law seem to be redistributions of physically divided shares. Apparently in ancient Germany the rule was that within the joint family the sons, however numerous, of a dead co-proprietor would upon partition get no larger share than their father would have taken had he lived. la

CH. VI. § 1.] Antiquities. 247

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 modem 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. [p. 245] Now no one is likely to maintain, even as a paradox, that is co-

the ownership of aliquot shares of things is older than the oMerftan ownership of integral things. If nothing else will restrain him, l^^l^] he may at least be checked by the reflection that the more^^'P^ 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, ' individual owner- ship' will exist, unless to save his dogma he has recourse to an arbitrary act of confiscation.

To deny that ' family ownership ' is an ownership by indi- Co-owner- viduals of aliquot shares is another expedient. But this in aliquot 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'. But to seek to go

other words, while the family is still ' joint ' there is inheritance of ideal quotas. Heusler, Institutionen, i. 240. Maine, Early History of Institutions, p. 195, speaks of a distribution ^«?- capita occurring in the most archaic forms of the joint family. 1. Heusler, Institutionen, i. 238. We read of two rival schools of Hindu lawyers, the one maintaining the theory of ' aggregate ownership,' the other that of ' fractional ownership.' The same two theories have divided the German antiquaries. But it seems reasonable to say with Heusler that if there is law which upon a partition will assign to each co-proprietor some definite aliquot share of the land, then there is law which gives him an ideal fraction of the land while it still remains undivided, though it assigns him no certain share in the profits.

248 Inheritance. [bk. ii.

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'. 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 indi- viduals. 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- To our thinking then, the matter that has to be investigated

"^ ^" is not well described as the non-existence of ' individual owner- ship.' It would be more correctly described as the existence [p. 246] 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 modem law. History Now that such rights once existed in England and many

rigMs. 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*. Birth- It is natural for us to assume without hesitation that those

Sierit^"* forms of birth-right which are least in accord with our own ance. ideas are also the most archaic, that the weaker forms are degenerate relics of the stronger, that originally the child was

1 Heusler, Instit. 229, says that in the oldest German documents even first- cousins are seldom 'joint.'

2 In Germany vithin historic times the stronger forms of birth-right seem to have been peculiar to the South German (Alaman and Bavarian) nationa.

CH. VI. § 1.] Antiquities. 249

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^. 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, [p. 247] The suggestion therefore may be admissible that at least Birth- in some cases ' family ownership,' or the semblance of it, may b?gotten really be, not the origin, but the outcome of intestate succession^ ^Jj^^Z We have but to ask for a time when testamentary dispositions "tance. 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 condi- tions. 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

1 Gaius, ii. 157 ; Paulas, Dig. 28. 2. 11.

" See Picker, Untersuchungen zur Erbenfolge, i. 229. No student of ' family ownership' should neglect tliis book. See also Baden-Powell, Indian Village Community, 416.

250 Inheritance. [bk. rr.

sell or to give away their land. But now there must be law. The form that the law takes will be determined by the re- lative 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 g'wasi-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 [p.2i8] hale his father before a court of law and demand a partition ; when this can be done there is no ' patriarchalism,' there is little paternal powers Antiquity In calling to our aid a law of intestate succession we are

ritmot iiot invoking a modern force. As regards the German race we can not 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". The Lex Salica

1 A brief account of the various tlieories which have prevailed in modern Germany about the relation of ' family ownership ' or ' birth-rights ' to inheritance is given by Adler, Ueber das Erbenwartreoht naoh den altesten Bairischen Eeohtsquellen (Gierke, Untersuchungen, No. xxxvii.).

2 Germania, c. 20: 'heredes tamen suooessoresque sui cuique liberi et nullum testamentum. si liberi nou sunt, proximus gradus in possessione, fratres, patrui, avunculi.'

CH. VI. § 1.] Antiquities. 251

has a law of intestate succession ; it calls the children, then the mother, then the brothers and sisters, then the mother's sister\ 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 can not inherit it is not deemed superfluous.

Now as regards the Anglo-Saxons we can find no proof of Family

owner"

the theory that among them there prevailed anything that ought ship in to be called ' family ownership.' No law, no charter, no record °^ ™ ' [p. 249] of litigation has been discovered which speaks of land as being owned by a mceg^, 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^:

But, further, the dooms and the land-books are markedly Birth- free from those traits which are commonly regarded as the England, relics of family ownership'. 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*. The denun- ciatory clause will perhaps mention the heirs, and will curse them if they dispute the gift ; but it will usually curse all

1 Lex Sal. 59.

^ See e.g. Cod. Dipl. 156 (i. 187) where the 'senatores familiae' are mentioned.

* What can be said on the other side has been said by Mr Lodge, Essays on Anglo-Saxon Law, pp. 74-7.

^ Cod. Dipl. 1017 (v. 55), Birch, i. 394, on which Mr Lodge relies, is a forgery. It is to be remembered that we have but very few land-books which do not come from kings or bishops, but we seem to have just enough to enable us to say with some certainty that a clause expressive of the heir's consent was not part of the 'common form,' and that the best forgers of a later time knew this.

252 Inheritance. [bk. ii.

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^. Occasionally several co-proprietors join to make a gift : but when we con- sider 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 rare. Co-owner- ship, 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 some- [p.! times 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 ex- pectant 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 Conquests

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

1 In the middle of the eighth century Abbot Ceolfrith with the king's consent gives to the church at Worcester land which has descended to him as heir of his father. The charter ends with this clause : ' Si quis autem, qnod absit, ex parentela mea vel externorum, maliTola mente et maligno spiritu instigatus, hnius donationis nostrae munificentiam infringere nititur et contraire,

Boiat se in die tremendo rationem redditurum.' Here is a man who has

inherited land from his father, who gives it away though he has a parentela, and who is no more careful to protect the church against claims urged by his kinsmen than he is to protect it against the claims of externi. See Cod. Dipl. 127 (i. 154).

= Mr Lodge relies on Cod. Dipl. 195 (i. 238). King Egbert gave land to Aldhun, who gave it to the church of Canterbury. King Offa took it away, ' quasi non liceret Ecgberhto agros hereditario iure scribere.' Another and an earlier charter, Cod. DipL 1020 (v. 61), distinctly alleges that Offa's resumption was based, not on an infraction of family law, but on a royal or seignorial claim. Egbert had given the land to his minister Aldhun; Offa revoked it, 'dicens iniustum esse quod minister eius praesumpserit terram sibi a domino distribu- tam absque eius testimouio in alterius potestatem dare.'

CH. VI. § 1.] Antiquities. 253

before the Conquest; but when we consider that the testa- mentary or gitasi-testamentary gift was in that age a new thing, we can not say that such disputes about wills were common ^-

A doom of King Alfred speaks thus : — ' If a man has The book-land which his kinsmen left him, we decree that he is onSiSa- [p.25i] not to alienate it 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 ; and let this be declared with the witness of the king and the bishop in the presence of his kinsfolks' 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'. 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.

We may well suppose that often enough a man's co-heirs partition left his land unpartitioned for some time, and that for more ritances. 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

1 The best cases are collected at the end of the Essays on Anglo-Saxon Law, Nos. 4, 8, 14, 16, 30. Mr Lodge's argument (p. 76) about .SJthelric's will (Cod. Dipl. 186; Birch, i. 438, 440) we cannot adopt. ' The necessity of family consent is shown by the provision in Jithelric's will, that the land could be alienated cum recto consilio propinquorum.' There is no such provision, ^thelrio gives land to his mother for life, and on her death it is to go to the church of Worcester. But he has reason to fear that a claim will be put in by the church of Berkeley. So he desires that the church of Worcester shall protect the mother, and adds 'et si aliquis homo in aliqua contentione iuramentum ei decreverit contra Berclingas, liberima erit ad reddendum cum recto consilio propinquorum meorum, qui mihi donabant hereditatem et meo quo ei dabo.' Whatever this may mean, it is not the land but an oath in defence of title that is to be given {reddendum). Apparently the propinqui who have given ^thelric his hereMtas are already dead : the testator himself, by whose ' counsel ' the oath is to be given, will be dead before it is given. The devisee is to be free to swear that she acquired the land by the gift of ^thelric, and that he came to it by the gift of ancestors who had it to give.

2 Alf. 41 ; of. Leg. Hen. 70, § 21 ; 88, § 14. 2 Cod. Dipl. 147 (i. 177).

254

Inheritance.

[bk. ii.

The

appoint- ment of heirs.

The

restraint on aliena- tion before and after the Con- quest.

out of many examples, ten thegns hold three hides in parage, they are cousins' ; but the partition of an inheritance among co-heirs, or rather as it happens co-heiresses, appears at an early time', and we have nothing to show that when an in- herited 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? '

' Only God can make a heres, not man ' — said Glanvill'. But far back in remote centuries Englishmen had seen no difficulty in giving the name heres to a person chosen by a land-holder 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 [p.! to succeed him. We are far from believing 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*.

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

1 D. B. i. 79. » Cod. Dipl. 232 (i. 300) ; Birch, i. 572 ; a.d. 833.

s Glanvill, vii. 1.

* Cod. Dipl. 675 (iii. 255). It is possible to contend that the clause in the land-books which enables the donee to bestow the land upon such heres as he pleases, gives him what modern lawyers would describe as a limited power of testamentary appointment among his kinsmen. But the history of the clause does not favour this interpretation. We start with forms that say nothing of heirs. See e.g. Cod. Dipl. 79, 80, 83, 90 : ' et ouicumque voluerit tradere vel in vita illius vel post obitum eins [potestatem] habeat tradendi.' We do not think that the ' cuioumque ei karorum ' (Cod. Dipl. 216) or ' ouicumijue heredum ' of later documents are restrictive phrases.

CH. VI. § 1.] Anfiquities. 255

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 g'wasi-testamentary gift of land.

We have not been arguing • for any conclusion save this, Last words that in the present state of our knowledge we should be rash ownership, were we to accept ' family ownership,' or in other words a strong form of ' birth-right,' as an institution which once pre- vailed 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 com- parative 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 [p. 253] same route, this is an unwarrantable hypothesis. To construct some fated scheme of successive stages which shall comprise every arrangement that may yet be discovered among back- ward peoples, this is a hopeless task. A not unnatural in- ference 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.

About the rules of intestate succession which prevailed Nature here in the days before the Conquest we know little; they 'herftance. 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 can not take back with us into the distant age that is now before us; but,

256 Inheritance. [bk. ii.

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 ? Inherit- It is the more necessary to ask this question because we

represen- might otherwise be misled by modern law and Roman law into ttedead. S^^i^^S i* ^ 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 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. Represen- But our own modern law will remind us that even in the the dead nineteenth century there is no absolute necessity compelling law"'^''™ 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 'personalty' another. This is not all: [p. 254] it is conceivable that the realty itself should fall into frag- ments, each of which will descend in a dififerent 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^ 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^. Why must But why do we demand that the dead shall be represented ? berepre- The law of inheritance seems to answer two purposes, which

sented ?

can be distinguished, though in practice they are blended.

1 The propositus inherited land from his (1) paternal grandfather, (2) paternal grandmother, (3) maternal grandfather, (4) maternal grandmother, and in every case the laud inherited contained acres subject to (a) the common law, (b) the gavelkind rule, (c) the Borough English custom.

2 A long step in this direction has been taken by the Land Transfer Act, 1897.

CH. VI. § 1.] Antiquities. 257

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.

Now the first of these needs must be met at an early stage Eepresen- in legal history. If there is to be peace, a scramble for the necessary dead man's goods can not be suffered ; law must have some t^es?^ rule for them. On the other hand, we can not 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 LS 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, [p. 255] We have therefore grave doubts as to whether any widely Bepresen- general dogma about these matters will deserve a ready assent, religion. 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 a,dopted when first they are writing down their laws is not a religion which finds its centre at the family hearth. Much might bfe done by a pious heir for the good of his ancestor's soul, and the duty of doing this was sedulously preached; but the heir could not offer the expiatory sacrifice, nor would

p. M. II. 17

258

Inheritance.

[bk. II,

Inherit- ance of

it be offered in his house ; no priesthood had descended upon him. There is therefore no religious nucleus that will keep together the wrdversum 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.

In the old time the person or persons who succeeded to

debts and the lands and goods of the dead man had few, if any, debts credits. ^^ ^^^ ^^ ^^ receive. Most of the pecuniary claims that could be made good 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 some- times says that his debtors are to be forgiven or that his creditors are to be paid'. In the former case, however, we can not ,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'. 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 said of his heirs. As [p. 256] 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

1 Thorpe, Diplomatarium, pp. 550-1, 558, 561, 567-8. ' Heusler, Instit. i. 60; ii. 541.

CH. VI. § l.J Antiquities. 259

not due to the slain man and is not paid to one who repre- sents 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 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. Gradu-' ally 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 infringe- ment of the old principle, and in the region of blood-feud there is not much room for the development of representation'. 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 tlje commonest in ancient times still die with the person, [p. 257] If there is to be no representation of the dead man for the The in- purpose of keeping obligations alive, then there is no great need not reason why the things that he leaves behind him should all one^mMs." 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 uni- versum ius defunoti. 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 1 As to the whole of this subject see Heusler, Instit. ii. S40.

17—2

260 Inheritance. [bk. ii.

of canons for chattels, another for land ; a woman can not inherit land. Transition. But the little more that can he said of these obscure matters will be better said hereafter. It is time that we should turn to an age 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 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 his descendants, precedence [p. 258] 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 re- presented 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'.

Preference The preference of descendants before all other kinsfolk we

of descena-

ants. may call natural : that is to say, we shall find it in every system

1 This topic has been discussed at great length by Hale, History of the Common Law, oh. xi., and Blackstone, Gomm. Bk. ii. oh. 14; also by Brunner, Das Anglo-Normannische ErbfolgesyBtem. The main fault to be found in Blackstone's classical exposition is the tendency to treat the Lombard Libri Feudorum as a model to which all feudal law ought to correspond.

CH. VI. § 2.] The Law of Descent. 261

that is comparable with our own. A phrase that is common in the thirteenth 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 {ohiit 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.

A preference for males over females in the inheritance of Preference land is strongly marked in several of the German folk-laws. ° ™* *^" The oldest form of the Lex Salica excludes women altogether. Sonie 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'. On the other hand, already at the beginning of the ninth century we see a clear case of a king's daughter Ip.259] inheriting his land^, and other cases of female heirs are found at an early date'.

In later days the customs which diverge from the common inflnence law, for instance the gavelkind custom of Kent, agree with it aiism! about this matter: — males exclude females of equal degree*.

' There are some three or four cases in which a sister seems to be holding in common with brothers, but these may be due to gifts or bequests.

^ King Cenwulf of Mercia died leaving as his heiress his daughter Cweuthryth and was succeeded in the kingship by Ceolwulf, who seems to have been his brother. A legend gives Cenwulf a son (St Eenelm) whom Gwenthryth, aiming at the kingdom, treacherously slays. This is a late fable, but the fact that she inherited some of her father's land seems beyond doubt. See Kemble, Cod. Dipl. 220 (i. 280) ; Haddan and Stubbs, Councils, iii. 596.

^ Kemble, Cod. Dipl. 232 (i. 300). The position of women in the systems of inheritance laid down by the ' folk laws' is the subject of a monograph by Opet, Erbrechtliohe Stellung der Weiber (Gierke, tfntersuohungen, xxv.). Sketches of these systems are given by Stobbe, Privatrecht, v. 84. Opet argues that the Anglo- Sa?on law did not postpone women to men of equal degree. For reasons given in the first edition of this book we do not think that he has proved his case.

* Customs which put the daughters on a level with the sons seem to be uncommon. The instances alleged in modern books {e.g. Eobinson, Gavelkind, 46) namely the customs of Wareham, Taunton and Exeter, are borough customs.

262 Inheritance. [bk. rr.

This precedence is far older than feudalism, but the feudal influence made for its retention or resuscitation'. At the same time, the feudalism with which we are concerned, that of [p.! northern France, seems to have 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 can not inherit the kingdom of England'. Primo- 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;

1 The law of the Lombard Lihri Feudorum excludes women as a general rule ; but the original feoffment may make the feadum a fevdum femineum. In Germany also women were excluded from the inheritance of fiefs for some time after fiefs had become heritable among males. Stobbe, Privatrecht, iv. 325-7.

2 That in 1100 women could inherit knights' fees is sufBciently proved by a clause in the coronation charter : — ' Bt si mortuo barone vel alio homine meo filia heres remanserit, illam dabo consilio baronnm meorum cum terra sua.' The Pipe Boll of 31 Hen. I. shows the sale of female wards. We must leave to genealogists the discussion of the few cases in which Domesday Book shows that already since the Conquest a great lady has acquired lands. A daughter of Balph Tailbois and a daughter of Boger de Bames (Ellis, Introduction, i. 419) appear among the tenants in chief; but the father of the latter seems to be living. The English fief of William of Argues, a Domesday tenant, seems to have passed to his daughter and then to her daughters: Bound, Geoffrey de Mandeville, 397.

CH. VI. § 2.] The Law of Descent. 263

the more or less precarious rights which the unfree peasant has in a tenement must, if they be transmissible at all, pass to one person^ But these tendencies have to struggle against [p. 261] the dictate 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^ Brothers are equals, they are in parage ; one of them can not be called upon to do homage to his peer'.

Happily for the England of the days before the Conquest, Primo- the kingship had never become so strictly hereditary as to England.™ 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 lihere 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 primo- geniture, 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 is to this that point the numerous entries in

^ Stobbe, Privatrecht, iv. p. 104.

' It is possible, as argued by Maine (Ancient Law, c. 7) that ' the examples of succession by primogeniture which were found among the benefices may have been imitated from a system of family-government known to the invading races, though not in general use.' But the link has yet to be found, and had such a system of family-government been known to the Frankish nation, those ruinous partitions of the kingdom would hardly have taken place.

' Eiehard Coeur de Lion refused to do homage to his brother Henry, 'the young king,' saying, ' It is not meet that the son of the same father and the same mother should admit that he is in any way subject to his elder brother' : — VioUet, ^fetablissements, i. 125.

264 Inheritance. [bk. ii.

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'; they do him no [p.! 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*. 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 Buckingham- shire eight thegns were holding a manor, but one of them was the senior of the others and was the man of King Edward*. 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 beiug 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. Primo- It is by no means certain that in 1066 primogeniture had

Normandy, gone much further in Normandy than in England^ True that

1 Somma, p. 97 ; Ancienne ooutume, u. 30 (ed. de Gruchy, p. 95).

2 D. B. i, 145 b : ' Hoc manerium tenuerunt ooto teigni et unus eorum Alii homo Regis Edwardi senior aliorum fuit.'

' See Stapleton, Norman Excheq.uer Bolls, i. pp. Ivi. IxxiL

CH. VI. § 2.] The Law of Descent. 265

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 can not argue

[p. 263] directly firom such precariousness 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

heneficium 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 heneficia were

being inherited at all. It is the splendid peculiarity of the

Norman duchy that it was never divided ^ 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 can not believe that our

Henry III. was sorry when his court, after prolonged debate,

decided that the palatinate of Chester was divisible among

co-heiresses^. 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*. 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.

In Normandy the primogenitary rule never went beyond Primo- securing the impartibility of every military tenement, and even IX'^ater this impartibility was regarded as the outcome of some positive Norman ordinance*. 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 ;

1 Luohaire, Institutions monarchiques, i. 64-65. ^ Note Book, pi. 1273. * Poedera, i. p. 779. * Tr^s aucien ooutumier, p. 9.

266 Inheritance. [bk. ii.

but this was only a moral duty, for an ordinance had forbidden the partition of a fief ^ If there were two fiefs in the inherit- ance and more than one son, the two 'eldest sons would get a [p. 264] fief apiece. Other lands were 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". Indeed, subject to the rule about the imparti- bility 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'. Not upon the Normans as Normans can we throw the burden of our amazing law of in- heritance, nor can we accuse the Angevin as an Angevin*. Primo- We may believe that the conquest of England gave William

m England ^^ Opportunity of insisting that the honour, the knight's fee, ^™ *^® the serjeanty, of the dead man, was not to be divided ; but what kings. William and his sons insisted on was rather ' impartible succes- sion ' than a strict application of the primogenitary rule. The Conquest had thrown into their hands a power of reviving that element of precariousness which was involved in the inheritance of a beneficivm, 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^ What

^ Bpth of the tracts of which the Tr^s aucien ooutumier consists (pp. 9, 92) lay stress on the duty of the eldest son to provide for his brothers.

' Txds ancien coatumier, pp. 8, 91.

s Somma, p. 114; Ancienne coutume, c. 36 (ed. de Gruchy, p. 111).

* Viollet, fltablissemeuts, i. 122-5.

"See above, vol. i. pp. 308, 314, In Germany the old rule seems to have been that all the sons had equal claims upon the dead man's fief ; the lord, however, was only bound to admit one of them, and, if they could not agree who that one should be, then the choice was in the lord's hand. At a later time the primogenitary rule was gradually adopted ; but the eldest son, if he took the

CH. VI. § 2.] The Law of Descent. 267

we see as a matter of fact in the case of the very great men is [p. 265] that one son gets the Norman, another the English, fief. On the death of William Fitz Osbern, for example, ' the king dis- tributed 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 Koger'.' ^Eoger of Montgomery died ; his son Hugh of Montgomery was made earl in England, and Robert of Belleme acquired his whole honour in Normandy, while Roger of Poitou, Amulf, Philip and Everard had no part of the paternal inheritance^.' We may believe also that in the outer zones of the feudal system the mesne lords insisted on the impartiality of the knight's fee and of the serjeanty, and that these as a general rule passed to the eldest son; but we can not 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.

Two of the authors who have left us Leges for the Anglo- iniierit- Norman period approached the topic of inheritance ; neither of Angio- them knew what to make of it. The Leis Williame say, ' If a Lege^^ man dies without a devise, let his children divide the inherit- ance 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'. The author of the Leges Henrici goes all the way to the ancient Lex Rihuaria 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*. He says this

i

ifjef, had to ' collate ' its value if he -wished to share in the general inheritance.

Stobbe, Privatrecht, iv. 322.

1 Ordericus Vitalis (ed. le Prevost), ii. 405.

2 Ibid. iii. 425.

^ Leg. Will. I. 0. 34 : ' Si home mort senz devise, si depertent les enfans leritd entre sei per uwel.' See above, vol. i. p. 103, as to the Eomanesque character of the context. The Latin translation gives 'pueri for enfans; but pueri may stand for children of either sex (Calend. Genealog. i. 204: ' omnes alii pueri eius erant filiae'), and perhaps enfans may stand for song. But we can alio* hardly any weight to this part of the Leis.

' Leg. Henr. 70 § 20. The writer tampered with the end of the passage that he borrowed, and it is possible that what looks at first sight like an

268

Inheritomce.

[bK. II.

Primo- geniture under the Angevins.

Primo-

however, and it is to the point : — In the first place the eldest [p.! son takes the father's feodum. What exactly he would have given to the eldest son, or what he would have done if the in- heritance comprised two feoda, we do not know'. The conquest and the clash of national laws have thrown all into confusion, and the king' will profit thereby.

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". But already in Glanvill's day English law had left Norman law behind it. ' According to the law of the realni 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'. 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 been partible from of old, then by some customs the eldest, by others the youngest son will inherit it.

In the many commentaries on this text it has hardly been

m GianvUi Sufficiently noticed that the sphere of primogeniture is already Bracton 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

exclusion of women is merely the rule 'paterna paternis.' 'Et dum yirilia , sexus extiterit, et hereditas ab inde sit, femina non hereditetur ' : — an in-, heritance which comes down the paternal line will not fall to the maternal line| if there be any paternal kinsman living.

^ Leg. Henr. 70 § 21 : ' Primo patris feodum primogeuitus fiUus habeat / See Kenny, Primogeniture, p. 16. At present there seems to be no warrant ifot the reading Primum which some of our older writers have adopted. The rubpia to c. 70, Gonmetudo Westsexae, probably refers only to the first sentence of / the chapter, and neither the rubrics nor the division into chapters can be tre/ated as of high authority. Here the writer is thinking primarily, not of the ordrt it of inheritance, but of the law concerning alienation ; the feodum is contrasted I mth the acquests and may mean the family land, the hereditas aviatica. Oah the other hand, it may mean a military fee. |e

2 Brunner, Erbfolgesystem, p. 31.

2 Glanv. vii. 3 : ' Quia si miles fuerit vel per militiam tenens, tunc seovfiindum ius regni Angliae primogenitus filius patri succedit in totum.'

CH. VI. § 2.] The Law of Descent. 269

impartible of all tenements, impartible (so men are saying) even among daughters^ But if we leave serjeauty and frankalmoin [p. 267] 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'. 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*, 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 origia in the disappearance of scutage and the oblivion into which the old liability for scutage fell*. 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 that wide meaning which would ultimately make it cover what- ever tenure was non-military, non-elemosinary, non-serviential, there was no similar extension of the term ' sokeman".' 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 dis- appearing. 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 parti- tioned. Therefore after Glanvill's day there was no further

1 See above, vol. i. p. 290. Select Civil Pleas, pi. 112.

" See above, vol. i. pp. 277, 356, » Note Book, pi. 703, 795, 1663.

* See above, vol. i. p. 355. ' See above, vol. i. pp. 294, 394.

270 Inheritance. [bk. ii.

change in the law; Bracton uses almost the selfsame words [p.! that his predecessor used'. Partible Consequently there is very little litigation about this matter,

and 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 Eutland^. 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'.'

1 A comparison of the following passages will prove what we have said.

Glanyill, vii. 3. Braoton, f. 76.

Si vero fuerit liber sokemanns, Si liber sokemauus moriatur, plu-

tuno quidem dividetur hereditas inter ribus reliotis heredibus et participibus,

omnes filios, quotquot sunt, per partes «i hereditas partibilis sit et ab antiquo

equales, si fuerit socagium et id an- divisa, heredes, quotquot erunt, habe-

tiquitus divisum, salvo tameu capital! ant partes suas equales, et si unicum

mesuagio primogenito filio pro dig- fuerit mesuagium, illud integre re-

nitate aesnesciae suae, ita tamen quod maneat primogenito, ita tameu quod

in aliis rebus satisfaciet aUia ad alii habeant ad valentiam de communi.

valentiam. Si vero non fuerit an- Si autem non fuerit hereditas divisa

tiquitus divisum, tunc primogenitus ab antiquo, tunc tota remaneat primo-

secundum quorundam eonsuetudinem genito. Si autem fuerit socagium

totam hereditatem obtinebit; secun- vUlanum, tunc consuetude loci erit

dum autem quorundam eonsuetudinem observanda. Est enim eonsuetudo in

postnatus Alius heres est. quibusdam partibus quod postnatus

prefertur primogenito et e contrario.

It seems clear that Bracton had Glanvill's text before him, and we can not think that by shifting the words here printed in italics from one place to another he changed, or meant to change, the meaning of the passage. With Glanvill, as vrith Bracton, the only partible land is the socage land of a sokeman which has been divided from of old. Thus the common opinion that there was a change in the law after Glanvill's day, does not seem to us to be warranted. The judges in the early Year Books do not lean strongly against partibility. If the plaintiff asserts partibility he must prove partition ; but if he proves partition he may perhaps succeed in making even a knight's fee partible : — Y. B. 30-1 Edw. I. 57; 83-5 Edw. I. 515. Glanvill's rule needs no extension ; it is so very wide.

2 Placit. Abbrev. 28 (Butland); Select Civil Pleas (Seld. Sec.) pi. 6, 107, 128. 157 ; Note Book, 154, 499, 703, 704, 795, 1009, 1023, 1048, 1074, 1565, 1663, 1770.

' A great deal of Norfolk seems to have been partible, and partibility reigned

CH. VI. § 2.] The Law of Descent. 271

The problem which is set before us by the gavelkind of Gavelkind. 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\ 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^ 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'. Again, some parts of the custom 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*. On the other hand, we can not think that

in several of the great ' sokes' of the Danelaw, e.g. the soke of Bothley in Leicestershire and the soke of Oswaldsbeck in Nottinghamshire. See Bobinson, Gavelkind (ed. 1822), pp. 42-6. For ' sokemanry,' see above, vol. i. p. 394.

1 See above, vol. i. p. 186.

' Statutes of the Eealm, i. p. 224.

* Glanvill, vii. 3 ; Braoton, f . 76 : the free sokeman's house goes to the eldest son.

* We find a proverb about the wife who loses her free-bench by unohastity, another about the descent of the felon's land, a, third about the process called gavellet. The last of these is obscure. The lord after a long forbearance has had the tenement adjudged to him, because of the tenant's failure to pay his rent. The tenant has however a locus poenitentiae allowed him. The proverb seems to say that, if he will get back his land, he must pay the arrears of rent nine times (or perhaps eighteen times) over, and, in addition to this, must pay a wergild of five pounds. In the Anglo-Norman reckoning five pounds will do well enough as a oeorl's wer (Leg. Will. i. c. 8), and the nine-fold payment is like the eleven-fold payment which we find in the account of the Bishop of Worcester's customs in Domesday Book, i. 174. According to old Kentish law a nine-fold geld was payable to the king in some cases (Schmid, App. iv. c. 6, 7). Seemingly the proverb means in truth that the tenant will lose the land for good and all. It is one of those humorous rules of folk-law which, instead of telling a man that he can not have what he wants, tell him that he may have it if he will

272 Inheritance. [bk. n.

the Kent of 1065 was a county in which the tillers of the soil [p. 270] were peculiarly well off. Unless the terminology of the Domes- day 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 unrivalled position of Kent as the highway of commerce induced a wide- spread 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 bom in Kent was born free'. Dis- _ 4 It is only to modem 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. Archbishop Hubert Walter,

perform an impossible condition. As to the more famous proverb ' the father to the bough, the son to the plough,' the oldest form of this sends the father to the bowe, the son to the lowe, that is apparently, to the fireside, the astre, which is, if we may so say, the centre of the inheritance. See above, voL i. p. 187. ' The printed custumal professes to be a record of the customs approved in the eyre of 1293 ; but no official or authoritative text of it has been found. See Bobinson, Gavelkind (ed. 1822), p. 355. Almost all the customs mentioned in it are however evidenced by earlier records. Somner, Gavelkind, Appendix, gives several ancient charters conveying land to be held in gavelkind. In the earliest of our plea rolls we find .brothers sharing land in Kent and the name 'gavelin- gude' appears : EoUs of King's Court (Pipe Boll Society), pp. 39, 43. Thence- forward we often find the name. Thus in John's reign. Select Civil Fleas (Selden Society), pi. 157; Plaoit. Abbrev. p. 56. The peculiarities of the widow's free-bench soon appear: Select Civil Fleas, pi. 128; Note Book, pi. 9, 1338. So the peculiarities of the widower's free-bench: Bobinson, Gavelkind, p. 179. Bracton speaks of gavelkind on f. 276 b, 311, 313, 374. On the whole, most of the known peculiarities can be traced as far back as Bracton's time. The statement that there is no villeinage in Kent is made in 1302: Y. B. 30-1, Edw, I. p. 169, as well as in the custumal of 1293 : Statutes, vol. i. p. 224,'

CH. VI. § 2.] The Law of Descent. 2,7 Z

[p. 271] 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'. 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 com- mutations 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^. 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 h& ' 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, 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 trhey remained whole were sufiScieat 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 serviced

We are far from saying that there were no sound reasons introduc- of state to be urged for the introduction and extension of the pr^o- primogenitary rule. Englishmen in course of time began to g^"*''"®-

1 This most interesting charter is given in Lambard, Perambulation of Kent (ed. 1596), p. 531. The charter roll for this year is not forthcoming.

2 Bobinson, Gavelkind (ed. 1822), p. 66: Hubert Walter grants that a certain tenant, who hitherto has held a yoke and ten acres in gavelkind, shall henceforth hold in frank fee by the service of a twentieth part of a knight's fee and an annual rent of 28 shillings. In after days the power of the king and of the archbishop to change the mode of descent was denied. See Elton, Tenures of Kent, chap. xvi.

» Bobinson, p. 76. Already in 1231 we hear that one messuage is often divided into three or four messuages 'sicut gavelikinde ' : Note Book, pi. 666. Edward allowed the Welsh to retain the partible inheritance, insisting only that bastards must not be admitted, and that women must be admitted in default of males; but then, as has been well said (Kenny, Primogeniture, p. 32), 'Edward's power lay in the strength of Kentishmen and the weakness of Welshmen.'. ,

P. M. II. 18

274 Inheritance. [bk, ii.

glory in it, and under its sway the England of Edward I.'s [p.i day had become a strong, a free, 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 of our primogenitary law we must remember that it obliterated class distinctions^ Inherit- The manner in which our law deals with an inheritance

hebesses. 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 fi:om the rest of the world, their claims are equal and the law will show no preference for the first-born. This principle was well main- tained, even though some of the things comprised in the

' It is fairly clear that in Henry It's day the primogenitary rule waa not popular among those classes with which the royal court had to deal. Glanvill (vii. 1) has to regret that men are too fond of their younger sons. A French chronicler tells a curious story of a parliament held by Henry UI. and Simon de Montfort in which there was debate as to the abolition of primogeniture and the adoption of the French rule. England, so it was said, was being depleted and agriculture was suffering since the younger sons of the English gentry were driven to seek their fortunes in France. This chronicler shows himself very ignorant of English history, and the story, as he tells it, must be false. What we learn from him is that a Frenchman of the fourteenth century thought the English rule unjust and impolitic. As to this passage, see B^mont, Simon de Montfort, p. 201.

CH. VI. § 2.] The Law of Descent. 275

[p. 2731 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'. 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". 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 intro- duced:— were partitions made of these things, earldoms and baronies would be brought to naught, and the realm itself is constituted of earldoms and baronies^ So again, Bracton's opinion is that a tenement 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*. 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'. 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

1 Bracton, f. 76.

2 Braoton, f. 76 b. But for later law see Co, Lit. 166 b. » Bracton, f. 76 b.

< Bracton, f. 77. Placit. Abbrev. pp. 34, 39 {temp. Job.). But in 1221 Henry III. permits co-heiresses to hold a serjeanty : Excerpt, e Eot. Pin. i. 67. See above, vol. i. p. 290.

" Note Book, pi. 12; but this contention seems to be overruled, and as a matter of fact a partition seems to have been made : Excerpt, e Bot. Fin. i. 141.

18—2

276 Inheritance. [bk. n.

parceners/ he disposed not merely of a 'title of honour' and [p. 274]

a 'seat in the House of Lords,' but of a great tract of land\

Co-heir8 But, though the division among the co-heiresses was in

parage. 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 Koger, 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 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"; but then, if this theory is adopted, can he fairly

claim any wardships 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'. We have

here the Norman tenure in parage*.

1 Bound, Ancient Charters, 9T-9 : Geoffrey Fitz Peter, the chief justiciar, having married one of the co-heiresses of the last of the Mandeville earls of Essex, obtained the -whole Mandeville fief.

^ Bracton, f. 78: ' particularis enim solutio non minimum habet incom> modi,'

3 Glanvill, vii. 3.

* Somma, p. 97; Anoienne coutume, cap. 30. In Normandy the parage endures until the 'sixth degree of lineage' has been past. It seems possible that this means much the same as what Glanvill means, and that the dis- crepancy is caused by divers modes of reckoning. According to Glanvill the great-great-grandson of the dead man is the first person who does homage to a cousin. Six degrees of Boman computation divide the great-grandson in the one line from the great-grandson in the other line; thus in the normal case

CH. VI. § 2.J The Law of Descent. 277

[p. 275] The reason why no homage is done until a third heir has Fiuctna- inherited we can not here discuss ; but it soon becomes apparent the law as that the king is dissatisfied with this arrangement and that the ° P^^'se- 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 Goheredibus, 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^ 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 says, is not to have the marriage and wardship of her sisters, for this would be to commit the lambs to the wolf^. 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'. A judge of Edward I.'s day tells us of a cause cdlebre 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*. 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

there would be seven (Boman) degrees at least between the person who first does and the person who first receives homage. According to Bracton, f. 78, the younger sisters swear fealty to the elder ; according to Glanvill they do not. Por the parage of Anjou, see Viollet, feablissements, 1. 125.

1 For some time past the king had habitually taken the homage of all the parceners: Exeerpta e Bot. Fin. i. 32, 48, 67, 72, 164 etc.

2 Statutes of the Eealm, i. p. 5 ; Praerogativa Eegis, c. 5, 6 ; Britton, ii. 23. s Note Book, pi. 1596. The law is also iUustrated by pi. 667, 869, 1053,

1765.

* Y. B. 82-B Edw. I. p. 801 : Bereford, J. says, ' I have seen a case where the father, grandfather and great-grandfather have been seised of the homage, wardship and marriage of their parceners, and yet all this was set aside by reason of the paroenry, and the chief lord recovered his services: This I saw in the case of Sir Edmund the king's brother, for parceners ought not to 'murder' another's right of seignory among themselves.' The allusion can be explained by the pedigree of Avelina, wife of Edmund of Cornwall, Which will be found in Calend. Genealog. i. p. Ixvii.

278 Inheritance. [bk. ii.

their sister, holding without homage until the third heir has [p. 276]

inherited \ Britton knows that the lord can not 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^ 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'.

The lord's The lesson that we learn from this episode is that the lord's

in ^^o- interest has been powerful to shape our law of inheritance. At

gemture. ^^^ tivue it 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.

Inherit- It is by no means impossible that the spread of primogeni-

?iUein ^UJ"® *o 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^ 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 of two brothers

or even of two sisters entered as those of the tenants of a [p. 277]

1 Bracton, f. 78 and the cases in the Note Book cited above. ' Britton, ii. 29, 40.

' So in France Philip Augustus tried to suppresB parage tenure : Warnkonig, Franzos. Geschichte, ii. 456. < See above, vol. i. p. 379.

CH. VI. § 2.] The Law of Descent. 279

tenement'. 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 primogejiitary rules of the common law, and we can not 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 there- fore 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.

A mere accident — for we think that it was no better — has Ultimo- given the name ' borough English ' to this custom of ultimogeni- ^^^ "*" ture. 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'. 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". 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 inherit- ance of burgages and sokemanries. The true home of ultimo- [p.278] geniture is the villein tenement; among villein tenements it has widely prevailed; in Bracton's day its appearance raised

1 Among such manorial plea rolls as have been printed we have observed no instance even of two women claiming to be co-heirs of a villein tenement.

'i Y. B. 1 Edw. III. f. 12 (Pasch. pL 38J. See Elton, Origins of English History, 179.

' Litt. sec. 16S, 211.

280 Inheritance. [bk. ii.

a presumption that the tenements which it governed were not free'. Origin of It is hardly to be explained without reference to the lord's

genitare. interest and the lord's will. But what has thus to be explained is not really the preference of the youngest son, hut 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-bom 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 tene- ment, 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 youngesb. Perhaps we may see in this a trace of an ancient religion of which the hearth was the centre. If then

1 Note Book, pi. 794, 1005, 1062. As a fair selection of copyhold customs, "which have been reduced to writing in comparatively modern times, we may take those collected in Watkins, Copyholds (3rd ed.), ii. p. 228 fol. Dymock, Gloucestershire : no inheritance beyond heirs of the body. Yetminster, Dorset : •widow has rights but there is no true inheritance. Weardale, Durham : eldest son, and failing sons, daughters jointly. Mayfield, Sussex: yard-lands to youngest son, and failing sons, youngest daughter ; assart lands to eldest son, or failing sons, eldest daughter. Framfield, Sussex: the like; primogeniture or, aa the case may be, ultimogeniture prevails even when the descent is to remote relations. Stepney, Middlesex : partible between sous and, failing sons, between daughters; partible between remoter kinsfolk of equal degree, whether male or female. Cheltenham, Gloucestershire: youngest son and, failing sons, youngest daughter. Taunton, Somerset : widow inherits in fee from her husband to the exclusion of children. Bobinson, Gavelkind (last chapter), gives a list of places, mostly in the south-east of England, where 'borough English' has prevailed in modern times. That an eldest or youngest daughter should, in default of sons, take the whole land was not uncommon.

CH. VI. § 2.] The Law of Descent. 281

[p. 279] we suppose a 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.

A good illustration of the conflicting principles which will Impartible shape a scheme of descent among peasant holders is afforded hollf^a. by a verdict given in 1224 about the custem which prevailed in the 'ancient demesne' manors of Bray and Cookham': — 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, who remains at the hearth", 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'.' 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

' Note Book, pi. 951, 988. See also Plaeit. Abbrev. p. 233 (Berk.).

' The words are in atrio ; Braeton, f. 267 b, uses them as an equivalent for in astro : ' ambo reperiuntur in atrio sive in astro.'

2 Co. Lit. 140 b : ' Within the manor of B. [Bray] in the county of Berks, there is such a custom, that if a man have divers daughters, and no son, and dieth, the eldest daughter shall only inherit ; and if he have no daughters, but sisters, the eldest sister by the custom shall inherit and sometimes the youngest.' In two Sussex manors we find the yard-lands (the old original villein tenements) governed by ultimogeniture even among daughters, while the assart lands (lands brought into cultivation at a later time) are governed by an equally strict primogeniture ; but (and this is very instructive) if a tenant has lands of both kinds, they must all go together either to the eldest or to the youngest ; the tenement that he acquired first will carry with it the other tenement. Watkins, Copyholds (3rd ed.), ii. pp. 282, 297; Elton, Origins of English History, p. 187.

282 Inheritance. [bk. n.

heir'. But already in the thirteenth century ultimogeniture [p. 280] was becoming unpopular: 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 of heirs". 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 free men. Cansesof We would not suggest that in no case can a custom of

ge^are. 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 inheritance to dependent peasants'. It seems to have been so in medieval Germany. The common [p. 281]

' The verdict is a good typical verdict about a cnstomary mode of descent. It leaves many cases unprovided for. In the imperfection of all ancient state- ments of the rules of inheritance to copyholds our common law has found an opportunity for spreading abroad its own rules. Thus jurors state in the custumal that a youngest son excludes his fellows, but say nothing of a descent to brothers, uncles, cousins. Hence perhaps the not uncommon result that in modem times there is ultimogeniture among sons, primogeniture among brothers> But the reason for giving the land to a youngest son hardly extends to the case of a youngest brother. He is not so likely to be found at the dead man's fire- side.

2 Jeaffresou, Index to the Leicester MSB. p. 66: 'propter defectum heredum et debilitatem eorum iam multo tempore [villa] fere ad ocoasum declinavit et ruinam.' This of course can not refer to a 'default' of heirs in the ordinary sense of that term. What is suggested is that the heirs are weaklings.

3 We here speak of a rule which gives the whole land to the youngest son. Eules which divide the land equally among the' sons but reserve ' the hearth' or house for the eldest or youngest are quite a different matter and may perhaps have their origin in a religious cult of the hearth; see Elton, Origins of English History, ch. viii.

CH. VI. § 2.] The Law of Descent. 283

land law divides the land among all the sons, giving perhaps to the eldest, perhaps to the youngest a slight preference^; the noble fief will often pass undivided to the first-bom; 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^' 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 ctoverting into proprietary rights.

The representative principle — the principle which allows Eepresen- the children or remoter descendants of a dead person to stand i^'erf™ 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 [p. 282] grandsons to share an inheritance with sons'. The spread of primogeniture raised the problem in a somewhat new shape.

^ A rule which gives the father's house to the youngest son seems to have been very common in Germany. See Stobbe, Privatrecht, iv. 40 ; he cites a Frisian rule which, like the Kentish rule, gives the youngest son the hearth, ' den Herd.'

2 Stobbe, op. cit., iv. 384. Ultimogeniture has been found in every quarter of Germany, from Switzerland to Holstein, and from Bohemia to the Ehine. Bee also Elton, op. cit., 190.

s Stobbe, Privatrecht, iv. 94; Schroder, D. E. G., 323.

284 Inheritance. [bk. il

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^ 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 hand, the tenant by persuading bis 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 Some ten years afterwards the realm of England together

accession, 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". Had not Glanvill's nephew told him that he was not king by hereditary right'? 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 pre- tending that he ought to be king of England also*.

1 Glanvill, vii. 3.

* Tr^B anoien ooutumier, p. 13. The rule here laid down favours the son against the grandson. Then it is added that in the time of war, under our Bichard I., the son of the dead son began to exclude the daughters. A later gloss treats the exclusion of the nephew by the uncle as an abuse introduced by John ; but this of course is a perversion of the story. Brunner, Erbfolgesystem, p. 43.

' Mat. Par. Chron. Maj. ii. 454 ; Foedera, i. 140.

* The French claim was this: — Bepresentation of dead parents is inad- missible. At Eichard's death there were but two children of Henry II. still alive, (1) John, who has been adjudged to have forfeited his lands for treason, and (2) Eleanor, wife of Alfonso of Castile, whose rights have come to Louis (afterwards King Louis VIII.) either by a conveyance, or in, right of his wife Blanche, daughter of Eleanor, since Eleanor's other children (the King of

CH. VI. § 2.] The Law of Descent. 285

[p. 283] So the representative principle grew in favour. Bracton Cas^ts 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\ a '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", 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'. The inference has been drawn* that Bracton wrote the passages which deal with this matter before the death of Arthur's -sister, Eleanor of Britanny, which happened in 1241 ^ 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'. At any rate the records of the earlier years of his reign seem fully to bear out what Bracton says'. On the other hand,

Castile and the Queen of Leon) have waived theii claims. Foedera, i. 140; Mat. Par. Chron. Maj. ii. 660.

1 This term occurs as late as X304: T. B. 32-3 Edw. I. 271.

2 There is no assize on the 4eath of a grandfather. This is a strong proof of the novelty of the representative priiiciple.

3 Bracton, f. 64 b, 267 b, 268, 282; 327 b.

* Brinton Oox, Translation of Giiterbock's Henrieus de Bracton, p. 28.

» Mat. Par. Chron. Maj. iv. 163, 175.

' The compiler of the 'revised Glanvill' of the Cambridge Library notices the CMus Regis : Harvard Law Review, vi. 19.

' Select Civil Pleas (Selden Soc), pi. 194 (a.d. 1201): nephew out of possession sues nncle in possession ; the case is adjourned sine die ' quia indicium pendet ex voluntate domini Eegis.' Por Henry's reign see Note Book, pi. 90, 230, 892, 968, 982, 1185, 1830. So late as 1246 jurors refuse to give an opinion as to whether uncle or nephew is heir, but leave this to the king : Calend. Geneal. i. pp. 4, 10.

286 Inheritance. [bk. ii.

from the Edwardian law books the casus Regis has disappeared, [p. 284] 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 domiaated our whole law of inheritance. In the suit for the crown of Scotland we can see 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'. The ex- We must now turn to the rules which govern the in-

ascend.°* heritance 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 heirj 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 can not 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 can not say that the inheritance always descends, for in the language of Bracton's time it is capable of 'resorting,' of bounding back. My land can not 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".

1 Foedera, i. 778.

^ Bracton, f. 62 b: 'Descendit itague ius, quasi ponderosam qoid cadens deorsum, recta linea yel transversal!, et nonquam reascendit ea via qaa descendit post mortem anteoessorum.' When the inheritance went to a collateral, e.g. an uncle, it was usual to say in pleading that the right 'resorted,' sometimes 'reverted'; it did not 'descend.'

CH. VI. § 2.] The Law of Descent. 287

[p. 285] There can be little doubt that the phenomenon now before This exolu- us is in some sort and in some measure the work of feudalism. priSiUi've. This at all events seems plain, that we can not 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^ The passage from the Ripuarian law which the author of our Leges Henrici appropriated says^: — ' If a man dies without children, his father or mother succeeds to his inherit- ance ' ; 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'. What we have now to discuss, however, is not an exclusion of ascen- dants and collaterals, it is the admission of collaterals and the exclusion of ascendants.

An ingenious theory about this matter has been made Black- popular by Blackstone^ It is said that the admission ofexpiana- coUaterals 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 descen- dants 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, [p. 286] Then we are told that the next advance was to treat the feodum novum, the newly granted fief, as though it were a

1 Stobbe, Privatreoht, v. 84-5. It ia observable that Tacitus (cap. 20) mentions the fratres, patrui and avunculi and not the parents ; but we dare not see any direct connexion between this text and our English rule.

2 Leg. Henr. c. 70, § 20. ' Stobbe, Privatreoht, f. 321-2, 326-7. * Comm. ii. 208-212.

288 Inheritance. [bk. n.

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 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 can not 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. Faiiare of That something of this kind happened in some countries of pian^ion. Europe, in particular Lombardy, may be true\ 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". But at any rate we can not make this story explain the English law of Bracton's day. . Adam is enfeoffed and dies without issue. His father can not inherit ; but his elder brother can inherit, and yet the fiction that the feodwm novum is a feodwm 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'. 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 novum, are not technical terms of our [p-287]

' 2 Feud. 50 : ' Successionis feudi talis est natura, quod ascendentes non succedunt, verbi gratia pater filio.' In modern countries which have 'received' the Lombard law as a law for fiefs, ascendants have as a general rule been excluded ; Stobbe, Privatrecht, v. 344.

2 Somma, p. 77; Auoieiine ooutume, c. 25 (ed. de Gruchy, p. 79).

» This objection has often been Urged against Blackstone's argument, for instance, by his editor Christian ; Oomm. ii. 212.

CH. VI. § 2.] The Law of Descent. 289

English law; they were brought hither from a remote country^. We can not be certain that 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 innova- tions". 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.

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

Glanvill tells us that certain difficult questions are often The ques- raised by gifts which fathers make to their sons*. We may eiauvlu. 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 0, has three sons whom in order of their birth we will call A, B, and G. With

' For a while in the last century the writings of Spelman, Wright, Gilbert and Blaokstone had almost succeeded in bringing about what the Germans would call an academic 'reception' of the Lombard iiftri i'Vitionim ; and this process went much further in Scotland. The Lombard law of feuds was re- garded at this time as the model and orthodox law of feuds. But Milan is a long way from Westminster and even from Eouen, and France rather than Italy is the feud's original home.

'' Blackstone, Comm. ii. 211 : ' Our Henry the first indeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line.' By borrowing a text of Frankish law ?

' Bruuncr, Brbfolgesystem, p. 23. In some respects Brunner adopts more of Blackstone's explanation than we shall adopt in the following paragraphs.

* Glanvill, vii. 1.

P. M. II. 19

290 Inheritance. [bk. ii.

the consent of A his apparent heir, 0 makes a feoffment to B^. [p. 288]

Then B dies without issue, leaving 0, A and G alive. Who is

to inherit ? This is a knotty problein which taxes the wisdom

of our wisest lawyers^., Glanvill distinctly supposes that 0, the

father, will claim that the land is to come to ' him'. But A

urges that 0 is already the lord of the land and can not be both

lord and heir. Then G appears and argues that the same

objection can be urged against A; for J. 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 0 must be

rejected. He can not possibly hold the land, for he can not 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^ Then

the question between A and G must be argued. Glanvill is

for allowing A to inherit at present; but if hereafter 0 dies

and the seignory descends to .4, 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

toO.

Problems On our earliest plea rolls we may see this quaint doctrine

by'the'ruie gi^ii^g ''ise to all manner of diflSculties'. Obviously it is

°'''d"h ^•"'^'^ 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 G. In the former event, if A leaves at his death two

sons X and F, we shall once more have a problem to solve.

We have undertaken to prevent the seignory and the tenancy

1 Glknvill, vii. 1: ' cum oonsenau heredis sui, ne super hoc fieret oontentio.' ^ Ibid. ; ' Magna quidem iuris dubitatio et virorum iuris regni peritorum'

disceptatio et contentio super tali casu in curia domini Begis evenit vel eveniie

potest.'

" Ibid. : ' pater enim seisinam defuncti filii sui sibi retinere contendit.'

* Ibid. -. ' Fraeterea terra ista quae sic donata est sicut alia quaelibet bereditas

naturEiliter quidem ad heredes hereditabiliter descendit, uunquam autem natn-

raliter ascendit.'

» Curia Regis Eolls (Pipe EoU Soc), i. 21; Select Civil Pleas (Selden Soc),

pi. 189; Note Book, pi. 61, 564, 637, 774, 949, 1244, 1694, 1857; Calend.

Geneal. p. 146; Somersetshire Pleas, pi. 592.

CH. VI. § 2.] The Law of Descent. 291

.[p. 289] remaining in one and the same hand, and yet the common rules of inheritance are always bringing them together^.

Glanvill in his treatment of this theme supposes that the Effect of

father (0) has taken the homage of his son (5). Bracton lays """"S®-

stress upon this condition". 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'.' 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 fraakmarriage 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^ 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". Were homage

once done, the younger sister's share could never come to her

elder sister*. 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'.

1 Bracton, f. 65 b, 66. " Bracton, f. 22 b, 23, 65 b, 277.

2 See above, vol. ii. p. 17.

- Bracton, f. 22 b, 23; Note Book, pi. 61. This doctrine is made obscure by the haziness of the line which divides 'reversion' from 'escheat.' See above, vol. ii. p. 23.

^ See above, vol. ii. p. 276.

' Stat. Hibem. de Coheredibus (Statutes, i. p. 5).

' There is a good deal of evidence which hints that in old times when a partible inheritance fell to several parceners and one of them died and his share passed to the others, this was regarded not as a case of inheritance, but as a case of accruer. (See Nichols, Britton, ii. 316.) So long as the land is held by very close kinsmen there is no 'inheriting' between them. Only when the parceners are beyond a certain distance (e.g. the third or fourth degree) from the common stock does any true inheriting begin. We may suspect that some such idea is the root of the ' third heir rules 'about paragia and maritagia ; but, if so, it lies deep down and has been hidden away beneath more modern law ; it

19—2

292 Inheritance. [bk. ii.

Why can But whence this rule that excludes the lord from the [p.290]

lord in. inheritance ? Why can not 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 diffi- culties 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 can not readily conceive its annihilation^ 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 primo- geniture. 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 maritagiitm' ; 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 who enfeoffs a younger son in return for homage is (probably with his [p.29i]

can only be natural in a time when it is common that two generations will pass away before an ancestral estate undergoes a physical partition.

^ Hale, Common Law (6th ed.), pp. 314-5, seems to treat the role as purely irrational.

" Glanvill, vii. 1; see above, vol. ii. p. 15.

CH. VI. § 2.] The Law of Descent. 293

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 in- heriting from their grandfather'. 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".

It is diflScult for us to express this vague feeling in precise The terms ; but the difficulty is not of our making. In Glanvill's towards day it was puzzling the wisest heads in the king's court', finality- 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*. The rule that, if homage has intervened, a lord can not 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'. 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 ^

We may seem to have digressed far from our original The ex-

1.- ,. 1 ,- 7-,- , elusion of

theme, the exclusion of ascendants from the mheritance ; but the lord it is a serious question whether that exclusion is not the exclusion outcome of the rule about lord and heir. Glanvill supposes ascendant a father to come forward 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 must not be both lord

' Glanvill, vii. 3. My younger son will be preferred to the children of my 'forisfamiliated' elder son.

' When Henry II.'s son Geoffrey introduced primogeniture into Britanny, he introduced along with it the rule that the elder brother ia not to inherit from the younger land for which the younger has done homage to the elder; Warnkonig, Franzos. Geschichte, i. Urkund. p. 27. We have here an equitable temperament of primogeniture.

» Glanvill, vii. 1. ■• Bracton, f. 277.

e Bracton, f. 277 ; Note Book, pi. 564, 1857;

' Stat. 18 Bdw. I., Quia emptores. The rule appears in 13 Edw. I. Fitz. Abr. Avowre, pi. 235, and in Fleta, p. 371. After this it dies of inanition. It has never been repealed.

294 Inheritance. [bk. ii.

and heir. Would it not have been simpler to tell him that [p.!

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 On the whole there are not many cases in which a man

leads'to"^ Can put in any plausible claim to inherit from a dead son.

of the'"" If the son acquired the land by inheritance from any paternal

father. 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 ofifered for it is that heavy bodies never bound upwards

in a perpendicular line.

Suggested This explanation, it must be fi:ankly owned, has in it some

tkmonhe guesswork ; but before it is rejected we must call attention

exclusion to two facts. In the year 1195, unless a plea roll misleads us,

ants. 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*. We

know of no other case of the same kind and 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

1 Curia Eegis EoUs (Pipe EoU See), i. 133. It is possible that the scribe o! this record wrote filim by mistake for ;pater, and, if so, the case is deprived of all its curiosity.

CH. VI. § 2.] The Law of Descent. 295

[p. 293] surprised to find in some solitary instance a father putting in a claim. Britton, with Braeton's text before him, deliberately and more than once asserted that the father can inherit from the son'. He would postpone the father to all his own de- scendants 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 him- self uncertain as- to its precise effect; but he knows that it will make great changes". One of these changes will be that it will deprive the old rule about lord and heir of any material to work upoa 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'.

Lastly, before our suggestion is condemned, we would ask The that a law of inheritance very closely akin to our own should in Scottish 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 somfe 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*.

The canons which regulate the course of inheritance among inherit- the collateral kinsfolk of the dead man are worthy of obser- collaterals vation. Our English law has been brought to bear upon a brisk controversy that has been carried on in Germany. What was the main principle of the old Germanic scheme of in-

[p.294] heritance ? Was it a 'gradual' or a 'parentelic' scheme?

' Britton, ii. 319, 325. ' Nichols, Britton, i. p. xxv.

s Stat. 3-4 Will. IV. o. 106, sec. 6.

* Stat. Eobert IH. Acts of Parliament, i. p. 575; Ibid. pp. 639, 730; McDouall, Institutes, ii. 297; Bell, Principles of the Law of Scotland, § 1662-72. The immediate younger brother was heir of line and the immediate elder (not the eldest) brother was heir of conquest. The exclusion of ascendants was by no means unlmown outside England; on the contrary it seems to have prevailed until quite recent times in large parts of Austria, Tyrol and neighbouring lands: Wassersohleben, Priilzip der Erbenfolge (1870), p. 35 ff. We do not profess to explain this phenomenon wherever it is found; we have spoken only of England.

296 Inheritance. [bk. ii.

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 modem dis- putants 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 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 [p. 295] than my first cousin. We have here, it is said, not a ' gradual'

CH. VI. § 2.] The Law of Descent.

297

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'. - We have preferred to state the matter in this abstract, and The in England unfamiliar, fashion rather than to repeat the rules scheme. 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 accept it as obvious, and this although they will copy from the civilians an elaborate Arbor Gonsajnguinitatis and hardly know that the English law is radically different from the Eoman^.

1 A sketch of the controversy to which we have referred will be found in Stobbe, Privatrecht, v. 79. Modern opinion seems to be inclining to the belief that the parentelic scheme was ancient and general; see Heusler, Institutionen, ii. 586, and Brunner, Erbfolgesystem.

^ The works of both Braeton and Fleta ought to have in them arboret horrowed from tlje civilians ; such trees are found in several mss. of Bracton's book. The arhor is given in Nichols's edition of Britton, ii. 321. The use of these trees is apt to perplex the writer's exposition of English law. Still the parentelic scheme comes out clearly enough in Braoton, f. 64 b ; Fleta, p. 373 ;

298

Inheritance.

[bk. II.

The

Scottish inherit- ance.

•r Henry

a 'William

Alexander

• Alexander

• Margaret

The Maid of Norway

Bnles for collaterals of the same pareutela.

Choice among the ascending lines.

A good illustration is afforded by the careful pleadings of [p. 296] John Balliol in the great siiit for. the

• David ^

I crown of Scotland. He traced the

I 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 re- sorted' to William's parentela, but it found that parentela empty and so had to go back further^

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*. (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.

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? [p. 297] Our medieval lawyers, copying the pictures drawn by canonists

Britton, ii. 325. For examples, see T. B. 21-2 Edw. I. p. 37 ; 32-3 Edw. I. p. 17.

' Poedera, i. 776-8. Several of the competitors professed that they stood in a lower parentela than that represented by Balliol, Bruce and Hastings ; but their claims seem to have been stained by illegitimacy and were withdrawn.

' The application of this principle gave Balliol the victory over Bruce.

CH. VI. § 2.] The Law of Descent.

299

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, proa via ' 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 : —

PPP MPP

PMP MMP

PPM MPM

PMM MMM

PP

MP

PM

Pater

MM

Mater

TitiuB

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.

As it is, we can see the rule that the heir must be one who patema is related by blood kinship not only to the propositus but to Patema the purchaser. By ' purchaser ' is here meant the person who matemis. 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 kins- woman 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 Patema [p. 298] patemis, matema materv.isK 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 can not inherit

'■ Abroad this return of the inheritance to the side whence it came wag known as ias revolutionis, ius recadentiae, Fallrecht; Stobbe, Privatreeht, v. p. 105 J Heusler, Institutionen, ii. 627. It is a widely distributed phenomenon.

300 Inheritance. [bk. ii.

from me land that descended to me from my mother; my father's father's brother can not 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 ancients 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 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^ 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 Matema maternis, but absolutely excluding all matemi even when the inheritance, has come from their side', 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. Choice The rule Paterna patemis, matema maternis may exclude [p.299]

among , j • . ,

the ad- from our view certam of those ascending lines which go upwards ™ooks. froi^ our propositus; it will not enable us to make a choice

1 The common form which prevails now-a-days when a bride's personal property is to be settled, bears witness to this desire that, if there be no children of the marriage, the wife's property shall in certain events come back to her own kinsfolk.

2 Eishanger, Chronicle (Rolls Ser.), pp. 132, 269, 358.

3 Bell, Principles of the Law of Scotland, 9th ed. p. 1021, § 1665.

CH. VI. § 2.] The Laiv of Descent. 301

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 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 points

Beyond this all is dark. We gravely doubt whether during No clear the middle ages any clear canons were established to regulate are found, 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 trans- planted the trees of the Komanists, and those trees could not take firm root in English soil. In Elizabeth's day an exceed- ingly 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 [p.sooj father's son's son'? When this question had been decided in favour of the claimant who was of kin to the father of the

1 It is difiBoult to prove even tliis from the text-books. Glanvill, vii. 3, 4, Braoton, ff. 67;-9, Fleta, pp. 372-5, Britton, ii. p. 324, are apt to speak as though in ascending we might cross from line to line in order to find the nearest ancestor, so that, e.g. we might prefer the father's mother's parentela to the -father's father's father's parentela. But this we think due to the inadequate .(}r6pre«..tha,t they had in their minds.

2 Clere v. Brooke, Plowden, 442. The principal Xeai Book eases are 39 Edw. III. f. 29; 49 Edw. HI. f. 11; 49 Ass. f. 316; 12 Edw. IV. f. 14.

302

Inheritance.

[bk. n.

Place of the half- blood ill the classi- cal com- mon law.

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'. That in an age which allowed no testa- mentary 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".

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".' 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, can not 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 this man [p. 301' 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

1 Stat. 3-4 Will. IV. o. 106. see. 8. Hale, Common Law,. 6th ed. p. 328, had taken one side in the dispute, Blackstone, Oomm. ii. 238, the other, Blackstone's departure from Hale's rule gave rise to controversy of a kind that has been very rare in England, the acadiemio discussion of a point of law that is of no practical itaportance.

' After looking through a large number of records of the thirteenth century we are much struck by the extreme rarity of cases in which any of the more recondite rules of inheritance are called into play.

' Blackstone, Comm. ii. 288 ; Maine, Ancient Law, ch. t.

CH. VI. § 2.] The Law of Descent. 303

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 seism. 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 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 fadt sororem esse heredem ; the entry of the eldest son has made his sister heir*.

Now it seems clear that the law of Bracton's day had not The half- yet taken this puzzling shape. Bracton holds that the half- earlier 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". 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'. Fleta and Britton agree that if a man purchases land and dies without issue, his sister by the whole blood will [p. 302] be preferred to the half-brother*. 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

1 Litt. sec. 7, 8. The law was altered in 1833. " Bracton, f. 66 b.

* Bracton, £ 65, 65 b. The text in its present condition looks as if Bracton had changed his mind and added a note contradicting what he had already written.

* Fleta, p. 371 ; Britton, ii. 318.

304 Inheritance. [bk. ii.

admitted; but neither do they deny this. As to the case in which the propositus has inherited land from his father, Meta is for preferring the consanguineous half-brother to the sister of the whole blood, and this without reference to seisin' ; Britten is for preferring the sister by the whole blood, and this without reference to seisin''. 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 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'. Finctua- These are not speculative fancies. If we turn to the records

practice, ^f 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^ Even Britton's doctrine that thro\igh my half-brother I can acquire the land of my stepfather or stepmother, does not seem ridiculous". 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'. 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 [p.i seisin; but they have not yet fully established the dogma that, if once that eldest son is seised, his half-brother will be incapable of inheriting from him.

1 Fleta, p. 371.

= Britton, ii. 316.

» Britton, ii. 319. See also Soots Acts of Pari. i. 731-2, 638.

* Select Civil Pleas (Selden Soo.), pi. 1 ; Note Book, pi. 32, 44, 833-4, 855, 1128 ; Placit. Abbrev. p. 153 ; Calend. Geneal. pp. 31, 282 ; X. B. 21-2 Edw. I. p. 552 ; Y. B. 32-3 Edw. I. p. 445.

" Note Book, pi. 1128 ; T. B. 21-2 Edw. I. p. 552 ; Y. B. 32-3 Edw. I. p. 445. In this last case it seems to be thought that a uterine half-sister can inherit land which descended to the propositm from his father.

« Y. B. Mich. 5 Edw. II. f. 147; Mich. 12 Edw. n. f. 380 ; Mich. 19 Edw. H. i. 628.

GH. VI. § 2.] The Law of Descent. 305

Our persuasion is that the absolute exclusion of the half- Exclusion blood, to which our law was in course of time committed, is biood is* neither a very ancient nor a very deep-seated phenomenon, ™oaeru. 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 can not say now-a-days that there is any obviously proper place for the half-blood in a scheme of inheritance, especially in our ' parentelic ' scheme^ The lawyers of the thirteenth and four- teenth 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^

1 Stobbe, Privatrecht, v. 116. German and French customs afford a rich variety of rules. That the half-blood should be on an equality with the -whole blood was rare; sometimes it took a smaller share; sometimes it was post- poned; but the manner of postponing it varied from custom to custom. See also Heusler, Institutionen, ii. 612. In 1279 it is alleged as a custom of Newcastle that the mother's inheritance wiU go to daughters by a first marriage in preference to a son by a second marriage: Northumberland Assize EoUs, p. 295. Such a custom, which has its parallel in Germany (Stobbe, p. 101), should warn us that the rules of the common law were not the only rules that seemed natural to Englishmen. See also Soots Acts of Pari. i. 337.

^ Maine, Ancient Law, ch. v. : 'In Agnation too is to be sought the explanation of that extraordinary rule of English Law, only recently repealed, which prohibited brothers of the half-blood from succeeding to one another's lands. In the Customs of Normandy, the rule applies to uterine brothers only, that is to brothers by the same mother but not by the same father ; and limited in this way, it is a strict deduction from the system of Agnation, under which uterine brothers are no relations at all to one another. When it was trans- planted to England, the English judges, who had no clue to its principle, interpreted it as a general prohibition against the succession of the half-blood.* We have not been able to find any text of Norman Law which excludes the. uterine but admits the consanguineous brother. The Grand Coutumier, c. 25 B, admits the consanguineous brother when the inheritance has descended from, the father and the uterine brother when the inheritance has descended from the mother. As to land purchased by the propositus, we can see no words which declare the uterine brother incapable of inheriting. See Brunner, Erbfolge- system, p. 44. In the later custom (Art. 312) the uterine and oonsanguineoua brothers can claim a share with the brothers of the whole blood. The strongholds of the distinction between the consanguineous and the uterine half- blood seem to be the Lombard law of feuds and the Scottish law. In the Libri

P. M. II. 20

306 Inheritance. [bk. ii.

Co-par- When an inheritance falls to the daughters 6f the dead man, [p. 304]

cenery. qq,c}i of these ' parceners ' (participes) is conceived as having a certain aliquot share in the as yet undivided land^ 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^, 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'- 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 niust 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 inherit- ances as unbroken wholes. Glanvill's own lands passed to three [p-305] daughters. 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,

Feudorum sucli a distinction is in its proper place and this without aay reference to agnatic families. Except as an anomaly, no fief can descend to a woman or through a woman, for fiefs are the estates of a military class ; and since it can not descend through a woman, it can not pass to an uterine brother. Scottish law postponed the consanguineous half-brother, and it utterly excluded the uterine half-brother, even when the land had descended from his mother. But we should like to see a proof that this is not due to the powerful infiuence which the Libri Feudorum exercised over the Scottish lawyers of the sixteenth and later centuries. Here in England and in the year 1234 it was argued that a Uterine brother should exclude a sister of the whole blood from land which had descended to the propositm from his mother (Xote Book, pi. 855). When this was possible men were very far from 'agnation.' Again, for some time before 1855, Scottish law utterly excluded the mother and maternal kinsfolk even from the succession to movables; but it seems to be< very doubtful whether this exclusion was ancient: Bobertson, Law of Personal Succession, p. 380.

1 Braoton, f. 873 b.

" See above, vol. ii. p. 291, note 7.

' So late as 1325 it is said that if a man dies leaving several daughters by different wives, and these daughters divide the inheritance, and one of them dies without issue, her share will go to her sisters of the half-blood as well as to her sisters of the whole blood : T. B. 19 Edw. II. f. 628. See Britton, ii. 73 note.

en. VI. § 2.] The Law of Descent 307

for one of his five daughters was represented by seven daughters^ For a male to get a share ' by distaff right'' ' was by no means uncommon. But generally when an estate, at all events when a great estate, became partible, it was soon physically parti- tioned. Any one of the parceners could 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.

Germanic law seems to have set a limit to blood relation- Limits of

ument-

ship, or • sib-ship.' An inheritance can not be claimed by one ance. 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-jojnts ; here the sib ends ; seventh cousins would be 'nail cousins' and there would be no legal relation- ship between them'. We may see traces of this idea in England and in Normandy*. The Norman custom held that the line [p. 306] of consanguinity did not extend beyond the seventh degree'. Bracton refuses to draw the ascending line beyond the tritavus, the sixth ancestor of the propositus ; beyond this point memory will not go^ However, the rules for the limitation of actions

1 Stapleton, Liber de Antiquis Legibus (Camden Soc), p. xix. The annual value of a thirty-fifth share was reckoned at £217.

' Winohcombe Landboc, i. 131-3 : ' iure eoli.'

' Heusler, Institutionen, ii. 691-3 ; Stobbe, Privatreehfc, v. 67-9 : SchrSder, D.E. G., 324. The whole 'family' which, consists of parents and children stands ' within the first joint,' so that the reckoning by joints begins with first cousins. But a great deal is very obscure.

* An allusion to some such idea occurs in the Anglo-Saxon, tract on Wergild: Schmid, App. vn. A certain payment is made only to those near relations of the slain who are within the joint {binnan cnedwej infra genu). In Leg. Hen. 70, § 20, the inheritance descends to males in quintum geniculum ; but this is old Bipuarian law.

» Somma, p. 77 ; Ancienne coutume, c. 25 ; Bruuner, Erbfolgesystem, p. 44.

« Bracton, f. 67; Brunner, op. eit., p. 18.

20—2

308

Inheritance.

[bk. II.

Bestrictiou of aliena- tion in favour of the expectant heir.

Glanvill's rnles.

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 pro- positus had been seised since the coronation of Henry 11.^ The rule therefore against ascending beyond the tritavus fell into oblivion^, 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.

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'.

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*. 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 greater [p. 33'] 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'. The bastard therefore is better off than the legitimate

1 Braoton, f. 372 b. Not only must you take as your propositus one who died seised within the appointed period, but you may not ' resort ' to one who died beyond that period.

" Britton, ii. 324.

* Glanvill, vii. 1,

• Glanvill contrasts hereditas with quaestus. In borrowing from beyond the Tweed the words heritage and conquest we show that in England the distinction soon became unimportant. To express it we have no terms of our own less cumbrous than ' lands which have come to a person by inheritance,' ' lands that have come to him by purchase.'

» Glanvill, vii. 1: 'non poterit defaeili donare.'

GH. VI. § 2.] The Law of Descent. 309

younger son. Glanvill confesses that this is a paradox; but it is law. As to the man 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^. 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 ma,de 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 charters of the twelfth century afford numerous The heir's

, . ... . , .«. << .i_ ■ consent.

examples of expectant heu:s jommg m the guts ot tneu- 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"; but very often one heir or several [p. 308] 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 Espec's foundation of Kirkham Abbey was confirmed by his nine

1 Somma, p. 114; Ancienne ooutume, o. 36: 'Oum pater plures habeat Alios, unmn meliorem altero de hereditate sua non potest facere.'

2 Somner, Gavelkind, p. 40 : Charter of 1204 : ' et quia praedicta terra de libero catallo et proprio perquisito meo fuit, et non de aliqua hereditate parentum meorum.'

310 Inheritance. [bk. n,

nephews, the sons of his three sisters' ; and the consent of the donor's daughters is sometimes mentioned^. 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^ Daughters consent though the donor has sons who also consent*. 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 ^ 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". 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'. At Ramsey two infantes receive five shillings apiece, an infwn- tulus a shilling, and a baby held in its mother's arms twenty pence'; so at Chartres four pence are put into the hands of a [p.309] child who is too young to speak' ; and so, to return to England, the monks of 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

^ Monasticon, vi. 209 ; Bee also the foundation charter of Bievaulx : Cart. Eiev. p. 21.

■' Cart. Glouc. i. 367.

5 It is quite common to find several sons or brothers joining in the gift. See e.g. Madox, Formulare, p. 4, the donor's wife, two sons, two brothers and one grandson or nephew (^epos) declare their consent.

< Cart. Bams. i. 132, 139.

' Winchcombe Landboe, i. 35.

^ Gbron. de Melsa, i. 318.

' Hist. Abingd. ii. 202 : ■ zouam ei cervinam optimam dedit et nummos zii.'

8 Cart. Earns, i. 137, 139, 145.

' Cart, de S. F^re de Chartres (Documents inSdits), ii. p. 576.

GH. VI. § 2. J The Law of Descent. 311

son and six pence to each of her three daughters*. 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 I

Unfortunately when in 1194 the rolls of the king's court Disappear- begin their tale, it is too late for them to tell us much about restriction, this matter'. 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*. Whether Elyas got a judgment or no we can not 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". 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 t^ an heir apparent', [p. 310] The change, if we consider its great importance, seems to Causes of 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

1 Winchoombe Landboc, i. 180.

2 Cart. Glouc. i. 205, 235, 296; Cart. Kiev. p. 52. See the cross on the charter made by the heir in Brinkburn Cart. pp. 1, 2.

' A few pertinent stories are found in chronicles. Hist. Abingd. ii. 205-6 (early Henry H.) : apparent heirs try ineffectually to stop a gift being made to the church ; this gives rise to proceedings in the hallmoot, where they fail. Chron. de Melsa, i. 103, 231-2, 289-90-91 (temp. John) : an heiress recovers land given by her ancestor; the monks complain of favouritism.

' Oblate Bolls (ed. Hardy), p. 87.

" Hote Book, pi. 1054. " Bracton, f. 17.

312 Inheritance. [bk. ii.

suggested, the complement of that new and stringent primo- geniture 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 aliena- tions made by their tenants', more control than they could have had under a law which partitioned the inheritance. Eebntting The material cause of the great change we may find in warranty. ^'^^^ 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 warranb 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 days, already when Bracton was writing, this doctrine no longet came into play when a tenant in fee simple had alienated his land; for in such a case the heir had no right to [p-SU] the land, no claim which must be rebutted. It only came into play when the alienator and warrantor had been doing some- thing that he had no business to do, when a husband had been ^ See above, vol. i. p. 332.

OH. VI. § 2.] The Laiv of Descent. 313

alienating his wife's land, or a tenant for life had made a feoffment in fee. But we may suspect that this doctrine per- formed 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^

Be this as it may, our law about the year 1200 performed a great very swiftly an operation that elsewhere was but slowly accom- change^'^^" plished. 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^- The conception of a case of necessity may be widened in- definitely; but for centuries the seller's kinsmen enjoy this ius retractus. Norman law' and Angevin law* 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"- But above our law at the 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.

' See e.g. Note Book, pi. 224: A claims land from X; X pleads a feoffment made to him by an ancestor of A, and eajs that A is bound to warrant that gift. See also pi. 1685. Were it fully established that a tenant in fee simple could alienate without his heir's consent, a reliance on warranty would be needless. Blackstone, Comment, ii. 301, says that express warranties were introduced 'in order to evade the strictness of the feodal doctrine of non- alienation without the consent of the heir.' This, though the word ' feodal ' is out of place, we believe to be true. The clause of warranty becomes a normal part of the charter of feoffment about the year 1200.

" For Germany, see Heusler, Institutionen, ii. 60.

3 Somma, p. 300 ; Ancienne coutume, c. 118 (ed. de Gruchy, p. 295).

* Viollet, liltablissements, i. 120.

" See above in our section on The Boroughs. A right of pre-emption, so archaic as to be a tribal rather than a family right, still exists in Montenegro : Code General des Biens, tr, Dareste et Eivi^re, Paris 1892, art. 47-56.

314 Inheritance. [bk. il

§ 3, The Last Will

The germs We may believe that, even in the first days of English [p- 312] 0^ e as OJj].istianity, 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^ 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 aay 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. What is From the middle of the ninth century we begin to get

documents which are often spoken of as Anglo-Saxon wills or testaments". Before using these terms, it will be well for us to say a few words about their meaning, and, though we allow

* Beda, Hist. Eccl., lib. y. cap. 12. See Baedae Opera, ed. Plummer, ii. 295. The English translation describes his act thus : ' and sona ssfter ^on ealle his £ehto on ISreo todselde, lenne dasl he his wife sealde, oJ>erne his bearnum, tSone 'Sriddan ^Sc ftim gelamp he instsepe 'SSearfuin gedffllde.'

" These documents are conveniently collected by Thorpe, Diplomatarinm, pp. 459-601. Their nature is discussed by Brunner, Gesohiohte der Urkunde, i. 199 ; Hiibner, Donationes post obitum (Gierke's Untersuchungen, No. xxvi.).

e wiU?

CH. VT. § 3.] The Last Will 315

tp.si3] to them 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 in- strument. 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 AetV in this context) it can make a representative of the testator.

This matter may be made the clearer by a short digression Ambnla- through a later age. In the twelfth century it became plain qSty 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', which was explained and extended by later statutes'^, 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 fol- lowing a rule which had long been applied to those wills of land that were sanctioned by local custom' — 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*. Now 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

[p. 314] an ambulatory instrument. Still the statutory will of freehold land was a revocable instrument; it did nothing at all until

1 Stat. 32 Hen. Vin. c. 1.

^ Stat. 84-5 Henry VIH. c. '5 ; 12 Car. II. u. 24. In this context we need not speak of the partial restriction on a will of lAnd held by Imightls service which prevailed between 1540 and 1660.

s Y. B. 39 Hen. VI. f. 18 (Mich. pi. 23).

■* Stat. 7 WiU. IV. and 1 Vio. c. 26, sec. 3,

316 Inheritance. [bk. ir.

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.' Heredita.- Then again the ' hereditative ' quality of the will comes

hve w s. ^^ ^j^g 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 per- sonal 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 repre- senting 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^. For a long time past the executor, or the group of executors, has repre- sented 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 ? The Anglo- Nothing is plainer than that the so-called Anglo-Saxon • yf[\\ ig 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 English- man endeavouring to institute a heres in the Roman sense of that term. That term was in use among the clerks, but it [p. 316] ^ A great change is being made by the Land Transfer Act, 1897.

CH. VI. § 3.] The Last Will. 317

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'. 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". The Anglo-Saxon ' will/ or cwi'Se 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 most important of its ingredients we shall call ' the The post 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'.' Now this book can not 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 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*; but generally this seems to be thought quite unnecessary; 'I give after my death,' is plain enough".

' The royal land-book often says that the donee may at his death leave or give the land to anyone, or to any heres, whom he chooses. It seems plain that the person whom he chooses will be his heres for that particular piece of land. Apparently the English word which heres represented had this same meaning. Thus if Bishop Oswald gives land to ^thelmsr for three lives, so that he shall have it for his day, ' and after his deege twam erfeweardan «am «e him leofest sy,' any person to whom the donee leaves the land is his yrfeweard so far as that plot of ground is concerned. See Cod. Dipl. 675 (iii. 255).

2 See e.g. Cod. Dipl. 90 (i. 108). So also on the continent almost any legal instrument may be called a testamentum. Thus a deed of sale is testamentum venditionis. Ducange, s.v. testamentum.

3 See e.g. Cod. Dipl. i. pp. 133, 216-7, 290. • See e.g. Thorpe, Diplomatarium, p. 518.

"■ Thorpe, p. 492: ' Ceolwin makes known by this writing that she gives the land at Alton she gives it after her day to the convent at Winchester."

318 Inheritance, [bk. it

The post At a later time such a gift has become impossible, because [p. 316]

and tte the courts insist that there can not be a gift without a livery book/*"^ of seisin. You can not give and keep. The desired trans- action, 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'. 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 in- appropriate 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". He may declare that one thing is to happen if he dies without a son and another thing if he has a son'. He can make contingent and conditional gifts*. 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- But there is a second ingredient in the will, namely, the tilbutfon. death-bed 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

1 See above, p. 92. » Thorpe, p. 495 (Wulfgar).

a Thorpe, p. 483 (iElfred the ealdorman); p. 506 (ailfgar). 1 Ibid., p. 470 (Abba).

CH. VI. § 3.] The Last Will. 319

is, 'Let Mm take with him one or two, so that in the mouth [p. 317] of two or three witnesses every word may be established, for perchance the avarice of the kinsfolk of the dead would con- tradict what was said by the clergy, were there but one priest or deacon presentV 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 pro- tecting 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 pioys 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 ^ 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'. He makes that portion over to his confessor for the good of his soul ; he makes what — regard being had to the imminence of death — is a sufiBcient delivery of them to the man who is to execute his last will. The questions that we wish to ask — Are his words re- vocable 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.

Then these two institutions ' the post obit gift ' and ' the The last words ' seem to coalesce in the written cwi^e of the ninth, cwiu. 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

1 Dialogus Ecgberti, Haddan and Stubbs, Councils, iii. 404.

^ The case of Eanwene, Cod. Dipl. iv. p. 54, Thorpe, p. 336, is sometimea cited as involving a nuncupatory will of land. But apparently the quasi testatrix is still living when the shire moot establishes the gift that she has made.

' The devieare of later records slowly branches off from dividere.

320 Inheritance. [bk. ii.

written in the vulgar tongue, not in Latin, even though it [p. 318] comes from a bishop. It calls itself a cvn^e, that is a saying, a dictum ; it is its maker's nihsta cwi^e^ ; 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 re- siduary gifts of chattels and of lands I 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'. But it is never safe for us to assume that every man 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*. The right But, though all this be so, we can not think that an in-

queath. strument 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 cwi'tSe is to 'stand.' That consent is purchased by a handsome heriot. Sometimes the cwiSe takes the form of a

1 Thorpe, p. 500= Cod. Dipl. no. 492.

2 Thorpe, p. 527 = Cod. Dipl. no. 593: ^Ifheah, after disposing specifically of various lands, gives to his wife, if she survives him, 'all the other lands which 1 leave.' See also pp. 554, 585 (Wulf). It must be remembered however that (as the history of our law between 1540 and 1837 proves) we can not argue from a residuary gift to the ambulatory character of the instrument.

8 Thorpe, p. 490.

* Thorpe, p. 550-1 (Archbishop iElfric); p. 561 (^thelstan the ffitheling); p. 568 (Bishop .ffilfrio) = Cod. Dipl. nos. 716, 722, 759.

CH. VI. § 3.J The Last Will 321

supplicatory letter addressed to the king. In the third place, (p. 319] an 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 cen- tury, it seems to be quite common that the cwi^e 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 instruments In some cases the will shades off into a family settlement". Often it is clear enough that the tes- tator 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.

On the whole it seems to us that we have here to deal with wais and

.•I'll ,1 , ,• death-bed

a practice which has sprung up among the great, a practice gifts, which is ill-defined because it is the outcome of privilegia. As to the common folk; we may perhaps believe that the land- holder, 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 of his goods for the efface- ment 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 cwiSe 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, how- ever, 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 .^Ifstan 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*' — 'And be Bishop .^Ifric and Tofig the Proud and Thrunni guardians of this cwiSe*.' When among the great the practice

^ Some specimens of these ' chirographed ' wills are given in Brit. Mus. Facsimiles, vol. iv. Apparently they are not signed either by the testator or by amy witnesses,

2 Thorpe, pp. 468, 479, 500. * Thorpe, p. 517.

* Thorpe, p. 566 = Cod. Dipl. no. 970: 'And be Alfrio biscop and Tofi Prude and Druuni tSese quides mundes hurelSinge ISat it no man awende.'

P. M. II. 21

322 Inheritance. [be. ii.

of uttering one's last words in advance while one is still whole [p. : and strong becomes established, the goods are no longer handed over when the words are uttered and the cwiSe 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 In- stitutes, 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^ Intestacy Already in Cnut's day it was unusual for a man to die

in Cnut's . , f 111- p , , •

day. Without ' last words, and it was necessary ior 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 cwiSe, be this due to his negli- gence 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 nearest kinsfolk, to each the proper share".' 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 The law that we have just cited seems to assume, not only

c!M«e.^ 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". At least in later days, it generally claims

' FauluB ad Hebraeos, ix. 16, 17 : ' Ubi enim testamentum est, mors uccesee est intercedat testatoris. Testamentum enim in mortuis confirmatnm est. Alioquiu nondum valet, dum vivit qui testatus est.' See Hist. Bames. o. 26 (Gale, p. 406).

2'Cnut, II. 70.

' See the passages collected in Schmid, Gloasar, s.t. s&wl-sceat.

CH. VI. § 3.] The Last Will 323

[p. 321] 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.'

We may doubt whether the Normans brought with them to Norman 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 issued' 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.

In England after the Conquest there was no sudden change. The will A man could still make a post obit gift of land and sometimes NOTman^ made it with impressive solemnity. Thus in a charter which '""s^- 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''.' 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', but there was no necessity for a duplex process of feoffment and refeoffment, which would imply an analysis of the post obit gift such aa men had not yet made.

1 Cartulaire de I'abbaye de la S. TrinitS du Mont de Eouen (Documents ingdits), i. 429.

2 Cart. Bams. ii. 262. The mention of the prayers for the dead suggests that by way of fiction Wulfgeat is supposed to he making the gift ' post obitum suum.' ' Ibid. i. 133.

21—2

324 Inheritance. [bk. ii.

Post obit The vague conception that prevailed as to the nature of [p. 322]

chattels, 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'. Or land may be given by the monks * upon this convention,' that when the feoffee is dead he shall cause himself to be carried to the monastery for burial with his whole pecuniae 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'. 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^. 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 a monk, he

^ Cart. Burton, p. 35: 'Debet autem cum eis afferri et tota pars eorum pecuniae quantacunque habuerint et in omnibus rebus et in omnibus loois.'

2 Cart. Burton, p. 30 : ' cum autem mortuus fuerit, deferre ad noB se faoiet cum tota pecunia sua ad sepelieudum.'

3 Whalley Coucher, i. 155.

* Monasticon, ii. 386. 'Insuper oonstituerunt ut singuli baronea et milites darent Deo et S. Werburgae post obitum suum sua corpora et tertiam partem totius substantiae suae. Et non solum haec constituerunt de barouibus et militibns Bed etiam de burgensibus et aliis hominibus liberis suis.'

CH. vi.§3.] The Last Will. 325

[p. 323] 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'.' 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 V 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 fa,vourite church; still he 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'.'

We have now to watch a complicated set of interdependent Evolution changes, which took place during the twelfth and thirteenth law. 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

^ Hist. Abingd. ii. 124. Similar arrangements, Ibid. 130, 168.

' Monastieon,- vi. (1) 288 : ' mancipavi me ipsum eidem eeelesiae, ea videlicet ratione ut ubieunque vivendi finem fecerjQ in monasterio Bridlintpnensi locum pepulturae accipiam.'

^ Selby Ooncher Book, i. 204. As to these post obit gifts of the whole or an aliquot share of the goods that the giver will leave at his death, see Heualer, Institutionen, ii. 630-642.

326 Inheritance. [bk. ii.

under foreign influence a truly . testamentary character, and [p.i the executor of it gradually becomes the 'personal represen- tative' 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 The common belief that before the Conquest the land- ofiand. holder 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 can not 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 can not properly be called feudal. Post obit From the point of view of the feudal lord a post obit gift

land. is not much more objectionable than an out and out gift. We can not 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'. 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 be 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

1 See above, vol. i. p. 343.

CH. VI. § 3.] The Last Will 327

[p. 325] of the said manor: in order (to use the old phrase) that the cwiSe might standi

We are told by a plaintive monk that a few years after Condemna- Glanvill's book was written, some new rule was put in force at po"t 01)1?* the instance of 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".' We may well believe that there is some truth in this story, and that just at the time when Glanvill was writiag 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 reasons for this determination are not far to seek, for The law in Glanvill was at pains to explain them at some length. In one place he says that only God can make an heir, not man'. 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

^ Monast. iv. 608: 'Ipse yero,.,Terum omnimn suarum fecit divisiouem, praeeenie et adhortante atque coucedente rege Henrico. Fraecepit etiam suis omnibus, contestans fidem quam ei debebant, ut suum corpus ad abbatiam Buam quam Colecestriae construxerat deferrent. Delegavit etiam cum suo corpora ad ilium locum manerium Bryhtlyngeseie et centum libras denariorum,

anulum etiam suum aureum.-.Praeterea cyphum suum equum etiam suum

et mulum; quae tamen omnia Gilebertus Abbas regi Henrico remisit ut

impetraret ab eo concessiouem praedicti manerii ; et beneficiuiti regium in hoc impetratum eat.' The source from which this story comes is not first-rate, but had a writer of a later time wished to forge a title for the house, he would have told some lie more probable than one which makes land pass by a last will. Whether Budo had kinsfolk or no, seems uncertain; see Bound, Geoffrey de Mandeville, p. 173.

2 Monast. iv. 147 : 'Novi igitur recentesque venerunt qui hano inauditam a saeculo legem a ministris Zabuli noviter inventam statuere decreverunt. Ne aliquis quamvis maguus lecto prae infirmitate reoeptus in extrema voluutate quicquam de terris vel tenementis iam ante possessis alicui liceat legare, nee etiam virig religiosis prae aliis dilectis conferre. ' Earl William died in 1189 : had he Uved a little longer, he also would have been justiciar along with Hugh de Fuiset ; see Bound, Geoffrey de Mandeville, p. 243,

8 GlanvUl, vii. 1.

328 Inheritance. [bk. ii.

heir in the Roman sense there never had been any talk in [p.i England, unless some new ideas had of late ilown hither from Bologna and threatened to convert the old post obit gift into a true testament'. But in another passage we have earnest argument. 'As a general rule, everj' one in his life-time may freely give away to whomsoever he pleases a reasonable 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''.' Testamen- And SO the gift of land by a last will stood condemned ; not abolished .because it infringes any feudal rule, for in this context Glanvill interest of says no word of the lord's interests, but because it is a death- theheir. ^^^ ^f(.^ 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-worldlinesa 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^' Rejecting the laxer practices of an earlier time, rejecting the symbolic delivery of land by glove or rod or charter*, they were demanding a real

^ In a very vague sense there has sometimes been in the Norman time some talk about making an heir. Hist. Abingd. ii. 130 (temp. Hen. I.) : a tenant of the abbey covenants that he will make no heir to his land and wUl endow no wife thereof, but that after his death he will demise it to the abbey. This seems a confession that he is but tenant for life. Cart. Whitby, ii. 680 (early twelfth century) : Nigel de Albini writes to his brother William — I have instituted you heir of my honour and all my property, in order that you may confirm the restorations of lands that I have made to divers churches and to men whom I had disinherited.

^ Glanvill, vii. 1 : ' In extremis tamen agenti non est hoc cuiquam haotenns permissnm.' The hactenus, which we translate as hitherto, seems to tell us that the doctrine is not as yet very firmly established, nor utterly beyond argument. On the other hand, it does not tell us that an old, strict rule against death-bed gifts is being now called in question for the first time. Glanvill is speaking of the practice of the king's court, and the king's court of his day was but just beginning to b6 an ordinary tribunal with definite doctrines.

3 Cod. 2. 3. 20 ; Bracton, f. 38 b, 41. ■> See above, p. 89.

CH. VI. § 3.] The Last Will. 329

ilii.327] 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 transac- tions, two real transfers of a real seisin. The justices were lighting, not so much against a Roman testament, as against the post obit gift. They had the- heir's 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.

As a matter of fact, during the thirteenth century men not Attempts unfrequently professed to dispose of their lands by their last land. 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 bequests 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^. 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 wfire — 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

' See e.g. Winohcomb Landboc, i. 156-9 : Liana of Hatherley at her death bequeathed {legavit) all her land at Hatherley to our infirmary ; her brother and heir granted and confirmed (concessit et confirmavit) what she had previously given '(dedt«).

^ Damnatory clauses are occasionally found in charters of this age; e.g. Mouasticon, v. 662, Bertram de Verdon : ' et prohibeo ex parte Dei et mea ne quis heredum meorum huie donationi meae contraire vel earn in aliquo perturbare praesumat.' , , ^ .

330 Inheritance. [bk. ii.

the forma doni. The court hesitated for a while and then once [p.i more it hardened its heart : land was not, and even the forma doni could not make it, beqvieathable^. Devisable 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'aneestor will not lie for such a tenement because there is another assize which has been established for the profit of the realm ^. 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 appa- rently 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 mherited his burgage, he might bequeath it°. 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*. Probate of If, as Bracton thought, the burgage could be bequeathed ^1*^* 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"'; but the boroughs resisted it and at length succeeded in establishing the principle that the bishop had nothing to do

1 See above, p. 26.

" Glanvill, xiii. 11.

= Bracton, f. 407 b, 409 b, 272 (a passage distorted by interpolation) ; Note Book, pi. 11. See also the note tp Britton, i. 174.

* See above in our section on The Boroughs.

" Bracton, f. 407 b, 409 b ; Note Book, pi. 11 ; Plao. Abbrev. (19 Ed. I.) pp. 284-5; 0. W. Holmes, L. Q. B. i. 165.

CH. VI. § 3.] The Last Will. 33]»

Op. 329] with the will, in so far as it was a gift of a burgage tenements In course of time some at least of the larger boroughs established registers of the wills that dealt with such tene- ments. The will had to be produced before the borough court and enrolled^; 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'. 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 hiTn justice; from their first words they are known as writs Ex gravi querela*; but they seem hardly to belong to the period which is now before us.

That the ' marriage,' the ' wardship ' and the ' term of years,' The are quasi chattels for testamentary purposes is a doctrine which real, 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". In this instance firee 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.

In the course of the twelfth century our primogenitary Theohnrch scheme for the descent of land was established in all its rigour, testament. 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

1 Liber de Antiq. Legib. pp. 41, 106. Already in 1268 the London citizens asserted that the burgage will should be proved in the hustings, and the king took their side in a dispute with the representative of the bishop. See also Letters from Northern Eegisters, pp. 71-2.

^ In London this goes back at least as far as 1258 : Sharpe, Calendar of Hustings Wills.

" Sharpe, Calendar of Hustings Wills, pp. xxv, xxxi ; Furnivall, Fifty English Wills, pp. 22, 24, 37, 43, 55, 68.

* Beg. Brev. Orig. f. 244 b. " See above, p. 116.

•332 Inheritance. [bk, ii.

may from the first have had one rule for land, another for [p.; 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 in- superable barrier between land and chattels by givii5.g 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 in- herited. While the. temporal law is hesitating, ecclesiastical law steps in. Progi!ess,of For ages past the church had been asserting a right, which oai claims, 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'. Among the barbarians, where in the past there had been nullum testa- mentum, 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 testa- mentary causes. The last will as such was to be protected by the anathema". Jurisdic- We may believe that for some time after the Conqueror had

testa"^^"^ made his concession to the church, the clergy would have been ments. 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 cmSe. Henry I. in his coronation charter says ' — ' If any of my barons or men falls ill, I concede the disposition that he makes of his fortune (jaecunia);

1 Cod. lust. 1. 3. 45. ' .

2 On the whole of this subject see Selden's learned tract on the Original of Ecclesiastical Jurisdiction ot Testaments (Collected Works, ed. 1726, vol. iii, p. 1665). • , .

s Carta Hen. I. o. 7.

CH. VI. § 3.] The Last Will 333

[p. 331] and if he meets a sudden death by arms or sickness and makes no disposition, his wife, children or liege men^ may divide his fortune {pecunia) for the good of his soul, as they shall think best.' The king, and now in general terms, grants that his baron's cwiSe 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^

It is well worthy of remark that Henry II. and Becket, Victory of though they sought for causes of dispute, did not quarrel about courts, 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 church- men. 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 in- fluence 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 graud a name.

The concession was gradually made. Glanvill knows an The lay action begun by royal writ by which a legatee can demand the and'^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,

[p. 332 J for a plea of testament belonged to the ecclesiastical judge.

1 Aut legitimi homines. Even if the original has legitimi not ligii, we seem to be justified in rendering the phrase by liege men.

2 Also it is to be noted that the king makes no promise as to what will happen if a man, who has had fair warning of approaching death, refuses to make a will and so dies desperate.

334 Inheritance. [bk. ii.

For a short time therefore it seems as if the function of the spiritual forum would be merely that of certifying 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 backgrounds The wiU Meanwhile the type of will that had begun to prevail in

executors. 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 11.^. 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 Eanulf 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 Glanyill 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 rehgious 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 ex- ceedingly solemn document, which no doubt was the very best that the English chancery could produce, did not call itself [p. ^

1 Glanvill, vii. 6, 7 ; xii. 17, 20. As to the Register, see Harv. L. E. iii 168. Already the aucient Irish Register contains a writ prohibiting the ecclesiastical court from entertaining a plea of chattels, ' quae non sunt da testamento vel matrimonio ' : Ibid. 114. Such writs are common on early rolls of Henry III. ; they imply that the legatee can go to the court Christian.

' Foedera, i. 47.

CH. VI. § 3.] The Last Will. 335

a testament, did not use the terms do, lego, did not even use the term executor. It contained no residuary gift, no single legacy that was not given to pious uses'. 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 testamentum and the executor. 'A testament should be made in the presence of two or three lawful men, clerks or laymen, who are such that they can be competent witnesses (testes idonei). The executors of the testament should be those whom the testator has chosen and charged with this business ; but, if he has named no one, then his kinsmen and relations may assume the duty".'

Who is the executor and whence does he come ? This is Origin not a question that can be answered out of English documents, executor though, as already said, we may strongly suspect that, under some name or another (perhaps as mund of a cmSe) he has been known in England for several centuries. That he does not come out of the classical Roman law is patent ; it is only late in the day, and only perhaps in England and Scotland, that he begins to look at all like an instituted heres ; yet under one name or another {executor gradually prevails) he has been known in many, if not all, parts of Western Europe, notably in France. There seems to be now but little' doubt that we can pursue his history back to a time when, despite Roman influence, the transaction in which he takes a part is not in our eyes a testamentary act. The dying man made over some portion of his lands or goods to some friend who would carry out his last wishes. The gift took effect at once and was accompanied by what was at first in fact, afterwards in theory, a delivery of possession. The church developed this rude institution. It compelled the trustee, who very often was of the clergy, to perform the trust, which almost always was a trust for the religious or the poor. Then under the influence of renascent Roman law the ' last division ' or ' devise ' began to bear a testamentary character. The devise might be made [p. 334] by one who hoped that he had many years to live (in 1182

1 Abp Theobald appoints four executors, though he does not call them by this name ; they are to divide his goods among the poor according to instructions that they have received : Jo. Sarisb. epist. 57 (ed. Giles, i. 60).

2 GlanviU, vii. 6.

336 Inheritance. [bk. ii.

Henry II. was going atroad, but he did not mean to die) ; it was revocable, it was ambulatory ; there was no longer, even in fiction, a present transfer of possession. But the executor kept a place in the scheme ; he was very useful ; he was the church's lever^. Tbe , . On the mainland and in the common law of the cosmo-

executor m /. i i >

England politan church, as testamentary freedom grows, the executors where. main duty becomes that of compelling the heres or heredes to pay the legacies. The testator's persona will be represented by the heir. This representation will become more and more complete as Roman law has its way, and old differences between the destiny of lands and the destiny of goods disappear. But the executor is an useful person who may intervene between the heir and the legatees; he is bound to see that the legacies are paid. If the heir is negligent, the executor steps in, collects the debts and so forth. Some canonists hold that he can sue the testator's debtors. While the heir has an actio directa, they will concede to the executor an actio titilis. He is a favourite with them; he is their instrument, for a heres is but too plainly the creature of temporal law, and the church can not claim as her own the whole province of inheritance''. But here in England a some- what different division of labour was made in the course of time; the executor had nothing to do with the dead man's land, the heir had nothing to do with the chattels, and gradually the executor became the ' personal representative ' of the testator. The whole of the testator's fortune passed to his executor, except the freeholds, and, for the purpose of a general theory of representation, this exception ceased to be of any cardinal im- portance as time went on, since the ordinary creditors of the dead man would have no claim against his freeholds. Finally, [p.335]

' Holmes, L. Q. E. i. 164 ; Paliimbo, Testamento Eomano e TeBtamento Langobardo, ch. i. ; Heusler, Institutionen, ii. 652 ; Le Fort, Les ex&uteurs testamentaires, Geneva, 1878; Fertile, Storia del Diritto Italiano, iv. 31. Thero Beems no doubt that the testamentary executor is in origin a Germanic Salmann. The term executores slo^rly prevails over many rivals such as gardiatores, eroga- tores, testamentarii, procuratores, dispensutores, and so forth. Simon de Montfort appointed, not an executor, but an attorney.

2 As to the position of the continental executor in the thirteenth century, see Durantis, Speculum, Lib. ii. Partic. ii. § 13 (ed. Basiliae, 1624, vol. i. p. 690). He keeps a place in some of the modern codes ; but it is never that prominent place which English law awards him.

CH. VI. § 3.] The Last Will. 337

at the end of the middle ages the civilian in his converse with the English lawyer will say that the heres of Roman law is called in England the executor'.

Postponing for a while the few words that must be said The ahout this process, we may look at the medieval will and may will, regret that but too few specimens of the wills made in the thirteenth century have been published; from the fourteenth we have an ampler supply ="- It is plain that the church has succeeded in reducing the testamentary formalities to a minimum. This has happened all the world over. The dread of intestacy induces us to hear a nuncupative testament in a few hardly audible words uttered in the last agony, to see a testament in the feeble gesture which responds to the skilful question of the confessor, and that happy text about 'two or three witnesses' enables us to neglect the Institutes of Justinian'. At the other end of the scale we see the solemn notarial instrument which contains the last will of some rich and provident prelate or magnate who desires the utmost ' authenticity ' for a document which will perhaps be produced in foreign courts*. Between these poles lies the common form, the written will sealed by the testator in the presence of several witnesses'.

In the thirteenth century it is usually in Latin ; but Simon Its de Montfort made his will in French — it is in the handwriting of his son Henry'. French wills became commoner and in the second half of the fourteenth century English wills begin to appear'. If in Latin, the document usually calls itself a

' Doctor and Student (ed. 1668), i. c. 19 : ' the heir which in the Laws of England is called an executor.'

2 Testamenta Eboracensia (Surtees Soc.) ; Durham Wills (Surtees Soc.) ; Sharpe, Calendar of London Wills ; Furnivall, Fifty English Wills. An effort should be made to collect the wills of the thirteenth century. A cautious use will here be made of the wills of a somewhat later age.

' Test. Ebor. i. 21 : a knight before going to the war makes a nuncupative will in church (1346). Peckham's Eegister, i. 256 ; Test. Ebor. i. 74. But the nuncupative will was not very common in the fourteenth century.

• Test. Ebor. i. 13, 24, 31, 235 (John of Gaunt).

^ The general rule of the canon law seems to have been that a will could bd BufBciently attested by the parish priest and two other witnesses, but that two witnesses without the parish priest would suffice if the testator was leaving his goods to pious uses. See c. 10. 11. X. 3. 26; Durantis, Speculum (ed. 1624), p. 679.

« B^mout, Simon de Montfort, 328.

' Test. Ebor. i. 185 (1383) j Furnivall, Fifty English Wills.

P. M. II. 22

338 Inheritance. [bk. ii.

testament — Ego A. B. condo testamentum meum is a common [p-i phrase — in French or English it will call itself a testament or a devise or a last will ; one may still occasionally speak of it as a ' book*/ or a ' wytword^' Sometimes we see side by side the Latin testament which constitutes executors, and a last will ■which in the vulgar tongue disposes of burgage tenements; but no strict usage distinguishes between these terms. Some- times a testator is made by his legal adviser to express a wish that if his testament can not take effect as a testament, it may be deemed a codicil; but this is a trait of unusual and unpractical erudition. Of course there is no institution of an heir and there is no disheriting clause. In Latin ' do, lego ' are the proper words of gift; in French 'jeo devis'; in English 'I bequeath,' or 'I wyte.' The modern convention which sets apart 'devise' for 'realty' and 'bequeath' for 'personalty' is modern ; in the middle ages the English word, which takes us back to the old cmSe, is the equivalent of the French word.

Its sub- Though damnatory or minatory clauses are now less common

than they were, the will is still a religious instrument made

" in the name of the Father, Son and Holy Ghost. The testator's

first thought is not of the transmission of an hereditas, but of the future welfare of his immortal soul and his mortal body. His soul he bequeaths to God, the Virgin and the saints; his body to a certain church. Along with his body he gives his mortuary, or his 'principal' (principale), or corspreseut'; one of the best chattels that he has ; often, if he is a knight, it will be his war-horse*. Both Glanvill and Bracton have protested that neither heriot nor corspresent is demanded by general law, though custom may exact it'. Elaborate instruc- tions will sometimes be given for the burial ; about the tapers that are to burn around the bier, and the funeral feast. For a while testators desire splendid ceremonies; later on they begin to set their faces against idle pomp. Then will come the pecuniary and specific legacies. Many will be given to pious uses ; the four orders of friars are rarely forgotten by a well-to-do testator; a bequest for the repair of bridges is

1 FumivaU, p. 27. » Test. Ebor. i. 186.

» Test. Ebor. i. 185.

'' Test. Ebor. i. 264 : ■ pro mortuario suo meliorem equam suum cam flrmatura secundum consuetudinem patriae.' « Glanvill, vii. 5 j Braoton, f. 60.

CH. VI. § 3.] The Last Will. 339

Ip.387] deemed a pious and laudable bequest ; rarely are villeins freed ^ but sometimes their arrears of rent are forgiven or their chattels are restored to them*. The medieval will is characterized by the large number of its specific bequests. The horses are given away one by one; so are the jewels; so are the beds and quilts, the pots and pans. The civilian or canonist names his precious books' ; the treasured manuscript of the statutes, or of Bracton, or of Britton^ the French romance, the English poem" is handed on to one who will love it. Attempts are even made to ' settle ' specific chattels' ; the Corpus luris finds itself entailed or subjected to a series of fidei-commissary :Substitutions'. On the other hand, the testator has no ' stocks, funds and securities' to dispose of; he says nothing, or very little, of the debts that are owed to him, while of the debts that he owes he says nothing or merely desires that they be paid.

The earliest wills rarely contain residuary or universal Pro talute gifts'. In part this may be due to the fact that the testator has exhausted his whole estate by the specific and pecuniary legacies. But often he seems to be trusting that whatever ihe has not given away will be used by his executors for the good of his soul. When he does make a residuary gift, he frequently makes it in favour of his executors and bids them expend it for his benefit. This we must remember when we .speak of the treatment of intestates. As time goes on we find

1 Test. Ebor. i. 245 : ' item lego W. B. pro sue bono servicio 13«. id. et 'faoio eum liberum ab omni bondagio seu servicio bondagii' (1401). Such a • derise would seldom be binding on the heir.

" Ibid. 350 : ' item volo quod bona, sive oataUa, aliquorum nativorum meorum, quos {sic) recepi in cuatodiam post decessionem eorundem, in oommodum filiorum suorum nondvmi soluta, solvantur eisdem filiis sine aliqua .diminucione ' (1407).

' Ibid. 69, 168, 364-371.

• Ibid. 12: 'Ubrum de statutis et omnea alios meos libroa de lege terrae' •(1345). Ibid. 101-2 : Thomas Famylaw, chancellor of York, leavea to Mertou CoUege 'Brakton de iuribus Angliae' (1378). Ibid. 209: 'uuum Britonem' .(1396) ; but this Brito may be the grammarian.

' Ibid. 209 : ' unum librum vocatum Pers plewman ' (1396).

' Ibid. 251 : a bed given to testator's son and the heirs of his body; when they fail it is to be sold.

7 Ibid. 168 : the book is never to be alienated so long as any of the testator's issue desire to study law (1393).

' See the earliest specimens in Madox, Formulare. Some of the oldest -precedents for wills have no residuary gifts; L. Q. B. vii. 66.

22—2

340 Inheritance. [bk. ii.

many wills which bestow the greater part of the dead man's [p. 338] fortune upon his wife and children; the wife in particular is well provided for ; but the earlier the will, the more prominent is the testator's other-worldliness. His wife and children, as we shall hereafter see, have portions secured to them by law ; what remains is, to use an expressive term, ' the dead's part ' ; it still belongs to the dead, who may be in sore need of those pardons for past wrongs and those prayers for repose which can be secured by a judicious expenditure of money. Some We see a trace of a past history when the executors are

clauses, also the witnesses of the will and set their seals to it in the testator's presence'. Also we observe that a will is usually proved within a few days after its execution. Very often, a man makes no will until he feels that death is near. A common form tells us that he is ' sick in body ' though ' whole in mind.' The old connexion between the last will and the last confession has not been severed. But by this time the will is revocable and ambulatory, and occasionally a man will provide for some of the various chances that may happen between the act of testation and the hour of death. Codicils are uncommon, but at the beginning of the fifteenth century a bishop of Durham made nine^ It is not unknown that a man will appoint his wife to be his sole executor. Simon de Montfort does this ; his wife is to be his attorney, and, if she dies before his will is performed, his son is to take her place'. Usually there are several, sometimes many, executors; John of Gaunt appointed seventeen*. Not unfrequently the testator, besides appointing executors, names certain 'supervisors' or 'coadjutors'; sometimes they will be learned or powerful friends; they are requested to aid and advise the executors. The bishop of Lincoln and Friar Adam Marsh are to give their counsel to Earl Simon's widow". Now and again the executors are relieved from the duty of rendering accounts'. Elaborate clauses are rare; the funeral ceremonies are more carefully prescribed than is any other matter; but skilled forethought is sometimes shown by a direction for the 'defalcation' or abatement of legacies if the estate be insufficient to pay them

1 L. Q. E. vii. 66. ^ Test. Ebor. i. 306.

• Btooiit, Simon de Montfort, 328. * Test. Ebor. i. 234.

' B^mont, I. c. « Test. Ebor. i. 95, 126, 178.

CH. VI. § 3.] The Last Will. 341

[p.S39] in full, and by provisions as to 'lapsed' legacies'. A well-to-do gentleman may often have a town house to leave by his will. Before the end of the fourteenth century he will have land held for him by 'feoffees to uses,' and a new period in the history of English land law will be opening".

Among the common lawyers of a later day it was a pious Probate, opinion that in some indefinitely remote age wills were proved in the lay courts'. Now, as already said, it seems probable that not until the age of Glanvill did the courts Christian succeed in establishing an exclusive right to pronounce on the validity of the will, and (as the canonists of a later time had to admit) this right as an exclusive right was not given to them by any of those broad principles of ecclesiastical law for which a catholic validity could be claimed ^ On the other hand, we may well doubt whether any such procedure as that which we call the probate of a will was known in England before the time when the jurisdiction over testaments had been conceded to the church. We have here two distinct things : (i) com- petence to decide whether a will is valid, whenever litigants raise that question; (ii) a procedure, often a non-contentious procedure, for establishing once and for all the validity of a will, which is implicated with a procedure for protecting the dead man's estate and compelling his executors to do their duty. The early history of probate lies outside England, and it is not for us to say whether some slender thread of texts traversing the dark ages connects it directly with the Roman process of insinuation, aperture and publication. In England we do not see it until the thirteenth century has dawned, and by that time testamentary jurisdiction belongs, and belongs exclusively, to the spiritual courts ^ In much later days it has been known that the lord of a manor will assert that the wills of his tenants can be proved in his court ; but in these cases we

' Test. Ebor. i. 170 'abatement'; 171 'lapse'; 312, the opinion of a majority of the executors is to prevail.

" Ibid. 115 : William Lord Latimer in 1381 devises land held by feoffees.

2 Fitz. Abr. Testament, pi. 4 ; T. B. 11 Hen. VII. f. 12 ; Hemloe's Case, 9 Coke's Eep. 37 b ; and {e.g.) Marriot v. Marriot, 1 Strange, 666.

* Selden, op. cit. p. 1672. Lyndwood knew of no authoritative act that gave the right. Selden surmises that it was granted ' by parliament ' in John's time. We gravely doubt whether such a grant was ever made.

° Selden, op. cit. p. 1671 : ' I could never see an express probate in any particular case elder than about Henry III.'

342 Inheritance. [bk. ii,

ought to demand some proof that the manors in question have never been in the hands of any of those religious orders which [p.340] enjoyed peculiar privileges. Pope Alexander IV. bestowed on the Cistercians in England the right to grant probate of the ■wills of their tenants and farmers, and thus exempted their manors from the 'ordinary' jurisdiction'. Therefore what at first sight looks like a relic of a lay jurisdiction may easily turn out to be the outcome of papal power. Preroga- To this we may add that, even at the end of the thirteenth

probate, century, some elementary questions in the law of probate were as yet unanswered. Granted that the bishop in whose diocese the goods of the dead man lie is normally the judge who should grant probate of his will, — what of the case in which the dead man has goods in divers dioceses? Does this case fall within the cognizance of the archbishop ? And what if that archbishop be no mere metropolitan, but a primate with lega- tine powers ? About this matter there were constant disputes between the archbishop of Canterbury and his suffragans. We sometimes speak of the feudal pyramid of lords and vassals > as a 'hierarchy'; it is equally true that the ecclesiastical hierarchy is a seignorial pyramid. The question whether the overlord has any direct power over the vassals of his vassals has its counterpart in the question whether the metropolitan has any direct power over the 'subjects' of his suffragans, and as the king has often to insist that he is no mere over- lord but a crowned and anointed king, so the archbishop of Canterbury has often to insist that he is no mere metropolitan but primate and legate. Archbishop Peckham asserted, and excommunicated a bishop of Hereford for denying, that the testamentary jurisdiction of Canterbury extended to all cases in which the dead man had goods in more than one of the dioceses of the province'. The compromise which compelled an executor to seek a ' prerogative ' probate in the archbishop's court only if the testator had goods worth more than five pounds in each of two dioceses, is not very ancient'. Control In the thirteenth century it was settled law that the

executors, unless they were going to renounce the duties which the testator had endeavoured to cast upon them, ought to

1 Chron. de Melsa, ii. 121-2. ' Peokham's Eegister, i. 335, 382 ; ii. 666.

' Lyndwood, p. 174, de testam. c. statutum bonae, gl. ad v. laicis, is very uncertain as to the minimum of bona notabilia.

over executors.

CH. VI. § 3.] The Last Will 343

prove his will in the proper court. That court was the court [p. 341] of the judge ordinary, who was in the normal case the bishop of the diocese. Having established the will, they swore that they would duly administer the estate of the dead man and they became bound to exhibit an inventory of his goods and to account for their dealings. Before the beginning of Edward I.'s reign the ecclesiastical court seems to have evolved a regular procedure for the control of executors. If they were guilty of negligence or misconduct, the ordinary could set them aside and commit the administration of the estate to others^ On, the other hand, if an executor was acting properly, the ordinary could not set him aside. Archbishop Peckham apologized to that great common lawyer Ralph Hengham, who was executor of the bishop of Ely : — ' I understood that you had renounced the executorship ; if that was a mistake, I pray you to resume your duties, for there is no one in England who will make a better executor than you".' In a mandate which has a curiously modern look the same archbishop orders that advertisements shall be issued calling on all the creditors of the late bishop of Exeter to appear within a certain period, about six weeks, and telling them that if they do not send in their claims within that time, they will have to show a reasonable cause for their delay or go unpaids

It is a long time before the executor becomes a prominent Tte figure in the lay courts. There is little to be read of him in temporal Bracton's treatise or in the great collection of cases upon which "°™'^' that treatise is founded. Still it was the action of the lay courts which in the end made him the 'personal representative' of the testator. The question — 'What debts owed by, or to, the testator continue to be due after his death and who can sue or be sued in respect of them?' became (though there was some quarrelling over this matter) a question for the temporal, not for the ecclesiastical, forum. In approaching it we have to remember that for a long time such debts were few. Pecuniary claims which have their origin in damage done by or to the testator would not be available after his death. It is very probable that claims which we should consider to be of a purely contractual nature were only available against the dead man's successor if the dead man had expressly bound his successor to pay them, and were only available for the dead man's successor ' Peckham's Begister, i. 110. " Ibid. ii. 655. ' Ibid, i. 305.

844 Inheritance. [bk. ii.

if the debtor had bound himself to pay to the successor in case the creditor died while the debt was still outstanding. In the [p. 342] foregoing sentence we have used the vague word successor so as to leave open the question whether that successor would be the heir or the executor. But clearly in the past it had been for the heir to pay and to receive debts. Probably our law, as it gradually felt the need of some successor who would sue and be sued in the dead man's stead, was on the point of deciding for good and all that this successor was to be found in the dead man's heir or heirs, when the formulation and extension of its primogenitary system of inheritance and the concession to the church of an exclusive jurisdiction over the testament arrested the process which would have given to inheritance the character of an universal succession. For a while all was uncertain. Clearly if the heir is to have no benefit out of the dead man's chattels, he can not long remain the person, or the one person, bound to pay his ancestor's debts, nor will it be his place to sue for money due to his ancestor, for this money should form part of the wealth that is governed by the testament. And yet it is not easy to deny that the beir is the natural representative of the dead man. Whatever influence Roman law could exercise tended to make him a full and complete representative of his ancestor, and the catholic canon law had not attempted to put the executor in the heir's place. English law therefore had to solve without assistance from abroad the difficult problem that it had raised. Executor In Glanvill's book it is the heir who must pay the dead

in Gianviii. man's debts. A man, he says, who is burdened with debts can not dispose of his property (except by devoting it to the payment of debts) unless this be with the consent of his heir, and, if his property is insufficient for the payment of his debts, then the heir is bound to make good the deficiency out of his own property^ The scheme that for the moment is prevailing or likely to prevail is this: — the heir takes possession of lands [p. 343]

1 Glanvill, vii. 8 : ' Si vero fuerit debitis oueratus is qui testamentum facere proponit, nihil de rebus suis (extra debitorum aoquietationem) praeter sui heredis oonsensum disponere potest. Verum si post debitorum aoquietationem aliquid residuum fuerit, tunc id quidem in tres partes dividetur mode praedicto, et de tertia parte suum, ut dictum est, faclat testamentum. Si vero non suffioiunt res defuncti ad debita persolvenda, tunc quidem heres ipse defectum ipsum de suo tenetur adimplere : ita dioo si habuerlt etatem heres ipse.' Dialog, de Scac. ii. 18: 'legitimus heres pro debito patris oonveniendus est.'

CH. VI. § 3.] The Last Will. 345

and chattels ; he pays the debts, using the chattels as the first fund for this purpose ; if they are not exhausted in the process, he makes over the residue to the executors ; if all the chattels are swallowed up by debts and there are debts still due, the heir must pay them, and his liability is not limited by the value of the inheritance that has descended to him. This last trait should not surprise us. If ancient law finds great diflBculty in holding that one man is bound to pay the debt incurred by another, it finds an equal difficulty in setting any bounds to such a liability when it exists.

According to Bracton it is the heii-, not the executor, whom Kxecutor the creditor ought to sue^ By this time the heir's legal fnBra^cton. liability is limited to the amount of the dead main's 'property ; but even in Bracton's eyes his moral liability is unlimited^. No doubt the dead man's chattels are the primary fund for the payment of debts. The Great Charter has striven to restrain the king's high-handed power of seizing the lands of his living and dead creditors; even the prerogative processes of the exchequer should spare the land while chattels can be founds Still it is the heir's duty to pay debts ; when debts have been paid, then the executor will claim and distribute the remaining chattels. And so in actual practice we see the heir sued for debts which are in no way connected with land ; he sometimes seems to be sued even when there is no written covenant that expressly binds him to pay^ But from time to time we hear it doubted whether the creditor can not attack the executor. The opinion gains ground that he may do so, if, but only if, the testator has enjoined his executor to pay the debt. In such

^ Bracton, f. 407 b : ' Et sicut dautur [actiones] heredibus coutra debitorea et non executoribns, ita dantur actiones creditoiibas contra heredes et nou contra executores.'

2 Bracton, f. 61: 'inhumanam esset si debita parentum insoluta reman- erent.' See O. W. Holmes, Executors, Harv. L. E. ix. 42. Mr Justice Holmes is probably right in holding that when it had been decided thai the dead man's chattels pass to his executor, the law conceived that the property in those goods was simply in the executor. His liability to the dead man's creditors may be limited by the value of those goods, but the goods are his. In other words, the law did not distinguish what he held as executor from what he held in his own right.

3 Charter, 1215, co. 9, 26.

' Note Book, pi. 1543: Debt against the heir of a surety {plegiut); no written instrument mentioned. Ibid. pi. 1693 : Debt against the heir for cloth sold to the ancestor; no written instrument or tally; suit tendered; the suitors Imow nothing of the matter and the action is dismissed.

346 Inheritance. [bk. ii.

a case the debt can be regarded as a legacy bequeathed to the creditor ; the creditor can sue for it in the ecclesiastical court, and the king's justices should not prevent him from going there ; [p.3<4] his action may fairly be called a testamentary caused But the jealousy of the justices was aroused, and it was becoming plain that, if the creditor is to sue the executor at all, he must have an action in the temporal court. The Turning from the passive to the active side of representation,

of debtsf ^^ find that in Bracton's day it is the heir, not the executor, who sues for the debts that were due to the dead man. There is here a difficulty to be surmounted. A man can not assign or give to another a mere right of action; how then can he bequeath a right of action, and, unless he can bequeath it, how can it pass to his executor ? ' Actions,' says Bracton, ' can not be bequeathed''.' But both theory and practice were beginning to allow that if the testator had recovered judgment against the debtor in his lifetime, or if (for this was really the same thing) the debtor had by way of recognizance confessed the debt in court — we see here one of the reasons why recognizances became fashionable — then the debt could be bequeathed. It was no longer a mere action ; it already formed part of the creditor's property, of his goods and chattels'. The courts were yielding to the pressure of necessity. For one thing, it is a roundabout scheme that would compel the heir to collect money in order that he might pay it to an executor who would divide it among the legatees. For another thing, if the secular courts will not give the executor an action against debtors, the ecclesiastical courts will do this and will have plausible reasons for doing it. In the early years of Edward I. it was still very doubtful whether they would not succeed in their endeavour. The clergy complained that the spiritual tribunals were prevented from entertaining the executor's suit against

1 Note Book, pi. 162 : Writ of prohibition obtained by executors who have been sned by a creditor in the court Christian; the creditor pleads that the testament bade the executors pay this debt ; the executors reply that this is not true and prove their assertion by producing the testament ; the prohibition ia upheld and the creditor is amerced. The annotator (see Bracton, f. 407 b) thinks that the decision would have been otherwise if the testator had mentioned this debt in his will or if judgment had been obtained against him in his life- time.

2 Bracton, f . 407 b.

3 Bracton, f. 407b; 'quia huiusmodi peounia inter bona testatoris con- nunieratur et pertinet ad executores.' Note Book, pi. 550, 810.

CH. VI. § 3.] The Last Will. 347

the debtor, even when the debt was required for the payment [p. 345] of legacies. The king's advisers replied that this matter was not yet finally decided; they remarked however that the executor should be in no better position than that which his testator had occupied, and hinted that the task of proving a debt before ecclesiastical judges was all too easy^

A change as momentous as any that a statute could make The was made without statute and very quietly. Early in Edward I.'s ^personal"' reign the chancery had framed and the king's court had upheld JatiTO™ a writ of debt for executors and a writ of debt against executors'*. In the Tear Books of that reign the executor is coming to the front, though many an elementary question about his powers is still open. Much remains to be done. Our English lawyers are not starting with the general proposition that the executor represents the testator and thence deducing now one conse- quence and now another ; rather they are being driven towards this general proposition by the stress of particular cases. In Edward's reign the executor had the action of debt ; a statute gave him the action of account*; but a statute of 1330 was required in order that he might have an action of trespass against one who in the testator's lifetime carried off the testator's goods^ And so as regards the passive side of the representation: — before the end of the thirteenth century the executor could be sued by a creditor of the testator who had sealed writing to show for the debt ; and the heir could only be sued when there was a sealed writing which expressly purported to bind him ; but every bond or covenant did, as a matter of fact, unless it were very badly drawn, purport to bind the heir, and very often an action against the heir would be more

^ Baine, Letters from Northern Begisters, p. 71 ; undated Articuli Cleri ; it is feared by the laity that in the court Christian a debt can be proved 'per duos testes minus idoneos,' whereas iu a temporal court a defendant can wage his law.

2 Debt by executors: T. B. 20-1 Bdw. I. 375; 21-2 Edw. I. 258, 598; 33-S Edw. I. 62, 294. Debt against executors : 30-1 Edw. I. 238. Fleta, p. 126, who seems to be troubled by Bracton's text, ends his discussion with this sentence : — 'permisium est tamen quod executores agant ad solutionem in foro saeeulari aliquando.'

s Stat. West. II. 0. 23. A Eegister of Writs from the early years of Edward I. tells us that the heir can not have a writ of account, that some say that the executor can have it, but more properly the suit, being testamentary, belongs to the court Christian. See Harv. L. B. iii. 214.

« Stat. 4 Edw. in. c. 5.

348 Inheritance. [bk. ii.

profitable than an action against the executor. It is not until the fifteenth century discovers a new action which will enforce [p. 346] contractual claims, the action of assumpsit, that the executor begins to represent the testator in a more general sense than that in which the heir represents him. Until our own time the executor has nothing to do with the testator's freehold. Even when statutes enable the tenant in fee simple to give his land • by will, the executor will have nothing to do with the land, which will pass straight from testator to devisee as it passes straight from ancestor to heir. Still in the early years of Edward I. the king's justices had taken the great step ; they had thrown open the doors of their court to. the executor. He could there sue the debtors, he could there be sued by the creditors. Such suits were not 'testamentary causes.' As of old, it was for the spiritual judge to pronounce for or against a will, and the legatee who wanted his legacy went to the ecclesiastical court ; but the relation between the executors on the one hand and the debtors or creditors on the other had become a matter for the temporal lawyers, and every change in the law which extended the nuriiber of pecuniary claims that were not extinguished by death made the executor more and more completely the representative of the testator. Eestraints We have been speaking as though a man might by his will mentary dispose of all his chattels. But in all probability it was only power. ^}jg jjja,n who left neither wife nor child who could do this. We have every reason to believe that the general law of the thirteenth century sanctioned some such scheme as that which obtained- in the province of York until the year 1692 and which obtains in Scotland at this present time. If a testator leaves neither wife nor child, he can give away the whole of his movable goods. If he leaves wife but no child, or child but no wife, his goods must, after his debts have been paid, be divided into two halves ; one of these can be disposed of by his will, it is ' the dead's part,' the other belongs to the widow, or (as the case may be) to the child or children. If he leaves both wife and child, then the division is tripartite ; the wife takes a share, the child or children a share, while the remaining third is governed by the will; we have 'wife's part,' 'bairns' part,' and 'dead's part.' Among themselves children take equal shares ; the son is not preferred to the daughter ; but the heir gets no share unless he will collate the inheritance that has

CH. VI. § 3.] The Last Will. 349

descended to him, and every child who has been ' advanced ' by [p. 347] the testator must bring back the advancement into hotchpot before claiming a bairn's right.

In the seventeenth century this scheme prevailed through- Hi?*?"? «' out the northern province; a similar scheme prevailed in the city of London and, it may be, in some other towns ; but by this time the general rule throughout the province of Canter- bury denied to the wife and children any ' legitimate part ' or 'legitim' and allowed the testator to dispose of his whole fortune.

Now it is fairly certain that in the twelfth and thirteenth Legitim in centuries some such scheme as that which we have here xiS.'"'' described was in force all England over. How much further back we can carry it is very doubtful. It at once brings to our mind Bede's story of the Northumbrian who rose from the dead and divided his property into three shares, reserving one for himself, while one was made over to his wife and another to his children. But four dark centuries divide Bede from Glanvill. No Anglo-Saxon testator whose cwi^e has come down to us takes any notice of the restrictions which this scheme would impose upon him were it in force ; but he does not always endeavour to dispose of his whole fortune, and the earnestness with which he prays that his will may stand seems to show that he is relying on privilege rather than on common law: The substantial agreement between the law of Scotland and the custom of the province of York goes to prove that this plan of dealing with the dead man's goods has very ancient roots, while we have seen no proof that it ever prevailed in Normandy^ It is intimately connected, as we shall see in another chapter, with a law of husband and wife which is , apt to issue in the doctrine that husband and wife have their

goods in common. All Europe over, the new power of testation had to come to terms with the ancient rights of the wife, the children and the other kinsfolk. The compromises were many and intricate and one of these compromises is the scheme that is now before us. We must remember that the great solvent of ancient rules, Roman law, even in the shape that it wore in the Institutes, did not claim for the testator that unlimited

^ However, Dr Brupner, ZeitBchrift der Savigny-Stiftung, Germ. Abt. xvii. 134, thinks that it came to us from Normandy.

350 Inheritance. [bk. ii.

power of doing what he likes with his own which Englishmen have now enjoyed for several centuries.

Legitimin Our first definite tidings come from Glanvill. 'If a man in his infirmity desires to make a testament, then, if he is not burdened with debts, all his movables are to be divided into [p. 348] three shares, whereof one belongs to his heir, another to his wife, while a third is reserved to himself, and over this he has free power ; but if he dies without leaving a wife, then one-half is reserved for him ^' We notice that one share is reserved, not to the children, but to the heir. This we take to be a relic of the law as it stood before primogeniture had assumed its acute English form. If for a while the king's court endeavoured to secure for the heir not only all the land but also a third of the chattels, it must have soon abandoned the attempt. The charter of 1215 recognized that the wife and children could claim shares in the dead man's goods. It does this inci- dentally ; it is dealiQg with the king's power of exacting a debt due 'from a dead tenant in chief: — 'If nothing be due to us, then all the chattels fall to the dead man, saving to his wife and children (pueris). their reasonable shares V This clause appears in all the later versions of the charter'.

Legitimin Bracton speaks at some length: — When the debts have been paid, the residue is to be divided into three parts, whereof one is to be left to the children (^pueris), another to the wife if she be living, while over the third the testator has free power. If he has no children (liberos) then a half is reserved for the dead, a half for the wife. If he leaves children but no wife, then half for the dead, half for the children. If there are neither wife nor children, the whole will remain to the dead. These, says Bracton, are the general rules which hold good unless overridden by the custom of some city, borough or town. He then tells us that in London the widow will get no more than her dower, while the children are dependent on their father's bounty. And this, he argues, ought to be so in a city; for a citizen will hardly amass wealth if he is bound to leave it to an ill-deserving wife or to idle and uninstructed children^ Curiously enough, however, it was just among the citizens of

1 Glanvill, yii. 5. " Charter, 1215, c. 26. ' B^mont, Chartes, p. 53.

* Bracton, f. 60 b, 61. Fleta, pp. 124-5, copies. It is fairly certain that by pueri both the charter and Bracton mean, not sons, but children. See above, p. 267 note 3.

Bracton.

CH. VI. §3.] The Last Will. 351

London that the old rules took deep root. They prevailed there until long after they had ceased to be the general law Ip.3i9] of the southern province; they prevailed there until 1724, a Standing caution to all who would write history a priori\

As to the law of the thirteenth century there can therefore be little doubt, though some of its details may be obscure. A few words however must be said of its subsequent fate.

A meagi-e stream of cases running through the Year Books Later

enables us to say that throughout the fourteenth and fifteenth le^S"

centuries actions were occasionally brought by the widow and

by the children claiming their legitim, their reasonable part

of goods, against the executors of the dead man. We- can see

also that throughout this period the origin of their right was a

disputed matter. Some held that the action was given by, the

Great Charter, and that the writ should make mention of its

statutory origin. Others held that, as the Charter mentioned

this right but incidentally and by exceptive words, the action

could not be statutory: — 'an exception out of a statute is no

statute^' Sometimes the writ rehearsed a ' common custom of

the realm.' To this exception was taken on the ground that a

common custom of the realm must be common law, and that

matter of law should not be stated in such a way as to invite

the plea 'No such custom.' Often the writ spoke of the

custom of a county or of a vill ; but at times there were those

who denied that such a custom would be good. In 1366 it

is said that the lords in parliament will not allow that this

action can be maintained by any common custom or law of this

realml At the end of the period we find Fitzherbert opining

that the legitim was given by the common law of the realm ;

but the writs on which he comments refer to the customs of

particular counties*.

1 Stat. 11 Geo. I. o. 18. see, 17: 'And to the intent that persons of wealth and ability, 'who exercise the business of merchandize, and other laudable employments within the said city, may not be discouraged from becoming members of the same, by reason of the custom restraining the citizens and fceemen thereof from disposing of their personal estates by their last wills and testaments '

" Beg. Brev. Orig. 142 b. » T. B. 40 Edw. III. f. 38 (Mich. pi. 12).

• The main authorities are Fitz. Abr. Detinue, pi. 60 (34 Edw. I. not Edw. II. as is plain from the judges' names), 'usage del pais'; ¥. B. 1 Edw. II. f. 9, 'usage de pais'; T. B. 7 Edw. II. f. 215, writ on the Great Charter; Y. B. 17 Edw. II. f. 536, 'per oonsuetudinem regni'; the writ is abated; the justices altogether deny the custom and suggest a different interpretation of the charter;

352 Inheritance. [bk. ii.

The king's Now there is one conclusion to which we must be brought [p.350] legitim," by this tenuous line of discrepant authorities. The matter before us is no rarity. It is no uncommon thing for a man to leave a wife or a child living at his death. The distribution of his goods will not always be a straightforward affair if a legitim is claimed. There are abundant possibilities of litiga- tion. The question whether a child has been ' advanced,' the question whether the widow or a child is put to election between benefits given by the will and rights arising outside the will, such questions will often emerge and will sometimes be difficult. Why do not our Year Books teem with them? How is 'it that, after some search, we can not produce from the records of the thirteenth century one case of a wife or child claiming legitim in the king's court? How does it happen that at one moment the justices at Westminster raise no objection to the writ and at the next assert that it is contrary to law? The answer probably is that the question whether the widow or child has an action in the king's court is of but little moment. The ecclesiastical courts are seised of this matter and know all about it. On a testator's death his executor takes possession of the whole of his goods. He is bound to do this, for he has to pay the debts. The claim for legitim is therefore a claim against the executor, a^inst one who is held accountable in the ecclesiastical court for a due administration of the dead man's goods and chattels. It is therefore in the ecclesiastical courts that the demand for legitim should be urged and all questions about it should be settled. An action in the temporal court would, at least in the ordinary case, be a luxury. Legitim Therefore this somewhat important piece of English history

Sciesiaa- "^^^ ^°* ^^ Understood until whatever records there may be ticai (jf ^ijg ecclesiastical courts have been published. The local

courts. _ ' . .

customs which regulated the distribution of movable goods must, so it seems to us, have been for the more part the

Fitz. Abr. Bette, pi. 156 (3 Edw. III., It. North.), custom of oounty o| Northampton; Y. B. 17 Edw. III. f. 9 (Hil. pi. 29), custom of the reahn; Y. B. 30 Edw. III. f. 25, oonsuetudo totius regni ; T. B. 39 Edw. III. f. 6 ; Y. B. 40 Edw. III. f . 38 (Mich. pi. 13), custom of a vill ; Y. B. 21 Hen. VI. f. 1 ; Y. B. 28 Hen. VI. f. 4 (Mich. pi. 20), custom of a oounty; Eitz. Abr. Bespmd. pi. 95 (Mich. 30 Hen. VI.), ' par lusage' ; Y. B. 7 Edw. IV. f. 21 (Mich, ph 23) i Beg. Brev. Orig. f. 142 b, custom of Berkshire; Fitz. Nat. Brev. f. 122. See also Co. Lit. 176 b; Somner, Gavelkind, 91; Blackstone, Comm, ii. 492.

CH. VI. § 3.] The Last Will. 353

customs of provinces, dioceses and peculiars, rather than the

[p. 351] customs of counties or of vills. When we are told in a Year

Book or in the Kegister of Writs that the custom of Berkshire

secures the children a legitim, this must, we take it, be the

temporal side of an ecclesiastical fact. Our interest, therefore,

will be centered in the two metropolitical courts, which by

virtue of their doctrine about bona notabUia were drawing to

themselves the wills of all wealthy persons and attracting all

the famous advocates. We know that until 1692 the old rule

was maintained throughout the province of York ^; and we may

read in the pages of Henry Swinburne, ' sometime judge of the

prerogative court of York,' a great deal about its application ;

for example, we may see some settled rules of the court as to

what is to be deemed an advancement of a child'. Long before

this, however, the court of the southern province must have

chosen a different path and refused a legitim save when a local

custom demanded it. How and when this happened we can

not at present say. In 1.342 the provincial constitutions of

Archbishop Stratford condemn those who on their death-beds

make gifts inter vivos for the purpose of defrauding the church

of mortuaries, the creditors of debts, or their wives and children

of the portions that belong to them ' by custom and law'.' A

century later Lyndwood, official of the court of Canterbury,

having to comment on the words ' the portion belonging to the

deceased,' sends us to the custom of the place to learn what

that portion is. He mentions but one custom by way of

example : — it is the well-known scheme of which we have been

speaking*.

Allusions to this method of division are not uncommonly Legitim

in wills.

1 Stat. 4 Will, and Mar. o. 2.

2 Swinburne, Testaments (ed. 1640), p. 191 ff. Some use seems to have been made of a treatise on Legitim by the civilian Claude Battandier; but in the main Swinburne appears to be stating the practice of his own court.

' Wilkins, Concilia, ii. p. 706, cc. 8, 9: 'liberorum et suarum uxorum, qui et quae tarn de lure quam de consuetudine oertam quotam diotorum bonorum habere deberent.' And again— ' uxoresque et liberi coniugatorum suis porti- onibus de consuetudine vel de iure ipsis debitis irrecuperabiliter defraudautur.'

* Lyndwood, Prov. lib. iii. tit. 13. gl. ad v. defunctum (ed. 1679, p. 178). It may be inferred from Smith, Eepub. Angl. lib. 3, c. 7; Co. Lit. 176 b ; Somner, Gavelkind (1660), p. 99, that in Elizabeth's day the courts of the southern province were no longer enforcing the old rule, except as a very exceptional local custom. The tripartite division had prevailed a|t Sandwich : Lyon, Dover, a. 308.

P. M. II. 23

354 Inheritance. [bk. ii.

found in wills. A few examples may be given. 'All the residue of all the goods that pertain to my share {partem meam contingencivm) I leave to Margery my wife V ' I desire to make my testament of my proper goods, and that Elizabeth my wife [p. 352] shall have the share of goods that belongs to her by law or laudable custom''.' ' I give to my wife Joan in respect of her share of all our goods, all the utensils of our house, and all the bed furniture and the horses.... And I will that all the legacies given to my wife shall be valid if she after my death in no, wise impedes my testament'.' ' I bequeath to my two children John and Thomas in respect of the rateable portion of goods falling to them, to each of them seven marks sterling*.' ' And all the residue of my goods not hereinbefore bequeathed which belong to my share, I will to be expended in masses for my soul,... and I give to my wife Alice the whole of my share of our six spoons for her own use".' 'Also I well that Antone my Sonne and Betress my dowghter have their barne parts of

my goodes after the lawe and custome of the cuntre*'

'which I well that she have besyde her barne parte of goodes'.'' Such allusions, however, are not so common as we might expect them to be, did we not remember, first that when a man disposes of 'all the residue of his goods' he may well be speaking only of that share which he can effectually bequeath, secondly that the testator is often making an ampler provision for his wife and children than the law would give them if they disputed his testament, and thirdly that children may lose all claim to a reasonable part if their father 'advances' them during his lifetime. Sometimes the testator will profess to bequeath his own 'dead's part' to himself: — 'Also y bequethe my goodes in twey partyes, that ys for [to] seie, half to me, and the tother haluyndel to Watkin my sone and to Kateryne my dowter^' In 1313 a bishop spoke of the scheme that we have been discussing, as ' the custom of the realm of England,' and ' the custom of the English church ' ; but he was bishop of Durham'.

1 Testamenta Eboraoensia, vol. i. p. 3. ^ Ibid. p. 97.

» Ibid. p. 139. * Ibid. p. 191.

■' Ibid. p. 197. See also pp. 213, 250, 287.

" Durham Wills and Inventories, i. 113. ' Ibid. 121.

» Furnivall, Fifty English Wills, p. 1.

" Eegist. Palat. Dunelm. i. 369, 385.

CH. VI. § 3.] The Last Will. 355

We may doubt whether there was at any time among Eeview lawyers, among ecclesiastics, or among Englishmen in general, history of any strong feeling for or against the old rule. At one moment legiti™- [p. 353] in Edward II.'s reigu some of the judges seem to dislike it. One of them, after giving a sophistical explanation of the words of the Charter, said that there is nothing either in that document or in the common law which restrains a father from devising his own goods as he pleases^. Again, in Edward III.'s day ' the lords in parliament ' will not, we are told, allow this custom ^ But at times during the fourteenth century the mere fact that the ecclesiastical courts were doing something was sufiBcient to convince royal justices and lay lords that something wrong was being done. Then, on the other hand, the canonist himself was not deeply interested in the main- tenance of the old restraints. He could not regard them as outlines of the church's ius commune; at best they could be but customs of English dioceses or provinces. His training in Eoman law might indeed teach him that the claims of children should set limits to a father's testamentary power; but ' wife's part,' ' bairns' part ' and ' dead's part ' can not be found in the Institutes; besides, the church had legacies to gain by ignoring the old rules. Our English law seems to slip unconsciously into the decision of a very important and debatable question. Curiously enough the Act of 1692, which enables the inhabitant of the northern province to bequeath all his goods away from his family, was professedly passed in the interest of his younger children^ To the modem Englishman our modem law, which allows the father to leave his children penniless, may seem so obvious that he will be apt to think it deep-rooted in our national character. But national character and national law react upon each other, and law is sometimes the outcome of what we must call accidents. Had our tem- poral lawyers of the thirteenth century cared more than they

1 Y. B. 7 Edw. II. f. 536. It is suggested that the words of the Charter lefer to the goods of a child which have come into the father's hands, not to the father's own goods (1).

2 Y. B. 40 Edw. III. f. 38.

' Stat. 4 & 5 Will, and Mary, c. 2 : ' whereby many persons are disabled from maMng sufficient provision for their younger children.' The complaint seems to be that the provincial custom secures for a widow more than she ought to have. A jointure does not prevent her from claiming her wife's part; enough therefore is not left for the younger children.

23—2

356 Inheritance. [bk. ii.

did about the law of chattels, wife's part, bairns' part and dead's part might at this day be known south of the Tweed.

§ 4. Intestacy\

Horror of During the two centuries which followed the Norman [p- 354] *" ° ^' Conquest an intense and holy horror of intestacy took possession of men's minds. We have already seen how Cnut was com- pelled to say that if a man dies intestate, the lord is to take no more than his rightful heriot and is to divide the dead man's property between his wife, children and near kinsmen^ We have also seen how Henry I. promised that if one of his barons died without a will, the wife, children and liege men of the intestate might divide his property for the good of his soul as they shbuld think best'. There has already been a change. The goods of the intestate are no longer — we may almost say it — inherited by his nearest of kin ; they are to be distributed for the good of his soul, though this distribution is to be effected by the hands of those who are allied to him by blood or homage. If the Leis Williame say that the goods of the intestate are to be divided among his children, we may suspect them of struggling against the spirit of the age ; perhaps they are appealing to Eoman law*. According to a doctrine that was rapidly gaining ground, the man who dies intestate dies unconfessed, and the man who dies unconfessed — it were better not to end the sentence ; God's mercy is infinite ; but we can not bury the intestate in consecrated soil. It would seem that in Glanvill's day the lords were pressing their claim to seize the goods of such of their men as died intestate'. In the Charter of 121.5 there is a clause which says: 'If any free man dies intestate, his chattels shall be distributed by the hands of his next kinsfolk and friends under the supervision of the church, saving to every one the debts owed to him by the dead

' Once for all we must refer our readers to Selden's tract on The Disposition of Intestates' Goods (Collected Works, vol. iii. p. 1677).

2 Cnut, II. 70. = Coronation Charter, o. 7.

4 Leg. Will. I. 34; see above, vol. i. p. 103; vol. ii. p. 267.

5 Glanvill, vii. 16. Pipe Koll, 18 Hen. II. 133 : the custodians of the abbey of Battle account at the exchequer for the goods of the abbot's bailiff, who died intestate.

CH. VI. § 4.] Intestacy. 357

man . The church now asserts a right to supervise the process of distribution. But this clause was omitted from the Charter of 1216 and was never again enacted. Why was it omitted ? Having regard to the character of the other omissions, we may guess that it was withdrawn by Henry's counsellors in the interest of their infant king. The thought may have crossed their minds (and John may at times have put this thought into [p. 355] practice) that intestacy is a cause of forfeiture. But this clause, though it was deliberately withdrawn, seems to have settled the law.

Bracton in words which recall those of Cnut and of Henry I. Braoton on says: 'If a free man dies intestate and suddenly, his lord should "'^^ *'^^' in no wise meddle with his goods, save in so far as this is necessary in order that he may get what is his, namely, his heriot, but the administration of the dead man's goods belongs to his friends and to the church, for the man who dies intestate does not deserve a punishment''.' No, intestacy — at all events if occasioned by sudden death — is not an offence or a cause of forfeiture, still it is a cause for grave alarm, and a reason why all should be done that can be done for a soul that is in jeopardy. And who so fit to decide what can be done as the bishop of the diocese?

Many points are illustrated by a story which Jocelin of stories of

intestacy

Brakeland has told in his spirited way. In the year 1197 Hamo Blund, one of the richest men of the town of Bury St Edmunds, was at the point of death, and would hardly be persuaded to make any testament. At length, when nobody but his brother, his wife and the chaplain could hear, he made a testament to the paltry amount of three marks. And when after his death the abbot heard this, he summoned those three persons before him 'and sharply reproved them, because the brother, who was heir, and the wife, wishing to have all, would not allow any one to have access to the sick man. And then in their presence the abbot said: ' I was his bishop and had the cure of his soul, and, lest his ignorance should imperil me, his priest and confessor, — for not being present I could not counsel him — I will now do my duty, albeit at the eleventh hour. I order that all his chattels and the debts due to him, which it is said are worth two hundred marks, be set down in writing and that one share be given to the heir, and another to the wife, and 1 Charter, 1215, c. 27. ^ Braoton, f. 60 b.

358 Inheritance. [bk. ii.

a third to his poor cousins and other poor folk. As to his horse •which was led before the hier and offered to St Edmund, I order that it be remitted and returned, for it is not fit that our church be polluted by the gift of one who died intestate, and who is commonly accused of having habitually lent his money at usury. By the face of God ! if anything of this sort happens again in my days, the delinquent shall not be buried in the Dp.i churchyard.' When they heard this they retired in confusion. — Thus did abbot Samson, to the delight of Jocelin'.

Soon after this there were malicious men who did not scruple to assert that Archbishop Hubert, who had been chief justiciar, had died intestate. A friendly chronicler has warmly rebutted this hideous accusation''. In Henry III.'s reign the monks of St Alban's believed that an enemy of theirs, Adam Fitzwilliam, a justice of the Bench, had died intestate. True that his friend and colleague, William of Culworth, had gone before the bishop of London and affirmed that Adam made a will of which he, William, was the ' procurator and executor' ; but this, said the monks, was a pious lie'. A pious lie — for William was striving to defend his companion's fair fame against the damning charge of intestacy. Of another enemy of St Alban, the terrible Fawkes of Breaut6, it is written that he was poisoned ; that having gone to bed after supper, he was found dead, black, stinking and intestate*.

In Edward I.'s time a man was attacked by robbers and he was found by the neighbours at the point of death ; he died before a priest could be brought to him ; he was buried in the high road. ATchbishop Peckham took a merciful view of the case : — It is said that the poor wretch asked for a priest ; if this can be proved, let his body be exhumed and buried in Christian fashion, for he did what he could towards making a testament ". Then the rector of Ightham died suddenly. Peckham, with a hope that all might yet be well, bade his official, his commissary, and the rector of another parish take possession of the dead

^ Jooelin (Camd. Soc), p. 67.

" Balph of Coggeshall, p. 159 : ' Sed absit, absit prooul hoc, et in orbe lemoto abBcondat fortuna malum, ut qui testamentorum ab aliis conditorum fidelis extitit executor, intestatns decessisset ! '

^ Gesta Abbatum, i. 329. The important phrase is pie mentiens.

• Mat. Par. Chron. Maj. iii. 121.

' Peokham's Register, i. 39 : ' cum saoerdotem cui oonfiteretur petierit, et sicut poterit in tali artioulo, oondiderit testamentum.'

CH. VI. § 4.] Intestacy. 359

man's goods. His debts were to be paid, and thien the residue was to be disposed of according to the archbishop's orders for the benefit of the departed'. [p. 357] The pope would have liked to take the goods of all intestate clerks. In 1246 there had been some scandalous cases. Three English archdeacons, rich men, had died intestate. Thereupon the bishop of Rome decreed that the goods of all intestate clerks should be converted to his use. He did more than this, for he declared that the mere appointment of an ' expressor and executor ' would not save the clerk's goods from being swallowed in what Matthew Paris calls ' the papal Charybdis ' — a testator must express his own will, and not leave it to be expressed by an expressor and executor. But this was going too far; the king protested and the edict was withdrawn ^ This same pope, that great canonist Innocent IV., had stated that in Britain the custom was that one-third — this means the dead's part — of the goods of the intestate, belonged to the church and the poor^ In 1284 Edward I. begged a grant of the goods of intestates from Pope Martin IV., and met with a refusal*.

These stories may be enough to illustrate the prevailing Despera- opinion about intestacy. It was not confined to England. Normandy. What is more peculiar to England is that the prelates firmly established, as against the king and the lay lords, their right to distribute the goods of the intestate for the weal of his soul. It was otherwise in some parts of France, notably in Normandy. The man who had fair warning that death was approaching, the man who lay in bed for several days, and yet made no will and confession, was deemed to die ' desperate,' and the goods of the desperate, like the goods of the suicide, were forfeited to the duke. The church was entitled to nothing, as it had done nothing for his soul". The bishop of Llandaff complained to^ Edward I. that the magnates in his diocese would not permit

' Peckham's Eegister, iii. 874 (a.d. 1285) : ' Sed de bonis huiusmodi quae reliquit, ipsius si quae sint debita persolvantur, et residuum dispositioni et ordiuationi nostrae pro anima eiusdem integraliter reservetur.'

2 Mat. Par. Chron. Maj. iv. 552, 604.

^ Innoeentius, Commentaria, X. 5. 3. 42 : ' ut sicut Venetiis solvitur in morte deeima mobilium, in Britannia tertia, in opus eoolesiae et paupertim dispensanda.'

4 Calendar of Papal Eegisters, i. 473.

" Somma, p. 56; Ancienne coutume, c. 21. See Duoange, s. v. intestatun, ■where a great store of illustrations is collected.

360 Inheritance. [bk. ii.

him to administer the goods of intestates, and the king replied that he would not interfere with the custom of the country^ The bishop However, in the thirteenth century it became well settled kinsfolt. law in England that the goods of the intestate are at the

disposal of the judge ordinary, though in Bracton's text we may [p. 353] still hear the claim of the kinsfolk or 'friends' of the dead. to take some part in the work of administration^. No doubt in practice this claim was often respected. The bishop would not make the division with his own hands, and in many cases those who were near and dear to the intestate might be trusted to do what was best for-him. Again, the list of those works of piety and mercy which might benefit his soul was long and liberal, and, if it comprised the purchase of prayers, it comprised also the relief of the poor, and more especially of poor relations. But still the claim of his kinsfolk is no longer a claim to inherit. In 1268 it was necessary for a legatine council to remind the prelates that they were but trustees in this matter and were not to treat the goods of intestates as their own'. Intestate When we look at this strange law we ought to remember

two things. In the first place, intestacy was rare. It was easy to make a will ; easy to make some sign of assent when the confessor asked you to trust him as your expressor and executor*.

^ Memor. de Pari. 33 Edw. I. (ed. Maitland), p. 73. Selden, op. eit, p. 1681, resists, and as we think rightly, the opinion that the King of England was at one time entitled to the goods of intestates; but the clauses in the charters of 1100 and 1215, to say nothing of Cnut's law and the texts of Glanvill and Bracton, seem to show that there had (to say the least) been a grave danger of ' desperate ' death being treated as a cause of forfeiture. Prynne, Eeoords, vol. iii. passim, regards the action of the prelates as a shameless usurpation.

2 Bracton, f. 60 b. There were towns, e.g. Sandwich, in which the municipal authorities claimed the right to administer the intestate's goods. See Lyon, ©over, ii. 308.

s Constit. Ottoboni, Cum mortis incerta. This constitution, after reciting that a sudden death often deprives a man of the power of making a testament, and that in such a case humanity distributes his goods for pious uses, so that they may intercede for him on high, proceeds to say that in past time a provision about this matter was made by the English prelates with the king's consent, and to declare that the prelates are not to occupy the goods of the dead contrary to that provision. What was that provision? John de Athona did not know and plunged into a marvellous anachronism. Selden thinks that the clause in the charter of 1215 was intended. We can offer no better e^lanation.

* Selden, p. 1682, speaks as though intestacy were common ; but the chroniclers treat it as a scandal.

succession.

CH. VI. § 4.] Intestacy. 361

In the second place, it was only ' the dead's part ' that fell to the ordinary, though the wife and children (if any there were) had by this time to take their shares from his hand.

In 1285 a statute declared that thenceforth the ordinary The admi- should be bound to pay the debts of the intestate in the same "'^ ™'''"^' manner as that in which executors were bound to pay the debts ^.359] of the testator ^ The king's court was just beginning to give the creditor of a testator an action against the executor, and the purpose of the statute seems to be that the creditor of an intestate shall have a similar action against the ordinary. The executor is beginning to appear as the personal representative of the testator ; the ordinary — or some administrator to whom he has delegated his duties — must appear as the personal representative of the intestate. In 1357 another statute will bid the ordinary commit the work of administration to 'the next and most lawful friends ' of the dead, and will give actions of debt to and against these ' administrators^'

How far the bishops in their dealings with the kinsfolk of The next the dead man were guided by the table of consanguinity we can not say. In the end there was what a foreigner might describe as a partial ' reception ' of Roman law as defined in the Novels of Justinian. But this seems to have taken place in much later days than those of which we are speaking. We must remember that the canonist, though his training in Roman law might incline him to treat it as written reason and to give it the benefit of every doubt, had no law of intestate succession that was his own. The catholic church had never presumed to dictate a scheme of inheritance to the world at large. Such rules as we can recover concerning the bairns' part tend to show that during the middle ages the Roman system was not ob- served in England. The bairns' part was strictly confined to children ; no right of representation was admitted ; no child of a dead child could claim a share in it'.

1 Stat. West. II. c. 19.

2 Stat. 31 Edw. III. Stat. 1, o. 11. English lawyers appropriate the term administrator to the representative of an intestate, reserving executor for the representative of a testator. In the works of the canonists our administrator appears as an executor dative, our executor as an executor testamentary. The Statute of Edward III. had the effect of introducing administrator as a technical term ; in Y. B. 38 Edward III. f. 21, it is said that formerly the administrator when sued had been called executor. See Selden, op. cit. p. 1685.

' Swinburne, Testaments (ed. 1640), p. 194. So in Scotland in the

362 Inheritance. ' [bk. ii.

Letters of But, to return to the law of intestate succession as it was in stratkJn. earlier days, we shall see it well illustrated by a document issued by a bishop of Durham in 1313, the earliest specimen of ' letters of administration ' that has come under our notice. He addresses Margaret the widow of Kobert Haunsard, knight, and William and John Walworth. Confiding in their fidelity, he commits to them the administration of the goods of Robert Haunsard, who has died intestate. They are to exhibit a true inventory, to satisfy creditors, and to certify the bishop's official as to the names of the creditors and the amount of the [p.i debts. The residue, if any, of the goods they are to divide into three parts, assigning one to the dead man, one to his widow Margaret, and one to the children ' according to the custom of the realm of England.' The dead's part they are to distribute for the good of his soul in such pious works as they shall think best according to God and good conscience, and of their ad- ministration they are to render accoxint to the bishop or his commissaries. The bairns' part they are to retain as curators and guardians until the children are of full age. If any one impleads the bishop concerning the goods, they are to defend the action and keep the bishop indemnified*. Such were 'letters of administration' in the first years of the fourteenth century. Separation To a student of economic history a system of inheritance from which studiously separates the chattels from the land may seem lands. -^yxi little Suited to an age in which agriculture was almost the only process productive of wealth. The heir, it may seem, is destined to inherit bare acres, while the capital which has made them fertile goes to others. Nor in the generality of medieval wills do we find the testator favouring his heir ; if he has several sons he will probably bestow equal benefits upon them. Again, at least in later law, the heir could claim no bairn's part of the chattels'. But when we look into the

nineteenth century : Fraser, Husband and Wife, ii. 994. Indeed the Scottish law of intestate succession to movables has been marvellously unlike that settled by Nov. 118. It has been at once agnatic (refusing to trace through a female ancestor) and parentelio: Fraser, ii. 1072.

' Eegist. Palat. Duuelm. i. 369. In 1343 the Commons pray that the person to whom the ordinary commits the affairs of the intestate may have an action against creditors. The king answers that the bishop must have it, as ho is responsible to others; Bot. Pari. ii. 142. See Seldeu, op. eit., p. 163S.

2 Swinburne, Testaments (ed. 1640), p. 196.

CH. VI. § 4.] Intestacy. 363

matter we see that a great deal of the agricultural capital is ' realty ' and descends to the heir. For this purpose the villeins are annexed to the soil; they can not be severed from it by testament'; their ploughs, oxen and other chattels are at the heir's service. Even if there is no personal unfreedom in the case, what descends to the heir of a well-to-do gentleman is no bare tract of land, but that complex known as a manor, which includes the right to exact labour services from numerous tenants. The stock on the demesne land the heir will not mherit; he will often purchase it from the executors; still he will not inherit a mere tract of soil, [p. 361] Again, there are many traces of local customs which under Heir- the name of ' principals ' or ' heir-looms ' will give him various chattels, not merely his ancestor's sword and hauberk, but the best chattels of every different kind, the best horse (if the church does not take it) and the best ox, the best chair and the best table, the best pan and the best pot. The local customs which secure him these things may well be of ancient date, and their origin deserves investigation''.

It is in the province of inheritance that our medieval law Review made its worst mistakes. They were natural mistakes. There was much to be said for the simple plan of giving all the land to the eldest son. There was much to be said for allowing the couiiis of the church to assume a jurisdiction, even an exclusive jurisdiction, in testamentary causes. We can hardly blame our ancestors for their dread of intestacy without attacking their religious beliefs. But the consequences have been evil. We rue them at the present day, and shall rue them so long as there is talk of real and personal property.

1 Britton, i. 197-8.

^ Test. Ebor. i. 287 ; ' Item volo et firmiter praeoipio H. B. filio meo super benedictioue mea quod non vendicet uec calumpnietur aUqua principalia infra manerium meum de A., nee alibi, quia ego nulla habui de parentibus meis.' See also Durham Wills (Surtees Soc), i. 59. In Edward XII.'s reign the custom of an Oxfordshire hundred is declared to be that the heir shall have as principalia or heir-looms the best cart, the best plough, the best cup and so on of every kind of chattels : Co. Lit. 18 b; Elton, Origins of English History {2nd ed.), pp. 197-8.

CHAPTEK VII.

FAMILY LAW.

§ 1. Marriage.

Antiquities The nature of the ancient Germanic marriage has in our [p.i faw!°^'"°^^^ own day been the theme of lively debates*. The want of any first-rate evidence as to what went on in the days of heathenry leaves a large field open for the construction of ingenious theories. We can not find any fixed starting point for our speculations, so completely has the old text, whatever it was, been glossed and distorted by Christianity. It is said with some show of truth that in the earliest Teutonic laws we may see many traces of ' marriage by capture-.' The 'rape-marriage,' if such we may call it, is a punishable offence ; but still it is a marriage, as we find it also in the Hindu law-books. The usual and lawful marriage, however, is a ' sale-marriage ' ; in consideration of money paid down, the bride is handed over to the bridegroom. The ' bride-sale ' of which Tacitus tells us' was no sale of a chattel. It was different from the sale of a slave girl ; it was a sale of the mund, the protectorship, over the woman. An honourable position as her husband's consort and yoke-fellow was assured to her by solemn contract. This need not imply that the woman herself had any choice in the matter. Even Cnut had to forbid that a woman should be sold to a man

^ The controversy began with Sohm's Eeoht der Ehesohlieasung, which called forth many replies. Friedberg's Becht der Eheschliessung contains much curious matter concerning English marriages. In the Essays on Anglo- Saxon Law, p. 163, Mr E. Young applied Sohm's theory to England, but not without some modifications.

- Dargun, Mutterreoht und Eaubehe; Hensler, Institutionen, ii. 277.

8 Germania, o. 18. But unfortunately Tacitus has an eye to edification.

CH. VII. §1.] Marriage. 365

[p. 363] whom she disliked'. But, as already said, we can not be very certain that in England the wife had ever passed completely into the hand of her husband. He became her 'elder'' — her senior, her seigneur, we may say, — and her lord ; but the bond between her and her blood kinsmen was not broken ; they, not he, had to pay for her misdeeds and received her wergild'. It seems by no means impossible that for a while the husband's power over his wife increased rather than diminished. And when light begins to fall upon the Anglo-Saxon betrothal, it is not a cash transaction by which the bride's kinsmen receive a price in return for rights over their kinswoman; rather we must say that the bridegroom covenants with them that he will make a settlement upon his future Wife. He declares, and he gives security for, the morning-gift which she shall receive if she ' chooses his will ' and the dower that she shall enjoy if she outlives him^ Though no doubt her kinsmen may make a profit out of the bargain, as fathers and feudal lords will in much later times, the more essential matter is that they should stipulate on her behalf for an honourable treatment as wife and widow. Phrases and ceremonies which belong to this old time will long be preserved in that curious cabinet of antiquities, the marriage ritual of the English church.

Whether the marriage begins with the betrothal, or with What is the delivery of the bride to the bridegroom, or with their marriage? physical union, is one of the many doubtful questions. For one thing, we can not be certain that a betrothal, a transaction between the bridegroom and the woman's father or other protector was essential to a valid marriage ; we have to reckon with the possibility — and it is somewhat more than a possi- bility— of marriage by capture'. If the woman consented to the abduction, then, according to the theory which the Christian church was gradually formulating, there would be all the essentials of a valid marriage, the consent to be husband and wife and the sexual union. When there had been a solemn betrothal it is likely that the bridegroom thereby acquired

1 Cnut, II. 74. = Ine, 57. ' See above, vol. ii. p. 243.

* Schmid, App. vi. For an earlier time see .ffithelb. 77 ; Ine, 31.

° .ffithelb. 82 (aooprding to Liebermann's translation) : ' If a man forcibly abducts a maiden, let him pay 50 shillings to him to whom she belongs and then buy the consent of him to -whom she belongs.' There is no talk of giving her back, but a hit must be paid and the mund must be purchased.

366 Family Law. [bk. ii.

some rights over the bride which were good against third [p. 364] persons, and that any one who carried her oflf would have had to pay a h6t to him'. On the other hand, it seems too much to say that the betrothal was the marriage. If either party refused to perform his contract, he could only be compelled to pay money ; in the one case the bridegroom lost what he had paid by way of bride-price ; in the other he received back that price augmented by one-third : — such was the rule enforced by the church, and the church held that the parents of the espoused girl might give her to another man, if she obstinately refused the man to whom she had been betrothed =. Growth of Already in the seventh century and here in England the siastof church was making her voice heard about these matters. Her tion^*"^' "^^arfare against the sins of the flesh gave her an interest in marriage and all that concerned marriage. Especially earnest was she in her attempt to define the ' prohibited degrees ' and prevent incestuous unions. This was a matter about which the first missionaries had consulted the pope, who told them not to be too severe with their new converts. A little later Archbishop Theodore was able to lay down numerous rules touching marriage and divorce'. Many of these are rules which could only be enforced by penances, but some are rules which go to the legitimacy or illegitimacy of an union, and we have every reason to suppose that the state accepted them. In some cases, more especially when they deal with divorce, they seem to be temporizing rules; they make concessions to old Germanic custom and do not maintain the -indissolubility of marriage with that rigour which the teaching of the Christian fathers might have led us to expect*. Fresh incursions of heathen Danes must have retarded the evolution of a marriage law such as the church could approve. At all events in Normandy the great men contract with their uxores Banicae unions of an equivocal kind which the church condemns. The wife is not of equal rank with her husband ; there has been no solemn betrothal; the children will not inherit their father's land; the wife will have to be content with the morning-gift [p. 365]

1 ^thelb. 83.

2 Theodore's Penitential, n. xii. 33, 34 (Haddan and Stubbs, iii. 201). This passes into the Pseudo-Theodore printed by the Eeoord-Commission, Ancient Laws, ii. 11.

' Haddan and Stubbs, iii. 21. * Ibid. 201.

CH. VII. § 1.] Marriage. 367

which her husband makes after the bridal night; but, for all this, there is a marriage : something that we dare not call mere concubinage'- That eminently Christian king Cnut legislated about marriage in an ecclesiastical spirit. The adulterous wife, unless her offence be public, is to be handed over to the bishop for judgment. The adulterous husband is to be denied every Christian right until he satisfies the bishop^. The bishop is becoming the judge of these sinners, and the judge who punishes adultery must take cognizance of marriage.

When the Conqueror had paid the debt that he owed to Matrimo- Rome by a definite separation of the spiritual from the lay diction in tribunals, it can not have remained long in doubt that the °^*" ' former would clg,im the whole province of marriage law as their own. In all probability this claim was not suddenly pressed ; the Leges Henrici endeavour to state the old law about adultery; the man's fine goes to the king, the woman's to the bishop'; but everywhere the church was beginning to urge that claim, and the canonists were constructing an elabo- rate jurisprudence of marriage. By the middle of the twelfth century, by the time when Gratian was compiling his con- cordance of discordant canons, it was law in England that marriage appertained to the spiritual forum. Richard de Anesty's memorable law-suit was the outcome of a divorce pronounced in or about 1143 under the authority of a papal rescript, and seemingly one which illustrated what was to be a characteristic doctrine of the canon law : a marriage solemnly celebrated in church, a marriage of which a child had been bom, was set aside as null in favour of an earlier marriage constituted by a mere exchange of consenting words*. Soon \ after this Glanvill acknowledged that the ecclesiastical court | had an exclusive cognizance of the question whether or no there had been a marriage, and the king's court, with a profession of its own inability to deal with that question, was habitually asking the bishops to decide whether or no a litigant [p. 366] was legitimate'. Thenceforth the marriage law of England was

' As to these Danish marriages, see Freeman, Norman Conquest, 2nd ed. i. 612; Brunner, Die uneheliohe Vaterschaft, Zeitschrift der Savigny-Stiftung, Germ. Abt. xvii. 1. 19.

2 Cnut, 11. 53, 54. » Leg. Hen. 11, § 5; of. D. B. i. 1.

* See above, vol. i. p. 158, Letters of John of Salisbury (ed. Giles), i. 124.

' GlanviU, Tii. 13, 14; Select Civil Pleas (Selden Soc), pi. 15, 92, 109.

368 Family Law. [bk. ii.

the canon law. A few words about its main rules must be said, though we cannot pretend to expound them at length. Canonical According to the doctrine that prevailed for a while, there marriage, was no marriage until man and woman had become one flesh.: In strictness of law all that was essential was this physical union accompanied by the intent to be thenceforth husband and wife. All that preceded this could be no more than an espousal (desponsatio) and the relationship between the spouses was one which was dissoluble ; in particular it was dissolved if either of them contracted a perfected marriage with a third person. However, in the course of the twelfth century, when the classical canon law was taking shape, a new distinction came to the front. Espousals were of two l^nds : sponsalia per verba defuturo, which take place if man and woman promise each other that they will hereafter become husband and wife ; sponsalia per verba de praesenti, which take place if they declare that they take each other as husband and wife now, at this very moment. It is thenceforth the established doctrine that a transaction of the latter kind {sponsalia per verba de prae- senti) creates a bond which is hardly to be dissolved; in particular, it is not dissolved though one of the spouses goes through the ceremony of marriage and is physically united with another person. The espousal 'by words of the present tense' constitutes a marriage (matrimoniv/m), at all events an initiate marriage; the spouses are coniuges; the relationship between them is almost as indisseverable as if it had already become a consummate marriage. Not quite so indisseverable however; a spouse may free himself or herself from the un- consummated marriage by entering religion', and such a marriage is within the papal power of dispensation. Even at the present day the technical terms that are in use among us recall the older doctrine, for a marriage that is not yet ' consummated ' should, were we nice in our use of words, be no marriage at all. As to sponsalia per verba de futuro, the doctrine of the canonists was that sexual intercourse if pre- ceded by such espousals was a marriage ; a presumption of law explained the carnalis copula by the foregoing promise to marry. The scheme at which they thus arrived was certainly [p. 367] no masterpiece of human wisdom. Of all people in the world

1 See the English ease, c. 16. X. 4. 1. The Council of Trent pronounced the anathema against those who deny this. Cone. Trident, de Sacr. Matr. c. 6,

CH. VTT. § 1.] Marriage. 369

lovers are the least likely to distiBguish precisely between the present and the future tenses. In the middle ages marriages, or what looked like marriages, were exceedingly insecure. The union which had existed for many years between man and woman might with fatal ease be proved adulterous, and there would be hard swearing on both sides about 'I will' and 'I do.' It is interesting to notice that a powerful protest against this doctrine was made by the legist Vacarius. He argued that there could be no marriage without a traditio, the self-delivery of man to woman and woman to man. But he could, not prevail'.

The one contract which, to our thinking, should certainly be No formal, had been made the most formless of all contracts. It is regnSttef true that from a very early time the church had insisted that Christian spouses should seek a blessing for their union, should acknowledge their contract publicly and in face of the church. The ceremonies required by temporal law, Jewish, Roman or Germanic, were to be observed, and a new religious colour was given to those rites ; the veil and the ring were sanctified. In the little Anglo-Saxon tract which describes a betrothal — with- out any good warrant it has been treated as belonging to the laws of King Edmund — we see the mass priest present; but the part that is assigned to him is subordinate. After we have read how a solemn treaty is made between the bridegroom and the kinsmen of the bride, we read how at the delivery, the tradition, of the woman, a mass priest should be present, and confirm the union with God's blessing''. But the variety of the

' The story told in this paragraph is that which is told at great length by Freisen, Geschichte des canoniscben Eherechts. See also, Esmein, Le mariage en droit canoniqae, i. 95-137. How it came about that the church laid so much stress on the physical union is a grave question. Freisen sees h6re the influence of Jewish tradition. It now seems fairly clear that even Gratiau saw no marriage, no indissoluble bond, no matrimonium perfeotum, where there had been no camalis copula. The change seems in a great measure due to the influence of Peter Lombard and represents a victory of Parisian theology over Bolognese jurisprudence. For the tract of Vacarius, see L. Q. E. xiii. 133, 270. A desire to prove that the union between St Mary and St Joseph was a perfect marriage helped the newer doctrine. One of the epoch-making decretals relates to au English case and will be given below, p. 371. The English canonist John de Athoua in his gloss on Ottobou's constitution Goniugale foedus says, 'Matrimonii consummatio ad matrimonium multos addit effectus'; it makes the jnaxriage indissoluble by profession and by dispensation ; also it is of sacramental importance.

2 Be wifmanues beweddunge, Sohmid, Gesetze, App. vi,

P. M. II. 24

370 Family Law. [bk. ii.

marriage customs current among the Christian nations pre- vented the church from singling out any one rite as essential. From drastic legislation she was withstrained by the fear that [p-i she would thereby multiply sins. It was not well that there should be marriages contracted in secret and unblessed, by God ; still, better these than concubinage and unions dissoluble at will. And so, though at times she seemed to be on the point of decreeing that the marriage contracted without a due observance of religious ceremonies is no marriage at all, she ■held her hand^ For example, soon after the Norman Conquest Lanfranc issued a constitution condemning in strong words him who gives away his daughter or kinswoman without a priestly benediction. He says that the parties to such an union are fornicators ; but it is very doubtful whether he says or means that the union is no indissoluble marriage^ At all events in the twelfth century, though the various churches have by this time evolved marriage rituals — rituals which have borrowed many a phrase and symbol from ancient Germanic custom — it becomes clear that the formless, the unblessed, marriage, is a marriage. In 1200 Archbishop Hubert Walter, with a salvo for the honour and privilege of the Roman church, published in a council at Lambeth a constitution which declared that no marriage was to be celebrated until after a triple publication of the church's ban. No persons were to be married save publicly in the face of the church and in the presence of a priest. Persons who married in other fashion were not to be admitted into a church without the bishop's licence'. At the Lateran council of 1215 Innocent III. extended over the whole of western Christendom the custom that had hitherto obtained in some countries of ' publishing the banns of marriage,' that is, of calling upon all and singular to declare any cause or just

' Freisen, op. cit. 120-151 ; Esmein, op. cit. i. 178-187.

' Parker printed this canon from a ms. belonging to the church of Worcester in Antiquitates Britannicae Ecclesiae (ed. Hanoviae, 1605), p. 114; it was copied from Parker's book by Spelman and Wilkins. Lanfranc is made to decree 'ut nullus filiam suam vel ooguatam det alicui absque benediotione saoerdotali ; si aliter fecerit, non ut legitimum coniuginm sed ut fornicatorium iudicabitur.' He does not say that the union will be mere fornication ; he says that it will be coniugium fornicatorium, an unlawful and fornicatory marriage: Lanfrano's words recall those of the Pseudo-Isidoriau Evaristus, which appear in c. 1. C. 30. q. 5; as to this see Freisen, op. cit. p. 139.

' Hoveden, iv. 135.

CH. VII. § 1.] Marriage. 371

impediment that could be urged against the proposed union. From that time forward a marriage with banns had certain [p. 369] legal advantages over a marriage without banns, which can only be explained below when we speak of 'putative' mar- riages. But still the formless, the unblessed, marriage is a marriage^

It is thus that Alexander III. writes to the Bishop of Decretal of Norwich^ : — ' We understand from your letter that a certain nif *° ^^ man and woman at the command of their lord mutually received each other, no priest being present, and no such ceremony being performed as the English church is wont to employ, and then that before any physical union, another man solemnly married the said woman and knew her. We answer that if the first man and the woman received each other by mutual consent directed to time present, saying the one to the other, ' I receive you as mine (meum),' and ' I receive you as mine (meam),' then, albeit there was no such ceremony as aforesaid, and albeit there was no carnal knowledge, the woman ought to be restored to the first man, for after such a consent she could not and ought not to marry another. If however there was no such consent by such words as aforesaid, and no sexual union preceded by a consent de futuro, then the woman must be left to the second man who subsequently received her and knew her, and she must be absolved from the suit of the first man ; and if he has given faith or sworn an oath [to marry the woman], then a penance must be set him for the breach of his faith or of his oath. But in case either of the parties shall have appealed, then, unless an appeal is excluded by the terms of the commission, you are to defer to that appeal'.'

We have given this decretal at length, for it shows how complete was the sway that the catholic canon law wielded in the England of Henry II.'s time, and it also briefly sums

' c. 3. X. 4. 3. This seems the origin of tlie belief that Innocent III. ' was the first who ordained the celebration of marriage in the church.' This belief is stated by Blackstone, Comment, i. 439, and was in his time traditional among English lawyers. Apparently it can be traced to Dr Goldingham, _a civilian who was consulted in the case of Bunting v. Lepingwell (Moore's Eeports, 169). See Friedberg, Becht der Eheschliessnng, 314.

2 Compilatio Prima, lib. 4, tit. 4, o. 6 {Friedberg, Quinque Compilationes, p. 47).

3 Another decretal which Alexander III. sent to England contains an elaborate statement of general doctrine; o. 2. X. 4. 16.

24—2

372

Family Law.

[bK. II.

up that law's doctrine of marriage. A strong case is put. On the one hand stands the bare consent per verba de praesenti, iinhallowed and unconsummated, on the other a solemn and a [p.370] consummated union. The formless interchange of words pre- vails over the combined force of ecclesiastical ceremony and sexual intercourse. Law of And now we have to say that in the year 1843 in our

En^m^'" highest court of law three learned lords maintained the thesis that by the ecclesiastical and the common law of England the presence of an ordained clei'gyman was from the remotest period onward essential to the formation of a valid marriage. An accident gave their opinion the victory over that of three other equally learned lords, and every English court may now-a-days be bound to adopt the doctrine that thus prevailed. It is hardly likely that the question will ever again be of any practical importance, and we are therefore the freer to say that if the victorious cause pleased the lords, it is the vanquished cause that will please the historian of the middle ages\

But we must distinguish between the ecclesiastical and the temporal law. As regards the former, no one doubts what, at all events from the middle years of the twelfth century until the Council of Trent, was the law of the catholic church : — for the formation of a valid marriage no religious ceremony, no presence of a priest or ' ordained clergyman,' is necessary; Clandestine unions, unblessed unions, are prohibited ; fieri non debent ; the husband and wife who have intercourse with each other before the church has blessed their marriage, sin and should be put to penance ; they will be compelled by spiritual

Law of English ecclesias- tical courts.

1 We refer to the famous case of The Queen v. Millis, 10 Clark and Finelly, 534, which was followed by Beamish v. Beamish, 9 House of Lords CaseB, 274. The Irish Court of King's Bench was equally divided. In the House of Lords, after the opinion of the English judges had been given against the validity of a marriage at which no clergyman had been present, Lords Lyndhurst, Cottenham and Abinger were for holding the marriage void, while Lords Brougham, Denman and Campbell were in favour of its validity. Owing to the form in which the question came before the House, the result, of the division was that the marriage was held to be void. Among the pamphlets evoked by this case two tracts by Sir John Stoddart deserve special mention. He argues with great force against the historical theory to which our law seems to be committed. In this he has been followed by Dr Emil Triedberg, whose Becht der Ehesohliessung contains a minute discussion of English law. See also a paper by Sir H. W. Blphinstone in L. Q. E. v. 44. But the very learned Opinion given by Willes J. in Beamish v. Beamish is the best criticism of the victorious doctrine.

CH. VII. § 1.] Marriage. 373

censures to celebrate their marriage before the face of the church ; but they were married already when they exchanged a consent per verba de praesenti, or became one flesh after ex- [p-371] changing a consent per verba de futuro. It was contended, however, that in this matter the English church had held aloof from the church catholic and Roman. No proof of this improbable contention was forthcoming, save such as was to be found in what was called a law of King Edmund and in that constitution of Archbishop Lanfranc .which we have already mentioned^ Of these it is enough to say, first, that the so- called law of Edmund, which however is not a law, is far from declaring that there can be no marriage without a mass priest ; secondly, that in all probability Lanfranc's canon neither says this nor means this; and thirdly, that both documents come from too remote a date to be of any importance when the "question is as to the ecclesiastical law which prevailed in England from the middle of the twelfth century onwards. On the other hand, we have the clearest proof that at that time the law of the catholic and Roman church was being enforced in England. We have this not only in the decretal of Alexander III. which has been set forth above ^, but also in the many appeals about matrimonial matters that were being taken from England to Rome. It would have been as im- possible for the courts. Christian of this country to maintain about this vital point a schismatical law of their own as it would now be for a judge of the High Court to persistently disregard the decisions of the House of Lords : there would have been an appeal from every sentence, and reversal would have .been a matter of course. And then, had this state of things existed even for a few years, surely some English prelate or canonist would have been at pains to state our insular law. No one did anything of the kind. To say that the English church received or adopted the catholic law of marriage would be untrue; her rulers never conceived that they were free to pick and choose their law. We have been asked to suppose that for several centuries our church was infected with heretical

" See above, pp. 369, 370.

^ This decretal was cited by Willes J. in Beamish v. Beamish, 9 H. L. C. 308; It was known to him through Pothier. Unfortunately it came too late. Willes J. further remarked (p. 310) that Lanfranc's canon is but the epitome of an old decretal.

374

Family Law.

[bK. II.

The

temporal law and marriage.

Marriage and the law of dower.

pravity about the essence of one of the Christian sacraments, and that no one thought this worthy of notice. And an odd form of pravity it was. She did not require a sacerdotal bene- diction; she did not require (as the Council of Trent very wisely did) the testimony of the parish priest; she did not [p. 372] require a ceremony in church; she required the 'presence' of an 'ordained clergyman^'

As to our temporal law, from the middle of the twelfth century onwards it had no doctrine of marriage, for it never had to say in so many words whether a valid marriage had been contracted. Adultery was not, bigamy was not, incest was not, a temporal crime. On the other hand, it had often to say whether a woman was entitled to dower, whether a child was entitled to inherit. About these matters it was free to make what rules it pleased. It was in no wise bound to hold that every widow was entitled to dower, or that every child whom the law of the church pronounced legitimate was capable of inheriting. The question, ' Was this a marriage or no ?' might come before it incidentally. When this happened, that ques- tion was sent for decision to an ecclesiastical court, and the answer would be one of the premisses on which the lay court would found some judgment about dower, inheritance or the like; but only one of the premisses.

Now the king's justices, though many of them were ec- clesiastics, seem to have felt instinctively that the canonists were going astray and with formlessness were bringing in a mischievous uncertainty". The result is curious, for at first sight the lay tribunal seems to be rigidly requiring a religious ceremony which in the eyes of the church is unessential. No woman can claim dower unless she has been, endowed at the church door. That is Bracton's rule, and it is well home out by the case-law of his time'. The woman's marriage may be indisputable, but she is to have no dower if she was not endowed at the church door. We soon see, however, that

1 John de Athona in his gloss on Otho's constitution Innotuit, says ' petens restitutionem uxoria non auditur de iure ubl matrimonium est eontraotum clandestine, scilicet, bannis non editis.' Here, however, he is referring to the possessory restitution, the actio spolii, of which hereafter. He knew well enough that there may be a valid marriage without any solemnities; see the gloss on Ottobon's constitution Goniugale.

^ See Friedberg, Becht der Eheschliessung, p. 56.

8 Bracton, f. 302-4; Note Book, pi. 891, 1669, 1718, 1875,

CH. VII. § 1.] Marriage. 375

what our justices are demanding is, not a religious rite, noi' 'the presence of an ordained clergyman,' but publicity. We see this very plainly when Bracton tells us that the endowment can and must be made at the church door even during an [p. 373] interdict when the bridal mass can not be celebrated'. It ia usual to go to church when one is to be married ; all decent persons do this and all persons are required to do it by ecclesias- tical law. The temporal law seizes hold of this fact. Marriages contracted elsewhere may be valid enough, but only at the church door can a bride be endowed. There is a special reason for this requirement. The common contrast to the church- door marriage is the death-bed marriage". At the instance of the priest and with the fear of death before him, the sinner ' makes an honest woman ' of his mistress. This may do well enough for the church and may, one hopes, profit his soul in another world, but it must give no rights in English soil'. The justices who demanded an endowment at the chiarch door were the justices who set their faces against testamentary gifts of land, and strenuously endeavoured to make livery of seisin mean a real change of possession. The acts which give rights in land should be public, notorious acts. It is easy, however, to slip from the proposition that no woman can claim dower unless she has been endowed at the church door, into the piroposition that, so far as concerns the exaction of dower, no marriage is valid unless it is contracted before the face of the church, Both propositions mean the same thing, and Bracton adopts now the one and now the other*.

If, however, we can not argue that a woman was not married Marriage because she can not claim dower, still less can we argue that an-^^of ;„. union is a marriage because the issue of it will,— or is not a i^^'ta^oe. marriage because the issue of it will not, — be capable of in- heriting English land. The canon law itself admits that this may well be the case. It holds many children to be legitimate who are not the offspring of a lawful wedlock. To say nothing here of its doctrine about the retroactive force of marriage^ about legitimation per siibsequens matrimomum, it knows the so-called 'putative marriage.' Certain of the impediments to marriage that were maintained by the canon law did not prevent

1 Bracton, f. 305, 419 b.

» Bracton, t 92; Note Book, pi. 891, 1669, 1718, 1875.

» Note Book, pi. 1669, 1875. * Bracton, f. 304.

376 Family Law. [bk. ii,

the children of the union from being legitimate, if that union had been solemnized with the rites of the church, and if at the time when the children were begotten both or one of their parents were ignorant of the fact which constituted the impedi- ment. Among such impediments was consanguinity. A man [p.i goes through the ceremony of marriage with his cousin. So long as either of them is ignorant of the kinship between them, the children, that are bom to them are legitimate. There is here no real marriage ; but there is a putative marriage. The disabilities annexed to bastardy are regarded by the canonists as a punishment inflicted on offending parents, and in a case in which there has been a marriage ceremony duly solemnized with all the rites of the church, including the publication of banns', and one at least of the parties has been acting hona fide, that is, has been ignorant of the impediment, their unlaw- ful intercourse, for such in strictness it has been, is not to be punished by the bastardy of their children. It was long before the canonists worked out to the full their theory about these putative marriages. Some would have held that if there was good faith in the one consort and guilty knowledge in the other, the child might be legitimate as regards one of his parents, illegitimate as regards the other. Others held that such lopsided legitimacy was impossible''. Putative Bracton knew this learning and wrote it down as an

marriages, jj^jj^ijj^a^ijig p^j-t of English law. In a passage which he

borrowed from the canonist Tancred, he holds that there can be a putative marriage and legitimate offspring even when the union is invalid owing to the existence of a previous marriage. 'If a woman in good faith marries a man who is already married, believing him to be unmarried, and has children by him, such children will be adjudged legitimate and capable of inheriting-.' The canon law, however, may in this instance have been somewhat too subtle for our temporal tribunals; they were not given to troubling themselves much about so invisible an element as hona fides*. A contemporary of Bracton lays

1 0. 3. X. 4. 3.

' " Frelsen, op. cit. pp. 857-862 ; Esmein, op. cit. ii. 33-7.

' Bracton, f. 63. Bracton begins by copying a passage from Tanered (ed. Wunderlich, p. 104). He then adopts e. 3. X. 4. 3 (a canon of tbe Lateran council of 1215) and then c. 2. X. 4. 17, a decretal of Alexander m. See Bracton and Azo, p. 221, where the texts are compared.

* See Bliss, Calendar of Papal Eegisters, i. 254. In 1248 Innocent IV.

CH. VII. § 1,] Marriage. 377

down the law in much ruder shape. ' If a woman is divorced for kinship, or fornication, or blasphemy (as says Augustine the Ij.375] Great) she can not claim dower, but her children can inherit both from their father and from their mother according to the law of the realm. But if the wife is separated from her husband on the ground that he previously contracted marriage with some other woman by words of present time, then her children can not be legitimate, nor can they succeed to their father, nor to their mother, accordiag to the law of the realms' So late as 1337 English lawyers still maintained that the issue of a de facto marriage, which was invalid because of the con- sanguinity of the parties, were not bastards if born before divorce". At a little later time, having lost touch with the canon law, they developed a theory of their own which was far less favourable to the issue of putative marriages than the law of the church had been'. This, however, lies in the future. Here we are only concerned to notice that in the thirteenth century, according to the law of the church and the law of the land, we can not argue that because a child is legitimate and can inherit, therefore his parents were husband and wife.

However, we believe that at this time our temporal courts Acceptance were at one with our spiritual courts about legitimacy and the oai rules. capacity to ^ inherit ; that if the church said, ' This child is legitimate,' the state said, ' It is capable of inheriting' ; and that if the church said, ' This child is illegitimate,' the state said, ' It is incapable of inheriting.' To this agreement between church and state there was the one well-known exception: — our temporal courts would not allow to marriage any retroactive power ; the bastard remained incapable of inheriting land even though his parents had become husband and wife and thereby made him capable of receiving holy orders and, in all probability,

decides an English case on this point of good faith. This is one of the many instances which shows how impossible it would have been for the English church to have dissented from the Eoman about matrimonial causes.

1 From a. Cambridge ms. of Glanvill ; see Harv. L. R. vi. 11. Glanvill's doctrine (vi. 17) was that a divorce for consanguinity deprives the wife of dower, but leaves the issue legitimate.

» Y. B. 11-12 Edw. Ill ed. Pike, p. 481.

' Pike, Year Book, 11-12 Edw. III. pp. xx-xxii. The ultimate theory of English lawyers. took no heed of good or bad faith and made the legitimacy of the children depend on the fact that their parents while living were never divorced.

378 Family Law. [bk. ii.

of taking a share in the movable goods of his parents*. The general rule, to which this was the exception, was implied [p. 376] in the procedure of the temporal courts. If a question about the existence of a marriage was raised in such a court, that question was sent for trial to the spiritual court, and the writ that sent it thither expressly said that such questions were not within the cognizance of the temporal forum". If, on the other hand, the existence of a marriage was admitted, but one of the parties relied on the fact that his adversary was born before that marriage, then there was no question for the spiritual court, and, at least after the celebrated dispute in the Merton parliament, no opportunity was given to it of enforcing its rule about the force of the subsequens matrimonium : — the question ' Born before marriage or no ' went to a jury as a question of fact^ But about all other matters the church could have, and apparently had, her way. She could maintain all her impedi* menta dirimentia, the impediment of holy orders, the impedi- ments of consanguinity and affinity. 'You are a bastard, for your father was a deacon ' : — that was a good plea in the king's court*, and the king's court did nothing to narrow the mis- chievous latitude of the prohibited degrees. The bishop's certificate was conclusive. It was treated as a judgment in rem. If at any future time the same question about the existence of the marriage is raised, the certificate will answer it, and answer it indisputably, unless some charge of fraud or collusion can be made^ As to the particular point that has

'' We know of no text that proves that the bastard legitimated by the marriage of his parents could succeed to a ' bairn's part ' of the father's goods. But it seems quite certain that the church courts must have tried to enforce their own theory within a sphere that was their own, and we doubt very much whether the king's court would have prohibited them from so doing. Of the ' bairn's part,' we spoke above ; see vol. ii. pp. 348-356.

' Glanvill, vii. 14 : 'ad curiam meam non spectat agnoscere de bastardia.' In and after Braoton's day (f. 419 b) the language of the writ is rather more guarded, owing to the emergence of the controversy about the subsequens matrimonium. I

3 Before the day at Merton the issue of special bastardy was sometimes sent to the bishop: Note Book, pi. 299, Bracton argues at length, f. 416-20, that the king still has the right to compel the bishop to answer the obnoxious question. His argument seems to be founded on a perversion of history; see Note Book, vol, i. p. 104.

• Select Civil Pleas (Selden Soc), pi. 205.

" Bracton, f. 420: Y. B. 34-5 Edw. I. p. 64. It would seem as if cases were sometimes sent even to foreign prelates : ibid. p. 184.

CH. VII. § 1 .] Marriage. 379

been disputed, -we have Bracton's word that a marriage which was not contracted in facie ecclesiae, though it can not give the wife a claim to dower, may well be a good enough marriage so [p.377] far as regards the legitimacy of the children^ A case which had occurred shortly before he wrote his treatise shows us that he had good warrant for his assertion.

In or about 1254 died one William de Cardunville, a tenant No in chief of the crown. In the usual course an inquisitio post necessary. mortem was held for the purpose of finding his heir. The jurors told the following story : — William solemnly and at the church door espoused one Alice and they lived together as husband and wife for sixteen years. He had several sons and daughters by her ; one of them is still alive ; his name is Richard and he is four years old. After this there came a woman called Joan, whom William had carnally known a long time ago, and on whom he had begotten a son called Richard, and she demanded William as her husband in the court Christian, relying on an affidation that had taken place between them ; and she, having proved her case, was adjudged to him by the sentence of the court and a divorce was solemnly celebrated between him and Alice. And so William and Joan lived together for a year and more. But, said the jurors, — sensible laymen that they were — we doubt which of the two Richards is heir, whether Richard son of Joan, who is twenty-four years old, or Richard son of Alice, who is four years old, for Joan was never solemnly married ait the door of the church, and we say that, if neither of them is heir, then William's brother will" inherit. When this verdict came into the chancery, the attention of the royal officers must have been pointedly drawn to the question that we have been discussing, and, had they thought only of their master's interests, they would have decided in favour of Alice's son and so secured a long wardship for the king ; but, true to the law of the church and the law of the land, they ordered that Joan's son should have seisin of his

' Braoton, f. 304 : ' Et ita poterit esse matrimonium legitimum, quoad hereditatis snccessionem, ubicunque contraotum fuerit, dum tameu probatum, et illegitimum quoad dotis exaotionem, nisi fuerit in facie ecclesiae oontractum. On f. 92 he speaks with less certain sound about the capacity to inherit of the issue of a clandestine marriage; but the word clandestine had several distinct meanings ; see below, p. 385, note 1. See also Fleta, 340, 353 ; Britton, ii. 286, 266.

380 Family Law. [bk. ii.

father's land : in other words, they preferred the unsolemnized

to the solemnized marriage'. Becogni- At the same time we must notice that occasionally the [p. 378]

de facto temporal court gives something which at first sight looks like a

marriages.

judgment touching the validity of a marriage without sending any question to the court Christian. It is very possible that in a possessory action the jurors will give some special verdict about the birth of one of the parties or of a third person, and by so doing will throw upon the justices the duty of deciding whether, the facts being as stated by the jurors, that person is to be treated as heir for possessory purposes. In such a case the justices' decision seems to be provisional. The action itself is possessory ; it can not, as the phrase goes, ' bind the right ' ; the defeated litigant will have another opportunity of urging his proprietary claims and, it may be, of proving that, though he has been treated as a bastard by jurors and justices,, he really is legitimate. Now, when a question about a marriage arises in a possessory action, it must be dealt with in what we may call a possessory spirit, and, as we have to get our facts from juries, it is necessary that we should lay stress on those things, and those only, which are done formally and in public. If man and woman have gone through the ceremony of marriage at the church door, we may say that we have here a de facto marriage, an union which stands to a valid marriage in somewhat the same relation as that in which possession stands to ownership. On the other hand, if there has been no cere- mony, we can not in the thirteenth century say that there is a de facto marriage; mere concubinage is far too common to allow us to presume a marriage wherever there is a long- continued cohabitation. But a religious ceremony is a different thing ; it is definite and public ; we can trust the jurors to know all about it; we can make it the basis of our judgments whenever the validity of the union has not been put in issue in such a fashion that the decision of an ecclesiastical court must be awaited. A strong objectiori is felt to the admission of a plea of bastardy in a possessory action, at all events when the

1 Calendarium Genealogioum, i. 57 : Excerpta e Eot. Fin. ii. 182. Both sons were named Richard. The writ of livery is in favour of Richard ' the first- begotten son and heir ' of William. It is clear that this Richard is Joan's son, for the other Richard was but four years old and would not have been entitled to a livery even if he had been the heir.

CH. VII. § 1..] Marriage. 381

question lies between those who as a matter of fact are brothers or cousins. Such a plea is in some sort petitory or droiturel ; it goes beyond matter of fact ; ' it touches the right ^.' [p. 379] The canonists themselves, having made marriages all too The easy, and valid marriages all too difficult, had been driven into ™"^',f a doctrine of possessory marriage. In the canon law each sonum. spouse has an action against the other spouse in which he or she can demand the prestation of conjugal duties. Such an action may be petitory, or, as our English lawyers would have said, ' droiturel ' ; the canonists will even call it vindicatio rei. But in such an action the plaintiff must be prepared to prove that there is a valid marriage, and the defendant may rely on any of those ' diriment impediments,' of which there are but too many ready to the hand of any one who would escape from the marital bond. So a possessory action (actio spolii) also is given, and in this the defendant will not be allowed to set up pleas which dispute, not the existence of a de facto marriage, but its validity. On the other hand, in this possessory action the plaintiff must prove a marriage celebrated in face of the church. The de facto marriage on which the canon law will bestow a possessory protection is a marriage which has been duly solemnized and which therefore appears to the church as valid until it has been proved to be void^. Our English lawyers accept this doctrine and apply it to disputes about inheritance. Those marriages and only those which have been celebrated at the church door are marriages for the purpose of possessory actions. Hereafter in a droiturel action, when the bishop's certificate is demanded, such a marriage may be stigmatized as void, and on the other hand an unsolemnized

' Braoton, f. 418 b ; Y. B. 32-3 Edw. I. pp. 62, 74 ; 33-5 Bdw. I. p. 118. The phrase ' de facto marriage ' is none of our making ; it is used by Bracton, t. 303, and Coke, Lit. 33 a, b. The French parlement seems to have behaved in the same manner as our own royal court. 'Le Parlement, tout en reconnaissant bien que les officiers royaux ne pourraient pas apprSoier la validity des manages, d^olara qu'ils pourraient constater la possession d'6tat et s'informer si en fait il y avait eu union reguliSre; d'oii Ton dfiduisit qu'ils fitaient comp6tents pour trancher au possessoire les questions matrimoniales, et mSme au p^titoire, si les parties ne proposaient pas d'exception.' Langlois, Philippe le Hardi, 272. ■

2 Esmein, op. cit. ii. 16. See above, vol. ii. p. 147, as to the application of the notion of possession to marital relationships. Au interesting letter by Abp Peckham (Begister, iii. 940) insists on the difference between the possessiyrium and the petitorium.

382 Family Law. [bk. n,

marriage may be established; but meanwhile we are dealing only with externals, and the ceremony at the church door assures us that the man and woman regarded their union, or desired that it should be regarded, as no mere concubiaage but as marriage. Eeluctance Again, if a ■ question is raised about the legitimacy of one dizeThr ■'^'ho is already dead, this question is not sent to the bishop, dead. j^^^ g^gg ^^ ^ j^j.y_ rpj^g charge of bastardy imports some disgrace, and it can not be made in a direct way against one who is not alive to answer it; still of course some inquiry about [p.; his birth may be necessary in order that we may settle the rights of other persons'. That inquiry will be made of a jury ; but it will be made by those who openly express themselves unwilling ' to bastardize the dead.' This unwillingness at length hardened into a positive rule of law. If a bastard enters on his father's land as his father's heir and remains in untroubled seisin all his life, and then the heir of this bastard's body enters, this heir will have a title unimpeachable by the right heir of the original tenant. Such at all events will be the case between the bastard eigni and the mulier puisrd: that is to say, if Alan has a bastard son Baldwin by Maud, and then marries Maud and has by her a legitimate son Clement, and if on Alan's death Baldwin enters as heir and remains seised for the rest of his life and then his son Bernard enters, Bernard will have an unimpeachable title; Clement will have lost the land for good and &\\\ It must be remembered that our medieval law did not consistently regard the bastard as filius nullius, though such phrases as ' You are a son of the people ' might be thrown about in courts The bastards with whom the land law had to deal were for the more part the issue of

1 Braoton, f. 420 b; Y. B. 20-1 Edw. I. p. 193.

2 Lit. sec. 399, 400; Co. Lit. 244; Bl. Comm. ii. 248. The oldest form of the rule seems to be very broad. Plaoit. Abbrev. p. 195 (6 Edw. I.): 'et inauditum est et ius \corr. iuri] dissonum quod aliquis qui per sueeessionem hereditariam pacifice tenuit hereditatem toto tempore suo bastardetur post mortem suam.' Pitzherbert, Abr. Bastardy, pi. 28: 'neo iustum est aliquando [con: aliquem] mortuum faeere bastardum qui toto tempore suo tenebatur pro legitimo.' Littleton is in favour of applying the rule only where bastard and mulier have the same mother as well as the same father ; but this was not quite certain even in his day. Our lawyers seem to have oome to the odd word mvMer by calling a legitimate son a, filius mulieratus.

8 T. B. 32-3 Edw. I. 251 : ' Jeo le face flz al poelple."

CH. VII. § 1.] Marriage. 383

permanent unions. And so the bastard who enters as his father's heir must be distinguished from the mere interloper. After all, he is his father's ' natural ' son, and we hardly go too far in saying that he has a ' natural ' right to inherit : the rules that exclude him from the inheritance are rules of positive institution. And so, if he enters and continues seised until he can no longer answer the charge of bastardy, we must treat him as one who inherited rightfully.

For these reasons the decisions of lay tribunals which seem Temporal to establish or assume the validity or invalidity of a marriage possessory should be examined with extreme caution. Just because there '"^^^se. [p. 381] is another tribunal which can go to the heart of the matter, the king's justices are and must be content to look only at the outside, and thus they lay great stress on the performance or non-performance of the public marriage rite. Sometimes they expressly say that they are looking only at the outside, and that what concerns them is not marriage but the reputation of marriage. They ask the jurors not whether a dead man was a bastard, but whether he was reputed a bastard in his lifetime^ When a woman confronted by her deed, pleads that she was coverte when she sealed it, they hold that 'No one knew of your coverture ' is a good reply'. It is with de facto marriages that they are concerned ; questions de iure they leave to the church.

It was, we believe, a neglect of this distinction which in Del 1843 led some of our greatest lawyers astray, — a very natural case. neglect, for the doctrine of possessory marriages looks strange in the nineteenth century. They had before them some old cases in which to a first glance the court seems to have denied the validity of a marriage that had not been celebrated in church. By far the strongest of these came from the year 1306. William brought an assize of novel disseisin against Peter. Peter pleaded that one John died seised in fee and that he {Peter) entered as brother and heir without disseisin. William replied, that on John's death, he (William) entered as son and heir and was seised until he was ejected by Peter. The jurors gave a special verdict. John being ill in bed espoused (at the instance of the vicar of Plumstead) his concubine Katharine; the usual words were said but no mass was celebrated. John and Katharine thenceforth lived as husband and wife and

1 y. B. 30-1 Edw. I. p. 291. " Y. B. 21-2 Edw. I. p. 426.

384

Family Law.

[bK. II,

Ceremony required for estab- lishment of a pos- sessory marriage.

Katharine bore to John a child, namely, William. The jurors were asked whether after John's recovery any espousals were celebrated ; they answered. No. They further found that on John's death his brother Peter entered as heir and was seised for fifteen days, that William then ejected Peter and was seised, for five weeks, and that Peter then ejected William. The judgment follows: — And because it is found that John never espoused Katharine in facie ecclesiae, whence it follows that William can claim no right in the said tenement by hereditary descent from John, therefore it is considered that Peter may go without day and that William do take nothing by this assize, [p. i but be in mercy for his false claims

Now for a moment this may seem to decide that a marriage which has not been solemnized in church is no valid marriage. We believe that it merely decides that such a marriage is no marriage for purely possessory purposes. William, after failing in the assize, was quite free to bring a writ of right against Peter. If he had done so, the question whether the marriage was valid or no would have been sent to the bishop, and we have no doubt that he would have certified in favour of its validity. The application to marital relationships of the doctrine of possession, and the requirement of a public ecclesias- tical ceremony for the constitution of a marriage which shall deserve possessory protection, though no such ceremony is required for a true and ' droiturel ' marriage — all this is so very quaint that no wonder it has deceived some learned judges; but all the world over it was part of medieval law and a natural outcome of a system that made the form of marriage fatally simple, while it heaped up impediments in the way of valid unions.

1 This is Del Heith's Case, -which was known to the lords only through a note in a Harleian ms. of no authority. We have found the record ; De Banco EoU, Trin. 34 Edw. I. (No. 161), m. 203. The reference usually given is false. Foxcroft's [oorr. Foxcote's] Case, which stands on De Banco Boll, Pasoh. 10 Edw. I. (No. 45), m. 23, is not even in appearance so decisive, since there the party who failed had committed himself to proving a marriage in church. As to this case see Eevised Eeports, vol. ix. p. vii. It was an action of cosinage against a lord claiming by escheat, a purely possessory cause. The bedside marriage was contracted, not merely in 'the presence of an ordained clergyman,' but in that of a consecrated bishop; but this was insufficient for possessory purposes according to English law and canon law. We must thank Mr Baildon for helping us to find these records.

CH. VII. § 1.] Marriage. 385

J— ■

From what has been already said it follows that a marriage Uyp-ov

able mar- iages.

-might easily exist and yet be unprovable. We can not here I speak of the canonical theory of proof, but it was somewhat rigorous, requiring in general two unexceptionable witnesses. If A and B contracted an absolutely secret marriage — and this they could do by the exchange of a few words — that marriage was for practical purposes dissoluble at will. If, while B was living, A went through the form of contracting a public marriage with G, this second marriage was treated as valid, and neither A, nor B, nor both together could prove the validity of their clandestine union : Glandestinum manifesto non prae- [p.383] iudicat. Thus the ecclesiastical judge in foro externa might have to compel a man and woman to live together in what their confessors would describe as a continuous adultery'.

' It is better to marry than to burn ' : — few texts have done The more harm than this. In the eyes of the medieval church marriage, marriage was a sacrament ; still it was only a remedy for con- cupiscence. The generality of men and women must marry or they will do worse ; therefore marriage must be made easy ; but the very pure hold aloof from it as from a defilement. The law that springs from this source is not pleasant to read''-

Keckless of mundane consequences, the church, while she impedi- treated marriage as a formless contract, multiplied impediments marriage. which made the formation of a valid marriage a matter of

1 Bsmein, op. eit. i. 189-191, ii. 128 : Hostiensis says ' Nam in iudioio animae conenletur eis ut non reddant debitum contra couscientiam : in foro antem iudiciali excommunicabuntur nisi reddant; tolereut ergo exoommuni- calionem.' The maxim ' Glandestinum manifesto non praeiudioat' might lead us astray. There are various degrees of olandestinity which must be dis- tinguished. The marriage may be (1) absolutely secret and unprovable: this is the case to which our rule refers. But a marriage may also be called clandestine (2) because, though valid and provable, it has not been solemnized in facie eccUsiae, or even (3) because, though thus solemnized, it was not preceded by the publication of banns. Olandestinity of the second and third kinds might have certain evil consequences, for after 1215 there can be no 'putative marriage' which is clandestine in the second, or perhaps — but this was disputable — ^in the third sense. See Esmein, op. cit. i. 182-3.

2 Esmein, op. cit. i. 84 : ' Enfin, le mariage 6tant conpu comme un remSde i la concupiscence, le droit oanonique sanctionnait, aveo une 6nergie toute particuli6re, Tobligation du devoir conjugal, non seulement dans le forum internum, mais encore dcvant le forum externum. De la toute une s6rie de regies que les canonistes du moyen fige exposaient avec une precision minutieuse et une innocente impudeur, et qu'il est parfois assez difficile de rappeler, aujourd'hui que les moeurs ont change et que Ton n'^oritplus en latin.'

P. M. n. 25

386 Family Law. [bk. n,

« — ■

chance. The most important of these obstacles were those

which consisted of some consanguinity or affinity between the

parties. The exuberant learning which enveloped the table of

prohibited degrees we must not explore, still a little should be

said about its main rules.

Consan- The blood-relationship which exists between two persons

gumity.

may be computed in several different fashions. To us the

simplest will be the Eoman : — In order to discover the degree

of consanguinity which exists between two persons, A and X,

we must count the acts of generation which divide the one

from the other. If the one is the other's ancestor in blood the

task is easy: — I am in the first degree from my father and

mother, the second from my grandparents. But suppose that [p.384]-

A and X are collateral relations, then our rule is this — Count

the steps, the acts of generation, which lie between each of them

and their nearest common ancestor, and then add together

these two numbers. Father and son are in the first degree,

brother and brother in the second, uncle and nephew in the

third, first cousins in the fourth. But, though this mode of

computation may seem the most natural to us, it was not the

most natural to our remote ancestors. If we look at the case

from the standpoint of the common ancestor, we can say that

all his children are in the first, generation or degree, all his

grandchildren in the second, all his great-grandchildren in the

third ; and, if we hold to this mode of speech, then we shall say

that a marriage between first cousins is a marriage between

persons who are in the second, not the fourth, degree. It is

also probable that the ancient Germans knew yet another

calculus of kinship, which was bound up with their law of

inheritance. Within the household composed of a father and

children there was no degree ; this household was regarded for

this purpose as an unit, and only when, in default of children,

the inheritance fell to remoter kinsmen, was there any need to

count the grades of 'sibship.' Thus first cousins are in the

first degree of sibship; second cousins in the second. Now

what with the Roman method and the German method, what

with now an exclusion and now an inclusion of one or of both

of the related persons, it was long before the church established

an uniform fashion of interpreting her own prohibitions, the

so-called ' canonical computation.' In order to explain this, we

will suppose for a moment that the prohibitive law reaches

CH. VII. § 1.] Marriage. 387

its utmost limit when it forbids a marriage in the fourth degree. We count downwards from the common ancestor, so that brothers are in the first degree, first cousins in the second, third cousins in the fourth. If then the two persons who are before us stand at an equal distance from their common ancestor, we have no difficulty in applying this method. We have two equal lines, and it matters not whether we count the number of grades in the one or in the other. To meet the more difficult case in which the two lines are unequal, another rule was slowly evolved : — Measure the longer line\ A prohi- [p.385] bition of marriages within x degrees will not prevent a marriage between two persons one of whom stands more than x degrees away from the common ancestor. A prohibition of marriage in the first degree would not, but a prohibition of marriage within the second degree would, condemn a marriage between uncle and niece ^

The rule to which the church ultimately came was that Prohibited defined by Innocent III. at the Lateran council of 1215, namely that marriages within the fourth degree of consanguinity are null*. Before that decree, the received doctrine was — and it was received in England as well as elsewhere* — that marriage within the seventh degree of the canonical computation was forbidden, but that kinship in the sixth or seventh degree was only impediment um impediens, a cause which would render a marriage sinful, not impedime/ntwm, dirimens, a cause which would render a marriage null. Laxer rules had for a while been accepted; but to this result the canonists had slowly come. The seventh degree seems to have been chosen by rigorous theorists who would have forbidden a marriage between kinsfolk however remote, for it seems to have been a common rule among the German nations that for the purposes of inhe- ritance kinship could not be traced beyond the seventh (it may also be called the sixth and even the fifth') generation ; and so to prohibit marriage within seven degrees was to prohibit it

1 e. 9. X. 4. 14.

' For the history of this matter, see Preisen, op. cit. pp. 371-439. The various modes of counting kinship are elaborately discussed by Ficker, Untersuehungen znr Erbenfolge, vol. i. The German scheme is described by Eeusler, Institutiouen, ii, 587.

» 0. 8. X. 4. 14.

* Canons of 1075, 1102, 1127; Johnson, Canons, ii. pp. 14, 27, 36.

' Heusler, op. cit. ii. 591.

2o— 2

388 Family Law. [bk. ii,

among all persons who for any legal purpose could claim blood- relationship with each other. All manner of fanciful analogies, however, could be found for the choice of this holy number. Were there not seven days of the week and seven ages of the world, seven gifts of the spirit and seven deadly sins ? Ulti- mately the allegorical miad of the ecclesiastical lawyer had to be content with the reflection that, though all this might be so, there were but four elements and but four humours'. Affinity. Then with relentless logic the church had been pressing

home the axiom that the sexual union makes man and woman one flesh. All my wife's or my mistress's blood kinswomen are connected with me by way of aflSnity. I am related to her [p.i sister in the first degree, to her first cousin in the second, to her second cousin in the third, and the doctrine of the twelfth century is that I may not marry in the seventh degree of this afiinity. This is afiinity of the first genus. But if I and my wife are really one, it follows that I must be related by way of afiSnity to the wives of her kinsmen. This is the second genus of affinity. To the wife of my wife's brother I am related in the first degree of this second genus of aflSnity ; to the wife of my wife's first cousin in the second degree of this second genus, . and so forth. But we can not stop here ; for we can apply our axiom over and over again. My wife's blood relations are affines to me in the first genus ; my wife's affi/nes of the first genus are affines to me in the second genus ; my wife's affi/nes of the second genus are my affines of the third. I may not marry my wife's sister's husband's wife, for we stand to each other in the first degree of this third genus of affinity. The general opinion of the twelfth century seems to have been that while the prohibition of marriage extended to the seventh degree of the first genus, it extended only to the fourth degree of the second genus, and only to the second degree of the third genus". But the law was often a dead letter. The council of 1215, which confined the impediment of consan- guinity within the first four degrees, put the same boundary to the impediment of aflfinity of the first genus, while it decreed that affinity of the second or third genus might for the future

1 Freisen, op. cit. p. 401.

" Freisen, op. cit. pp. 474-489; Esmeia, op. cit, i, 374-383; Friedberg, Lehrbuoh dfis Kirohenreohts, ed. 4, p. 386, where some diagrams will be found.

CH. VII. § 1.] Marriage. 389

be disregarded'. Even when confined within this compass, the doctrine of affinity could do a great deal of harm, for we have to remember that the efficient cause of affinity is not marriage but sexual intercourse". Then a "quasi affinity' was established by a mere espousal per verba de futuro, and another and a very secret cause for the dissolution of de facto marriages was thus invented'. Then again, regard must be had to spiritual kinship, [p. 387] to 'godsib*.' Baptism is a new birth; the godson may marry neither his godmother nor his godmother's daughter. Behind these intricate rules there is no deep policy, there is no strong religious feeling ; they are the idle ingenuities of men who are amusing themselves by inventing a game of skill which is to be played with neatly drawn tables of affinity and doggerel hexa- meters. The men and women who are the pawns in this game may, if they be rich enough, evade some of the forfeits by obtaining papal dispensations ; but then there must be another set of rules marking off the dispensable from the indispensable impediments'. When we weigh the merits of the medieval church and have remembered all her good deeds, we have to put into the other scale as a weighty counterpoise the incalculable harm done by a marriage law which was a maze of flighty fancies and misapplied logic.

After some hesitation the church ruled that, however young Marriage the bridegroom and bride might be, the consent of their parents or guardians was not necessary to make the marriage valid. If the parties had not reached the age at which they were deemed capable of a rational consent, they could not marry ; if on the other hand they had reached that age, their marriage would be valid though the consent of their parents or guardians had not been asked or had been refused. Our English temporal law, though it regarded ' wardship and marriage ' as a valuable piece of property, seems to have acquiesced in this doctrine. A case

1 c. 8. X. 4. 14.

2 Coke, 2nd Inst. 684, tells of one Eoger Donington whose marriage was null because before it he had committed fornication with the third cousin of his future wife.

' Freisen, op. cit., pp. 497-507.

■■ Ibid. pp. 507-555. At a very early time we find even the temporal law of wergild taking note of godsib; Leg. Ine, c. 76 (Liebermann, Gesetze, p. 123), where a ' bishop's-son ' means a ' confirmation son ' ; see Haddan and Stubbs, Councils, iii. p. 219.

° For papal dispensations sent to England, see Bliss, Calendar of Papal Eegisters, Tol. i., Index.

parties.

390 Family Law. [bk. ii.

from 1224 suggests that a woman who married an infant ward without his guardian's consent would not be entitled to dower' : but a denial of dower would be no denial of the marriage, and our law discovered other means of punishing the ward who married without the consent of the guardian in chivalry or rejected a ' convenable marriage ' which he tendered^ A statute of 1267 forbad the guardian in socage to make a profit for him- self out of the marriage of his ward'. Age of the At the age of seven years a child was capable of consent, but the marriage remained voidable so long as either of the parties to it was below the age at which it could be consummated. A presumption fixed this age at fourteen years for boys and twelve Cp- for girls. In case only one of the parties was below that age, the marriage could be avoided by that party but was binding on the other. So far as we can see, this doctrine was accepted by our temporal courts. Thomas of Bayeux had espoused Elena de Morville per verba de praesenti with the consent of her father, and shortly afterwards a marriage was celebrated in church between them. Then her father died and this left her in ward to the king. ' And ' said the king's court ' whereas the said Elena is under age, and, when she comes of age, she will be able to consent to or dissent from the marriage, and whereas the marriage does not bind her while she is under age, although it is binding on Thomas, who is of full age, therefore the said Elena remains in ward to the king until she is of age, that she may then consent or dissent*.' So the daughter of Ralph of Killingthorpe is taken away from the man who has espoused her and handed over to her guardian in order that she may have an opportunity of dissenting from the marriage when she is twelve years old". Ultimately our common lawyers held that a wife could claim dower if at her husband's death she was nine years old, though the marriage in such a case was one that she could have avoided if she had lived to the age of twelve' ; but we seem to see this rule growing out of an earlier practice which, in accordance with the canon law, would have made all turn on the question of fact, whether or no she had attained an age at which it was possible for her to consummate the

1 Note Book, pi. 965, 1098.

" Stat. Merton, c. 6, 7; Stat. Westm. I. o. 22. s Stat, Marlb. o. 17.

« Note Book, pi. 1267.

» Exoerpta e Eot. Fiu. i. 228. « Littleton, sec. 36 ; Co. Lit. 38 a.

CH. VII. § 1.] Marriage. 391

marriage' : — car au coucher ensemble gaigne femme sa douaire selon la coustume de Normendie'^. It is possible, however, that the temporal courts did not pay much attention to the canonical doctrine that the espousals of children under the age of seven years were merely void. Coke tells us that the nine years old widow shall have her dower ' of what age soever her husband be, albeit he were but four years old',' and certain it is that [p. 889] the betrothal of babies was not consistently treated as a nullity. In Henry III.'s day a marriage between a boy of four or five years and a girl who was no older seems capable of ratification*, and as a matter of fact parents and guardians often betrothed, or attempted to betroth, children who were less than seven years old". Even the church could say no more than that babies in the cradle were not to be given in marriage, except under the pressure of some urgent need, such as the desire for peace*. A treaty of peace often involved an attempt to bind the will of a very small child, and such treaties were made, not only among princes, but among men of humbler degree, who thus patched up their quarrels or compromised their law-suits. The rigour of our feudal law afforded another reason for such transactions; a father took the earliest opportunity of marrying his child in order that the right of marriage might not fall to the lord.

The biographer of St Hugh of Lincoln has told a story Marriage which should be here retold. In Lincolnshire there lived a chUdren. knight, Thomas of Saleby. He was aged and childless and it seemed that on his death his land must pass to his brother

1 Bracton, f. 92: 'dummodo possit dotem promereri et virum sustinere"; Ktzherbert, Abr. tit. Dower pi. 172; Y. B. Edw. U. f. 78, 221, 378. The question takes this sliape — At what age can a woman earn or ' deserve ' her dower 1 In place of the presumption of the canonist that the marriage will not be consummated until she is twelve years old, our common lawyers gradually adopt the rule that she can deserve dower when nine years old. The canonical presumption was rebuttable : Freisen, op. cit. p. 328.

2 Anoienne coutume, e. 101, ed. de Gruohy, p. 250 ; Somma, p. 255. ' Co. Litt. 33 a.

* See the curious but mutilated record in Caleud. Genealog. i. 184.

« See e.g. Note Book, pi. 349, 696.

« c. nn. C. 30. q. 2; c. 2. X. 4. 2. This canon, which Gratian ascribes to Pope Nicholas, appears in the English canons of 1175 and 1236; Johnson, . Canons, pp. 64, 141 ; it passes thence into Lyndwood's Provinciale. The saving clause is 'nisi forte aliqua urgentissima necessitate interveniente, utpote pro bono pacis, talis coniunctio toleretur.'

392 Family Law. [bk. ii.

William. But his wife thought otherwise, took to her bed and gave out that she had borne a daughter. In truth this child, Grace, was the child of a villager's wife. The neighbours did not believe the tale and it came to the ears of Bishop Hugh, who sent for the husband and threatened him with excommu- nication if he kept the child as his own. But the knight, who feared his wife more than he feared God, would not obey the bishop's command and therefore died a sudden death. The wife persisted in her wickedness, and the king gave the suppo- sititious heiress to Adam Neville, the chief forester's brother. When she was but four years old, Adam proposed to marry her. The bishop forbad the marriage, but, whilst the bishop was in Normandy, the marriage was solemnized by a priest. On his return the bishop suspended the priest from office and benefice, and excommunicated all who had taken part in the ceremony. Then, first the hand-maid of the widow, and then [p. 390] the widow herself, confessed the fraud. The bishop used all his power to prevent it from taking effect. But Adam Neville would not give way and made confident appeal to English law. Thomas of Saleby had received Grace as legitimate, therefore she was legitimate. The bishop while in England was strong enough to prevent a judgment being given in Adam's favour. But once more he had to go to Normandy. Adam then pressed forward his suit and seemed on the eve of winning, when once more a sudden death prevented this triumph of villainy. But neither Grace nor the rightful heir profited by his death. King John sold Grace to his chamber- lain Norman for two hundred marks, and, when Norman died, the king sold the poor girl once more for three hundred marks to the third and worst of all her husbands, Brian de. Lisle. In the end she died childless and the inheritance at length fell to the rightful heir^- Divorce. A valid marriage when once contracted could rarely be

dissolved. It is highly probable that among the German nations, so long as they were heathen, the husband and wife could dissolve the marriage by mutual consent, also that the husband c6uld put away his wife if she was sterile or guilty of conjugal infidelity or some other offences and could marry

1 Magna Vita S. Hugonis, 170-7. The main facts seem to be fully borne out by records.

CH. VII. § 1.] Marriage. 393

another woman'. The dooms of our own .^thelbert, Christian though they be, suggest that the marriage might be dissolved at the will of both, or even at the will of one of the parties to it\ And though the churches, especially the Roman church, had from an early time been maintaining the indissolubility of marriage, they were compelled to temporize'. The Anglo- Saxon and Frankish penitentials allow a divorce a vinculo matrimonii in various cases : — if the wife is guilty of adultery, the husband may divorce her and marry another and even she may marry after five years of penance ; if the wife deserts her husband, he may after five years and with the bishop's consent marry another ; if the wife is carried into captivity, the husband may marry another, ' it is better to do so than to fornicate*.' (p. 391] But stricter doctrines have prevailed before the church obtains her control over the whole law of marriage and divorce.

We must set on one side the numerous causes — we have Divorce

.•IP 1-1 . « ,.1 from bed

mentioned a few — which prevent the contraction of a valid and board, marriage, the so-called impedimenta dirimentia". Where one of these exists there is no marriage. A court pronouncing that no marriage has ever existed is sometimes said to pro- nounce a divorce a vinculo matrimonii; it declares that the union, if continued, will be what it has been in the past, an unlawful union. But, putting aside these cases in which the court proclaims the nullity of an apparent marriage, we find that a valid marriage is almost indissoluble. There seems to be but one exception and one that would not be of great importance in England. We have to suppose a marriage between two infidels and that one of them is converted to

' Freisen, op. cit. pp. 778-780 ; Hensler, Institutiouen, ii. 291 ; Brunner, Zeitsohrift der Savigny-Stiftung, Germ. Abt., xvi. 105.

2 ^thelb. 79, 80, 81 ; Liebermann, Gesetze, p. 8.

' Freisen, op. cit. pp. 785-790.

' Theodore's Penitential (Haddan and Stubbs, Councils, iii. 199-201).

' Owing to the fact that the church had but slowly made up her mind to know no such thing as a divorce in our acceptation of that term (i.e. the dissolution of a valid marriage) the term divortium is currently used to signify two very different things, namely (1) the divortium quoad torum, which is the equivalent of our 'judicial separation,' and (2) what is very often called the divortium quoad vinculum but is really a declaration of nullity. The persistence of the word divortium in the latter case is a trace of an older state of affairs (Esmein, op. cit. ii. 85), but in medieval practice the decree of nullity often served the purpose of a true divorce ; spouses who had quarrelled began to investigate their pedigrees and were unlucky if they could discover no impedimentum dirimena.

394 Family Law. [bk. ii.

Christianity. In such a case the Christian is not bound to cohabit with the infidel consort, and if the infidel chooses to go off, the marriage can be dissolved and the Christian will be free to marry again. Out of the words of St Paul the church had defined a privilegium Paulinum for the Christian who found himself mated to an infideP. It is probable that in their dealings with Jews the English courts accorded this privilege to the faithful. In 1234 a Jewish widow was refused her dower on the ground that her husband had been converted and that she had refused to adhere to him and be converted with him^. An Essex jury even doubted whether if two Jews married under the Lex Judaica but afterwards turned to the Leoc Christiana and then had a son, that son could be legiti- [p. 392] mate*. This, however, was a rare exception to a general rule, and for the rest the only divorce known to the church was that a mensa et toro which, while it discharged the husband and wife from the duty of living together, left them husband and wife. Such a divorce could be granted only ' for the cause of fornication,' but this term had a somewhat wider meaning than it now conveys to us^ Divorce Our temporal law had little to say about these matters,

temporal Ultimately the common lawyers came to the doctrine that law. while the divorce a vinculo matrimonii did, the divorce a mensa

et toro did not deprive the widow of her dower, even though she were the guilty person". But we have good cause to doubt the antiquity of the last part of this doctrine. Glanvill distinctly says that the woman divorced for her misconduct can claim no dower". Bracton does not speak so plainly, but says that she can have no dower if the marriage be dissolved for any cause'. However, in Edward III.'s day we hear the

1 Freisen, op. cit. § 69, 70. A generation ago very similar difficulties beoame pressing in British India. See Sir H. Maine's speech on the Be-marriage of Kative Converts (Memoir and Speeches and Minutes, Iiond. 1892, p. 130).

= Tovey, Anglia Judaica, p. 84 ; Co. Lit. 31 b, 32 a.

' Calend. Oeneal. ii. 563.

* Freisen, pp. cit. p. 836 ; Bsmein, op. cit, ii. 92. Some writers were for admitting a spiritual fornication, an elastic crime which might include heresy and many other offences.

« Co. Lit. 32 ft, 33 b, 235 a.

8 Glanvill, vi. 17 ; and so in the revised Glanvill of the Cambridge ms. : Harv. L. B., vi. 11 ; Somma, p. 254.

' Bracton, f. 92, 304. Britton, ii. 264, seems to think that a separation from bed and board would deprive the woman of dower. In the recorded oases

CH. VII. § 1.] Marriage. 395

opinion that in an action for dower the widow's opponent must say, not ' You have been divorced,' but ' You were never joined in lawful matrimony.' This plea would not be competent to one who was relying on a divorce for adultery ; it would be competent however to one who desired to prove that the de facto marriage had been set aside on the score of precontract, affinity or other diriment impediment, since in such a case the bishop would certify that there never had been a lawful mar- riage^ Meanwhile, however, a statute of Edward I. expressly punished with loss of dower the woman who eloped and abode with her adulterer, unless her husband, without being coerced thereto by the church, took her back again and 'reconciled [p. 393] herV This made adultery when coupled with elopement a matter about which temporal courts and juries had to inquire. It gave rise to a case' which we will cite at length, not only because it illustrates the marital morality of the time and the relation between the lay and the spiritual tribunals, but also because we can thus set forth the most elaborately reasoned judgment of the king's court that has come to us from Edward I.'s day.

In 1302 William Paynel and Margaret his wife petitioned A wife the king for the dower that was due to her as widow of her '^"^'^^y® • first husband John de Camoys. The king's advocate pleaded according to the statute that Margaret had eloped and com- mitted adultery with William Paynel. In answer William and Margaret relied on a solemn charter whereby John had ' given, granted, released and quit-claimed ' the said Margaret his wife to the said WilUam. They also produced certificates from the Archbishop of Canterbury and the Bishop of Chichester attesting that they, William and Margaret, had been charged with adultery in the court Christian and that they had success- fully met this charge by compurgation, Margaret's oath-helpers being married and unmarried ladies, including a prioress. They also professed themselves ready to submit to a jury the question whether or no they had committed adultery. But the king's court delivered this judgment: — 'Whereas William and

it is often difficult to see whether the divorce that is pleaded is a dissolution of marriage; e.g. Note Book, pi. 690. It is believed however that divortium, standing by itself, generally points to a divorce a vinculo, e.g. in Lit. see. 380.

1 Y. B. 10 Edw. III. f. 35 (Trin. pi. 24).

" Stat. West. II. c. 34 ; Second Inst. 433.

« Eot. Pari. i. 140 (a.d. 1302).

396 Family Law. [bk. ii.

Margaret can not deny that Margaret in the life-time of her husband John went off and abode with William, altogether relinquishing her husband John, as plainly appears because she never in the life-time of her said husband raised any objection, and raises none now, either in her own person or by another in any manner whatsoever, but by way of making plain her original and spontaneous intention and continuing the affection which in her husband's life-time she conceived for the said William, she has since John's death allowed herself to be married to the said William; And whereas William and Margaret say and show nothing to prove that the said John in his life-time ever received her back as reconciled ; And whereas it appears by the said writing which they have produced that the said Margaret was granted to the said William by the demise and delivery of the said John to remain with William for ever ; And whereas it is not needful for the king's court to [p- 394] betake itself to an inquest by the country about such matters as the parties can not deny and which manifestly appear to the court, or about such matters as the parties have urged or admitted in pleading; And whereas it is more probable and to be more readily presumed in the king's court and in every other that, if a man's wife in the life-time of her husband, of her own free will without objection or refusal, abides with another man, she is lying in adultery rather than in any due or lawful fashion, and this more especially when there follows so clear a declaration of her original intent as this, namely, that when her husband is dead she marries that other man : — There- fore it seems to the court that in the face of so many and such manifest evidences, presumptions and proofs, and the admissions of William and Margaret, there is no need to proceed to an inquest by the country in the form offered by them, and that for the reasons aforesaid Margaret by the form of the said statute ought not to be admitted or heard to demand her dower: And therefore it is considered that WilUam and Margaret do take nothing by their petition but be in mercy for their false claim.' After reading this judgment it is difficult to believe that the ecclesiastical courts were preeminently fit to administer the law of marriage and divorce. Bastardy. Having been compelled to speak of bastardy, we must say a

little more about it. In our English law bastardy can not be called a status or condition. The bastard can not inherit from

CH. VII. § 1.] Marriage. 397

his parents or from any one else, but this seems to be the only temporal consequence of his illegitimate birth. He is a free and lawful man; indeed, as we have said above, our law is coming to the odd conclusion that the bastard must always be a free man even though both of his parents are bond^ In all respects he is the equal of any other free and lawful man, so far as the temporal law is concerned. This is well worthy of notice, for in French and German customs of the thirteenth century bastardy is often a source of many disabilities, and sometimes the bastard is reckoned among the ' rightless''.' It is said, how- fc.395] ever, that this harsh treatment of him is not of very ancient date" ; under the influence of the church, which excludes him from oflfice and honour, bis lot has changed for the worse ; and it well may be that the divergence of English from continental law is due to no deeper cause than the subjection of England to kings who proudly traced their descent from a mighty bastard.

Our law therefore has no need to distinguish between Mantle various soi'ts of illegitimate children. A child is either a legitimate child or a bastard. The child who is born of an unmarried woman is a bastard and nothing can make him legitimate. In the sharp controversy over this principle which preceded the famous scene at Merton^, the champion of what we may call the high-church party alleged that old English custom was in accord with the law of the church as defined by Alexander III. Probably there was some truth in this assertion. It is not unlikely that old custom, though it would not have held that the marriage in itself had any retroactive effect, allowed the parents on the occasion of their marriage to legitimate the already existing offspring of their union. The children were placed under the cloak which was spread over their parents during the marriage ceremony, and became • mantle children'.' We hear of this practice in Germany and

' See above, vol, i. p, 423.

2 Tkua in Beaumanoir, o. 63, § 2, the bastard is not a franc home and can not do battle with a franc home ; nor can he be a witness in a criminal cause against a franc home : e. 39, § 32 ; c. 40, § 37. In some parts of Germany the bastard was rechtlos : Heusler, Institutionen, i. 193.

' Heusler, op. cit. ii. 434 ; Brunner, Zeitschrift der Savigny-Stiftung, Germ. Abt. xvii. 1 ff.

* Note Book, vol. i. p. 104.

' This is what Grosseteste says in his letter to Ealeigh : Epistolae, p. 89 :

398 Family Law. [bk. ii.

France and Normandy; but we have here rather an act of adoption than a true legitimation per mbsequens matrimonium, and it would not have fully satisfied the church*. This practice the king's court of Henry II.'s day had rejected, aiid in Henry III.'s it refused to retreat from its precedents. Presump- On the other hand, we may almost say that every child

temity. bom to a married woman is in law the legitimate child of her husband. Our law shows a strong repugnance to any inquiry into the paternity of such a child. The presumption of the [p.396] husband's paternity is not absolute, but it is hardly to be rebutted". In Edward I.'s reign Hengham J. tells this story: 'I remember a case in which a damsel brought an assize of mort d'ancestor on the death of her -father. The tenant said that she was not next heir. The assize came and said that the [alleged] father after that he had married the mother went beyond seas and abode there three years; and then, when he came home, he found the plaintiff who had not been bom more than a month before his return. And so the men of the assize said openly that she was not his heir, for she was not his daughter. All the same, the justices awarded that she should recover the land, for the privities of husband and wife are not to be known, and he might have come by night and engendered the plaintiff".' In this case even the rule that the presumption might be rebutted by a proof of absence beyond the four seas seems to have been disregarded. But further, we may see a strong inclination to treat as legitimate any child whom the husband has down to his death accepted as his own and his wife's child, even though proof be forthcoming that it is neither the one nor the other. This inclination of the courts is illus- trated by that story about St Hugh of Lincoln which we have told above. Grace was treated as the legitimate daughter of Thomas of Saleby, even though it was demonstrable that she

' nnde in signum legitimationis, nati ante matrimonium conBuevernnt poni eab pallio super parentes eorum extento in matrimonii solemnizatione. '

1 For the Mantel-Kinder of Germany see Schroder, D. E. G., 712. Beau- mauoir, c. 18, § 24 : ■ et est li fix mis desoz le drap aveo le pere et aveo la mere.' For Normandy, Will. Gemet. lib. 8, cap. 36 (Duchesne, Soriptores, 311-12): Duke Bichard espouses Gunnora 'in Christian fashion' and the children are covered mth the mantle. Selden, Diss, ad Fletam, p. 538, says that this ceremony was observed when the children of John of Gaunt and Catherine Swinford were legitimated by parliament.

2 Braoton, f. 63 b, 278, 278 b. » Y. B. 32-3 Edw. I. p. 63,

CH. VII. § 2.] Husband and Wife. 399

was neither his daughter nor his wife's daughter'- Indeed, as Bracton sees, our law in such a case went far towards per- mitting something that was very like adoption^ Howe^ver, this really is no more than the result of a very strong presumption — a presumption which absolves the court from difBcult inquiries — and from the time when it rejects the claims of the 'mantle-children' onwards to our own day, we have no adoption in England. Then, on the other hand, when the husband was dead, our law was quick to suspect a fraud on the part of the widow who gave herself out to be with child. At the instance of the apparent heir or of the lord it would send good and lawful matrons to examine her".

§ 2. Husband and Wife.

fc.397] A first glance at the province of law which English lawyers Varieties know as that of Husband and Wife, and which their pre- ^^g{ decessors called that of ' Baron et Feme ' will, if we do not husband

.,.,,..„ and wire.

confine our view withm the limits of our own system, amaze and bewilder us*. At the end of the middle ages we see a perplexed variety of incongruous customs for which it is very difficult to account. Their original elements should, so we may think, be simple and uniform. For the more part we should be able to trace them back to ancient Germanic usages, since the Roman law of husband and wife with its 'dotal system,' though it has all along maintained its hold over certain districts, notably the south of France, and has occasionally conquered or reconquered other territories, has kept itself aloof and refused to mix with alien customs. However, the number of schemes of marital property law seems almost infinite, and we can not explain the prevalence of a particular scheme by the operation of any of those great events of which our historians tell us. There would be two neighbouring villages

1 See above, p. 391',

' Bracton, t. 63 b^ See the curious cases in the Note Book, pi. 247, 303, 1229. '.

' Bracton, f. 69-71 ; Note Book, pi. 137, 198, 1503, 1605.

• Stobbe, Priva*reoht, vol. iv.; Schroder, Bheliche Guterreoht; Schroder, D. E. G., 299, 700; OliTecrona, La coiiimunaut6 des biens entre 6poux, Eevua historique de droit fran9ais et stranger, vol. xi. (1865), 169, 248, 354.

400 Family Law. [bk. ii.

in Germany; they would be inhabited by men of the same race, religion and language, who for centuries past had been subject to the same economic conditions, and yet they would have very different rules for the governance of the commonest of all human relationships^. Even within our own island we find a curious problem. English law has gone one way, Scottish law another, and in this instance it is no Romanism that has made the difference. Scottish law has believed, or tried to believe, in a ' community of goods ' between husband and wife, which English law has decisively rejected. Explana- Probably upon further examination we should find that,

Tarieties. underneath all this superficial variety, there was during the middle ages a substantial uniformity about some main matters of practical importance, especially about those things that a husband and wife respectively can and can not do while the [p' marriage between them exists. A man marries a woman ; we may postpone as academic such questions as whether each of them remains the owner of what he or she has heretofore owned, whether each remains capable of acquiring ownership, whether (on the other hand) the property or some part of the property of each of them becomes the property of both of them. Such questions will become important so soon as the marriage is at an end ; but in the meanwhile the husband has every- where a very large power of dealing as he pleases with the whole mass of property, a power however which is commonly limited by rules which forbid him to alienate without his wife's consent the immovables which are his or hers or theirs. When the marriage is at an end, we must be prepared with some scheme for the distribution of this mass. The question ' His, hers or theirs ? ' then becomes an interesting, practical question. Many different answers may be given to it ; but history seems to show that even here the practical rules are less various than the 'theoretical explanations that are given of them. Com- In the middle ages the idea of a 'community of goods'

of goods, between husband and wife springs up in many parts of Europe from Iceland to Portugal, though only the first rudiments of it have been discovered in the age of the ' folk laws.' Sometimes the whole property of husband and wife, whether acquired

^ It is said that in Wiirtem^erg the number of the systems of succession between husband and wife might by a neglect of the minor differences be reduced to sixteen. Stobbe, oj). cit. p. 75.

CH. VII. § 2.] Husband and Wife. 401

before or lafter the marriage, falls into this community ; some- times it is only the ' conquests ' of husband and wife — that is to say, the property which has been acquired during the marriage — which forms the common stock; sometimes that common stock comprises the movables acquired before the marriage as well as the movable and immovable ' conquests.' But granted that there is this common stock, jurists have often found difficulty in deciding who, when analysis has been carried to the uttermost, is really the owner of it. Some — and they are likely to have the sympathies of English lawyers with them — have maintained that during the marriage the ownership of it is in truth with the husband, so large are his powers while the marriage lasts of doing what he pleases'. Others will make the husband and wife co-owners, each of them being entitled to an aliquot share of the undivided mass^. [p. 399] Others again will postulate a juristic person to bear the owner- ship, some kind of corporation of which the husband and wife are the two members'. An idea very like our own ' tenancy by entireties ' has occurred to one school of expositors'*. Another deems the relation between husband and wife so unique that it condemns as useless all attempts to einploy any of the ordinary categories of the law, such as 'partnership' or 'co-ownership.' But then it would be a mistake to think that these conflicting opinions remain fruitless. Called in to explain the large rules, they generate the small rules, especially those rules of comparatively modem origin which deal with the claims of creditors ; and so the customs go on diverging from each other. The history of Scottish law in the nineteenth cedtury shows us an instructive phenomenon. The actual rules were well settled, as we should expect them to be in a prosperous and peaceful country, and yet it has been possible for learned lawyers to debate the apparently elementary question whether the law of Scotland knows, or has ever known, a community of goods between husband and wife".

1 Stobbe, p. 217. " Stobbe, p. 219.

' Stobbe, p. 222.

'' Stobbe, p. 226. An old writer holds that each of the two spouses can say ' Totum patrimonium meum est. ' ' ' Fraser, Law of Husband and Wife (ed. 1876), pp. 648-678, maintains that

the idea of a communio bonorum does not appear in Scotland until late in the seventeenth century, that it is imported from France by lawyers educated in the French universities, and that it has never really fitted the Scottish law.

P. M. II. . 26

402 Family Law. [bk. n.

No com- Our own law at an early time took a decisive step. It

Engian™ rejected the idea of community. So did its sister the law of Normandy, differing in this respect from almost every custom of the northern half of France'. To explain this by any ethnical theory would be difficult. We can not put it down to the Norsemen, for Scandinavian law in its own home often came to a doctrine of community. We can not say that in this instance a Saxon element successfully resisted the invasion of Norse and Frankish ideas, for thus we should not account for the law of Normandy. Besides, though the classical law of Saxony, the law of the Sachsenspiegel, rejects the community of goods, it is not very near to our common law. It is also to be noted that the author of the Leges Henrici stole from the Lex Ribuaria a passage which is generally regarded as one of the oldest testimonies that we have to the growth of a community of conquests among the Franks : apparently he knew of nothing [p.«)0] English to set against this"*. Lastly, it can be shown that for a while our English law hesitated over some important questions, and was at one time very near to a system which a little lawyerly ingenuity might have represented as a system of community. English Misdoubting the possibility of ethnical explanations, we

pecuian- j^^g^^ ^£ ^g would discuss the leading peculiarities of our insular law, keep a few great facts before our minds. In the first place, we have to remember that about the year 1200 our property law was cut in twain. The whole province of succes- sion to movables was made over to the tribunals of the church. In the second place, we are told that in France the system of community first became definite in the lower strata of society : there was community of goods between the rotwier and his wife while as yet there was none among the gentry'. We have often had occasion to remark that here in England the law for the great becomes the law for all. As we shall see below, the one great middle-class custom that our common law spared, the custom of the Kentish gavelkinders, might with some ease have been pictured as a system of community. But in England, with its centralized justice, the habits of the great folk are more important than the habits of the small. This has been so even

' Oliveorona, op. cit, p. 287.

2 Leg. Hen. 70, § 22. This is a modified version of Lex Bib, o. 37.

» Oliveorona, op. cU. p. 286.

CH. VII. § 2.] Husband and Wife. 403

in recent days. Modern statutes have now given to every married woman a power of dealing freely with her property, and this was first evolved among the rich by means of marriage settlements.

Another preliminary remark should be made, A system of Commu-

1 , nityand

community need not be a system of equality. We do not mean equaUty. merely that during the marriage the husband may and, at least in the middle ages, will have an almost unlimited power of dealing with the common fund ; we mean also that there is no reason why the fund when it has to be divided should be divided in equal shares. ' Many schemes of division are found. In particular, it is common that the husband should take two- thirds, the wife one-third.

Lastly, we ought not to enter upon our investigation until Law ana

, 1-1 • 1 • 1 • progress.

we have protested against the common assumption that m this [p. 401] region a great generalization must needs be possible, and that from the age of savagery until the present age every change in marital law has been favourable to the wife. As yet we know far too little to justify an adoption of this commodious theory. We can not be certain that for long centuries the presiding tendency was not one which was separating the wife from her blood kinsmen, teaching her to ' forget her own people and her father's house ' and bringing her and her goods more completely under her husband's dominion. On the extreme verge of our legal history we seem to see the wife of iEthelbert's day leaving her husband of her own free will and carrying off her children and half the goods^ In the thirteenth century we shall see that the law when it changes does not always change in favour of the wife.

The final shape that our common law took may be roughly I'inal form described in a few sentences — this is not the place for an commou elaborate account of it : — ^'"'

1. In the lands of which the wife is tenant in fee, whether Wife's they belonged to her at the date of the marriage or came to her during the marriage, the husband has an estate which will

I ^thelb. 78-81. There is a remarkable entry in D. B. i. 373 which seems to show something like a separate estate. The jurors say of a certain Asa ' ipsa habuit terram suam separatam et liberam a dominatu et potestate Bernulfl mariti sui, etiam cnm simul easent, ita ut ipse de ea nee donationem, nee ven- ditionem facere, nee foris-facere posset. Post eorum vero separationem, ipsa cum omni tena sua recessit, et earn ut domina possedit.'

26—2

404 Family Law. ' [bk. ir.

endure during the marriage, and this he can alienate without her concurrence. If a child is born of the marriage, thenceforth the husband as ' tenant by the curtesy ' has an estate which will endure for the whole of his life, and this he can alienate without the wife's concurrence. The husband by himself has no greater power of alienation than is here stated ; he can not confer an estate which will endure after the end of the marriage or (as the case may be) after his own death. The wife has during the marriage no power to alienate her land without her husband's concurrence. The only process whereby the fee can be alienated is a 'fine' to which both husband and wife are parties and to which she gives her assent after a separate examination.

Husband's 2. A widow is entitled to enjoy for her life under the name of dower one-third of any land of which the husband was seised in fee at any time during the marriage. The result of this is that during the marriage the husband can not alienate his own land so as to bar his wife's right of dower, unless this is done with her concurrence, and her concurrence is ineffectual unless the conveyance is made by 'fine\'

Wife's 3. Our law institutes no community even of movables [p. 102]

between husband and wife. Whatever movables the wife has at the date of the marriage, become the husband's, and the husband is entitled to take possession of and thereby to make his own whatever movables she becomes entitled to during the marriage, and without her. concurrence he can sue for all debts that are due to her. : On his death, however, she becomes entitled to all movables and debts that are outstanding, or (as the phrase goes) have not been 'reduced into possession.' What the husband gets possession of is simply his; he can freely dispose of it inter vivos or by will. In the main for this purpose, as for other purposes, a ' term of years ' is treated as a chattel, but under an exceptional rule the husband, though he can alienate his wife's ' chattel real ' inter vivos, can not dispose of it by his will. If he has not alienated it inter vivos, it will be hers if she survives him. If he survives her, he is entitled ta her 'chattels real' and is also entitled to be made the adtiiinistrator of her estate. In that capacity he has a right to whatever movables or debts have not yet been 'reduced into

1 Ihis inoonvenienoe was evaded in modern conveyancing by a device of extreme ingenuity, finally perfected only in the eighteenth century.

OH., vir. § 2.] Husband 'and Wife. 405

possession' and, when debts have been paid, he keeps these goods as his owm If she dies in his lifetime, she can have no other intestate successor. Without his consent she can make no will, and any consent that he may have given is revocable at any time before the -will is proved.

4. Our common law — but we have seen that this rule is not Husband's very old — assured no share of the husband's personalty to the widow. He can, even by his will, give all of it away from her except her necessary clothes, and with that exception his creditors can take all of it. A further excepti&n, of which

there is not much to be read, is made of jewels, trinket^ and ornaments of the person, under the name of paraphernalia. The husband may sell or give tbese away in his lifetime, and even after his deabh they may be taken for his debts ; but he can not give them away by will. If the husband dies during the wife's life and dies intestate, she is entitled to a third, or if there be no living descendant of the husband, to one-half of his personalty. But this is a case of pure intestate succession ; she only has a share of what is left after payment of her husband's debts.

5. During the marriage the husband is in effect liable to Husband's the whole extent of his property for debts incurred or wrongs committed by his wife before the marriage, also for wrongs

[p. 403] committed during the marriage. The action is against him and her as co-defendants. If the marriage is dissolved by his death, she is liable, his estate is not. If the marriage is dissolved by her death, he is liable as her administrator, but only to the extent of the property that he takes in that character.

6. During the marriage the wife can not contract on her wife's own behalf She can contract as her husband's agent, and has ""^ ^^^ ^' a certain power of pledging his credit in the purchase of necessaries. At the end of the middle ages it is very doubtful

how far this power is to be explained by an ' implied agency.' The tendency of more recent times has been to allow her no power that can not be thus explained, except in the exceptional case of desertion.

Having thus indicated the goal, we may now turn back to Law in the twelfth and thirteenth centuries. If we look for any one it^generai thought which governs the whole of this province of law, we "^®*' shall hardly find it. In particular we must be on our guard

406 FomvUy Law, [bk. n,

against the common belief that the ruling principle is that which sees an 'unity of person' between husband and wife. This is a principle which suggests itself from time to time ; it has the warrant of holy writ ; it will serve to round a paragraph, and may now and again lead us out of or into a difficulty ; but a consistently operative principle it can not be. We do not treat the wife as a thing or as somewhat that is neither thing nor person; we treat her as a person. Thus Bracton tells us that if either the husband without the wife, or the wife without the husband, brings an action for the wife's land, the defendant can take exception to this 'for they are qunsi one person, .for they are one flesh and one blood.' But this imprac- ticable proposition is followed by a real working principle: — 'for the thing is the wife's own and the husband is guardian as being the head of the wife\' The husband is the wife's guardian : — that we believe to be the fundamental principle ; and it explains a great deal, when we remember that guardian- ship is a profitable right. As we shall see below, the husband's rights in the wife's lands can be regarded as an exaggerated guardianship. The wife's subjection to her husband is often insisted on; she is 'wholly within his power,' she is bound to obey him in all that is not contrary to the law of God^; she and all her property ought to be at his disposal; she is 'under the [p.iM] rod'.' The habit into which our lawyers fall of speaking of every husband and wife as ' baron et» feme*' is probably due to the fact that the king's court has for the more part been conversant with the affairs of gentle-folk. The wife of a magnate, perhaps the wife of a knight, would naturally speak of her husband as ' mon baron.' The wife of a man of humbler station would hardly have done this ; but still it is likely that she would call him her lord, perhaps in English her elder".

1 Bracton, f. 429 b. » Glanvill, vi. 3.

3 Bracton, f. 414: Husband and wife produce a forged charter; he is hanged, she, whether a partner in his crime or no, is set free ' quia fuit sub virga viri Bui.' Note Book, pi. 1685: The deed of a married woman is of no avail, 'quia hoe fecit tempore .4 de B viri sui dum fuit sub virga.' Sharpe's Calendar of London Wills, i. 105 : feme ooverte can not devise land, for she is ' sub virga.'

* See e.g. Britton, i. 223, 227.

** Ine, 57. The etymological connexion between haron and vir we are not disputing, but that was in the twelfth century a very remote fact, and we can not easily believe that the ordinary Englishman, even when he spoke French, called himself his wife's haron. In the law Latin of that time haro is rarely, if ever, used in the sense of husband.

CH. VII. § 2.] Husband and Wife. 407

The disabilities of the woman who is coverte de haron — a curious phrase which we find in use so soon as we get documents written in French' — are often contrasted in the charters with the liege power, the mere, unconditional power, the 'liege poustie ' as the Scots say, of the widow or the maid to do what she likes with her own^ The formula of a common writ tells us that during her husband's lifetime the wife can not oppose his will (cui ipsa in vita sua contradicere non potuit). But for all this, we can not, even within the sphere of property law, explain the marital relationship as being simply the subjection of the wife to her husband's will. He constantly needs her concurrence, and the law takes care that she shall have an opportunity of freely refusing her assent to his acts. To this [p. 405] we must add that, as we shall see hereafter, there is a latent idea of a community between husband and wife which can not easily be suppressed.

The lamentable acquisition by the ecclesiastical courts of Divorce of the whole law of succession to movables prevents our common from lawyers from having any one consistent theory of the relation ^^ ^' between husband and wife. The law falls into two segments. We must attend in the first place to that portion of it which is fully illustrated by records of the king's court.

We will suppose the wife to be at the time of the marriage The wife's entitled to land in fee simple or to become so entitled by inheritance, gift or otherwise during the marriage. Her husband thereupon becomes entitled to take the fruits and profits of the land during the marriage, and this, right he can alienate to another. If a child is born of the marriage this enlarges the husband's right. He forthwith becomes entitled to enjoy the land during the whole of his life, and this right he

1 Y. B. 21-2 Edw. I. 151 : ' ele fut covert de baron.' T. B. 30-1 Edw. I. 133: 'ele fut coverte.' This term, rarely found in the law Latin but common in the law French of this age, seems to point, at least primarily, to the sexual union, and does not imply protection. See Ducauge, s. v. cooperire.

" Note Book, pi. 671: 'in ligia potestate sua cartam fecit': — pi. 679: 'in legitima viduitate sua': — pi. 1277: 'in ligia potestate et viduitate sua': —

pi. 1929: 'in ligia viduitate sua.' Cart. Glouo. i. 299: 'Ego Margeria

tempore quo fui mei iuns et dbmina mei. ' Northumberland Assize Bolls, p. 290 : 'in propria et pura virginitate sua.' In course of time in this as in other contexts the word ligivs is misunderstood and confused with legalis, legitimus, etc. In German ledig is still used in this context, e.g. Schroder, D.E. G. 312: ' die iiberlebende Frau so lange sie ledig bUeb '= ' in ligia viduitate sua.'

408 Family LaiO. [bk. ii.

can alienate to another. For all this, neither before nor after the birth of a child, is he conceived as being solely seised^ or as having a right to be solely seised, of that land so long as the marriage endures. Unless the seisin is with some third person, then ' husband and wife are seised in right of the wife,' If the seisin is being wrongfully withheld, then the action for the recovery of the land is given to the husband and the wife ; neither of them can sue without the other^. And so it is against the husband and the wife that an action must be brought to recover land which they are holding in the right of the wife. An instructive little doubt has occurred as to what a husband should do in such a case if he is sued without his wife. Some hold that he should plead in abatement of the writ, and this opinion wins the day ; but others hold, and the common practice has been, that he should vouch his wife as a warrantor, thus treating her as an independent person whose voice should be heard^. When we read that a husband vouches his wife to warranty, and that she comes and warrants him and pleads her title, we must take our record to mean what it says: — the married woman appears in court and speaks there (though perhaps through the mouth of a professional pleader) words which are fateful for herself, her husband and her land. [p. 406] When the wife does not appear in person she appears by attorney. She is at liberty to appoint her husband to be her attorney ; but she is at liberty to appoint a third person, and, as the appointment is made in court, she has a chance of acting freely. But further — amazing though this may seem to us — the husband sometimes appoints his wife to be his attorney'- flusband In litigation concerning the wife's land it was essential that

S'court ^o*h husband and wife should be before the court in person or by attorney, and the default of one of them was equivalent to the default of bothl A statute of 1285 enabled a wife whose husband was making default, to raise her voice in court and plead in defence of her title". At a much earlier time we see

1 Bracton, f. 429 b.

2 Bracton, f. 381, 416; Fleta, p. 408; Select Civil Pleas, pi. 233; Note Book, pi. 124, 1302, 1466, 1508, 1510.

3 Select Civil Pleas, pi. 155 ; Note Book, pi. 342, 1361, 1507. '

4 Bracton, f. 370; Fleta, p. 399.

» Stat. -West. II. 0. 3; Second Institute, 341.

CH, VII. § 2.] Husband and Wife. 409

that royal equity, at least when stimulated by money, is capable of protecting a woman against the fraudulent default of her husband. In 1210 Henry brings an action for land against Nicholas and his wife Hawise. Nicholas does npt appear ; but Hawise does and explains Nicholas's default by saying that he is colluding with, and has received money from, Henry, and that she is thus being cheated out of her inheritance. King John moved by pity and by the advice of his council allowed her to put herself upon a grand assize, and it is but fair to the memory of that prince to add that the sums offered to him by both sides were equal'. In 1210 therefore it was a fraud for a husband to alienate his wife's lands under cover of litigation, and, if there was to be a collusive use of litigious processes, the husband might meet his match, for he would lose possession of her land if in an action against him and her for its recovery she would neither appear nor appoint an attorney^.

That the husband has a right to exclude the wife from the Husband's enjoyment of her land would not have been admitted. If he "le's '" does this, she has no action in the lay court. None is necessary ; '™^" she will have recourse to the ecclesiastical court, which is only too ready to regulate the most intimate relations between [p. 407] married people. When she has obtained a sentence directing her husband to receive and treat her as his wife, the king's court, says Bracton, will know how to provide that she shall share the benefit of her tenement'. It will keep the husband in gaol until he obeys the sentence of the church; in John's day a man is in gaol for 'contemning' his wife^ In this respect there seems to be equality before the law. If the wife drives the husband out of her tenement, or even out of his tenement, it seems very doubtful whether he has .an action in the lay court, unless the wife has eloped with an adulterer'.

But it may be said that the husband can deprive his wife Alienation

.... of "wife's

pf the enjoyment of her land by alienating it, and that his land, alienation of it will be valid, at least so long as the marriage

, 1 Placit. Abbrev. 63, 66 (Staff.). ' Y. B. 20-21 Edw. I. p. 99.

' Bracton, i. 166 b : ' et si opus fuerit dominuB Bex ad supplicationem ordinariiin tenemento oommunicando quod suum fuerit exequatur.'

" Plaoit. Abbrev. p. 67 : ' captus pro oontumadia sua eo quod contempsit nxorem suam.'

\, '■ Fleta,p. 217, § 10; Britton, i. 280, 297, 315, 328. Britton supposes, a writ brought by the husband and wife against the wife, in which John and Peronel are s4id to complain that the said Peronel has disseised the said. Peronel.

410 Family Law. [bk. n.

lasts. That is so, but we doubt whether during the earlier part of the thirteenth century such an alienation by the husband was regarded as .rightful. During the mamage she could not complain of it. From this, however, it does not follow that he was conceived as conveying to a purchaser or donee rights which belonged to him. As a matter of fact transactions in which a husband purports to convey rights which will endure only so long as the marriage endures, or only so long as he is alive, are rare. What a husband attempts to do often enough is to make a feoffment in fee simple. A writ specially designed to enable the widow to recover the land thus alienated is both in England and in Normandy one of the oldest writs, and is in constant use^ Convey- But we must look at this matter of alienation more closely,

husband The common law of a later day holds (1) that the husband by and wife, himself Can give an estate which will endure during the marriage, or (if a child has been born) during the whole of his life;

(2) that the wife without her husband can not alienate at all ;

(3) that husband and wife together can make no alienation which the husband could not have made without the wife, unless indeed they have recourse to a fine; (4) that the one effectual [p.408] means by which the fee simple can be alienated is a fine to which both husband and wife are parties, and to which the wife has in court given her assent. If, however, we go back a little way, we shall see married women professing to convey land by feoffment with their husbands' consent; they have seals and they set their seals to charters of donation; the feoffees are religious houses and will have been careful that all legal forms were duly observed. A'good and a late instance is this : — In 1223 Isabella wife of Geoffrey de Longchamp in the

full county court of Gloucester executes a deed stating how with the consent of her husband, who does not execute this deed, shfe has given certain lands to Winchcombe Abbey. Then 'for the greater security of our house' Geoffrey at the same session of the shire-moot executes another deed. He has confirmed his wife's gift and, so far as in him lies, he grants and quit-claims (but does not give) the land to the abbey'. Very often when we have before us a twelfth century charter it^ is

^ What is practically the writ of entry cui in vita appears at arj early date. Bot. Cur. Eeg. (Palgrave) i. 359; ii. 65, 168, 196. ' Winchcombe Landboo, i. lGl-3.

CH. VII. §2.] Hushand and Wife. 411

difficult to say whether the land that is being given is the land of the husband or of the wife. Sometimes the husband gives with the consent of the wife ; sometimes both husband and wife make the gift. Perhaps when the husband is put before us as the donor, the land is generally his, and his wife's consent is obtained in order that she may not hereafter claim dower in that land. Perhaps when the deed puts both the parties on an equality and represents both as giving or quit-claiming, the land is, generally the wife's. But to both these rules there seem to be exceptions. At any rate throughout the twelfth century and into the thirteenth we habitually find married women professing to do what according to the law of a later time they could not have done effectually. Without any fine, the wife joins in or consents to her husband's disposition of her lands and of his lands. Often the price, if price there be, is*aid to be paid to the husband and wife jointly; sometimes a large payment is made to the husband, a small payment to the wife\ [p. 409] Then we seem to see the growth of a fear that the The wife's participation of a married woman in a conveyance by her husband may be of no avail, and that should she become a widow she will dispute its validity on the ground that while her husband lived she had no will of her own. We perhaps see this when a purchaser, besides paying a substantial sum to the husband, pays a trifling sum to the wife, gives her a new gown, a brooch, a ring or the like''. We see it yet more clearly when she is made to pledge her faith that, should she outlive her husband, she will not dispute the deed, or when she subjectsi

> Examples are abundant. A few references must suffice. (1) Conveyances by husband with- wife's consent : Cart. Glouo. i. 156, 167, 175, 185 (she seals), 187 (she seals), 192 (she seals), 233, 246, 819, 335 (wife's inheritance), 353, 867,, 375; ii. 28, 83, 118, 162, 163, 195, 243, 252, 291 (wife's land; she seals): Cart. Eiev. pp. 44, 45, 48, 53, 55, 60, 79, 84, 123 (wife's marriage portion) : Cart. Bams. i 139, 159, 160 (she seals). (2) Conveyances by husband and wife: Cart. Glouc. i. 307, 344, 878 (wife's land); ii. 48 (wife's land), 82 (wife's land), 113: Cart. Eiev. pp. 62, 78, 82, 83, 98 (wife's Und), 99, 114 (wife's land), 131, 235, 236, 240 (she seals), 251 : Madox, Formulare, pp. 190 (joint purchase), 260, 279 (land pur- chased by husband).

^ See e.g. Cart. Glouc. i. 378, where the husband has seven marks and the wife a cloak worth five shillings ; Cart. Eiev. p. 56, fifteen marks to husband and wife and a gold ring to wife; Madox, Formulare, p. 276, a mark to the husband and a buckle worth twelve pence to the wife; Beg. Malm. ii. 48, the like.

412 Family Law. [bk. it.

herself to the coercion of the church in case she shall strive to undo the conveyance'. We see. it also when a charter declares that money has been paid to the husband or the husband and wife ' in their urgent necessity^.' There is much to suggest that , the law in timie past has upheld dispositions by the husband of the wife's land if he was driven to them by want. Even ia Bracton's day the court will not be inclined to inquire into the reality of the wife's assent if proofs be given that the needs of the common household demanded the conveyance". Another expedient has been to obtain in open court the wife's confession that she has conveyed her land or has assented to her husband's act, for by what she says in .open court she will be bound. Late in Henry II.'s reign a wife sold a house to the Abbot of Winchcombe ; two marks and two loads of wheat were paid to her and six pence were paid to each of her four children ; with the consent of her husband she abjured the land in the TuU county court of Gloucester, and then when the king's justices [p.iio] came round in their eyre she went before them and once more abjured the land ; her deed was witnessed by all the justices and the whole county*. That a married woman when she is conveying away her land may need some protection against the dominance of her husband's will is by no means a merely modem idea. Lombard law of the eighth century had required that the wife who was alienating her land should declare before two or three of her own kinsmen or before a judge that she had suffered no coercion, and her declaration was to be attested by a notary^ In Italy a regular practice of 'separate examination ' had been established long before the time of which we are speaking". We need not suppose that this Italian practice was

1 Cart. Eiev. p. 96; Beg. Malmesb. ii. 148, 240; Cart. Glonc. i. 304; Madox, Formul. pp. 85, 87.

-■^ Cart. Glouo. i. 335-6; ii. 252 ; Cart. Burt. 48.

° Bracton, f . 331 b, 332. Note Book, pi. 294 : action by widow for a shop in Winchester ; plea, that she and her husband sold it in their great necessity and therefore that by the custom of the city she can not upset the sale. The urgens necessitas of our deeds seems to be the echte Not of German law. In some districts on the continent if the wife would not give her assent to a neoessaiy sale of her land, the consent of the court would do as well.

■* Winchcombe Landboo, i. 180. The date is fixed by the names of the justices. See Eyton, Itinerary of Henry II. p. 298.

" Leg. Luitprandi, c. 22 (M. G., Leges, vol. iv. pp. 117-8).

8 This is the subject of a monograph : Eosin, Die Formvorschriften fiir die Veriiusserungsgeschafte der Frauen (Gierke, Untersuchungen, viii.).

CH. vii.§2.] Husband and Wife. 413

transplanted into England; similar securities for the freedom of the wife are not unknown elsewhere, and the idea that the husband's guardianship of his wife is subject to and controlled by a superior guardianship exercised by her own kinsmen or by that guardian of all guardians, the king, may have come very naturally to our ancestors : it is not a very recondite idea. At any rate soon after Glanvill's day, so soon as the king's court was habitually sanctioning 'final concords,' it slowly became law that the fine levied in the king's court by husband and wife is the one process whereby the wife's land can be conveyed or her right to dower, barred. The development of this rule seems to have been the outcome of judicial decisions rather than of statute or ordinance. In opposition to older and looser notions, Bracton held that a deed acknowledged before the court and enrolled on the plea roll was not fully effectual ; nothing but the chirograph of a fine was safe'.

' It has been usual to attribute the effioiency of the fine in these oases to the fictitious litigation of which it is the outcome, and to regard the ' separate examination ' of the married woman as an afterthought. We do not think that this correctly represents the historical order of ideas. The married woman can with her husband's concurrence convey her land; but, except perhaps in case of urgent necessity, it is requisite that there should be some proof of her free action. This is secured by requiring that she shall acknowledge her gift in court. Meanwhile for other reasons the conveyance in court which purchasers wish to have in order that they may enjoy the king's preclusive ban (see above, p. 101) has ta/ken the form of a ' fine.' Therefore the proper conveyance for a wife is a fine. Bracton, f. 321 b, 322, hesitates as to the efficiency of an enrolled deed, attributes no mysterious influence to a fine, introduces no fiction, and will not say dogmatically that by a fine and only by a fine can the conveyance be effected. Thus it came about that in London and 'many other cities, boroughs and towns ' (see Stat. 34-5 Hen. VIII. c. 22) a custom arose that the wife, with the husband's concurrence, could convey land without any fictitious litigation, by a deed enrolled, she having been 'separately examined' by the mayor or some other officer. For an early record of the London custom, , see Liber Albus, i. 71. See also the Cinque Ports' Custumals : Lyon, Dover, ii. 307, 354. It is also to be remembered that the two systems of marital property law which are most closely related to the English, namely, the Scottish and the Norman, do not, to all seeming, know the ' fine ' as the proper conveyance for the married woman. It is by no means unrecorded that the English wife when she has come into court wiU refuse her consent to the fine : Note Book, pi. 419 ; Northumberland Assize EoUs, p. 4ft. Nor is it unknown that a iusbaud who has fraudulently levied a fine of his wife's land, by producing in court another woman who personated his wife, will have to answer his wife in an. action, of deceit and will be sent to gaol. See a remarkable record. Coram Eege EoU, Mich. 9-10 Edw. I. (No. 64) m. 46 d, Adam de ClothaU's case. Adam is attached to answer the king and his (Adam's) wife for this deceit; the wife claims damages.

414 ^ Fomiily Law. [bk. ii.

The The doctrine that the husband has for his own behoof a [p.4ii]

guardian, definite ' estate ' in the land is one which loses its sharp outlines as we trace it into our earliest records. His right begins to look like a guardianship, though of course a guardianship profitable to the guardian, as all guardianships are. Thus in pleadings we read — ' He died seised of that land not in fee but as of the wardship which he had for his whole life by reason that he had a son by his wife' ' : — ' And Alan confesses that the land was the inheritance of his wife and he had nothing in that land save by reason of the guardianship of his sons and the heirs of his wife^': — 'He held that land with Isabel his wife, whose inheritance it was, so that he has nothing in the land save a guardianship of the daughters and heirs of Isabel who are under age'.' The husband's right is brought under the category which covers the right of the feudal lord who is enjoying the land of a tenant's infant heir. The one right is vendible ; so is the other. In England every right is apt to [p.4i2] become vendible. Tenancy We have Said that so soon as a child is bom of the

curtesy, marriage, which child would, if it lived long enough, be its mother's heir, the husband gains the right to hold the wife's land during the whole of his life. This right endures even though the wife dies leaving no issue and the inheritance falls to one of her collateral kinsmen; it endures even though the husband marries a second time. This right bears two curious names. The husband becomes tenant ' by the law of England ' and tenant 'by the curtesy of England.' The latter phrase seems to be much the newer of the two. We do not read it in Latin records; it seems to make its first appearance in the French Year Books of Edward L's age*. An ingenious modem theory would teach us that curtesy or curialitas 'was under- stood to signify rather an attendance upon the lord's court or Curtis (that is, being his vassal or tenant,) than to denote any

^ Bot. Cur> Begis (Falgrave)) ii. 65 : ' utrum obiit saisitus ut de feodo aU ut de warda quam habuit in tota vita sua occasione qnod de ea habuit fil[ium] ut dicitur.' Ibid. 196 : ' utrum idem L. obiit saisitus ut de feodo an ut de warda quam inde habuit occasione quod de ea habuit fil[ium].' Placit. Abbrev. p. 30 (Salop).

2 Note Book, pi. 1771.

8 Note Book, pi. 1774.

'> T. B, 20-1 Edw. I. 39: 'le baron teudra le heritage sa femme par la corteyse deugleterre.' Ibid. 55.

CH. vn. § 2.] Husband and Wife. 415

peculiar favour belonging to this island. And therefore it is laid down^ that by having issue, the husband shall be entitled to do homage to the lord, for the wife's lands, alone : whereas, before issue had, they must both have done it together".' This explanation seems more ingenious than satisfactory. The rule about homage that is here laid down flatly contradicts Glanvill's text, and it is with Glanvill, as the oldest representative of English feudal theory, that we have here to reckon. He says that a woman never does homage; he says that when an heiress is married — not when she has issue — her husband is bound to do homage' ; he says that no homage is done for the wife's marriage portion (maritagiumy, and yet of this marriage portion the husband on the birth of issue becomes tenant by the law of England'. Again, we have never seen in any record any suggestion that before issue had been born of the marriage the husband was not entitled and bound to do suit to the lord's court ; nor can we easily suppose that the lord went without a suitor where there was a childless marriage. Lastly, we have never seen the word curialitas or courtesie used to signify a (j).4i3] right or a duty of going to court, unless it is so used in the phrase that is before us. It is a common enough word, and means ' civility,' ' good-breeding,' ' a favour,' ' a concession.'

For some reason or another from Glanvill's day onwards our Tenancy lawyers are always laying stress upon the Englishness (if we '^^of may use that term) of this right. They are always saying that England.' the husband holds ' according to the custom of the kingdom ' ; and in Bracton's day 'tenant by the law of England* (tenens per legem Angliae) has become a well-established phrase with a technical meaning'. Now if we ask what other law the lawyers of 1200 can have had in their minds by way of contrast to the law of England, we must answer — The law of Normandy. It was still common that a rich heiress should have lands on both sides the sea. We look then to Norman law, and we see that it does know a right very like the curtesy of England ; the two are so much alike that it is worth a lawyer's while to contrast them. The Norman husband if a child has been born is entitled to a veufet6 (viduitas) ; but he loses it if he marries

' Lit. sec. 90; Co. Lit. 30, 67. ' Blaokstone, Comment, ii. 126.

' Glanvill, ix. 1. " Glanvill, ix. 2 ; vii. 18. ' Glanvill, vii. 13.

« Note Book, pi. 266, 291, 319, 487, 917, 1182, 1686; Bracton, i. 438.

416 Family Law. [bk. ii.

again^ It is we believe just to this difference that the English lawyers are pointing when they speak with emphasis of the law of England : — ' He had children by reason of whom he claims to hold the land for his whole life according to the law and custom of the kingdom ' : — ' According to the custom of the kingdom he ought to hold that land during his whole life".' Over and over again the words which restrict this law or custom to the kingdom are brought into close proximity with the words 'for his whole life.' A viduitas which endures beyond viduity^ — that is the specifically English peculiarity. Britton, who writes in French, does not yet speak of the curtesy of England, but he uses an almost equivalent phrase : — the husband, when issue has been born, holds by 'a specialty granted as law in England and Ireland ^' It is a privilege, an exceptional rule of positive institution which can not be explained by general principles. Then, not many years after the first recorded appearance of the term ' curtesy,' the author of the Mirror asserts that this privilege was granted to husbands [p. 414] by the curtesy of Henry I.* No one will now trust the unsupported word of this apocryphal book, and the assertion about Henry I. may be idle enough ; but we seem to be entitled to the inference that, very soon after it had become the fashion to call the husband ' tenant by the curtesy of England,' it was possible to explain this phrase by reference to some royal concession. And in truth an explanation of that kind may seem to us reasonable enough. The law o£ In the first place, the right given to the husband by courteous"' English law is a large, a liberal right. It comprehends the law. wife's lands by whatever title she may have acquired them,

whether by way of inheritance or by way of marriage portion, or by any other way ; it endures though there is no longer any issue of the marriage in existence ; it endures though the husband has married another wife; it is given to a second husband, who can thereby keep out a son of the first marriage from his inheritance. About these points there has been

1 Somma, p. 307; Anoienne ooutume, c. 119 (ed. de Gniohy, p. 301). In later days the husband continues to enjoy a third of 'the land after a second marriage : Reformed Custom, c. 382 (Coutume de Normandie, ed. 1779, vol. i. p. 435). Brunner, Zeitschrift der Savigny-Stiftung, Germ. Abt. xvi. 98, thinks that the English rule is older than the Norman.

" Note Book, pi. 291, 487, 917, 1686.

» Brittou, i. 220. * Mirror (Seld. Soc), p. 14.

CH. VII. § 2.] Husband and Wife. 417

controversy, but at every point the husband has been victorious. For example, in 1226 it was necessary to send a rescript to the Irish courts telling them that the second husband was to enjoy the land during his life, although there was in existence a child of full age by the first husbands Some judges thought this an unreasonable extension of the right; but the king refused to legislate against it". If we compare our law with its nearest of kin, we see a peculiar favour shown to the husband. Norman law deprives him of his right when he marries again; at any rate he must then give up two-thirds of the land. Scottish law gives him his 'curtesy' only in lands which his wife has inherited, not in lands which have been given to her^ The English lawyers know that their law is peculiar, believe that it has its origin in some 'specialty.' This being so, it is by no means unnatural that they should call it ' courteous,' or as we might say 'liberal,' law. They look at the matter from the husband's point of view; this is the popular point of view. [p.4i5] They see the curtesy of England setting a limit to the most oppressive of the feudal rights, the right of wardship. This seems the core of the matter: — the husband keeps out the feudal lord though there is an infant heir. Here in England the husband keeps out the feudal lord even though the infant heir is not the husband's child. The lawyers can not explaia this, and, to be frank, we can not explain it. In a country where the seignorial right of wardship has iassumed its harshest form, it is an anomaly that the husband should keep out the lord from all the wife's lands. So long as the husband lives, the lord will enjoy neither wardship nor escheat. Surely we may call such a rule as this a gracious rule.

So much as to the name. As to the substance of the right; Origin cf we have as much diflSculty in accounting for its wide ambit as " "^ had the lawyers of the thirteenth century. Perhaps several ancient elements have been fused together. One of these, as already said, seems to be a profitable guardianship over wife and children. In our first plea rolls the husband is still spoken

^ Eot. Pat. 11 Hen., in, pt. 1, m. 12 (Calendar of Irish Documents, i. p. 220).

' Bracton, f. 438 ; Note Book, pi. 487, 917, 1182, 1425, 1921, especially pi. 1182: 'Dominus Bex non vult mutare consuetudinem Angliae usitatam et optentam a multis retrotemporibus.'

8 Fraser, Law of Husband and Wife (2nd ed.), p. 1123. ..

P. M. II. 27

418 Family Law. [bk. ii.

of as having but a custodia or a warda of the land. To this, so we think, points the requirement that a child capable of inheriting from the wife shall be bom — born and heard to cry within the four walls. This quaint demand for a cry within the four walla is explained to us in Edward I.'s day as a demand for the testimony of males — the males who are not permitted to enter the chamber where the wife lies, but stand outside listening for the wail which will give the husband his curtesy '« In many systems of marital law the birth of a child, even though its speedy death follows, has important consequences for husband and wife; sometimes, for example, the ' community of goods ' between husband and wife begins, not with the marriage, but with the birth of the firstborn. These rules will send back our thoughts to a time when the stei-ile wife may be divorced, and no marriage is stable until a child is born^ "^^^ , In this context we must take into account a system which [p. 416]

widower's . . i i -i- . » i

freejbench. 18 m all probability at least as ancient as that of the common law. The gavelkind custom of Kent makes. hardly any differ- ence in this respect between husband and wife. The surviving spouse enjoys, so long as he or she remains single, one-half of the land of the dead spouse. This right, whether enjoyed by the widow or the widower, bears the name of ' free bench,' For that name also a feudal explanation has been found. The freehold suitors of the seignorial court are its free 'benchers,' and the surviving spouse is supposed to enjoy the right of representing in that court the land of the dead spouse. Granting that the suitors of a court are sometimes called its ' benchers,' we can not easily accept the proposed explanation. Outside Kent the term ' free bench ' is far more commonly given to the right of the widow than to the right of the widower, and yet we can not believe that the widow sat as a bencher in the lord's court,

^ Flacit. Abbrev. p. 267 : ' quia femina nou admittitur ad aliquam inquisi- tionem faciendam in curia Begis, uec constare potest curiae utrum natus fait vivus puer vel non, nisi visus esset a masculis vel auditurns [corr. auditns]

clamare ab eisdem eo quod non est permissum quod tnasculi intersiut

huiusmodi secretis.' It is just possible that the <talk about the four walls is a relic of a different test of the infant's vitality. According to the ancient Alaman or Swabian law, a child is not reckoned to be bom alive unless it can open its eyes and see the roof and the four walls. M. G., Leges, iii. 78, 115, 166.

2 Brnnner, Die Geburt eines lebenden Eludes, Zeitschrifi der Savigny' Stiftung, Germ. Abt. xvi. 63 S.

CH. VII. § 2.] Husband and Wife. 419

The bench in question was, we may guess, not a bench in court but a bench at the fireside*. The surviving spouse has in time past been allowed to remain in the house along with the children. In the days when families kept together, the right of the widower or widow to remain at the fireside may have borne a somewhat indefinite character. Especially in the case of the widower, there might be an element of guardianship ia his fe.a7] right. A later age unravels the right. By way of ' free bench ' the surviving spouse now has the enjoyment of one-half of the land until death or second marriage, whether there has ever been a child of the marriage or no. But in addition to this, he or she will very possibly be entitled to enjoy a profitable guardianship over the other half of the land. The law of socage land gives the wardship of the infant heirs of the dead spouse to the surviving spouse. In Kent it must have been common enough to see a widower or a widow enjoying the whole of the land lefb behind by the dead wife or husbands

Probably it is upon some such scheme as this that feudalism Fendaiism has played. Here in England it destroys the equality between curtesy, husband and wife. On the husband's death, the widow is allowed by way of dower one-third of his land at the utmost. This she may enjoy even though she marries again, for it is not given to her as to a mother who will keep a home for her husband's heirs. The guardianship is taken from her and falls to the lord. But it is hard to take from a man the guardianship of his own children. Even the law of England is too ' courteous' for that. The widow can not do military service, the widower can. The law of military fees gives him more, much more, than ancient custom would give him. Even in the first years of the thirteenth century it is still hesitating as to how far his rights are a guardianship, and the fact that to the last he will lose the land on his wife's death unless a child has been bom

1 Observe how Bracton, f. 97 b, introduces the term. He has been saying that, if there is more than one house, the wife is not to be endowed of the capital messuage. Even if there is but one house, another should be erected for her on the demesne land. If however this cannot be done ' tunc de necessitate reourrendum erit ad oapitale messuagium, sicut in burgagiis ad liberum bancum.' Onr 'free bench' seems to have its origin in what German writers call the Bewitz of the widow (see Schroder, D. E. G, 312), her right to remain in the house along with the heirs, a right which in course of time generally develops into a right to the exclusive enjoyment of some share of her husband's property.

' Valuable materials are collected in Bobinson, Gavelkind, Bk. ir. ch. i.

27—2

420 Familf Law. [bk. ii,

seems to show that at one time the element of guardianship had been prominent. But the right is soon extended beyond any limits that can be easily explained. The forces which extend it seem to be the same as those which introduce our rigorous primogeniture. If possible, the fee must remain undivided. We can not, as the Kentish gavelkinders do, give the widower a half of the wife's land. If he has the half, he must have the whole. What our law is striving for at the end of the twelfth century is the utmost sirapjicity. When once it has established — this is the main point — that the husband can successfully oppose the lord's claim to a wardship of the wife's infant heir, it makes a short cut through many difficulties and gives the husband, so soon as a child is born, an estate for life' in the wife's laud, an estate for his whole life in the whole land.- The lawyers themselves can not defend this exaggeration of the^ right; it is an anomalous 'specialty,' a concession to husbands' [p. 418] made by the courteous, but hasty, law of England^ Dower. The wife's right of dower is attributed by the lawyers to a

gift made by the bridegroom to the bride at the church door ; but, says Glanvill, every man is bound both by ecclesiastical and by temporal law to endow his spouse at the time of the espousals'. He may endow her with certain specific lands, and thus constitute a dos nominata; but this dos nominata must, not exceed one-third of his lands. If he names no particular lands, he is understood to endow her with one-third of the lands of which he is seised at the time of the espousals; this is a reasonable dower {dos rationdbilis) ; of lands which come to him

1 Glanvill, vii. 18, mentions the husband's right only in connexion with the ■wife's marriage portion. The so-called Statute de tenentibus per legem Angliae (Statutes, vol. i. p. 220), which is merely a bit of Glanvill's text and has no claim to statutory authority, does the like. We can not argue from this that the widower of Glanvill's day had no right in the lands which his wife had inherited. Bather, so it seems, Glanvill takes this for granted and puts a more extreme case. What he is concerned to say is that a husband has a right to hold even his wife's marriage portion if once a child of the marriage has been born, and to hold it for his whole life. The second husband (this is a climax) can hold the maritagium given at the. first marriage even though a child of the first marriage is living; In this matter we may argue a fortiori from the case of the marriage portion, which has been destined to revert on a failure of the issue of the wife, to the case of the wife's inherited land. This part of Glanvill's text passed into the Eegiam Maiestatem (ii. 53). Nevertheless in recent times it is only of lands inherited by the wife, not of lands given to her, that the Scottish law concedes curtesy.

" Glanvill, vi. 1; Braoton, f. 92.

maximnm

CH. VII. § 2.] Husband and Wife. 421

during the marriage she can claim nothing, unless he used (as it was lawful for him to use) words which would comprise them. If the bride accepts a dos nominata, she can when widowed claim that and no more. Sometimes a dower of chattels or money will be constituted, and, if the bride is content to be married with a dower of this kind, she will have no right to any share of her husband's land^

During the thirteenth century the widow's right was The extended in one direction. Some words interpolated in 1217 aJ,we" into the Great Charter say that there shall be assigned as her dower the third part of all the land of her husband which was his [not at the time of the marriage, but] in his lifetime, [p.4i9] unless she was endowed of less at the church door^. Bracton's text and decisions of Bracton's time suggest that this phrase was loosely used and without any intention of changing the law laid down by GlanvilP. A little later, perhaps in consequence of attention directed to the words of the charter, the law was that, unless she had accepted less at the church door, the widow was entitled to a third of the lands of which the husband was seised at any time during the marriage*. At a yet later time it became law that she might be entitled to more, but could not be entitled to less, than this her ' common law dower.' The husband at the church door might even declare that she was to hold the whole of his lands for her dower, while the wife on the other hand, so soon as she had become a widow, might reject the dos nommata and claim those rights which the common law gave her^ This change however did not take place in the age that is before us. In the thirteenth century a third of the husband's land is the maximum dower that can be claimed in lands held by military service, and from the frequency with which a dos nominata is mentioned, we should gather that many widows of high station had to be content with less. On the other hand, it is common to find that the socager's widow claims a half, and this without relying on any peculiar local

1 Glanvill, vi. 1, 2.

' Charter, 1217, o. 7. The way in which this clause was modified is best Been in B6mont, Chartes, p. 50. See also Blaekstone, Comm. ii. 134.

' Braoton, f. 92, 93 ; Note Book, pi. 970, 1531.

* Nichols, Britton, i. p. xli ; ii. 242.

' Littleton, sees. 39, 41. See the interesting note from a ms. of Britton, in Nichols, Britton, ii. 286.

422 Family Law. [bk. n.

custom^ ; indeed it would seem that at one time it was almost

common law that the widow is to enjoy a moiety of the land

that her husband held in socage ^ But in this case as in other

cases the aristocratic usage prevails ; uniformity is secured, and

dower of a naoiety can only be claimed by virtue of a custom

alleged and proved^

Assign- The common law allows the widow to enjoy the land during [p.420]

^™*j° her whole life, and this right she can alienate to another. On

the other hand, the gavelkind custom takes, and it is believed

that many socage and burgage customs took, her dower from

her if she married again or if she was guilty of unchastity, at

all events if a bastard child was bom*. On the death of her

husband, if she had a dos nominata, she could at once enter on

the lands that it comprised; otherwise she had to wait until

her dower was 'assigned' and set out for her by metes and

bounds. To ' assign ' the mdow's dower was the duty of the

heir or of his guardian : a duty to be performed within forty

days after the husband's death. During these forty days the

widow had a right, sanctioned by the Great Charter, to remain

in the principal house and to be maintained at the cost of

the as yet undivided property; this right was known as her

. quarantine". A fair third of the land was to be assigned to her,

and she was entitled to ' a dower house ' but not to the capital

messuage, though if her husband held but a town house she

had a right to one-third, or by custom one-half, of it, as

representing her 'free bench^'

Wife's The nature of the wife's right while the marriage endures is

dmnng the not very easily described, for we seem to see the law hesitating,

mamage. -yy^ must distinguish between the ' named ' and the ' unnamed '

1 Note Book, pi. 7 (Hereford), 124 (Norfolk), 253 (Kent), 459 (town of Nottingham), 475 (Hertford), 500 (Norfolk), 577 (town of Oxford), 591 (Norfolk), 622 (Kent), 623 (Cambridge), 642 (Norfolk, Suffolk), 721 (Norfolk), 758 (Essex), 767 (Kent), 1080 (town of Woroester), 1668 (Suffolk), 1843 (Norfolk). If we exclude the boroughs and Kent, it is chiefly from the old home of the eoTcemanm that our instances come.

2 Braoton, f. 93. Note Book, pi. 758 : ' Dioit eciam quod uxores hominum tenencium de eodem manerio recuperant et habent nomine dotis semper terciam partem sicut de libero feodo et non medietatem sicut de soccagio.'

' Littleton, sec. 37.

* The early cases are collected in Bobinson, Gavelkind, Bk. ii. ch. ii. ' Charter, 1215-6-7, o. 7 ; Bracton, f. 96. Our ' quarantine ' oorrespondB to the German Dreissigste, the widow's month. < Bracton, f. 97 b.

CH. viT. § 2.] Hushand and Wife. 423

dower. In Bracton's day if a named dower has been constituted at the church door, the woman's rights from that moment forward seem to be true proprietary rights. If her husband alienates the land without her consent, or even with her consent if she has not joined in a final concord levied before the king's justices, then (though so long as the marriage endures she can make no complaint) she can when her husband is dead recover that land from any one into whose hands it has come. The tenant whom she sues will immediately or mediately vouch her husband's heir, and he in all prob- ability will be bound to warrant his ancestor's gift, and, failing to satisfy this duty, will have to make compensation [p. 421] to the evicted tenant out of the ancestor's other lands'. But this is a matter between the evicted tenant and the heir; the dowager can evict the tenant; she is entitled to the very lands that were set apart for her at the church door. If, however, she has to rely, not upon a specific, but upon a general endowment, the case stands otherwise. She demands from her husband's feoffee one-third of the land (we will call it Blackacre) that he holds under the feoffment. The feoffee vouches the heir, and the widow is bound to bring the heir before the court, for the heir is the warrantor of the widow's dower. The heir, we will suppose, has no defence to set up against the widow's claim ; he can not say, for example, that she is already sufficiently endowed. Now the widow is not precisely entitled to a third of Blackacre ; she is entitled to a third of her husband's lands. If therefore the heir confesses that other lands have come to him out of which he can sufficiently endow her, the feoffee will keep Blackacre and she will have judgment against the heir^. On the other hand, if the heir has no other lands, the widow will recover a third of Blackacre from the feoffee, and the feoffee will have judgment against the heir; when the widow dies, the feoffee will once more get back her third of Blackacre'. The unspecified dower is therefore treated as a charge on all the husband's lands, a charge that ought to be satisfied primarily out of those lands which descend to the heir, but yet one that can be enforced, if need be, against the husband's feoffees. If, however, we go back to Glanvill, we

J Braoton, f . 299 b ; Fleta, p. 350-1 ; Note Book, pi. 156, 944, 1525, 1964. 2 Bracton, f. 300 ; Note Book, pi. 1102, 1413, » Note Book, pi. 571, 633, 1683.

424 Family Law. [bk. ir.

shall apparently find him doubting whether, even in the case of a specified dower, a widow ought ever to attack her husband's feoffees, at all events if the heir has land out of which her claim can be satisfied^. . Alienation Some hesitation about this matter was not unnatural, for of his land, our law was but slowly coming to a decision of the qaestioa whether and how the land burdened with dower can be effectually alienated during the marriage. The abundant charters of the twelfth century seem to show that,- according to common opinion, the husband could not, as a general rule, bar the wife's right without her consent, that he could bar it with her consent, and that (though this may be less certain) her consent might be valid though not given in court". Just in Glanvill's day the king's court was beginning to make a regular [?■■ practice of receiving and sanctioning ' final concords,' and in the course of the thirteenth century the fine levied by husband and wife after a separate examination of the wife became the one conveyance by which dower could be barred. But, as already said, there had very possibly been in the past, some rule which dispensed with the wife's consent in cases of 'urgent necessity',' and when Glanvill was writing there may have been in the royal court, which was all for simplicity, some justices who, unable to define this ' urgent necessity,' were for increasing the husband's power and giving the wife no more than a right to a third of what descended to the heir. These same justices were beginning to refuse to the heir his ancient right of recalling the land alienated by his ancestor. Why should a wife be better treated than a son ? It seems possible that the charter of 1217 when it secured to the widow a third part of those lands that the husband held 'in his lifetime,' was a protest against a doctrine which was in advance of the age. The common law of dower rema,ined for centuries an impediment to the free alienation of land ; but to make land alienable at the cost of old family rights was the endeavour of the justices who sat in the king's court at the end of the twelfth century. In some boroughs, notably in Lincoln, it was law in Bracton's day that the widow could only claim dower out of lands of which her husband died seised. In York her claim for dower was

1 Glanvill, vi. 3.

2 Eeferenoes to a few of these charters are given above on p. 411. ^ See above, p. 412.

€H. VII. § 2.] Husband and Wife. 425

barred by the lapse of year and day from her husband's deaths

The husband completely represents all his lands in court, The

,, , 1 1 J 1 1 • 1 ■ 1 husband in

even though a ' named dower has been constituted m them, litigation. He sues and is sued without his wife. This enables him at times to defeat his wife's claims by means of collusive actions ; but the court in Bi-acton's day was doing what it could to suppress this fraud, for fraud it was", and a statute of 1285 seconded its efforts'.

Dower is set before us by our text writers, not as a provision Dower aa which the law makes for the widow, but as a provision made by [p. 423] the husband or bridegroom at the time of the marriage*. This treatment of it is inevitable. For one thing, there will be no dower unless the marriage is solemnized at the church door, and, as we have seen above, there well may be a valid marriage that has not been solemnized at all. For another thing, the amount of the dower is not fixed immediately by the law ; the law only fixes a maximum ; the husband says what dower the wife shall have, and this may be a matter of bargain between the spouses, their parents and guardians. Nevertheless we should probably go wrong if we drew the inference that dower is a new thing or that men have as a general rule been free to marry without constituting a dower. The feudal movement and the extension of feudal language have given an air of novelty to an old institution. We can not here enter on vexed questions of remote history about the various provisions made for wives and widows under the sway of Germanic law, about the perplexing words of Tacitus', about the relation of the dower of later times to the bride price on the one hand, and on the other to that ancient ' morning gift ' which appears in every country where the German sets foot. It must be enough that very generally the widow obtains in course of time a right to

' Bracton, f. 309; Note Book, pi. 1889. In Scotland it became law that the hugband by conveyance inter vivos could deprive the wife of her terce ; also the Scottish wife, without any proceeding similar to a fine, might during the marriage renounce her terce: Fraser,- Husband and Wife (1878), p. 1110.

2 Bracton, f. 310.

2 Stat. Westm. II. c. 4; Second Institute, 347.

* The contrary opinion had begun to prevail early in Edward II.'s day; see Nichols, Britton, ii. 236 : ' and because usage of dower is become law, a wife is nufliciently endowed though her husband say nothing.'

^ Germania, o. 18.

426 Family Law. [bk. nj

enjoy for her life some aliquot share, a fourth, a third, a half, of her husband's property, and this right very often becomes during the ma,rriage a charge on the husband's land, of which he can not get rid without her consent. A less determinate right to remain at the fireside and enjoy a ' free bench ' gives way to a more definite and, if the word be allowed, more individualistic provision'. The church, in her endeavour to bring marriages under her sway, took over from ancient custom the formula by which a dower was constituted and made it part of her ritual. Thus even our dos rationabilis or ' common law dower' can easily be represented as the result of the bride- groom's bounty. The wife is endowed, because the husband has said at the church door that he endows her. Dower and There seems, however, to be no sufficient reason for supposing

the church. ■, ,.■,..,,.■,.. tii •

that the nght is of ecclesiastical origin''. At all events in some [}■' lands, the law of a remote age was compelled to repress, rather than to stimulate, the bridegroom's liberality'. This it did, partly perhaps in the interest of expectant heirs, partly in the interest of a militant state, which regarded the land as a fund for the support of warriors. But feudalism made against dower. If it is a concession that the dead man's heneficium should descend to his heir, it is a larger concession that a third of it should come to the hand of the mdow. Here in England we have constantly to remember that the widow's right in a very common case comes into conflict with the claim of a lord who is entitled to a wardship. The widow of the sokeman or the Kentish gavelkinder is more liberally endowed than is the countess or the baron's lady, but her 'free bench' shows its ancient origin when she has to abandon it on a second marriage. Difficult as it is to construct a law of husband and wife for the days before the Conquest, we can hardly doubt that during a considerable space of time, the truly feudal age, the rights of Avives and widows in the lands of their husbands were waning rather than waxing*.

1 Schroder, D. E. G. 312; Heusler, Institutionen, ii. 298, 326, 342.

' Maine, Ancient Law, ch. vii., ascribes the proTision for widows to the exertions of the church.

s go among the Lombards and West Goths, Schroder, X>. B. G. 305.

* Essays in A.-S. Law, 172-9. Beaumanoir, vol. i. p. 216, says that the general French law that a widow should enjoy as dower half the land that her husband had at the time of the marriage, had its origin in an ordinance of ' the good King Philip who reigned in the year 1214.' Before that time the widow

CH. VII. § 2.] Husband and Wife. 427

In manorial extents it is common to find a widow as the The tenant of a complete villein tenement, and there seems to be ^dow. much evidence of a general usage which allowed her to enjoy the whole of her husband's lands'. Where the lords are Op. 425] insisting on impartible succession, such a usage is by no means unnatural In what is regarded as the normal case, the man who leaves a widow leaves infant children, and the widow is the member of the family most competent to become the lord's tenant. In a few of our copyhold customs this right of the widow has become a regular right of inheritance ; she appears as her husband's heir, an exception to the very general rule that there is no inheritance between husband and wife^

It is only when we turn from lands to chattels that we come The upon the most distinctive feature of our marital law. The husband marriage transfers the ownership of the bride's chattels to *"^ ^^*- the husband, and whatever chattels come to the wife during the marriage belong to the husband : — these are the main rules of our fully developed common law, and at first sight we may be disposed to believe that more special rules about 'choses in action,' 'chattels real' and 'paraphernalia' are exceptional and of an origin which must in this context be called modern. However, if we patiently examine the records of the thirteenth century, we may be persuaded that there was an age in which our law had not decisively made up its mind against a community of chattels between husband and wife. We see rules which, had our lawyers so pleased, might have been represented as the outcome of this community.

We must begin b}'^ looking at what happens on the dissolu- The germs tion of the marriage by the death of one of the parties, for munity.

only took what had been named at the time of the marriage. He adds the formula which in old times the priest had put into the bridegroom's mouth : — 'Du doaire qui est devises entre mes amis et lea tiens, te deu.' It is probable that a similar form had been used in England. We must leave it to students of English liturgies to say at what time the vague words ' with all my worldly chattel,' or the like, made their way into our marriage service; but so far as we have observed they only appear in an age which has settled that ' common law dower' is independent of the wills of the parties and springs from the mere fact of marriage. Of. Blackstone, Comment, ii. 134.

1 Thus in Cart. Bams, it is the widow who pays the heriot: 'reliota eius si ipsum supervixerit, dabit pro herieto quinque solidos, et erit ab omni opere quieta per triginta dies ' (i. 312). Select Fleas in Manorial Courts (Selden Soc), pp. 44, 173.

° The vast manor of Taunton is the classical example; Elton, Origins of English History (2nd ed.), p. 189.

428 Family Law. [bk. ir.

experience seems to show that the fate of the chattels at that moment is apt to exercise a retroactive influence on the theory

tt the law will have as to the state of things that has existed ing the marriage. How much is secured for a widow, how much for a widower ? — such questions as these are of practical importance to thousands of men and women. These answered, it remains for the lawyer to explain the answers ; and he often has a choice between more than one explanation.

husband's The husband dies first. We have seen that in the thirteenth deatu.

century a very general usage, if it is not the common law of

England, assures to the wife a half, or if there is a child alive,

a third of the chattels. By his will the husband can only give

away his share, ' the dead's part.' Of this enough has been said^. [p.426]

Wife's The wife dies first. Has she been able to make a will ?

^*' ■ Bracton says that a woman who is under the power of a

husband can not make a will without the consent of her husband.

This is so for the sake of seemliness (propter honestatem).

Nevertheless, he adds, it is sometimes received as law that she

can make a will of that reasonable part which would have been

hers if she had survived her husband, and more especially can

she dispose of things that are given to her as ornaments, which

things may be called her very own (sua propria), as for instance

clothes and jewels^. From this we might gather that in

Bracton's day it was by no means unknown that a husband

would suffer a wife to dispose by will, not merely of the

ornaments of her person, but of an aliquot share, a third or a

half, of that mass of chattels which they had been enjoying in

common. We believe that such wills were frequently made.

So soon as we begin to get any large number of testamentary

documents, we find among them wills of married women such

as Bracton has described'. Four, for example, are proved at

York in the year 1346*. Thus, Emma, who describes herself

as the wife of William Paynot, makes her will and gives many

specific and pecuniary legacies. Then she says, 'And the

residue not bequeathed of my portion of goods I give to my

husband William.' Her two sons and the vicar of the parish,

not her husband, are her executors".

1 See above, p. 348. ' Bracton, f. 60 b.

' Early instances: Nicolas, Testamenta Vetusta, 45; Note Book, pi. 550. * Testamenta Eborac. i. pp. 21, 33, 36.

" Ibid. p. 36. Later instances, ibid. pp. 70, 142, 146, 240, 258, 280, 281, 282, 288, 290, 291, 838, 353.

CH. yii. § 2.] Husband and Wife. 429

Now -when we see a husband permitting his wife to give The wife's him by h6r will specific and pecuniary legacies and an aliquot ™ share of his own goods, we can not but feel that, in his opinion and in common opinion, those goods are hardly, his own. In the middle of the fourteenth century, however, the power of a married woman to make a will is set before us as a matter in dispute between the clergy and the laity. A provincial council held at London in 1342 denounced the sentence of excommuni- cation against those who should impede the free testation 'of villeins and other persons of servile condition or of women, [p.427] married or unmarried, or of their own wives^' Two years later the commons complained in parliament that the prelates had made a constitution sanctioning the testaments of wives and villeins, and that this was against reason^ No more was obtained from the king by way of response than that law and reason should, be done'. The struggle was not yet ended ; but about this matter the lay courts could have the last word. They could maintain the widower against the wife's executor unless the widower had consented to probate of the will, and slowly the spiritual tribunals were brought to a reluctant admission that the wife has only such testamentary power as her husband is pleased to allow her, and that his consent can be revoked at any time before he has suffered the will to be proved*.

The ecclesiastical lawyers themselves had not been able to The cauon formulate a clear theory about this matter ; they could find no ^"'^^ 'community' in the Roman texts, and from those texts they

' Wilkins, Concilia, ii. 705. This reinforces a constitution of Abp. Boniface (A.D. 1261) : ' Item statuimus ne quia alicuius solutae mulieris vel coniugatae, alienae vd propriae, impediat vel perturbet, aeu impediri aut perturbari faeiat seu procuret, iustam et consuetam testamenti liberam factionem.' See Appendix to Lyndwood, p. 20.

' Bot. Pari. ii. 149: 'et que neifs et femmes poent faire testament, quest centre reson.'

" Ibid. 150: ' le Eoi voet qe ley et reson ent soient faites.'

" In the fifteenth century Lyndwood writes thus ; — ' Mirum est quod nostris diebus mariti nituntur uxores suas a testament! factione impedire ' (Frovinciale, p. 173 ; a.Statutum bonae, gl. ad. v. propriarum uxorum). Also Broke (Abr. tit. Devise, pi. 34) cites a decision from so late a reign as Henry VIII.'s to prove that the husband can withdraw his consent at any time before probate is granted. But Lyndwood does not stand at the old point of view. He seems hardly to know -whether the true doctrine would be that the wife can bequeath an aliquot share of goods that are held in common, or that she can bequeath paraphernalia. , ,,

430 Family Law. [bk. ir,

began to borrow the inappropriate term paraphernalia to describe those goods which the wife can bequeath by her testaments Even this word, however, was taken from them by the lay courts and turned to another purpose. It is not im- probable that from of old the wife's clothes and ornaments had stood in a separate category apart from the general mass of chattels ; that on the dissolution of the marriage she or her representatives had been able to subtract these fi-om the [p. general mass before it was divided into aliquot shares; and that similarly the husband or his representatives had been able to subtract his armour and other articles appropriate to males. Very ancient Germanic law knows special rules for the trans- mission of female attire; it passes from female to female". This idea that the ornaments of the wife's person are specially her own seems to struggle for recognition in England'. In the end a small, but a very small, room is found for it. If the wife survives the husband, these things will not pass under h'is testament ; the wife's claim upon them will prevail against his legatees, though it will not — except as regards her necessary clothing — prevail against his creditors. If she dies before him, they are his. Such are the ' paraphernalia ' of our fully developed common law*- The We have seen our old law securing to the widow an aliquot

totStaCT share of chattels of which her husband can not deprive her by testamentary disposition, and we have seen it hesitating from century to century as to whether the wife can not dispose of her share by will if she dies in her husband's lifetime. One other point remains to be considered. What if the wife dies intestate ? Will not the idea of a community compel us to hold that her share ought to pass, not to her husband, but to her children or other kinsmen by blood ? That even this rule was not at one time very strange to our law we may infer from its appearance in the law of Scotland which was closely akin to

1 Lyndwood, loc, ciU: 'Et sic patet quod licet in rebus dotalibus maritus sit dominus, non tamen sic in rebus parapheiualibus. Nam res paraphernales sunt propriae ipsius mulieris, etiam stante matrimonio, ut legitur et notatur C. de pact, conven. 1. fl. et 1. hac. I. [Cod. 5, 14, L 8. llj de quibus uxor Ubere testari potest, ut ibi innuitnr.'

2 Schroder, D. E. G. 300, 702.

3 In the wills of married women it is common to find specific bequests of clothes and jewels.

* Blackstone, Oomm. ii. 435.

CH. VII. § 2.] Husband and Wife. 4.31

the custom of the province of York. In Scotland until recent times the wife's third or half has, on her death intestate in her husband's lifetime, gone, not to him, but to her own kin- dreds In the England of the thirteenth century, however, the question would have taken this shape : When the wife dies intestate, ought one-third, or perhaps one-half, of the chattels [p. 429] to be distributed for the good of her soul ? It seems probable, though we can not prove, that the church answered this question in the affirmative ; but in this instance she would have had to play an unpopular part. In her own interest and the interest of souls she had destroyed the old rules of intestate succession. The struggle on the wife's death would not be in England, as it might be elsewhere, a struggle between the husband and the blood kinsmen; it would be a struggle between the husband and the ordinary, in which the latter would have to demand a share of the goods that the husband had been enjoying, and this on the ground that the husband could not be trusted to do what was right for his wife's souP. This is a point of some importance: — the clerical theory of intestacy was an impediment to the free development of a doctrine of ' community' between husband and wife ; that theory could be pressed to a conclusion which husbands would feel to be a cruel absurdity. We can not, however, say that a doctrine of community rigorously requires that the surviving husband must give up to some third person the share of his intestate wife. The law of intestate succession may make the husband the one and only successor of his wife. Our English system might have taken the form, not unknown upon the continent, of a ' community of movables ' with the husband as the wife's only intestate successor'.

1 Down to 1855 Scottish law held that on the wife's death a share of the chattels, ' the wife's share of the goods in communion ' (which was one-third if there was a child, one-half if there was no child of the marriage) passed under the wife's wiU, or in case of intestacy, passed to her children, or, failing children, to her brothers, sisters and other next of kin. This was altered by Stat. 18-9 Vic. c. 23, sec. 6. Fraser, Husband and Wife (ed. 1878), p. 1528.

^ This might be well illustrated by the law about mortuaries. In the thirteenth century the church on the death of the wife often claimed a beast from the suryivihg husband. See e.g. Cart. Eams. i. 294: 'maritus eliget primum, et persona secundum.' Abp. Langham, with » saving for local customs, had to withdraw tliis demand : ' si mulier viro superstite obierit, ad solutionem mortuarii minime coerceatur.' See Lyndwood, Provinoiale, p. 19; c. Statutum. Lyndwood thought this concession unreasonable.

' Systems of community in which the surviving spouse is the sole heir of the

432 Family Law. , [bk. it..

Eejection We are not contending that the law of England ever

mnnity. definitely recognized a community of goods between husband and wife. We have, however, seen many rules as to what takes place on the dissolution of the marriage which might easily have been explained as the outcome of such a community, had our temporal lawyers been free to consider and administer them. Unfortunately about the year 1200 they suffered the ecclesiastical courts to drive a wedge into the law of husband [p.430] and wife which split it in twain. The lay lawyer had thence- forth no immediate concern with what would happen on the dissolution of the marriage. He had merely to look at the state of things that existed during the marriage. Looking at this, he saw only the husband's absolute power to deal with the chattels inter vivos. Had he been compelled to meditate upon the fate which would befall this mass of goods so soon as one of the spouses died, he might have come to a conclusion which his foreign brethren accepted, namely, that the existence of a community is by no means disproved by the absolute power of the husband, who is so long as the marriage endures ' the head of the community.' As it was, he saw only the present, not the future, the present unity of the mass, not its future division into shares. And so he said boldly that the whole mass belonged to the husband. 'It is adjudged that the wife has nothing of her own while her husband lives, and can make no purchase with money of her own'.' ' She had and could have no chattel of her own while her husband lived'.' ' Whatsoever is the wife's is the husband's, and the converse is not true'.' ' The wife has no property in chattels during the life of her husband^.' 'This demand supposes that the property in a chattel may be in the wife during the life of her husband, which the law does not allow".' Therejec- Once more we see the lawyers of the thirteenth century community making a short cut. A short cut it is, as all will allow who ™*arati n ^^^^ glanced at the many difficulties which the idea of a of goods. • community ' has to meet. When they gave to the husband

dead spouee {Alleinerbrecht des uberlehenden Ehegatten) are sometimeB found; and there are, or have been systems, in which the husband inherits the wife's share, but the wife does not inherit the husband's. See Stobbe, Privatreoht, iv. 243. •

1 Plaoit. Abbrev. p. 41, Northampton (4 John).

» Ibid. p. 96, Norf. » Britton, i. 227.

* T. B. 32-3 Edw. I. p. 186. » Y. B. 33-5 Edw. I. p. 313.

CH. VII. § 2.] Husband and Wife. 433

the ownership of the wife's chattels, they took an important step. Having taken it, they naturally set themselves against the wife's testamentary power (for how can Jane have a right to bequeath, things that belong to John?) and they set them- , selves against every restraint of the husband's testamentary power (for why should not a man bequeath things that belong to him ?), they secured for the widow nothing but the clothes upon her back. On the other hand, by basing the incapacities of the married woman rather upon the fact that she has no chattels of her own than upon the principle that she ought to [p.43i] be subject to her husband, they were leaving open the possibility that a third person should hold property upon trust for her and yet in no sort upon trust for him. In course of time this possibility became a reality, and by means of marriage settle- ments and courts of equity the English wife, if she belonged to the richer class, became singularly free from marital control. Modern statutes have extended this freedom to all wives. A law which was preeminently favourable to the husband has become a law that is preeminently favourable to the wife, and we do not adequately explain this result by sajdng that a harsh or unjust law is like to excite reaction ; we ought also to say that if our modern law was to be produced, it was necessary that our medieval lawyers should reject that idea of community which came very naturally to the men of their race and of their age. We may affirm with some certainty that, had they set themselves to develop that idea, the resulting system would have taken a deep root and would have been a far stronger impediment to the ' emancipation of the married woman ' than our own common law has been. Elsewhere we may see the community between husband and wife growing and thriving, resisting all the assaults of Komanism and triumphing in the modem codes. Long ago we chose our individualistic path; 'what its end will be we none of us know.

A few minor points have vet to be noted. It is long before Payments our lawyers have it firmly m their minds that a payment of and wife, money to husband and wife must be exactly the same as a payment to the husband. When the husband and wife are disposing of her land by fine, it is common to record that money is paid, not to him, but to them'. Nor is it uncommon to record that a husband and wife pay money for a conveyance to 1 Fines (ed. Hunter), i. pp. 37, 60, 82, 92, 95, etc. P. M. II. 28

434 Family Law. [bk. ii.

them and their heirs, or to them and the heirs of the wife^ In early wills legacies to married women are often found ; some- times one legacy is given to the husband, another to the wife. Convey- Conveyances to husband and wife 'and their heirs' are

hnsband plcnteous ^ According to the interpretation which would have and wife, ^j^g^j^ ^^^ upon such words at a later day, the husband and wife, are thereby made 'tenants by entireties' in fee simple. A tenancy by entireties has been called ' the most intimate union of ownership known to the law'.' It has been said that while [p. 432] two joint tenants are seised per my et per tout, the husband and wife in such a case are seised per tout et non per my. The one means by which the land can be alienated during the marriage is the fine levied by husband and wife ; if no such alienation be made, the survivor will become sole tenant of the whole. During the marriage the husband has in the land no share of which he can dispose. Neither of the spouses has anything; both of them have all. Some of the numerous conveyances that are made in this form at an early time may not have been intended to have this effect*, but the doctrine of the tenancy by entireties serves to show that an intimate ' community of marital conquests' was not very far from the minds of our lawyers °. The wife's Another rule that grows dimmer as we trace it backwards is that which denies to the married woman all power of contracting a debt. In 1231 a woman was adjudged to pay a debt for goods bought and money borrowed by her while she was coverte ; but stress was laid on the fact that she had quarrelled with her husband and was living apart from him'*. In 1234 a divorced woman was sued for a debt contracted while the de facto marriage endured'. We may suspect that the treatment

' Fines (ed. Hunter), i. pp. 1, 2, 18, 23, 26, etc.

' Ibid. pp. 3, 18, 20, 23, 26, etc.

8 Ohallis, Eeal Property (1892), p. 344.

* It may be doubted, for example, whether the scribe always saw the difference between ' to John and Joan his wife and their heirs ' and ' to John and Joan bis wife and the heirs of their two bodies begotten.' He might argue that the former gift is confined to those persons who are heirs of both John and Joan.

" Stobbe, Privatrecht, iv. p. 226. Some commentators have attempted to explain the continental community as a condominium plurium in solidum. One old writer says: 'sic utriusque coniugis bona oonfunduntur, ut quivis eorum totius patrimonii in solidum dominus sit.'

« Note Book, pi. 568. ' Note Book, pL 830.

contracts.

CH. VII. § 2.] Husband and Wife. 435

of the wife's promise as a mere nullity belongs to the age which has become quite certain that in no sense has the wife any chattels''. In some towns'* the married woman who carried on a trade could be sued for a debt that she had* contracted as a trader, and this custom may well be very ancient'. What, [p. 433] had our law taken a different turn, might have appeared as a carefully limited power of the wife to incur on behalf of the community small debts for household goods', appears here as her power to 'pledge her husband's credit' for necessaries. The little that we can read about this in our oldest reports suggests that the lawyers were already regarding it as a matter of agency". If the husband starved or otherwise maltreated his wife, she could go to the spiritual court, and if he was obstinate the temporal arm would interfere. In 1224 a wife obtained a writ directing the sheriff to provide her with a sufficient maintenance out of the lands of a husband who had refused to behave as a husband should and been excommuni- cated \

In order that the main import of our old law of husband T^^ and wife might be more plainly visible, we have as yet kept in of seisin. the background an element which is constantly thrust upon our notice by our old books. All depends upon seisin or possession. The husband must obtain seisin of the wife's land during the coverture, otherwise when left a widower he will go without his curtesy. The wife is entitled to dower only out of the lands of which the husband is seised at some moment during the. coverture. Even so the husband becomes the owner only of those chattels of the wife of which he obtains possession during the coverture. He can collect the debts due* to his wife and give a good receipt for them ; but, should he die before his

' Foreign systems, which agreed with the English as to the general outlines of the law which holds good while the marriage lasts, generally allowed that the wife could incur a debt which could be enforced against her so soon as she was a widow. Stobbe, op. cit. iv. 87.

2 See e.g. Lyon, Dover, ii. 295. » Stobbe, iv. 89.

* Abroad there was sometimes a fixed pecuniary limit to this power ; Stobbe iv. 88.

" Pitz. Bette, pL 163 (Mich. 34 Edw. I.). This may possibly be the same case as T. B. 33-5 Edw. I. p. 312. It is commented on in the famous Manly v. Scott (2 Smith's Leading Cases), a case which shows that the middle ages left behind them Uttle law about this matter.

« Rot. CI. 8 Hen. III. m. 8 (p. 592) : ' qui exoommunicatus est, ut dioitnr, eo quod non vult ipsam lege maritali tractare.'

28—2

436

Family Law.

[bk. II.

The

personal relation- ship.

Civil death of husband.

wife, any debt that he has not recovered will belong to her, not to his executors. Our lawyers seem hardly able to imagine that any right can come into being or be transferred unless there is a change of seisin or possession.

The relationship between husband and wife, in so far as it was merely personal, was more than suflSciently regulated by the ecclesiastical tribunals. To the canonist there was nothing so sacred that it might not be expressed in definite rules. The king's court would protect the life and limb of the married woman against her husband's savagery by punishing him if he [p-434] killed or maimed her. If she went in fear of any violence exceeding a reasonable chastisement, he could be bound with sureties to keep the peace ^ ; but she had no action against him, nor had he against her. If she killed him, that was petty treason.

Of exceptional cases in which the ' disabilities of coverture ' are w^holly or partially removed though there is still a marriage, we as yet read very little. The church will not, at least as a general rule, permit a husband or wife to enter religion unless both of them are desirous of leaving the world ; but occasionally we may see a woman suing for her land or for her dower and alleging that her husband is a monk I In 1291 a case, which was treated as of great importance, decided that a wife whose husband had abjured the realm might sue for her land; after an elaborate search for precedents only one could be found'.

Paternal power in ancient times.

§ 3. Infancy and Guardianship.

In the seventh century even the church was compelled to allow that in a case of necessity an English father might sell into slavery a son who was not yet seven years old. An older boy could not be sold without his consent. When he was

1 Eeg. Brev. Orig. f. 89. The husband's duty is thus expressed, ' qnod ipse praefatam A bene et honeste tractabit et gubernabit, ac damnum vel malum aliquod eidem A de corpore sue, aliter quam ad virum suum ex causa regiminis et castigationis uxoris suae licite et rationabiliter pertinet, non faciet neo fieri proeurabit.' The Norman Somma, p. 246, says that a husband may not put out his wife's eye nor break her arm, for that would not be correction.

2 Note Book, pi. 455, 1139, 1594. Later law would not allow the wife her dower in this case : Go. Lit. 33 b ; and this seems to go back as far as 32 Edw. I. Fitz. Dowere, 176.

3 Eot. Pari. i. 66-7; Co. Lit. 183 a.

CH. VII. § 3.] Infancy and Guardianship. 437

thirteen or fourteen years old he might sell himself^ From this we may gather that over his young children a father's power had been large ; perhaps it had extended to the killing of a child who had not yet tasted food. It is by no means certain however that we ought to endow the English father with an enduring patria potestas over his full-grown sons, even when we are speaking of the days before the Conquest. On this point there have been many differences of opinion among [p-435] those who have the best right to speak about early Germanic law''.

That women were subject to anything that ought to be The called a perpetual tutelage we do not know. Young girls women* ° might be given in marriage — or even in a case of necessity sold as slaves — against their will ; but for the female as well as for the male child there came a period of majority, and the Anglo- Saxon land-books show us women receiving and making gifts, making wills, bearing witness, and coming before the courts without the intervention of any guardians'. The maxim of our later law that a woman can never be outlawed — a maxim that can be found also in some Scandinavian codes — may point to a time when every woman was legally subjected to the mwnd of some man, but we can not say for certain that it was a part of the old English system* It is probable that the woman's life was protected by a wergild at least as high as that of the man of equal rank ; some of the folk-laws allow her a double wergild, provided that she does' not fight — a possibility that is not to be ignored^- But both as regards offences committed by, and offences committed against women, there is no perfect harmony among the ancient laws of the various Germanic tribes, and we can not safely transplant a rule from one system to another. After the Norman Conquest the woman of full agfe who has no husband is in England a fully competent person for all the purposes of private law; she sues and is sued, makes feoffments, seals bonds, and all this without any guardian ; yet many relics

^ Theodore's Penitential (Haddau and Stubbs, iii. 202).-

" Stobbe, Privatreolit,. iv. 386; Schroder, D. E. G. 313; Hensler, Instit. ii. 435; Essays in A.-S. Law, 152-162.

' See e.g. Cod. Dipl. 82 (i. 98); 1019 (v. 58); 220 (i. 280); 323 (ii. 127); 328 (ii. 133); 499 (ii. 387=Essays in A.-S. Law, p. 342) a woman's claim is asserted in court by a kinsman, but she does the swearing; 693 (iii. 292).

* Brunner, D, B, G. i. 172; Wilda, Stra&echt, 649.

0 Brunner, D. B. G. ii. 614; Wilda, op. cit. 571, 648.

438

Fa/mily Law.

[bk. II.

Paterual power in

cent. xiii.

Infancy

and

majority.

of a ' perpetual tutelage of women ' were to be found on the continent in times near to our own^

If our English law at any time knew an enduring patria potestas which could be likened to the Roman, that time had passed away long before the days of Bracton. The law of the thirteenth century knew, as the law of the nineteenth knows, infancy or non-age as- a condition which has many legal [p.' consequences; the infant is subject to special disabilities and enjoys special privileges ; but the legal capacity of the infant is hardly, if at all, affected by the life or death of his father, and the man or woman who is of full age is in no sort subject to paternal power. Bracton, it is true, has copied about this matter some sentences from the Institutes which he ought not to have copied; but he soon forgets them, and we easily see that they belong to an alien system ^ Our law knows no such thing as ' emancipation,' it merely knows an attainment of full age'.

There is more than one ' full age.' The young burgess is of full age when he can count money and measure cloth ; the young sokeman when he is fifteen, the tenant by knight's service when he is twenty-one years old*. In past times boys and girls had soon attained full age ; life was rude and there was not much to learn. That prolongation of the disabilities and privileges of infancy, which must have taken place sooner or later, has been hastened by the introduction of heavy armour. But here again we have a good instance of the manner in which the law for the gentry becomes English common law. The military tenant is kept in ward until he is twenty-one years old ; the tenant in socage is out of ward six or seven years earlier. Gradually however the knightly majority is becoming the majority of the common law. We see this in Bracton's text : the tenant in socage has no guardian after he is fifteen

' Stobbe, Privatrecht, iv. 427; Viollet, Histoire dn droit civil, 290.

' Bracton, f. 6. Bracton and Azo, p. 73.

" Bracton, f . 6 b : ' Item per emancipationem eolvitur patria potestas ; nt si quis filium suum foristamiliaverit cum aliqua parte hereditatis suae, secundum quod antiquitus fieri solet.' This seems to be an allusion to Glanvill, vii. 3. In old times a forisfamiliated son, that is, one whom his father had enfeoffed, was excluded from the inheritance. This is already antiquated, yet Bracton can find nothing else to serve instead of an emancipatio.

* Glanvill, vii. 9; Bracton, f. 86 b; Pleta, p. 6; Britton, ii. 9. As to the phrase cove et keye, see Oxford Engl. Diet.'

CH. VII. § 3.] Infancy and Guardianship. 439

years old, but he still is for many purposes a miuor; in particular, he need not answer to a writ of right^ and it is doubtful whether, if he makes a feoffment, he may not be able to revoke it when he has attained what is by this time regarded as the normal full age, namely one and twenty years^ In later [p,437] days our law drew various lines at various stages in a child's life ; Coke tells us of the seven ages of a woman ; but the only line of general importance is drawn at the age of one and twenty; and infant — the one technical word that we have as a contrast for the person of full age — stands equally well for the new-bom babe and the youth who is in his twenty-first year*.

An iufant may well have proprietary rights even though his Proprie- father is still alive. Boys and girls often inherit land from of'mfsmts.' their mothers or maternal kinsfolk. In such case the father will usually be holding the land for his life as ' tenant by the law of England,' but the fee will belong to the child. If an adverse claimant appears, the father ought not to represent the land in the consequent litigation ; he will ' pray aid ' of his child, or vouch his child to warranty, and the child will come before the court as an independent person*. What is more, there are cases in which the father will have no right at all in the land that his infant son has inherited; the wardship of that land will belong to some lord*-

An infant may be enfeoffed, and this though his father is infants in living ; he may even be enfeoffed by his father. If the child is

1 Braeton, f. 274 b.

" Braeton, f. 275 b. Apparently a local custom is required to validate such a feofiment. See the note on Britton, i. 9.

* Co. Lit. 78 b : 'A woman hath seven ages for severall purposes appointed to her by law : as, seven yeares for the lord to have aid pur file marier ; nine yeares to deserve dower ; twelve yeare^ to consent to marriage ; until fourteene yeares to be in ward ; fourteene yeares to be out of ward if she attained there- unto in the life of her ancestor ; sixteene yeares for to tender her marriage if she were under the age of fourteene at the death of her ancestor ; and one and twenty yeares to alienate her lands, goods and ohattells.'

4 Note Book, pi. 413, 1182 ; Placit. Abbrev. 267 (Westmoreland). In the earliest records an ' aid prayer ' is hardly distinguished from a voucher.

' Braeton, f. 438. Husband and wife have a son ; the wife dies ; the son inherits from his maternal uncle lands held by knight's service. Here the husband will have no curtesy, for he obtained no seisin in his wife's lifetime. The feudal lord takes the land. But, at all events in later days, the father, not the lord, will have the wardship of the son's body and his marriage; Lit. see. 114.

440 Family Law. [bk. ii.

very young there may be some difficulty about enfeoffing him; for how can he take seisin ? Bracton says that in such a case the donor must appoint a curator for the infant ; he is troubled by the Roman doctrine that children of tender years can not acquire possession^ In 1233 we may see a father bent on enfeoffing a younger son who is but seven years old. He receives the child's homage in the hundred court, he takes the child to the land and makes the tenants do homage to their [p.^ new lord, and then he commits the land to one Master Ralph who is to keep it 'to the use' of the boy. This is a good feoffment, and after the father's death is upheld against his heir^. In such transactions Bracton might find some warrant for his talk about curators and tutors ; it is difficult, unless some third person intervenes, for a father to cease to possess in favour of a small boy who is living in his house ; but infants occasionally acquire land by feoffment, and we hear nothing of ■ curators or tutors. Any speculative objection that there may be against the attribution to infants of an animus possidendi, runs counter to English habits. Indubitably an infaat can acquire seisin and be seised. When all goes well the infant heir acquires seisin and is seised ; the guardian is not seised of the land ; the ward is seised. Indubitably also an infant can acquire seisin wrongfully ; an infant disseisor is a well-known person and must answer ior his wrongful act. If an infant can acquire seisin by entry on a vacant tenement or by an eject- ment, why should he not acquire it by delivery? Infants as An infant caii sue ; he sues in his own proper person, for he p amt a. ^^^ ^^^ appoint an attorney. He is not in any strict sense of the word ' represented ' before the court by his guardian, even if he has one. Suppose, for example, that A, who held his land by knight's service of M, dies seised in fee leaving B an infant heir, and that X who has adverse claims takes possession of the vacant tenement ; it is for B, not for M, to bring an action (assize of mort d'ancestor) against X. If M had been in possession as B's guardian and had been ejected by X who claimed a better right to the guardianship, this would have been a different case; M would have had an action {quare eiecit de custodia) against X. The guardian has rights of his own which he can make good ; the infant has rights of his own

1 Bracton, f. 43b ; also ff. 12, lib. Compare Note Book, pi. 1226. " Note Book, pi. 754. See also pi. 421.

CH. VII. § 3.] Infancy and Guardianship. 441,

which he can make good. Often enough it happens that an infant brings an action against the person who, according to the infant's assertion, ought to be his guardian. The lord has entered on the tenement that was left vacant by the ancestor's death and denies the rights of the infant heir. This is a common case ; the lord sets up rights of his own and is sued by [p.439] the infant\ He is sued, we say, by the infant ; the record will say so; that is the legal theory'. But the infant may be a baby. Who, we may ask, is it that as a matter of fact sets the law in motion ? The plea roll will not say, and the court, we take it, does not care. Some ' friend ' of the infant sues out the writ and brings the child into court. But, so far as we can see, any one may for this purpose constitute himself the infant's friend. The action will be the infant's action, not the friend's action, and the court will see that the infant's case is properly pleaded. It will allow a child some advantages that would be denied to a mature litigant; it will not catch at his words'. Even When the infant has a guardian who is in possession of the land, an action for waste can be brought by the infant against the guardian, and, if the waste is proved, the guardian- ship will be forfeited*. Statutes of Edward I.'s day introduced a more regular procedure into the suits of infants ; if the infant could not himself obtain a writ, some 'next friend' (prochein amy, proximus amicus) might obtain one for him^ How weak the family tie had become we see when we learn that this next friend need not be a kinsman of the infant ; in course of time the judges will hold that one of their subordinate officers will be the best prochein amy for the good furtherance of the infant's cause'.

1 Bracton, f. 253 b.

' See e.g. Note Book, pL 1477: 'Assisa venit reoognitura si Matillis.. .mater Bicardi...fuit seisita...St Bicardus dicit quod est infra etatem.'

' Note Book, pi. 1948. An infant first vouches A and then Touches B ; ' et quia est infra etatem non occasionetur.'

•* In some of these cases of waste we find that a named person, often the infant's mother, is said to sue the guardian, ^ee Note Book, pi. 485, 717, 739, 1056, 1743. But in others, pi. 1075, 1201, 1840, the infant is said to sue. In pi. 1840 one Milieant brings a novel disseisin against her guardian, and casually in the course of the record we read of some unnamed person 'qui pro ea loquitur.' Bracton, f. 285, speaks of ' aliquis parens vel amicus qui de yasto sequatur pro minore.'

" Stat. West. I. e. 48 ; Stat. West. II. c. 15.

' Second Inst. 261, 390 ; Co. Lit. 135 b note. The orthodox learning is that 'At common law, infants could neither sue nor defend, except by guardian; by

442 Family Law. [bk. ii.

Infants as An infant can be sued. The action is brought against him ■ in his own name and the writ will say nothing of any guardian. Very often the record will say that the infant appears and that [p. 440] some named person who is his guardian appears with him\ When the action is one in which the guardian has an interest, when, for example, it will if successful take away from an infant land which the lord is enjoying as his guardian, then this guardian has a right to come into court with the infant; the infant will perhaps refuse to answer until this guardian is summoned^ But it is very possible that there is no guardian who has any interest in the action, and it is not impossible that the infant has no guardian at all. In these cases the court seems quite content if some person, who as a matter of fact has charge of the child, appears along with him'. Such a person will not always be called a guardian {custos), but he seems to act as a guardian ad litem. Sometimes however we read no word of any such person. Our record tells us that the infant is sued and that he ' comes and says ' this or that by way of answer^. An infant must answer for his own Wrongdoing, for example, a disseisin that he has perpetrated, and he may not have any guardian either in law or in fact. Now as to the ' coming,' we must take our record at its word ; the infant does appear before the court. As to the ' saying,' this may be done by the mouth of a professional pleader. But the court itself watches over the interest of the infant litigant", and, as we shall

whom was meant, not the guardian of the infant's person and estate, but either one admitted by the court for the particular suit on the infant's personal appearance, or appointed for suits in general by the king's letters patent.' Then the Statutes of Westminster allowed a prochein amy to sue. ' But,' says Coke (Second Inst. 390), ' observe well our books, where many times a gardein is taken for aprochein amy, and a,prochein amy for a gardein.'

1 Note Book, pi. 43, 421, 571, 845, 968, 1083. ' Note Book, pi. 1442.

' Thus Bracton, f. 247 b, supposes a Quare impedit brought against an infant, who has no property open to distress ; ' tunc summoneatnr ille in cuius manu fuerit et cuius consilio ductus quod sit et habeat [infantem coram iusticiariis] tali die.'

^ Note Book, pi. 191 : ' et idem Johannes praesens est et est infra etatem et dicit quod nou debet ad cartam illam respondere.' Ibid. pi. 200 : action on a fine against Bichard : ' Et Bicardus venit et est infra etatem et dicit quod bene potest esse ete....Et quia Eioardus non dedicit fiuem.... Bicardus in misericordia.' Bracton, f. 892: 'Ad finem factum respondebit quilibet minor, etsi non esset nisi unius auni.'

5 Note Book, pi. 1958 : ' set quia Alicia [plaintiff} est infra etatem, nee credendum est custodi suo, vel alicui eorum, cum ambo [plaintiff- and defendant] sint infra etatem, ideo inquiratur per sacrameutnm iuratorum etc'

CH. VII. § 3.] Infancy and Guardianship. 443

see, proprietary actions are in general held in suspense so long as there is infancy on the one side or on the other.

We here come upon a principle fertile of difficulties and Demurrer distinctions. We may state it thus : — During infancy the parol. [p.44i] possessory status quo is to be maintained \ On the one hand, if the infant inherits from an ancestor who died seised as of fee, he is entitled to seisin and his seisin will be upheld during his non-age. If any one has a better title, he will not be able to recover the land from the heir until the heir is of full age. He can indeed begin an action against the infant, but infancy will be pleaded against him, and ' the parol ' will ' demur ' (loquela remanebii) : that is to say, the action will remain in suspense, until the heir has attained his majority. On the other hand, if the infant inherits from an ancestor who at his death was out of seisin, then the heir so long as he is under age will not be able to make good his ancestral claim ^ He may bring his action, but the parol will demur. And what can not be done by action must not be done by force. The status quo which the dead ancestor left behind him is stereotyped, whether it be to the advantage or to the detriment of the infant heir. We see once more that deep reverence for seisin which characterizes medieval law. For a period of twenty years the claim of the true owner who has lost seisin may be kept in suspense. This principle did not work very easily ; it was overlaid by numerous distinctions between the various forms of action; but it was deeply rooted'. We see it even in the region of debt. The heir need not answer the demands of his ancestor's creditors so long as he is under age*. So distant from our law has been any idea of the representation of an infant by a guardian, that it will hang up a suit for many years rather than suffer it to proceed while an infant is interested in it.

No part of our old law was more disjointed and incomplete Law of than that which deals with the guardianship of infants ^ When f^p '°^"

$

1 This principle appears in other countries ; Schroder, D. E. Or. 316.

' Bracton, f. 274-5 b; 421 b-Sb; Note Book, vol. i. p. 95.

' Much of the learning is collected in Markal's Case, 6 Coke's Eeports, 3 a.

* Note Book, pi. 1543: 'Et Willelmus dioit quod infra etatem est et non debet respondere de debito avi sui, et petit etatem suam. Et habet etc' The demurrer of the parol was not abolished until 1830; Stat. 11 Geo. IV. and 1 Will. IV. c. 47, sec. 10.

" As to guardianship in chivalry and in socage, see above, vol. i, pp. 318- 329.

444 Fa/mily Law. [bk. n.

it issued from the middle ages it knew some ten kinds of guardians, and yet it had never laid down any such rule as that there is or ought to be a guardian for every infant'. It had [p. 442] been thinking almost exclusively of infant heirs, and had left other infants to shift for themselves and to get guardians as best they might from time to time for the purpose of litigation. The law had not even been careful to give the father a right to the custody of his children ; on the other hand, it had given him a right to the custody of his heir apparent, whose marriage he was free to selP. It had looked at guardianship and paternal power merely as profitable rights, and had only sanctioned them when they could be made profitable. A statute was required to convert the profitable rights of the guardian in socage into a trust to be exercised for the infant's benefit' ; and thereupon Britton denied that such a guardian is rightly called a guardian since he is no better off than a servant*. The law, at all events the temporal law, was not at pains to designate any permanent guardians for children who owned no land. We may suppose that in the common case the sisters and younger brothers of the youthful heir dwelt with their mother in the dower house — often she purchased the wardship of her first-born son — but we know of no writ which would have compelled her or any one else to maintain them, or which would have compelled them to live with her or with any one else. Probably the ecclesiastical courts did something to protect the interests of children by obliging executors and administrators to retain for their use any legacies or 'bairns' parts' to which they had become entitled^ Here again the fissure in our law of property, which deprived the temporal courts of all jurisdiction over the fate of the dead, man's chattels, did much harm'.

' Co. Lit. 88 b.

2 See Batcliff's Case, 3 Co. Eep. 37, and Hargrave's note to Co. Lit. 88 b. The writ for a father or other ' guardian by nature ' against the abduoer of the child, called the child the plaintiff's heres, and contained the words cuius maritagiwm ad ipsum pertinet. According to the old law trere was no ' guar- dianship by nature' except the ancestor's guardianship of an apparent — and perhaps of a presumptive — ^heir.

s Prov. Westm. (1259) o. 12 ; Stat. Marlb. (1267) u. 17 ; see above, vol. L p. 322.

* Britton, ii. 9. » See above, vol. ii. p. 362.

" At any rate in later times, the courts of the church tried to enforce as far as they were able some romanesque law about tutors and curators; but they could not interfere with a wardship. See Swinburne, Testaments (ed. 1640), pp. 170-181; also Hargrave's note to Co. Lit. 88 b.

CH. VII. § 3.] Infancy and Guardianship. 445

[p. 443]' But a comprehensive law of guardianship was the less The

necessary, because, according to our English ideas, the guardian lot"^^" is not a person whose consent will enable the infant to do acts ''»™*'»'- which he otherwise' could not have done. The general rule about the validity of the acts of an infant, to which our courts were gradually coming, was that such acts are not void, but are voidable by the infant. The case of a feoffment is typical. The infant makes a feoffment ; the feoffee will enjoy the land until the feoffor or some heir of the feoffor avoids the feoff- ments But, be this as it may, — and by degrees our law came to an elaborate doctrine,^ — the guardian can neither bind the infant nor help the infant to bind himself. There is no repre- sentation of the ward by the guardian, nor will the guardian's authority enable the infant to do what otherwise he could not have done.

This part of our law will seem strange to those who know The king's anything of its next of kin. Here in England old family ship, arrangements have been shattered by seignorial claims, and the king's court has felt itself so strong that it has had no need to reconstruct a comprehensive law of wardship. That the king should protect all who h^ve no other protector, that he is the guardian above all guardians, is an idea which has become exceptionally prominent in this much governed country. The king's justices see no great reason why every infant should have a permanent guardian, because they believe that they can do full justice to infants. The proceedings of self-constituted ' next friends ' can be watched, and a guardian ad litem can be appointed whenever there is need of one.

We have now traversed many of the fields of private law. Review of For a moment we may pause, and glancing back along our path private we may try to describe by a few words the main characteristics of the system that we have been examining. Of course one main characteristic of English ipedieval law is that it is medieval It has much in common with its sisters, more especially with its French sisters. Bracton might have travelled through France and talked with the lawyers whom he met without hearing of much that was unintelligible or very surprising. And yet English law had distinctive features. Chief among' these, if we

^ The writ of entry dumfuit infra aetatem (Beg. Brev. Orig. f. 228 b) is the infant's action.

' See Co. Lit. 380 b, 172 a, 308 a, etc.

446 Family Law. [bk. ii.

are not mistaken, was a certain stern and rugged simplicity, [p. 444] On many' occasions we have spoken of its simplicity, and in so doing we have encountered that common opinion which ascribes all that it dislikes or cannot understand to ' the subtleties of the Norman lawyers.' Now subtlety is the very last quality for which we should either blame or praise the justices who under Henry II. and his sons built up the first courses of our common law. Those who charge them, and even their predecessors of the Norman reigns, with subtlety are too often confusing the work of the fifteenth century with the work of the twelfth, and ascribing it all to ' Norman lawyers ' : — they might as well attribute flamboyant tracery to architects of the Norman age. Gladly would we have had before us a judgment passed by some French contemporary on the law that is stated by Glanvill and Bracton. The illustrious bailli of Clermont, Philippe de Kemi, sire de Beaumanoir, lawyer and poet, may have been in England when he was a boy ; he sang of England and English earls and the bad French that they talked.^. If he had come here when he was older, when he was writing his Coutumes, what would he have said of English law ? Much would have been familiar to him ; he would have read with ease our Latin plea rolls, hesitating now and again over some old English word such as sochemannus ; the ' Anglo-French ' of our lawyers, though it would have pained his poet's ear, was not yet so bad that he would have needed an interpreter ; hardly an idea would have been strange to him. We are too ignorant to write his judg- ment for him ; but some of the principles upon which he would have commented would, so we think, have been these : — (1) In England there can be no talk oi franc alien, nor of alleu of any kind ; (2) Every inheritable estate in land is a feod/wm, a fief; (3) English gentix hons have no legal privileges, English counts and barons very few ; (4) The vilain is a serf, the serf a vilain ; (5) There is no retrait lignager ; the landowner can sell or give without the consent of his heir ; (6) Land can not be given by

^ Beaumanoir, besides the Contumes du Beauvoisis, wrote two poems, La Manekiue and Jehan et Blonde. These were published by Hermann Sucher for the Soci^tS des anciens testes franQaie. The editor (i. p. z.) thinks that Beaumanoir may have been in England between 1261 and 1265, perhaps as a page in the train of Simon de Montfort. The second of the two poems was published by the Camden Society under the title Blonde of Oxford; the scene is laid in England, and the earls of Oxford and Gloucester are introduced ; the latter talks bad French,

CH. VII. § 3.] Infancy and Guardianship. 447

[p. 445] testament ; (7) There can be no conveyance of land without the real livery of a real seisin ; (8) The eldest son absolutely excludes his brothers from the paternal inheritance ; (9) Succes- sion to movables, whether under a will or upon intestacy, is a matter that belongs to the courts of Holy Church ; (10) There is no community of goods, no compaignie, between husband and wife ; the bride's chattels become the bridegroom's. When, after dipping into foreign books, we look at all these principles together, we shall find their common quality to be, not subtlety, but what we have called a stern and rugged simplicity. They are the work of a bold high-handed court which wields the might of a strong kingship. From the men who laid down these rules, from Ranulf . Glanvill, Hubert Walter and their fellows, we cannot withhold our admiration, even though we know that a premature simplicity imposed from above is apt to find its sequel in fiction and evasion and intricate subtlety; but their work was permanent because it was very bold.

CHAPTER VIII.

CRIME AND TOET.

The On no other part of our law did the twelfth century [p.^

century Stamp a more permanent impress of its heavy hand than on ."■".^ . , that which was to be the criminal law of after days. The

criminal ...

law. changes that it made will at first sight seem to us immeasur-

able. At the end of the period we already see the broad outlines which will be visible throughout the coming ages. What lies before us is already that English criminal law which will be fortunate in its historians, for it will fall into the hands of Matthew Hale and Fitzjames Stephen. We go back but a few years, we open the Leges Henrici, and we are breathing a different air. We are looking at a scheme of wer and blood- feud, of idt and wite. It is one of many similar schemes and is best studied as a member of a great family. To the size of that family we now-a-days can hardly set a limit. From many ages and many quarters of the globe archaeologists aliii travellers are bringing together materials for the history of wer and bfood-feud, while as regards our own Teutonic race a continuous and a well-proved tale can be and has been told. We shall not here retell it, and on the other hand we shall not follow the fortunes of what we may call our new criminal law beyond its earliest days. There are admirable books at our right hand and at our left; our endeavour will be to build a bridge between them^.

' The principal books which enable us to trace our modern law of crimes, from the later middle ages onwards, are Stauudford, Les Plees de Corone; Coke, Third Institute; Hale, Pleas of the Crown (for historical purposes this is one of the very best of our legal text-books); Blackstone, Comment, vol. iv.; J. P. Stephen, History of the Criminal Law; Pike, History of Crime in England. For the old Germanic law, Wilda, Strafrecht der Germanen, is still an excellent

CH. VIII. § l.J The Ancient Law. 449

§ 1. The Ancient Law.

[p. 447] Of the more ancient system we shall say but little. On The old the eve of the Norman Conquest what we may call the criminal crime and law of England (but it was also the law of ' torts ' or civil ^°^g- wrongs) contained four elements which deserve attention; its past history had in the main consisted of the varying relations between them. We have to speak of outlawry, of the blood- feud, of the tariffs of wer and h6t and wite, of punishment in life and limb. As regards the malefactor, the community may assume one of four attitudes : it may make war upon him, it may leave him exposed to the vengeance of those whom he has wronged, it may suffer him to make atonement, it may inflict on him a determinate punishment, death, mutilation, or the like.

Though we must not speculate about a time in which there Outlawry was no law, the evidence which comes to us from England and '" ° °^' elsewhere invites us to think of a time when law was weak, and its weakness was displayed by a ready recourse to outlawry. It could not measure its blows ; he who defied it was outside its sphere ; he was outlaw. He who breaks the law has gone to war with the community ; the community goes to war with him. It is the right and duty of every rnan to pursue him, to ravage his land, to burn his house, to hunt him down like a wild beast and slay him ; for a wild beast he is ; hot merely is he a 'friendless man,' he is a wolf Even in the thirteenth century, when outlawry had lost its exterminating character and had become an engine for compelling the contumacious to abide the judgment of the courts, this old state of things was not forgotten ; Caput gerat lupinum — in these words the courts decreed outlawry ^ Even in the nineteenth century, the king's

fc.448] right to 'year, day and waste' of the felon's land remained as a

boot; but the whole subject i8 now covered by Brunner, Deutsche Eechts- geachichte. Two valuable essays by the same writer on Outlawry and Eesponsibility for Unintentional Misdeeds are included in his Forsohungen. Henderson, Yerbrechen und Strafen in England, Berlin, 1890, has collected valuable materials for the Norman period of Knglish law. Post, Bausteine fiir eine allgemeine Bechtswissenschaft, 1880-1, describes the nascent criminal lq,w of many rude peoples.

^ Select Pleas of the Crown (Selden Soc), p. 47. Y. B. 20-1 Edw. I. p. 237; *cri4 Wolveeeved.'

P. M. u. 29

450 Crime and Tort. [bk. ii.

memorial of the time when the decree of outlawry was a decree of fire and sword ^. Promin- A ready recourse to outlawry is, we are told, one of the

outlawry, tests by which the relative barbarousness of various bodies of ancient law may be measured. Gradually law learns how to inflict punishment with a discriminating hand. In this respect some of the Scandinavian codes, though of comparatively recent date, seem to represent an earlier stage than any to which our Anglo-Saxon law bears witness ; outlawry in them is still the punishment for many even of the smaller deeds of violence. Among our English forefathers, when they were first writing down their customs, outlawry was already reserved for those who were guilty of the worst crimes'". Blood-feud. Without actively going to war with the offender, the law may leave him unprotected against those who have suffered by his misdeed; it may concede to them the right to revenge themselves. The slaughter of a member of one by a member of another kin has been the sign for a blood-feud. The injured kin would avenge its wrong not merely on the person of the slayer, but on his belongings.' It would have life or lives for life, for all lives were not of equal value ; six ceorls must perish to balance the death of one thegn. Whether or no Teutonic law in general, or the Anglo-Saxon law in particular, knew what may properly be called a legal right of blood- feud, is a question that has been disputed. Some writers, while not doubting that blood-feuds were vigorously prosecuted, seem disposed to believe that within the historic time the feud was not lawful, except when the slayer and his kinsfolk had made default in paying the dead man's wergild, the statutory sum which would atone for his death. Others regard the establishment of these statutory sums as marking an advance, and' speak of an age when the injured kin was allowed by law the option of taking money or taking blood. Without at- tempting to solve this problem, we may say that even in our earliest laws a price is set on life, and that in Alfred's day it [p.^

1 Brunner, Abspaltungen der Priedlosigkeit, Forsohnngen, p. Hi; Post, Bausteine, i. 164.

° When outlawry has been reduced from the level of punishment or warfare to that of a mere 'process' against the contumacious, another movement begins, for this ' process ' is slowly extended from the bad crimes to the minor offences, and in England it even becomes part of the machinery of purely civil actions.

CH. VTii. § 1.] The Ancient Law. 451

was unlawful to begin a feud until an attempt had been made to exact that sum'. A further advance is marked by a law of Edmund. He announces his intention of doing what in him lies towards the suppression of blood-feuds. Even the slayer himself is to have twelve months for the payment of the wer before he is attacked, and the feud is not to be prosecuted against his kindred unless they make his misdeed their own by harbouring him: a breach of this decree is to be a cause of outlawry^

A deed of homicide is thus a deed that can be paid for by The money. Outlawry and blood-feud alike have been retiring composi-. before a system of pecuniary compositions, of hdt : that is, of *'°°^" betterment. From the very beginning, if such a phrase be permissible, some small offences could be paid for; they were ' emendable.' The offender could buy back the peace tiiat he had broken. To do this he had to settle not only with the injured person but also with the king : he must make h6t to the injured and pay a wite to the king'. A complicated tariff was elaborated. Every kind of blow or wound given to every kind of person had its price, and much of the jurispru- dence of the time must have consisted of a knowledge of these pre-appointed prices. Gradually more and more offences became emendable; outlawry remained for those who would not or could not pay. Homicide, unless of a specially aggravated kind, was emendable ; the h6t for homicide was the wergild of the slain.

Along with this. process and constantly interfering with it True went on another, which we may call the institution of true ments." punishments. Perhaps there never was a time in this country when the community did not inflict punishment upon, as distinguished from declaring outlawry against, certain criminals. To distinguish between these two acts may have been difficult. Outlawry was the capital punishment of a rude age. But the [p. 450] outlaw may at times have been reserved, even in the rudest

1 Alfred, o. 42.

' Edmund, ii. 1. As to the earlier but parallel Frankish legislation, see Brunner, D. E. G. ii. 529-531 ; it did not meet with permanent suooess.

' Tacitus, Germ. o. 12 : ' pars multae regi vel oivitati, pars ipsi qui vindicatur vel propinquis eius exsolvitur.' Some of the German nations reckon the sum due to the king as a part of the whole composition, in accordance with these words of Tacitus ; others, including the English, dis- tinguish more clearly the loUe from the bdt.

29—2

452 Crime and Tort. [bk. ii.

age, for a solemn death ; he was devoted to the gods, a human sacrifice', Tacitus tells us that in certain cases the Germans inflicted capital punishment by hanging, drowning or burying alive in a morass. The crimes that he mentions include those most hateful to a warlike folk, such as treason and cowardice, and also some misdeeds which may have been regarded as crimes against religion^. Homicide on the other hand was 'emendable' with money, or rather with horses and oxen. The influence of Christianity made for a while against punish- ment and in favour of 'emendation' or atonement*. The one punishment that can easily be inflicted by a state which has no apparatus of prisons and penitentiaries is death. The church was averse to bloodshed, and more especially to any curtail- ment of the time that is given to a sinner for repentance. The elaboration of the system of bdt among the Germanic peoples is parallel to and connected with the contemporary elaboration of the ecclesiastical system of penance, which is a system of atonements. Nowhere was there a closer relation between the two than in England. Nevertheless during the best age of Anglo-Saxon law, under the kings of the West Saxon house, true afflictive punishment made progress at the expense of emendation. jSlthelstan and his wise meji issued decree after decree against thefts But this victory was hardly maintained by his successors. During the troublous times of the Danish invasions there seems to have been some retro- gression; crimes that had ceased to be emendable became emendable once more, and the protests of the church against the frequent infliction of death bore fruit in legislation. Even the reign of Onut did not turn back this wave, and on the eve of the Conquest many bad crimes could still be paid for with money. Kinds of When punishment came it was severe. We read of death

^'t_^' inflicted by hanging, beheading, burning, drowning, stoning,

precipitation from rocks ; we read of loss of ears, nose, upper-lip, [p.«i;

1 Brunner, D. E. G. i. 173-7.

^ Germ. c. 12: 'Licet apud concilium accusare quoque et disorimen capitis intendere. distinotio poenarum ex delicto, prcditores et transfugas arboribus Buspendunt, ignavos et imbelles et corpore infames ooeno ao palude iaieota insuper crate mergnnt. divfirsitas supplicii illuc respicit, tamquam soelera ostendi oporteat dum ^uninntur, flagitia absoondi.'

» Brunner, D. R. G. ii. 609. See the Introduction to Alfred's laws, 49, § 7.

4 See especially atheist, iv. 6.

CH. VIII. § 1.] The Ancient Law. 453

hands and feet; we read of castration and flogging and sale into slavery ; but the most gruesome and disgraceful of these torments were reserved for slaves'. Germanic law is fond of 'characteristic' punishments; it likes to take the tongue of the false accuser and the perjurer's right hand. It is humorous ; it knows the use of tar and feathers. But the worst cruelties belong to a politer time.

One of the many bad features of the system of pecuniary Crime and mulcts was the introduction of a fiscal element into the ™^™ administration of criminal law. Criminal jurisdiction became a source of revenue; 'pleas and forfeitures' were among the profitable rights which the king could grant to prelates and thegns. A double process was at work ; on the one hand the king was becoming the supreme judge in all causes; on the other hand he was granting out jurisdiction as though it were so much land. In Onut's day the time had come when it was necessary and possible for him to assert that certain pleas, certain crimes, were specially his own ; that the cognizance and the profits of them belonged only to him or those to whom he had granted an unusual favour. We get our first list of what in later days are called the pleas of the crown. ' These are the rights which the king has over all men in Wessex, mund-bryce

and hdmsdcn, for steal and fli^mena-fyrrriS and fyrd-wite And

in Mercia he has the same over all men. And in the Danelaw he has fyhtwite and fyrdwite and griSbrice and hdmsdcn.' Breach of the king's special peace, his gri^ or mund is everywhere a plea of the crown ; so also are hdmsdcn, the attack on a man's house, forsteal or ambush, the receipt of fugitives, that is of outlaws, and neglect of military duty". After all, however, this list is but a list of the pleas that are ordinarily reserved. The king can give even these away if he pleases.

This catalogue of pleas of the crown may at first sight look Cnut's comprehensive ; in reality it covers but little ground. If it throrown. looks comprehensive this is because we read a modem meaning [p. 452] into its ancient terms. We may think that every crime can be esteemed a breach of the king's peace ; but breach of the king's griS or mund had no such extensive meaning. It only covered deeds of violence done to persons, or at places, or in short seasons that were specially protected by royal power'. Other

1 Schmid, Gesetze, p. 656. ^ Cnnt, ii. 12-15.

' See Pollock, The King's Peace, Oxford Lectures, p. 68.

454 Grime and Tort. [bk. ii.

persons as well as the king have their gri^ or mund; if it is broken, compensation must be made to them. The church has its peace, or rather the churches' have their peaces, for it is not all one to break the peace of a 'head-minster' and to break that of a parish churchy The sheriff has his peace, the lord of a soken has his peace; nay, every householder has his peace; you break his peace if you fight in his house, and, besides all the other payments that you must make to atone for your deed of violence, you must make a payment to him for the breach of his mimd\ The time has not yet come when the king's peace will be eternal and cover the whole land. Still we have here an elastic notion : — if the king can bestow his peace on a privileged person by his writ of protection, can he not put all men under his peace by proclamation ? Pleas of the There are many passages in Domesday Book which in a Domesday, general way accord with this law of Cnut. King Edward, we are told in one passage, 'had three forfeitures' throughout England, breach of his peace, forsteal, and hdmfare, which seems the same as hdmsdcn' ; elsewhere we read of four ' forfeitures ' jvhich he had throughout his realm*; in Hereford breach of the peace, forsteal and hdmfare are the reserved ' forfeitures '" ; larceny, homicide, hdmfare and breach of the peace are reserved in one place" ; larceny, breach of the peace and forsteal in another^ In the land between the Ribble and the Mersey we find longer lists'. But there certainly were franchises in which even these specially royal pleas belonged to the lord. The [p. 453] Abbot of Battle claimed all the royal forfeitures of twenty-two hundreds as appurtenant to his manor of Wye° ; in his enormous

1 ^thelr. VIII. 5; Cnut, i. 3. ^ Ine, 6; Alf. 39; Leg. Henr. 81, §§ 3, 4.

^ D. B. i. 252 (Shropshire): 'has iii. forisfacturas habebat in dominie rex E. in omni Anglia extra firmas.'

* v. B. i. 238 b (Alvestone) : 'et omues alias forisfacturas preter illas iiij. quas rex habet per totum regnum.'

5 D. B. i. 179. « D. B. i. 61 b (Oheneteberie).

' D. B. i. 10 b (Eomenel).

B D. B. i. 269 b: 'praeter has vi. pace infracta, forsteal, heiufara, et pugna quae post sacramentum factum remanebat, et si coustrictus iusticia prepositi alicui debitum [uon ?] solvebat, et si terminum a prepositq datum uon atteude- bat.' Ibid. 270: 'praeter vi. has, furtum, heinfare, forests], paoem regis infractam, terminum fraotum a preposito stabilitum, pugnam post sacramentum factum remaneutem.' The pugna quae remanet post sacramentum factum is perhaps a blood-feud prosecuted after the oath of peace has been sworn.

' D. B. i. 11 b : ' De xxii hundredis pertinent isti manerio saca et soca et omnia forisfactura quae iuste pertinent regi.'

CH. viii. § 1.] The Ancient Law. 455

manor of Taunton the Bishop of Winchester had breach of the peace and h&mfare^ ; the king in Worcestershire had breach of the peace, /ors^eaZ, hdmfare and rape, save in the lands of West- minster Abbey". In short, the pleas of the crown were few, and in many of the lands of the churches they did not belong to the king.

It is by no means certain that the Conqueror had enjoyed Norman in Normandy more extensive pleas and forfeitures than those the sword, which he could claim in England as the successor of St Edward. In later days we find that, as the King of England has the pleas of the crown, so the Duke of Normandy has the pleas of the sword, plaoita spatae, pladta gladii. When we begin to get lists of them, their number seems to be already on the increase. By a comparison of such lists we are brought to the conclusion that the pladta spatae had once been few in number and of a nature very similar to those 'rights over all men' that Cnut reserved for himself. Assault on a highway leading to a city or ducal castle was such a plea ; from such highways one had to distinguish by-ways. What Englishmen and Danes, perhaps the Normans themselves, would have called hdmsdcn or hdmfare was such a plea, and in Normandy the sanctity of the house extended over a distance of four perches from its walls. Then in Normandy the plough was sacred; an attack upon a man while at the plough was an offence against the duke. The English for steal bad its Norman representative in the plotted assault, assuUus excogitatus de veteri odio, guet-apens. Offences against the duke's money, and offences against his writs of protection, were pleas of the sword. When from Henry II.'s day we hear that homicide, mayhem, robbery, arson and rape belong to him, we may infer that the duke of the Normans, like the king of the English, has been making good some new and far-reaching claims. Within some of the franchises the [p. 454] duke was reduced to three pleas, disobedience to his summons of the army, attacks on those journeying to or from his court, offences that concerned his coin'.

ID. B. i. 87 b. 2 D. B. i. 172.

* See TrSs Anoien Ooutumier, ed. TarJif, especially cap. 15, 16, 35, 53, 58, 5,9, 66, 70. The frequent mention of the house, the plough and the highway as specially within the duke's protection, suggests a time when there was no general rule that homicide and all other serious deeds of violence were ducal pleas. Delisle, Biblioth6que de I'fecole des chartes, 3"°= S§rie, vol. iii. p. 108,

456 Crime and Tort. [bk. ii.

Pleas of Whatever may have been the pleas and forfeitures of our

inlhe Nor- Norman kings in their ancestral duchy, they seem to have made man age. j^q very serious endeavour to force new law upon the conquered kingdom. They confirmed the old franchises of the churches, they suffered French counts and barons to stand in the shoes of English earls and thegns and claim the jurisdictional rights which had belonged to their dispossessed antec^ssores. In charter after cha,rter regalia were showered on all who could buy them. This practice however must be looked at from two sides: — if on. the one hand it deprives the king of rights, it implies on the other hand that such rights are his; that he does sell them proves that they are his to sell. As the lists of 'franchises' granted in the charters grow longer and more detailed, the idea is gaining ground that no justice of a punitive kind can be exercised by any, save those to whom it has been expressly and indisputably delegated ; the danger that criminal justice will be claimed as a normal appurtenance of feudal lord- ship is being surmounted. Then our good luck ordains that the old English terms shall become unintelligible, so that a coui't of the Angevin period will be able to assert that they confer but lowly or impracticable rights*. Criminal But we will leave the pleas of the crown for a time in order

Dranesday. *° consider the general character of criminal law. There are entries in Domesday Book which show us the old rules at work, but at the same time warn us that they are subject to Is-' local variations. We see that outlawry is still regarded as the punishment meet for some of the worst crimes. We see the classification of crimes as ' emendable ' and ' unemendable.' We see signs that the line between these two great classes has fluctuated from time to time and still fluctuates as we pass from district to district. We see that many bad crimes are

says that before the thirteenth century 'les hautes justices' were rarely found in the hands of the Norman lords. In Eot. Cart. 19 is a charter of 1199 granted by John to the bishop of Hsieux, in which the king reserves ' tantummodo tria plaoita quae de spata vocautur... videlicet de summonicione exercitus nostri, de via curiae nostrae, et de moneta.' As to the peace of the plough, see Wilda, Strafrecht, 246 ; it seems to have been well enough known to the Scandinavian laws.

1 The author of the Leges Henrici in c. 10 endeavours to collect the pleas of the crown. Already the long, disorderly list extends beyond Cnut's doom aad the testimony of Domesday Book. But there has not yet been much generalization.

CH. VIII. § l.J The Ancient Law. 457

still emendable. A few illustrations may be given. In Berk- shire he who slew a man having the king's peace forfeited his body and all his substance to the king; he who broke into a city by night paid 100 shillings to the king^ In Oxfordshire he who by homicide broke the king's peace given under his hand or seal forfeited his life and members to the king ; if he could not be captured he was outlaw, and any one who slew him might enjoy the spoil ; hdmsdcn with intent to kill or to wound or to assault brought 100 shillings to the king, while to slay a man in his own house or court caused a forfeiture of life and property to the king, with a saving for the dower of the criminal's wife". At Lewes the fine for bloodshed was 7s. 4d ; that for rape or adultery 8s. 4d ; in the case of adultery both man and woman paid, the former to the king, the latter to the archbishop'. In Worcestershire and Shropshire wilful breach of a peace given by the king's hand was a cause of outlawry* ; forsteal and hdmfare could be paid for with 100 shillings; in Shropshire the fine for bloodshed was 40 shillings; in Wor- cestershire rape was not emendable. In Herefordshire breach of the king's peace was atoned for by 100 shillings, like forsteal and hdmfare. In Urchinfield one could commit hdmfare and slay the king's man without having to pay more than 120 shillings to the king, and arson seems to have cost but 20 shillings. As to the Welshmen in this district, they lived Welsh law and prosecuted the blood-feud, not only against the manslayer, but also against his kin ; they ravaged the lands of their enemies so long as the dead man remained unburied ; the king took a third of the spoil". In Chester to break the king's peace given by his hand or writ was a crime for which 100 shillings would be accepted, unless it was aggravated by homi- [p-456] cide and hdmfare, in which case outlawry followed; for mere homicide the fine was 40 shillings, for mere bloodshed 10 shillings, except during sacred seasons, when it was doubled'. But we have given examples enough.

The writer of the Leqes Henrici represents the criminal law Criminal . , . 1111 1 1*^ ^ ^^^

of his time as being in the main the old law, and we have no Leges.

reason to doubt the truth of what he tells us. Some crimes are

emendable, some are not. Unemendable are housebreach, arson,

1 D. B. i. 66 b. 2 D. g. i. 154 b. ' D. B. i. 26.

* D. B. i. 172: ' utlaghe iudioatur'; 252, 'utiagus fiebat.' s D. B. i. 179. ' D. B. i. 262 b.

458 Crime and Tort. [bk. ii.

open theft, that form of aggravated homicide which is known as open mar's, treason against one's lord, breach of the church's or the king's hand-given peace when aggravated by homicide. These are emendable with 100 shillings : breach of the king's special peace, obstruction of the king's highway, forsteal, hdm- s6cn, receipt of outlaws. In some other cases the criminal must pay his wer; in some it is doubtful whether any emendation need be accepted'. About homicide we have elaborate tidings. Clearly a mere wilful homicide, when there has been no treachery, no sorcery, no concealment of the corpse, no sacri- lege, no breach of a royal safe-conduct, is not unemendable. It still, if not duly paid for, exposes the slayer to the vengeance of the slain man's kin. But it can be paid for. The tariff however is now very cumbrous. In the simplest case there is the wer of the slain, varying with his rank, to be paid to his kin ; there is the manbdt to be paid to his lord, and this varies with the lord's rank ; there is the wife to be paid to the king or some lord who has regalia. But in all probability the offender will have run up a yet heavier bill by breaking some grits ; the owner of the house will claim a griSbrice, the owner of the soken will claim fyhtwite or blddwite ; happy will it be for our manslayer if he has committed neither hdmsdcn nor forsteal'. Changes Now in England this elaborate system disappears with [p. 457]

twelfth marvellous suddenness. For it is substituted a scheme which century, certainly does not err on the side of elaboration. In brief it is this : — (1) There are a few crimes with wide definitions which place life and limb in the king's mercy. (2) The other crimes are punished chiefly by discretionary money penalties which have taken the place of the old pre-appointed w{tes, while the old pre-appointed b6t has given way to ' damages ' assessed

1 Leg. Henr. 12 : ' Quaedam non possunt emendari, quae sunt : huebreohe, et beinet, et openthifthe, et eberemorth, et hlafordswike, et infractio pacis ecclesiae vel manus legis per homioidium. Haec emendantur c. solidis: grithebreohe, stretbreche, forestel, burohbreohe, hamsokna, flymonfirma.' What exactly this writer meant by burchbreche, it is difficult to say; see Sohmid, Gesetze, s.v. tohr-bryce. By open theft is meant hand-having theft, furtum manifeatum. The word mojiS seems to imply secrecy; it is homicide committed secretly, poisoning being the typical case. Then open mor^ is committed by one who is guilty of moriS and is taken in the act. See Schmid, Gesetze, p. 633.

2 Leg. Henr. cc. 71-94. See above, vol. i. p. 106. In Leg. Henr. 80, § 11, we see traces of a 'constructive' jurisprudence of hdmsdcn. To chase a man into a mill or a sheep-fold is hdmsdcn.

CH. VIII. § 1.] The Ancient Law. 459

by a tribunal. (3) Outlawry is no longer a punishment ; it is mere ' process ' compelling the attendance of the accuseds

When we first begin to get judicial records the change is Disappear- already complete. We have the utmost difficulty in finding &^utlni vestige of those pre-appointed ' emendations ' which, if we be- *''*• lieve the writers of the Norman age, were still being exacted in their day. We can only remember one of the old fixed fines that lived on. This is the fine of sixty shillings exacted fi:om the man who is vanquished in the judicial battle ; it is the 'king's ban' of the ancient Prankish laws". To this we may add that the London citizens of the thirteenth century claimed as a chartered right that none of them could be compelled to pay a higher fine than his wer of a hundred shillings, and the Kentish gavelkinders still spoke of a man being obliged to pay his wer' in an almost impossible case'. The change is not due to a substitution of Norman for English law ; we may see the pre-appointed h6t in Normandy when we can no longer find it' in England*. The most marvellous [p.458] revolution however is that which occurs in the law of homicide, for not only does wilful homicide become a capital crime — this we might have expected to happen sooner or later — but the kinsfolk of the slain lose their right to a wer and to compensation of any sort or kind. A modern statute was required to give the parentes occisi a claim for damages in an English court^ Yet in many parts of western Europe at a comparatively

' What we have called the new criminal law is stated for popular purposes in Dial, de Scac. ii. 16 : ' Quisquis enim in regiam maiestatem deliquisse depre- henditur, nno trium modorum iuxta qualitatem delicti sui regi oondemuatur: aut enim in universo mobili suo reus iudicatur, pro minoribus culpis; aut in omnibus immobilibus, fundis scilicet et redditibus, ut eis exheredetnr ; quod si pro maioribus culpis, aut pro maximis quibuscunque vel enormibus deliotis, in vitam suam vel membra.' This is too simple, but is not far from the truth, and is a marvellous contrast to the chaos of the Leges Henrici.

= Leg. Henr. 59, § 15; Glanvill, ii. 3; Note Book, pi. 592, 1460. In practice sixty shillings and a penny are paid. The penny we can not explain. The author of the Mirror (Seld. Soc), p. 110, who supposes that the sixty shillings go to the victor, adds a half-penny for a purse to hold the money. For the hannus Regis of FranMsh law, see Brunner, D. E. G. ii. 35.

'' London charter of Hen. I. c. 7. Liber Albus, i. Ill, 115 : Of pledges who do not produce a man accused of crime it is said ' iudicatur unusquisque a sa were, scilicet, in misericordia centum solidorum.' Gonsuetudines Kantiae, Statutes, i. 225.

4 Somma, p. 204; Ancienne ooutume, c. 85, ed. de Gruchy, p. 195.

5 Lord Campbell's Act, Stat. 9-10 Vict. c. 93.

460 Crime and Tort. [bk. ii.

recent time men have sued for a wer; nor only so, they have lawfully prosecuted the blood-feud'. OppressiTe But great as was the change, it begins to look less when of the old ■^v® strive to picture to ourselves the practical operation of system. ^jjg qJjJ jg^^_ rpj^^ sums of money that it had demanded were to all seeming enormous, if we have regard to the economic position of the great mass of Englishmen. In the books of the Norman age the wer of the mere ceorl, or villanus as he is now called, is reckoned at £4, that of the thegn, or the homo plene nobilis who fills the thegn's place, is £25 ^ In some cases the amount of a wCte seems to have been doubled or trebled by that change in the monetary system which the Conquest occasioned; Norman shillings of twelve pence were exacted instead of English shillings of four or five pence. But in other cases, in which a due allowance was made for the new mode of reckoning, the penalty was still very heavy. A wite of £5 was of frequent occurrence, and to the ordinary tiller of the soil this must have meant ruin. Indeed there is good reason to believe that for a long time past the system of bdt and w{te had been delusive, if not hypocritical. It outwardly reconciled the stern facts of a rough justice with a Christian reluctance to shed blood; it demanded money instead of life, but so much money that few were likely to pay it. Those who could not pay were outlawed, or sold as slaves. From the very first it was an aristocratic system ; not only did it make a distinction between those who were 'dearly born'' and those who were cheaply born, but it widened the gulf by impoverishing the poorer folk. One unlucky blow resulting in the death of a [p.' thegn may have been enough to reduce a whole family of ceorls to economic dependence or even to legal slavery. When we reckon up the causes which made the bulk of the nation into tillers of the lands of lords, bdt and wite should not be forgotten. At any rate to ask the villanus of H^enry I.'s day to pay £5 as an atonement for his crime is to condemn him to outlawry. Then again, for a long time past there has been in the

' Gunther, Wiedervergeltung, i. 207. The blood-feud seems to have lived longest in Friesland, Lower Saxony, and parts of Switzerland, where it was prosecuted even in the sixteenth century.

2 Leg. Henr. 70, § 1; 76, § 4; Leg. Will. i. o. 8. See Schmid, Gesetze, p. 676.

» Ine, 34 § 1.

CH, VIII. § 1.] The Ancient Law. 461

penal system a much larger element of ' arbitrariness ' or ' dis- Arbitrary cretion ' than the dooms disclose to a first glance. Dr Brunner fa^the'oid has shown us how very many of the pure punishments, the sys*^™- 'afflictive' punishments, have their root in outlawry^ They are mitigations of that comprehensive penalty. The outlaw forfeits all, life and limb, lands and goods. This, as law and kingship grow stronger, puts the fate of many criminals into the king's hands". The king may take life and choose the kind of death, or he may be content with a limb ; he can insist on banishment or abjuration of his realm or a forfeiture of chattels. The man who has committed one of the bad crimes which have been causes of outlawry is not regarded as having a right to just this or that punishment. Under the new Norman kings, who are not very straitly bound by tradition, this principle comes to the front, and it explains an episode which is other- wise puzzling, namely, the ease with which punishments were changed without any ceremonious legislation. The Conqueror would have no one hanged ; emasculation and exoculation were to serve instead'. Henry I. would now take money and now refuse it*. He would reintroduce the practice of hanging thieves taken in the act^ Loss of hand and foot became fashionable under Henry II. ; but we are told of him that he [p.460j hanged homicides and exiled traitors'. Very slowly in the course of the thirteenth century the penalty of death took the place of mutilation as the punishment due for felons, and this without legislation. The judges of that age had in this matter discretionary powers larger than those that their successors would wield for many centuries, and the kings could favour

^ Forsehungen, 444.

' Wihtrsed, c. 26. Already in this very ancient set of laws we read that if a thief is taken in the act;, the king may decree that he shall be put to death, or sold over seas, or suffered to redeem himself by his wer. So in Ine, c. 6, if a man fights in the king's house, it is for the king to decide whether he shall have life or no.

' Laws of William (Select Charters), c. 10: 'Interdico etiam ne quis occidatur aut suspendatur pro aliqua culpa, sed eruantur oouli, et testiculi abscidantur.' We use too mild a, word if we speak of 'blinding.' The eyes were torn out.

* Will. Malmesb. Gesta Eegum, ii. 487.

" Flor. Wig. ii. 67.

' Diceto, i. 434 : ' homicidae Buspendio punirentur, proditores damnarentur exilio, levioribus in flagitiis deprehensi' truncatione membrorum notabiles leddereutur.'

462 Crime and Tort. [bk. it.

now one and now another punishment'. Such changes could take place easily, because a main idea of the old law had been that by the gravest, the unemendable, crimes a man ' forfeited life and member and all that he had.' It was not for him to complain if a foot was taken instead of his eyes, or if he was hanged instead of being beheaded.

§ 2. Felony and Treason.

Causes We have not far to seek for political, social and economic

change. causBS which in the twelfth century were making for revolution and reconstruction in the domain of criminal law. Some of them were common to many lands, others were peculiar to England. We might speak of the relaxation of the bond of kinship which was caused by the spread of vassalage, — of the presence of numerous foreigners who had no kin but the king, — of the jostle between the various tariffs, Saxon, Scandinavian, Frankish, — of the debasement of the great bulk of the peasants under a law of villeinage which gave their lords a claim upon those chattels that might otherwise have paid for their misdeeds, — of the delimitation of the field of justice between church and state, which left the temporal power free to inflict punishment without first going through the ceremony of demanding an almost impossible atonement, — or again, of the influence of Roman law, which made for corporal pains but would leave much to the discretion of the judge, — or lastly, of a growing persuasion that the old system of pre-appointed h6t and wite, which paid no heed to the offender's wealth, was iniquitous. It is not for us to describe all these converging forces; it must be enough if we can detect the technical machinery by which [p.46i] they did their work. How the The general character of this process will become plain if

effected, we here repeat the words which in Bracton's day are the almost invariable preamble of every charge of grave crime. We will suppose that Alan is going to accuse William of wounding, robbery or the like. He will say that ' Whereas the said Alan was (ft) in the peace of God and of our lord the king, there came

1 Select Pleas of the Crown (Selden Soo.), pi. 77. On a roll of 1202 it is said of a woman 'et ideo meruit mortem, sed per dispensationem eruantnr ei oculi.'

CH. VIII. § 2.] Felony and Treason. 463

the said William (6) feloniously as a felon (felonessement com felon), and (c) in premeditated assault' inflicted a wound on Alan, or robbed him of his chattels. Now here, if we have regard to past history, Alan accuses William not only of the crime of wounding or (as the case may be) of robbery, but of three other crimes, namely, (a) a breach of the king's peace, (6) a felony, (c) forsteal, way-laying, guet-apens\

The phrase which tells how Alan was in the peace of God The king's and of our lord the king, though it may rapidly degenerate into ^^''''^" a ' common form,' must have been originally used for the purpose of showing both that the crime in question was one of the reserved pleas of the crown and that it. was a heinous, if not a bootless, crime. The allusion to the peace of God may be an echo of the treuga Dei which had at one time been enforced in Normandy, if not in England, and which, when it had attained its largest scope, comprehended many holy seasons and a long half of every week : but we do not know that it was of much importance in this country^- Be this as it may, the words about the king's peace have had a definite meaning ; they point to a breach of the king's grdS or mund, a crime which at all events deserves the heavy wite of a hundred shillings, and which, when [p. 462] coupled with homicide, has been unemendable'. The manner jn which the king's g'riS or mund has been extending itself, until it begins to comprehend all places within the realm, all persons who are not outlaws and every time which is not an interregnum, we must not describe at any length*. When the

' Ancienne coutume de Noimandie, o. 74 (75), ed. Gruchy, p. 177; Somma, p. 184 : ' lu omni enim Beqaela quae fit ad damnameutnm membrorum debet in olamore exprimi quod illud, super quo appellatio movetur, factum est cum felonia in pace Dei et Duois.' Braoton, f. 138, 144, 146. In early enrolments many of the appellor's phrases are omitted or represented by etc. We must not assume that he did not mention felony because this word is not on the roll.

^ See above, vol. i. p. 75. In the Normandy of Henry I. the effect of breaking the peace of the church as well as the peace of the duke by homicide was that the bishop got nine pounds out of the forfeited chattels of the ofEender : TrSs ancien coutumier (ed. Tardif), p. 66. In England at that time the bishop in such a case may have been able to claim five pounds : Leg. Henr. 11, § 1. At a later date we find that in London assaults committed within the octaves of the three great festivals were treated as graver offences than other assaults: Munim. Gildh. i. 56.

3 Leg. Henr. 12, §§1,2; 35, §2.

* See Pollock, The King's Peace, Oxford Lectures, p. 65; Liebermann, Leges Edwardi, p. 63. Select Pleas of the Crown, pi. 84 : a crime committed between Bichard's death and John's coronation is said to have been done 'after the

464 Crime and Tort. [bk. ii.

Conqueror declared that all the men whom he had brought hither were within his peace, he was spreading abroad his mund^. Precedents from the thirteenth century suggest that in this process of generalization the king's high-way was an useful channel. Often the appellor is supposed to say not merely that he was in the king's peace, but also that he was on the king's high-way when he was assaulted, and this assertion, though it has already become a mere rhetorical ornament, has assuredly had a past history : — appellors have been suffered or encouraged to declare that deeds were done on the high-way which really were done elsewhere, and the specially royal roads are losing their prerogative". Already in Glanvill's day it is understood that an accuser can place an assault outside the competence of the local courts by some four or five words about the king's peace'. The king's ^^^ ^^^ v^^y ease with which the king's peace spread itself Us^wla^'st ^°til i* ^^^ become an all-embracing atmosphere prevented a mere breach of that peace from being permanently conceived as a crime of the highest order. Every action of trespass in the king's court supposes such a breach; every convicted defendant ^.463] in such an action must go to prison until he pays a fine to which the law sets no limits ; and yet the day for nominal trespasses is approaching ; a breach of the king's peace may do no percep- tible harm, and accusations of that offence will be freely thrown about in actions which are fast becoming merely civil actions. Felony. It was otherwise with felony. This becomes and remains a

name for the worst, the bootless crimes. Hardly a word has

peace of our lord the king, then duke of Normandy and lord, of England, had been sworn.'

1 Laws of William (Sel. Charters), c. 3. Henry II. in his Coronation Charter, c. 12, says, ' Pacem firmam in toto regno meo pono et teneri amodo praecipio.'

" See e.g. Braoton, f. 144 : ' sicut fuit in pace domini Eegis in tali looo, vel sicut ivit in pace domini Begia in chimino domini Begis.' The king's hand- given or hanselled gri^ was also useful. Bracton, f. 138: 'et contra pacem domini Begis ei [appellatori] datam.' Select Pleas of the Grown, pi. 104: in 1211 a wounded man obtains the king's peace from the king's Serjeant ; this is mentioned as an aggravation of a subsequent attack upon him by his enemy. In Edward III.'s day to slay a royal messenger, who according to old ideas would have been specially within the king's grit, was accounted by some to be no mere felony, but high treason: Hale, P. C. i. 81,

' Glanvill, i. 2 : ' nisi accusator adiciat de pace domini Begis infracta.' For the importance of these words see Select Pleas of the Crown, pi. 21, 31, 88, 172.

CH. VIII. § 2.] Felony and Treason. 465

given more trouble to etymologists that the low Latin felo,. which starting from France finds a home in many languages'. We are now told that Coke's guess may be right after alP and that ' of the many conjectures proposed, the most probable is that fellone-m is a derivative of the Latin fell-, fel, gall, the original sense being one who is full of bitterness or venom,' for gall and venom were closely associated in the popular mind. When the adjective felorv first appears it seems to mean cruel, fierce, wicked, base^ Occasionally we may hear in it a note of admiration, for fierceness may shade off into laudable courage^ ; but in general it is as bad a word as you can give to man or thing, and it will stand equally well for many kinds of badness, for ferocity, cowardice, craft. Now in the language of conti- nental law it seems soon to have attached itself to one class of crimes, namely, those which consist of a breach of that trust and faith which should exist between man and lord. The age in which felon became a common word was the age in which the tie of vassalage was the strongest tie that bound man to man. W"e have seen that in England felonia threatened for a while to bear a narrow meaning and only to cover offences similar to those which at a later time were known as high and petty treasons^. But in England aiid in Normandy^ something [p. 464] saved it from this fate and gave it a wider meaning. This something we shall probably find in the rule that the felon's fee should escheat to his lord. The specific effect of the ' words of felony ' when they were first uttered by appellors, who were bringing charges of homicide, robbery, rape and so forth, was to provide that, whatever other punishment the

^ Oxford English Dictionary, s.v. felon.

2 Co. Lit. 391. Blaokstone, iv. 95, speaks soornfully of Cote's endeavour, and himself favours Spelman's fee-Ion (pretium feodi). In Y. B. 21-2 Edw. I. p. 355, a judge speaks as though felony and venom were connected in his mind. Henry III. tells the pope that the Bishop of Ely is behaving treasonably, ' non oblitus antiquam suae mentis et fellitam malitiam ' : Foedera, i. 155.

5 The relation of the English adjective /eJZ to felon is explained in Oxf. Diet.

* The editors of the OxII. Diet, give a few instances of this use.

" See above, vol. i. pp. 303-5; Blaokstone, Comment, iv. 96. After Leg. Henr. 43, § 7; 46, § 3 ; 53, § 4, one of the first occurrences of felonia is in Ass. Northampt. o. 1: an accused person who comes clean from the ordeal may remain in the country unless he is defamed of murder ' vel alia turpi felonia,' in which case he must abjure the realm. It would seem therefore that every robbery or the like, if already a felonia, is not a turpis felonia.

' See the passage from the Coutumier cited above, p. 463, note 1.

P. M. II. 30

466 Crime and Tort. [bk. ii.

appellees might undergo, they should at all events lose their land. The magnates saw no harm in this, though in truth the extension of felony, if it might bring them some accession of wealth, was undermining their power*. The At all events this word, expressive to the common ear of all

that was most hateful to God and man, was soon m England and Normandy a general name for the worst, the utterly 'bootless' crimes. In later days technical learning collected around it and gave rise to complications, insomuch that to define a felony became impossible ; one could do no more than enumerate the felonies. But if we place ourselves in the first years of the thirteenth century some broad statements seem possible, (i) A felony is a crime which can be prosecuted by an appeal, that is to say, by an accusation in which the accuser must as a general rule offer battle', (ii) The felon's lands go to his lord or to the king and his chattels are confiscated, (iii) The felon forfeits life or member, (iv) If a man accused of felony flies, he can be outlawed. Conversely, every crime that can be prosecuted by appeal, and every crime that causes a loss of both lands and goods, and every crime for which a man shall lose life or rnember, and every crime for which a fugitive can be outlawed, is a felony*.

^ The rule that an attainder for wilful homicide or the like will always iBTolve disherison seems not to have been fuUy established even in 1176. See above, vol. i. p. 457, note 4.

2 Braoton, f. 141 : ' Item nullum appellum, nisi fiat mentio de felonia facta.' Were we to begin by saying that the felonies are a species of 'indictable offences' we should mislead a student of thirteenth century law. There are several felonies that are not indictable felonies. This will become plain here- after. See Britton, i. 98.

» Glanvill, xiv. 1 : 'Si vero per huiusmodi legem super oapitali orimine fnerit quis convictus, ex regiae dispensationis beneficio tam vitae quam membrorum suorum eius pendet indicium, siouti in ceteris placitis de felonia.' Bracton, f. 137: 'et si appellatus victus fuerit capitalem subibit sententiam cum exheredatione et omnium bonorum suorum amissione, et siout esse debet in omni vel quolibet genere feloniae.' The difficulties in the way of a definition of felony are stated by Blackstone, Comment, iv. 97, and Stephen, Hist. Crim. Law, ii. 192.' Blackstone says: 'Felony may be without inflicting capital punishment, as in the cases instanced of self-murder, excusable homicide, and petit larceny: and it is possible that capital punishments may be inflicted and

yet the offence be no felony, as in the case of heresy by the common law

And of th? same nature was the punishment of standing mute.' Sir J. F. Stephen writes : 'It is usually said that felony means a crime which involved the punishment of forfeiture, but this definition would be too large, for it would include misprision of treason which is a misdemeanour. On the other hand, if

CH. viir. § 2.] Felony and Treason. 467

[p. 465] We thus define felony by its legal effects; any definition import of that would turn on the quality of the crime is unattainable. ^ °^^' We may see, however, that in Bracton's day the word imports a certain gravity in the harm done and a certain wickedness in the doer of it. The justices have been compelled to set limits to the 'appeal of felony,' for sometimes not only the accuser but the accused also will be desirous of using for the settlement of trivial disputes a process which sanctifies a good open fight in the presence of a distinguished company. ' Wickedly and in felony you struck the dust from my cap' — if, says Bractori, an appellor speaks thus, the justices must quash the appeal although the appellee wishes to deny the charge ' by his body\'

[p.466] In the department of violence to the person a line is drawn between the wound and the bruise; 'blind blows' which neither break bone nor draw blood are no sufficient foundation

felony is defined as a crime punishable with death, it excludes petty larceny which was never capital, and includes piracy which was never felony.' These objections, however, disappear if we take our stand about the year 1200, and in accordance with the spirit of the time speak, not of 'crimes punishable with death,' but of crimes for which a man 'forfeits life or member.' Men may lose their ears for petty larceny (Britton, i. 61) ; if they are let oft with minor punishments this is regarded as an act of mercy. Possibly the petty laroener's lands did not escheat ; in later times they did not ; but a freeholder of this age was in general above the temptations of petty lareeny. Of piracy the law as yet knew nothing. Any act that would afterwards have been ' misprision of treason ' would almost certainly have been called and treated as treason. The peine forte et dure in its inception was not regarded as a punishment ; it was mere process. Excusable homicide was sharply contrasted with felonious homicide. If heresy was punishable vrith death, the English temporal courts had nothing to do with this. As to 'self-murder,' we doubt whether the law of 1200 called this felony. Of these points we shall speak below. We are not concerned to exclude high or petty treason from our definition of felony. Every treason was a felony. For this reason we say that the felon's lands go either to the lord or — ^this is the case in high treason — to the king. We believe that we are right in saying that about the year 1200 men were not outlawed for crimes falling short of felony. The extension of outlawry to smaller offences, in particular, trespass contra pacem Regis, was just taking place in Bracton's day. He sees (f. 127 b, 441) that a minor outlawry is being developed and that this is parallel to the minor excommunication. The passage on f. 127 b ('Facta autem...humana') is marginal. On the whole in the thirteenth century, though there might be some small anomalies, the gulf between the felonies and the minor offences was broad and deep.

1 Bracton, f. 101 b, 102. Select Pleas of the Crown, pi. 35 : in 1202 the justices refuse to hear an appeal which charges a mere trespass on land; 'appellum de pratis pastis non pertinet ad coronam Eegis.' Many entries suggest that an appeal of felony often has its origin in a dispute about proprietary rights. * ,

30—2

468 Crime and Tort. [bk, ii.

for a charge of felony'. But the word is also being used to signify the moral guilt which deserves a punishment of the highest order. Homicide by felony is frequently contrasted with homicide by misadventure, homicide by self-defence and homicide committed by one who is of unsound mindl Premedi- In this context the word felony is often coupled with what

assault. will in the future be another troublesome term of art, to wit, malice aforethought or malice prepense {malitia excogitata, praecogitata). This has a past as well as a future history. If we look at the words which an appellor commonly uses, we shall find that, though he does not speak of premeditated malice, he does charge his adversary with a premeditated assault (assultus praemeditatusY. Now this,, we take it, is a charge of another of the old pleas of the crown ; it is a charge of way-laying, oi forstealK In the French Leis Williame the English for steal is represented by agwait purpens6^, premedi- tated awaiting, the guet-apens of modem French law. In Normandy the appellor spoke of aguet purpense just where in England he spoke of assault purpensi'. The idea on which stress is being laid is becoming a little more general than it once was ; a premeditated, or as we should say intentional, assault takes the place of lying in wait, lying in ambush. A Op.' further generalization may be seen when in the thirteenth century the chancery is beginning to contrast a homicide by misadventure, which deserves a pardon, with a homicide which has been committed in felonia et per malitiam praecogitatam''.

1 Bracton, f . 144 b.

" Britton, i. 113 : ' Ou il porra dire, qe tut feist il le fet, neqedent ne le fist 11 mie par felonie purpens^, uies par necessity defeudaunt sei...ou par mes- cheauuce en akune manere e sauutz felonie penser [al. purpens^).' See the pardons cited below, p. 480. Already in 1214 we find ' per infortunium et non per felouiam ' ; Select Pleas of the Crown, pi. 114. The wickedness of felony is made evident by .the common , phrase nequiter et in felonia; but, while the in. felonia became essential and sacramental, the nequiter was never, so far as we. are aware, an indispensable phrase. The 'special instigation of the devil' is a: late ornament.

. 8 Braoton, f. 138, 141b, 144, 144b: .'in assultu praemeditato.' Select Pleas of the Crown, pi. 88 (a.d. 1203).

* Schmid, Gesetze, Glossar, s.v. forsteal ; Brunner, D. B. G. ii. 563.

' Leg. Will. 1. c. 2. Already in D. B. i. 269 we have ' homioidium et furtum et heinfar [h^mfare] praecogitata.'

" Somma, p. 184; Ancienne coutume, o. 74 (75), ed. Gruohy, p. 176: 'cum agueito praecogitato ' : ' en aguet pourpeus^.'

"^ See the pardons of which instances are given below, p. 480.

CH. vm. § 2.] Felony and Treason. 469

The word malitia is more general than the word assultus ; Malice it is indeed a large word, equivalent perhaps to our wrong- tCught. doing, and a larger word than assault is necessary, because we may wish to state that the man who is being pardoned for an excusable homicide was guiltless, not only of an inten- tional assault, but of any act intended to do harm. In course of time the term malitia has brought many difficulties upon English lawyers. Of these we must not speak, but we believe that in this case it is rather the popular than the legal sense of the word that has changed. When it first came into use, malitia hardly signified a state of mind ; some qualifying adjective such as praemeditata or excogitata was needed if much note was to be taken of intention or of any other psychical fact. When we first meet with malice prepense it seems to mean little more than intentional wrong-doing; but the somewhat weighty adjectives which are coupled with malitia in its commonest context — adjectives such as excogitata — are, if we mistake not, traces of the time when forsteal, guet- apens, waylaying, the setting of ambush, was (what few crimes were) a specially reserved plea of the crown to be emended, if indeed it was emendable, by a heavy wite^.

^ If we are right, the guet-apens which in modern French law raises a mere meurtre to the dignity of an assassinat, is first cousin to the malice aforethought which characterizes our English murder ; both go back to days when waylaying is a specially heinous crime and a cause for royal interference. For the French guet-apens, see Viollet, Etablissements, i. 238. In England the cqurse of development is this : — a charge of fonteal or (Leg. Will.) agwait purpense becomes an ordinary part of every appeal in the form assault purpense, assultus praemeditatus ; a sUght change makes this the malitia praemeditata (excogitata) of a chancery formula that is quite common before the end of Henry III.'s reign. The three terms agait, assaut ou malice purpense are brought together into one phrase on the Parliament Boll for 1389; Eot. Pari. iii. 268. See Stephen, Hist. Crim. Law, iii. 41-2; but we can not think that there is any connexion between the malitia of this formula and the odium et atia of the famous writ. As to malice (malitia), this creeps into records and law-books as a vague word expressive of intentional wrong-doing ; but (though it would exclude harm done by misadventure) it lays no strong emphasis on the intention, and makes jio special reference to spite or hatred. See e.g. Bracton, i. 138 b, line 8 ; Note Book, pi. 687 ; Britton, i. 67, 83, 87, 89, 91. It was becoming common in Edward I.'s reign; but had, so it seems to us, first become prominent in the numerous pardons that were granted to those who were man-slayers by misadventure or in self-defence. As to forsteal, this word perdured in the practice of local courts, which had nothing to do with grave •crimes, and from the sense of way-laying it passed to that of lying in wait for ■merchants who are bringing goods to the town so that the price of victuals is enhanced.

470 Crime and Tort. [bk. ii.

The By the -process which we have endeavoured to trace a cer- [p..

felonies, tain group of crimes, comprising homicide, mayhem, wounding, false imprisonment, arson, rape, robbery, burglary and larceny, was broadly marked off from all the minor oflfences. They were felonies and unemendable crimes which deserved a judgment ' of life or member ; ' they worked a disherison. We shall have more to say of them; but before we carry our story any further we ought to state briefly such answer as modern researches enable us to give to a general question about culpa' bility. Culpability What is the ineasure of culpability that ancient law en- laT^"'™ deavours to maintain ? Is it high, is it low ? Do we start with the notion that a man is only answerable for those results of his actions that he has intended, and then gradually admit that he is sometimes liable for harm that he did not intend, or, on the other hand, do we begin with a rigid principle which charges him with all the evil that he has done, and then do we accept first one and then another mitigation of this rule' ? There seems to be now Httle room for doubt that of these two answers the second is the truer. Law in its earliest days tries to make men answer for all the ills of an obvious kind that their deeds bring upon their fellows. Causation Guesswork perhaps would have taught us that barbarians lawT"^^" will not trace the chain of causation beyond its nearest link, and that, for example, they will not impute one man's dealth to another unless that other has struck a blow which laid a corpse at his feet. All the evidence however points the other way : — I have slain a man if but for some act of mine he might perhaps be yet alive. Very instructive is a formula which was still in use in the England of the thirteenth century; one who was accused of homicide and was going to battle was expected to [p-^ swear that he had done nothing whereby the dead man was 'further from life or nearer to death".' Damages which the

^ See Biunner, Absichtslose Missethat, Forschungen, 487 ; Post, Bausteine, i. 230; Wigmore, Eesponsibility for Tortious Acts, Harv. L. E., vii, 315, 383, 441. Mr Wigmore has made a very full collection of early English cases bearing on this question,

2 Leg. Hen. 90, § 11 : ' quod per eum non fuerit vitae remotior morti propinquior.' Braoton, f, 141 b: ' per quod remotior esse debeat a vita et morti propinquior.' Note Book, pi. 1460 : ' ueo per ipsum fuit morti appropiatus neo a vita elongatus.' Munim. Gildh. i. 105: 'Iuravit...quod numquam ipsam Isabellam verberavit, unde puer, de quo fecit aborsum, propinquior fuit morti

CH. VIII. § 2.] Felony cmd Treason. 471

modern English lawyer would assuredly describe as ' too remote,' were not too remote for the author of the Leges Henrici. At your request I accompany you when you are about your own affairs ; my enemies fall upon and kill me ; you must pay for my death'- You take me to see a wild-beast-show or that interesting spectacle a madman; beast or madman kills me; you must pay. You hang up your sword ; some one else knocks it down so that it cuts me ; you must pay. In none of these cases can you honestly swear that you did nothing that helped to bring about death or wound^.

If once it be granted that a man's death was caused by the Absolute act of another, then that other is liable, no matter what may the effect" have been bis intentions or his motives. To this principle °^ ^*'^- our evidence directs us, though for an unmitigated application of it we may have to look to a prehistoric time. In a yet early age law begins to treat intentional as worse than unintentional homicide. In either case the wer is due; but in the one there can, in the other there can not, be a legitimate feud; intentional homicide must be paid for by wCte as well as wer, unintentional by wer without wCte, at all events if the slayer, not waiting for an accusation, proclaims what he has done and proves that there was misadventure'. We may see in curious instances a growing appreciation of moral differences which has not dared to abolish, but has tried to circumvent the ancient law. The old code of the Swabian race declares that if you are slain by the bite of my dog I must pay half your wer. In strictness your whole wer can be demanded ; but if a kins- man of yours is unreasonable enough to exact this, he must submit to have the corpse of the dog hanging over his door- way [p,470] until it rots and perishes*. A parallel passage in our own Leges Henrici says that if by mischance you fall from a tree upon me and kill me, then, if my kinsman must needs have vengeance, he may climb a tree and fall upon you". Even when a demand for the wer is becoming obsolete, and the general

et remotior a vita.' Brunner, Forschungen, p. 495, gives a similar formula from the Icelandic Gr&gas.

1 Leg. Hen. 88, § 9. ' Leg. Hen. 90, § 11.

' Brunner, Porsohungen, 500-5.

* Brunner, Forsoliungen, 492; Lex Alaman. Mon. Germ. Leges, iii. p. 39.

' Leg. Hen. 90, § 7. We read of an exactly similar judgment given of late years in Abyssinia; Parkyns, Life in Abyssinia, London, 1868, pp. 366-7, cited by Giinther, Wiedervergeltung, i. 13.

472 Crime and Tort. [bk. n.

rule is that he who slays another must be put to death, men are still unable to formulate a principle which will excuse any manslayer, however morally innocent he may be", unless indeed his act falls within one of a few narrow categories such as that which comprises the execution of a lawful sentence. Such manslayers as no one would wish to hang are not acquitted, but are recommended to the ' mercy ' of judges and princes, for the rigor iuris holds them answerable for all the effects of their actions \ Liability But the most primitive laws that have reached us seem to

of'slaves"'^ point to a time when a man was responsible, not only for all and beasts, ijarm done by his own acts, but also for that done by the acts of his slaves, his beasts, or — for even this we must add — the inanimate things that belonged to him^ Law which demands a ' noxal surrender ' of the peccant slave or ox is already a miti- gation of older law which would not have let the master off so easily. As regards the delicts of slaves, various laws of the same family soon begin to go different ways, for there are here many difficult problems to be solved. However firmly we grasp the principle that a slave is a thing, we can not help seeing that the state may with advantage treat slaves as capable of com- mitting crimes and suffering punishments, and when the state has begun to punish the slave it begins to excuse the malster, provided that he will deliver the slave to justice. The same principle can be applied with some modifications to the case of beasts. Ancient law will sometimes put the beast to death, and will not be quite certain that it is not inflicting punishment upon one who has deserved it'. But the most startling illustra- [p. 471] tions of its rigour occur when we see a man held liable for the ^vil done by his lifeless chattels, for example, by his sword. If his sword kills, he will have great difficulty in swearing that he did nothing whereby the dead man was 'further from life or

1 For French medieval law, see Brnnner, op. cit. 493-4, and Rsmein, Histoire de la procedure oriminelle, p. 265. Post, Bausteine, i. 233, says that this idea, namely, that homicide by misadventure deserves pardon, still prevails in Chinese law.

" Brunner, op. cit. 507-523.

' Brunner, op. cit. 519, and D. E. G. ii. 556. On the continent the trial and formal punishment of beasts have been known in recent times ; but there is some dispute as to how far this is due to the sanctity attached by bibliolaters to the archaic Hebrew Law contained in Genesis, ix. 5, and Exodus, xxi. 28-32. See Laws of Alfred, Introduction, 21.

CH. VIII. §2. J Felony and Treason. 473

nearer to death.' If you hand over your sword to a smith to be sharpened, see that you get it back ' sound/ that is to say, with no blood-guiltiness attaching to it, for otherwise you may be receiving a ' bane,' a slayer, into your housed But let us hear the enlightened Bracton on this matter, for old popular phrases will sometimes crop up through his rational text. ' If a man by misadventure is crushed or drowned or otherwise slain, let hue and cry at once be raised ; but in such a case there is no need to make pursuit from field to field and vill to vill ; for the malefactor has been caught, to wit, the bane''.' Yes, the male- factor, the hana, the slayer, has been caught ; a cart, a boat, a inill-wheel is the slayer and must now be devoted to God.

Our English law of deodands gives us a glimpse into a far The off past. In 1846' we still in theory maintained the rule that any animate or inanimate thing which caused the death of a human being should be handed over to the king and devoted by his almoner to pious uses, ' for the appeasing ' says Coke ' of God's wrath.' In the thirteenth century the common practice was that the thing itself was delivered to the men of the town- ship in whose territory the death occurred, and they had to answer for its value to the royal officers. In very early records we sometimes find that the justices in eyre name the charitable purpose to which the money is to be applied ; thus the ;^ice of a boat they devote ' for God's sake ' to the repair of Tewkesburj'^ [p. 472] bridge*, and the sister of a man who has been run over obtains the value of the condemned cart, since she is poor and sick'. Horses, oxen, carts, boats, mill-wheels and cauldrons were the commonest of deodands. In English men called the deodand

1 Laws of Alfred, 19, § 3 ; Leg. Henr. 87, § 2, 3 ; 90, § 11. Brunner, Forschungen, 521. The Eipuarian Law, adopted in Leg. Henr. 90, § 6, says that if a beam of mine or the like kills a man, I need not pay for him, unless I take the ' auctor interfeetiouis,' this man-slaying log, into my service.

' Bracton, f. 116: 'cum malefactor captus sit, scilicet la bane.'

* Stat. 9-10 Vic. c. 62. For the law of deodands, see Bracton, f. 122 ; Fleta, p. 37; Britton, i. 14, 15, 89; Staundford, P. 0. f. 20; Coke, Third Inst. 57; Hale, P. C. i. 419; Stephen, Hist. Grim. Law, iii. 77.

* Gloucestershire Pleas, pi. 230. One record gives ' dentur deo ad pontem,' another ' dentur ponti pro deo.'

' Ibid. pi. 113. In pi. 118 a man having been killed by his own cart, its price is given to his children pro deo. In pi. 298 a horse is given to a poor man who was once its owner.

474 Crime and Tort. [bk. ii.

the iane, that is, the slayer'. In accordance with ancient ideas this hane, we take it, would have gone to the kinsmen of the slain ; the owner would have purchased his peace by a surrender of the noxal thing ; but what we have said above about intes- tacy'' will prepare us to see that in the thirteenth century the claim of a soul which has been hurried out of this world out- weighs the claim of the dead man's kinsfolk, and in the past they will have received the bane, not as a compensation for the loss that they sufifered, but rather as an object upon which their vengeance must be wreaked befpre the dead man will lie in peace^ Even therefore when, as was commonly the case, the bane was a thing that belonged to the dead man, none the less it was deodand*. Eestriction The deodand may warn us that in ancient criminal law biiity. there was a sacral element which Christianity could not wholly suppress, especially when what might otherwise have been esteemed a heathenry was in harmony with some of those strange old dooms that lie embedded in the holy books of the Christian. Also it is hard for us to acquit ancient law of that unreasoning instinct that impels the civilised man to kick, or consign to eternal perdition, the chair over which he has [p. 473] stumbled^ But law which would not confess to sanctioning this instinct still finds grave difficulties in its way if it endeavours to detect and appreciate the psychical element in guilt and innocence. ' The thought of man shall not be tried, for the devil himself knoweth not the thought of man ' : — thus

' Munim. Gildb. i. 98 : ' de praedioto equo, qui fuit banum praedicti garcionis.' In the A.-S. laws bana is the usual word for a slayer. Bracton, f. 116.

" See above, vol. ii. p. 356.

' Brunner, D. E. G. ii. 558.

* In the oldest records we see no attempt to distinguish the cases in which the dead man was negligent from those in which no fault could be imputed to him, and the large number of deodands collected in every eyre suggests that many horses and boats bore the guilt which should have been ascribed to beer. A drunken carter is crushed beneath the wheel of his cart; the cart, the cask of wine that was in it and the oxen that were drawing it are all deodand: Northumberland Assize EoUs, p. 96. Bracton, f. 136 b, apparently thought it an abuse to condemn as deodand a thing that had not moved; he would distinguish between the horse which throws a man and the horse off which a man stupidly tumbles, between the tree that falls and the tree against which a man is thrown. We do not see these distinctions in the practice of the courts.

"> Holmes, Common Law, p. 11 ; Wigmore, Harvard Law Eev. vii. p. 317, note 8.

CH. viii. § 2.] Felony and Treason. 475

at the end of the middle ages spoke Brian C. J. in words that might well be the motto for the early history of criminal law^ It can not go behind the visible fact. Harm is harm and should be paid for. On the other hand, where there is no harm done, no crime is committed; an attempt to commit a crime is no crime". We may fairly remember in our ancestors' favour that in their day the inference that he who kills has meant to kill, or at least to wound, was much sounder than it would be now when, the blood-feud having been suppressed and murders being rare, we have surrounded ourselves with lethal engines, so that one careless act may slay its thousands. But in truth the establishment of a reasonable standard of responsibility is a task which can only be accomplished after many experiments. A mean must be found between these two extremes — absolute liability for all harm done, and liability only for harm that is both done and intended. Even criminal law can not be satisfied with the latter of these standards. We hang as guilty of 'wilful murder by malice aforethought' the man who killed when he meant only to inflict some grievous bodily harm, and we have not even yet so precisely defined the murders which deserve death that all recommendations to the king's 'mercy' have become unnecessary. Ancient law comes but gradually to a distinction between civil and criminal liability and has no large choice of penalties. The modern judge with a convicted manslayer before him has beneath his fingers a whole gamut of punishments ranging from life-long penal servitude to a trivial fine. The doomsmen of old days must exact the wer or let the slayer go quit. To exact half a luer if there was some, but little, guilt may well have seemed an illogical compromise [p. 474] to the straiter sort of lawmen. And as regards civil liability, even now-a-days the rule that a man ought to pay for all the harm that he does to his neighbours will seem equitable enough to a first glance, and but a few years ago there were plausible, if insufficient, grounds for the assertion that in English courts a plea that there was neither negligence nor an intent to do harm was no answer to an action which charged the defendant with

1 T. B. 7 Edw. IV. f. 2 (Pasch. pi. 2). So Hale, P. 0. i. 42&, speaking of witchcraft : ' it cannot come under the judgment of felony, hecause no external act of violence was offered whereof the common law can take notice, and secret things belong to (rod. ' '

2 Brunner, D. E. G. ii. 558-64.

476 Crime and Tort. [bk. ii.

having hurt the plaintiff's body'- Any such ideas as the Roman culpa or our modern English negligence are but slowly fashioned. Ancient law has made a great advance when it has held that, though a wer or bdt is due, there is not that intentional wrong- doing which calls for a wite or lets loose the blood-feud". Mens rea. Of course the Christian church in her penitential books, which exercised a not inconsiderable influence on the parallel tariff of wite and bdt, laid stress on the mental elements in sin. Still some of the earliest of those books set up a very high standard of liability, even in foro conscientiae, for remote and unintended harm^ This may be due in part to that nervous horror of blood which at a later time would prevent an ordained clerk from taking part in a surgical operation, but is due in part to the example set by temporal law and public opinion. We receive a shock of surprise when we meet with a maxim that has troubled our modern lawyers, namely, Reum non facit nisi mens rea, in the middle of the Leges Henrici^ among rules which hold a man answerable for all the harm that he does, and not far off from the old proverb, Qui inscienter peccat, scienter emendet. But the borrowed scrap of St Augustine speaks only of perjury, and that any one should ever have thought of [p-*75] charging with perjury one who swore what he believed to be true, this will give us another glimpse into ancient law^

1 Stanley v. Powell [1891], 1 Q. B. 86. See the cases collected by Mr ■Wigmore in Harvard Law Eev. vii. 456 : also Pollock, Torts, 5th ed. 129 ff.

" Kovalevsky, Droit coutumier OssStien, pp. 294-304, gives a most interesting account of what until lately were causes of blood-feud among these inhabitants of the Caucasus. Homicide by misadventure or in self-defence was avenged or paid for at the full price. So if A'b sheep were pasturing on the mountain side, and one of them dislodged a stone which killed B, this was just cause for a feud. If a stolen gun went off in the hands of the thief who was carrying it away and killed him, the thief's kin had a just feud against the owner of the gun (p. 295).

^ Brunner, Forschungen, p. 504. - Leg. Hen. 5, § 28.

^ As to the mens rea: Coke, Third Inst. 6, gives 'Et actus non faeit reum nisi mens sit rea.' Coke knew the Bed Book of the Exchequer which contains the Leges Henrioi where the maxim stands 'Eeum non facit nisi mens rea.' The original Source is S. Augustinus^ Sermones, No. 180, c. 2 (Migne, Patrol, vol. 38, col. 974) : ' Beam linguam non facit nisi mens rea.' This passes into the Deoretum, e. 3, C. 22, qu. 2. The author of the Leges took it from some intermediate- book in which the linguam may possibly have disappeared. In some Year Books of the fourteenth century we find our lawyers appealing tb a far more dangerous maxim, Voliintas reputabitur pro facto. See Coke, Third Instit. 5; Stephen, Hist. Crim. Law, ii. 222. This was we believe due to the fact that, owing to the disuse of appeals, our criminal law had become far too

CH. VIII. § 2.J Felony and Treason. 477

In the twelfth century the resuscitated Roman law intro- influence duced some new ideas. Men began to contrast, as Glanvill "f^"™"" does, civil with criminal causes, to speak of dolus and culpa and casus, and to lay stress on the psychical element in crime. Bracton has borrowed from Azo many generalities about crimes and punishments ; he has himself looked at Code and Digest ; he has transplanted a discourse on homicide from the works of Bernard of Pavia, a distinguished canonist\ Of homicide the canonists had by this time much to say, and much that con- cerned Englishmen. We must remember that, according to the clerical contention, a clerk charged with crime could be tried only by a spiritual court, and that this contention, at least so far as the felonies were concerned, was sanctioned by the law of England". They had therefore ample occasion for enforcing, not merely in the confessional, but by a public and coercive procedure their doctrine of the various shades of homicidal guilt, and they now had the old Roman texts before bhem. Some of the most renowned decretals about this matter were addressed to English prelates and dealt with English cases'. In the thirteenth century a rudely complete table had been constructed of the various sorts of homicide ; and this Bracton lifted from the famous Bernard^. On the whole, the canonical [j.476] scheme of responsibility was by no means unduly lenient ; it fully acquitted the man who slew his fellow by misadventure, if, but only if, his act was in itself lawful and was also done with all due care. It could afford to define various degrees of guilt, because it could command a scale of punishments which stretched from perpetual incarceration to that mere disablement from further promotion which would be the penalty of a clerk who had been but slightly careless. For this reason in Bracton's

lenient in cases of murderous assaults which did not cause death. We must not here discuss this matter, but we believe that the adoption, even for one limited purpose, of this perilous saying was but a momentary aberration. Our old law started from the other extreme : — Factum reputabitur pro voluntate.

1 Bracton, f. 104 b, 105. This is partly from Azo, Summa 0. (de poenis) 9, 47; but Bracton keeps his eye on Dig. 48, 19, and makes a cento of passages from that title.

^ See above vol. i. pp. 441 ff.

" cc. 6, 9, 13, X. 5, 12. The last of these canons = Calendar of Papal Eegisters, ed. Bliss, i. 9.

* Bracton, f. 120 b. This general discussion of homicide seems to be taken with some changes from Bernardi Papiensis Summa Deoretalium (ed. Laspeyres, Katisbon, 1861), p. 219. The texts are collated in Bracton and Azo, p. 225.

478 Crime and Tort. [bk. n.

text we may see Bernard's doctrine of homicide floating on the surface of, and scarcely mingling with the coarser English law, which hardly knew what to do with a manslayer who was not guiltless but did not deserve to be called a felon and put to death. The We may no w examine on e by one the felonies of Bracton's age \

Homicide. Homicide is the crime of which there is most to be said, but the practicable English law that lies beneath the borrowed jSiflable It^-li^n trappings is rude. In a few cases homicide is abso- lutely justifiable and he who commits it will suffer no ill. One such case is the execution of a lawful sentence of death. Another — and this is regarded as a very similar case — is the slaying of an outlaw or a hand-having thief or other manifest felon who resists capture. Only under local custom on the wild Welsh march may one slay an outlaw who makes no resistance^- The furthest point to which we have seen this class of cases stretched is marked by a judgment of 1256. A lunatic chaplain had broken into a house by night ; a servant of the householder struck him on the head so that he died; the justices suffered the slayer to go quit^ Bracton in his text would allow a man to slay a housebreaker, if to do so was a necessary act of self-defence ; but in his margin he noted a case of this kind in which the slayer was pardoned by the king^ There was need in 1293 for a statute to say that in certain [p. 477] circumstances a forester or parker was to be acquitted of the death of a trespasser whom he was endeavouring to arrest and slew in the endeavour". In 1532 there was need for a statute

1 Once for all we may say that of the Mirror of Justices we shall take no notice. Its account of criminal law is so full of fables and falsehoods that as an authority it is worthless.

2 Bracton, f. 128 b.

^ Northumberland Assize Bolls (Surtees Soc), 94. We imagine that in this case the prisoner was fortunate. Staffordshire Collections, vol. yi. pt. 1, p. 258: in 1293 A and B by night pursue a flying thief; each mistakes the other for the malefactor ; B wounds A ; then A kills B ; the justices send A back to prison to await a pardon.

' Bracton, f. 144 b. The words ' sicut coram rege...perdonavit mortem ' are marginal in the best MS. Staffordshire Collections, iv. p. 215: in 1272 one who has beheaded a flying robber is acquitted.

» 21 Edw. I. St. 2 (Statutes, i. p. Ill) ; Stephen, Hist. Crim. Law, iii. 37. In 1236 there was a controversy between the king and the magnates about the right to arrest and imprison men who were found doing wrong in parks and preserves. This is reported in Stat. Merton. c. 11. Just at that time the king had pardoned a forester of the Earl of Eerrers, who had slain a malefactor in

CH. viiT. § 2.] Felony and Treason. 479

to say that a person who killed any one who attempted to rob him in his own house or on or near the high-way should not incur a forfeiture of his goods'. Altogether in our common law the sphere of justifiable homicide was very narrow, and the cases which fell within it were those which in old times would have been regarded less as cases of legitimate self-defence than as executions, for the fur manifestus had been ipso facto an outlaw I

The man who commits homicide by misadventure or in Misadven- self-defence deserves but needs a pardon. Bracton can not self- *° conceal this from us', and it is plain from multitudinous records ^^^^'"'e. of Henry III.'s reign. If the justices have before them a man who, as a verdict declares, has done a deed of this kind, they do not acquit him, nor can they pardon him, they bid him hope for the king's mercy*. In a precedent book of Edward I.'s time [p. 478] a justice is supposed to address the following speech to one whose plea of self-defence has been endorsed by the verdict of a jury : ' Thomas, these good folk testify upon their oath to all that you have said. Therefore by way of judgment we say that what you did was done in self-defence ; but we can not deliver you from your imprisonment without the special command of

self-defence; but the king expressly protested that this was an act of grace and not of justice. See Note Book, pi. 1216.

' Stat. 24 Hen. VIII. o. 5; Stephen, Hist. Crim. Law, ili. 39.

' Bmnuer, Forschungen, 458. We do not think that in the thirteenth century a homicide in self-defence would have been justifiable, even though it was perpetrated in the endeavour to prevent a felony. See Northumberland Assize Bolls, 85 : a man attempting rape assaulted a woman ; she drew a small knife and killed him ; she fled ; her father offers the justices forty shillings for a permission that ehe may return to the peace; they receive the fine and will speak to the king.

' Bracton, f. 134 : ' Tenetur etiam [Eex] aliquando de gratia coucedere ei vitam et membra, ut si per infortunium vel se defendendo hominem inter- fecerit.' Ibid. f. 104b: 'crimen homicidii, sive sit casuale vel voluntarium, licet eandem poenam non contineant, quia in uno casu rigor, in alio miseri- cordia.' Contrast these with the romanesque passages on f. 120 b, 186 b.

* The practice is illustrated by Select Pleas of the Crown (Selden Soc), pi. 70, 114, 188; Gloucestershire Pleas, pi. 15, 63, 362; Note Book, pi. 1084, 1216 ; Northumberland Assize Bolls, pp. 85, 94, 98, 111, 323, 343, 348, 361-2-3 ; T. B. 30-81 Edw. I. 511, 513, 529. When a presentment of homicide by misadventure is made against a man who has fled, the roll sometimes says that he may come back if he will, though his chattels are forfeited ; we do not think that this dispenses him from the necessity of procuring a pardon. He has not been tried and therefore has not been acquitted.

480 Crime and Tort. [bk. ii.

our lord the king; therefore we will report your condition to the king's court and will procure for you his special graced' Pardons On the patent rolls of Henry III. pardons for those who

homicide, have committed homicide by misadventure, in self-defence, or while of unsound mind, are common. Their form is the following : — Whereas we have learnt by an inquest taken by so and so (sometimes it is taken by the sheriff in full county court) — or Whereas our justices in their eyre in such a county have informed us after an inquest taken before them — that Nicholas of Frackenham slew Koger of Mepham by misad- venture and not by felony or malice aforethought — or that William King killed Ralph de le Grave in self-defence and not of malice aforethought, for that the said Ealph ran upon a lance that William was holding — or that Walter Banastre, intending to chastise his son Geoffrey, wounded him by misadventure and not by felony in the arm so that he died — or that Maud who is in prison for slaying her two sons killed them in a fit of madness and not by felony or malice aforethought — or, that Alexander of Gathurst aged twelve killed Helowise daughter of John le Hey aged less than eleven by misadventure and not by felony or malice aforethought — or that Alan Blount imprisoned by our bailiffs of Lincoln for suspicion of robbery died from the severity of the imprisonment and not by the act of Adam Williamson — now we have pardoned to him the suit which pertains to us for the said death {or, in appropriate cases, the outlawry promulgated against him), and have granted him our firm peace, but so that he shall stand to right in our court if any one {or, if any of the kinsfolk of the slain) desires to complain against him I Practice in From these pardons we learn that sometimes a person [p. 479] excifsabie charged with homicide obtained a writ from the king ordering

homicide.

the sheriff, or the coroners, to take an inquest as to whether there was felony or misadventure, while at other times the justices in eyre had an accused person before them and took a similar inquest. In either case, if the jurors gave a favourable

1 La Corone pledee devant justice ; Camb. Univ. Libr. Mm, i. 27, f. 129.

'■' Our instances .are from the uuprinted Patent EoUs of 20, 30, 40 Henry III. There is generally an express statement to. the effect that there was no felonia, or no malitia excogitata. Occasionally the pardon is granted at the instance of some great one; e.g. Eot. Pat. 40 Hen. III. m. 3, the king at the request of his daughter, the Queen of Scotland, pardons a chaplain who has committed, homicide per infortunium.

CH. VIII. § 2.] Felony and Treason. 481

verdict, a pardon was granted. In 1278 the procedure was reformed by the Statute of Gloucester^. No more writs for inquests wefe to be granted, but the accused was to appear before the justices and ' put himself upon the country for good and ill.' In case the jurors returned a verdict of 'misad- venture' or 'self-defence,' the justices were to report the case to the king, who would, said the statute, if it pleased him, take the accused into his grace. This change had the effect of bringing all these cases under the eye of the justices and apparently of keeping in prison men who in former times might have obtained a speedier pardon. The statute is far from suggesting that these pardons were already 'pardons of course,' though such they became in a later age. - In one respect however our law increased its severity. So far as we can see, the homicide who obtained a pardon on the score of mis- adventure or self-defence (unless he had fled on account of his deed), did not in Henry III.'s time incur that forfeiture of his chattels which was inflicted upon him in after days^. But very often he had fled, and this, so it seems to us, may have enabled our ever needy kings to establish forfeiture as a general accompaniment of the 'pardon of course.' According to the rigour of the law such a forfeiture might have been exacted even in the year 1828'. [p. 480] A misinterpretation of the statute of Marlborough led some Liability lawyers of a later age, among whom was Coke, to believe that adventure. before the year 1267 the man who killed another in self-defence or by misadventure was hanged*. Their error has been suffi- ciently exposed by modern writers, who however have been too loud in their exclamations over its absurdity^. The clause in

' Stat. Glono. o. 9; Coke, Second Inst. 315; Stephen, Hist. Grim. Law, iii. 37. We are not persuaded by the commentators that this statute had anything to do with the writ de odio et atia. The writs which directed an inquest where there was alleged misadventure or alleged self-defence said nothing of odium et atia. But of the writ de odio et atia we shall speak in the next chapter.

'' See the cases cited above on p. 479, note 4. Foster, Discourse of Homicide, ch. iv. Stephen, Hist. Crim. Law, iii. 38-40.

» Stat. 9 Geo. IV. o. 31, sec. 10; Stephen, Hist. Crim. Law, iii. p. 77; the old law however had fallen into desuetude. Justices allowed jurors to find a man 'not guilty,' instead of giving a special verdict about misadventure or self- defence.

" T. B. 21 Edw. III. f. 17 (Hil. pi. 23); Coke, Second Inst. 148.

" Hale, P. 0. i. 425; Poster, Discourse of Homicide, ch. iv. ; Blaoketone, Comment, iv. 188; Stephen, Hist. Crim. Law, iii. 42.

P. M. II. 31

482 Crime and Tort. [bk. ii.

question dealt, not with the crime of homicide, but with the murdrum, the murder-fine exacted from the hundred. It de- clared that this was not to be levied when a death occurred by misadventure. In so doing it overruled a contrary custom of some shires which in a recent famine had become intolerable — there were so many starved corpses to be paid for^- This however, even when rightly interpreted, will give us food for re- flection. An accidental death has been paid for by a mv/rdmm, by a fine, a portion of which under the law of the Norman age went to the kiadred of the dead man. Before we laugh at Coke let us look at a body of law which stands very near our own. The earliest of the Norman custumals declares in the plainest words that the man who kills his lord by misadventure must die ; he will escape the torment of being ' drawn,' but he must die". And what, let us ask, could an Englishman have done if about the year 1180 he had been appealed of homicide and had desired to urge that it was the result of misadventure ? At that time he would have had no right to put himself upon a jury 'for good and ill,' and we see no trace of his being able to set up the misadventure by way of ' exception'.' We believe that he must have gone to battle, and that, vanquished in [p. 481] battle, his life and members would have been in the king's mercy. The The king could not protect the man-slayer from the suit of

and°he the dead man's kin. Even when the pardon was granted on kSr*^^* the score of misadventure, this suit was saved by express words. Proclamation was made in court inviting the kin to prosecute, but telling them that they must come at once or never*. What

1 Braeton, f. 135 ; Oxford Petition of 1258, o. 21 ; Provisions of Westminster, 0. 22 ; Stat. Marlb. c. 25 ; Maitland, Gloucestershire Pleas, p. xxx. ; Cbadwyck Healey, Somersetshire Pleas, p. Is.

" TrSs ancien coatumier (ed. Tardif ), p. 30 ; ' si homo dominnm snnm oeciderit, nisi per infortunium hoc oontigerit, detractus suspendatnr, et, si per infortunium, morte puniatur.'

' Braeton, f. 141, suggests a good many ' exceptions ' that the appellee may plead ; but none of them meets this case. Britton, i. 113 and Fleta, 49, allow a special plea of misadventure or self-defence.

* Northumberland Assize Eolls, 98 (a.d. 1256): 'Et quia dominus Bex concessit ei pacem suam dnmmodo ipse staret recto, sicut praedictum est, interrogatum est semel, bis, ter, si aliquis ex parentibus eiusdem Uctredi vel aliquis alius velit sequi versus eum, modo veniant, vel nunquam. Et quia non est aliquis qui versus eum velit sequi, ideo Petrns inde quietus, et oouceditur ei firma pax, '

,CH, viii. § 2.] Felony and Treason. 4B3

could the kin do in such a case ? They could make themselves extremely disagreeable; they could extort money. In Henry III.'s day Mr Justice Thurkelby was consulted by a friend who had obtained a pardon, but was being appealed. The advice that the expert lawyer gave was this : — You had better go to battle ; but directly a blow is struck cry ' Craven ' and produce your charter; you will not be punished, for the king has given you your life and members^

We do not say that the law of England was ever committed History to the dogma that he who slays by misadventure must be put venture. to death. We take the truth to be this : — Far into the twelfth century the main theory of the law still was that an intentional homicide could be paid for by wer and wUe; but there were exceptions which devoured the rule, and, under cover of charges of felony, guet-apens and breach of the king's peace, intentional homicide became an unemendable crime to be punished with death or mutilation. What to do with cases of misadventure, the law did not see. In the past many or all of them had given occasion for a wer, if not for a wite or a blood-feud. There was nothing for it but ' mercy ' ; the king himself must decide in each case whether life and limb shall be spared. Meaowhile the law of wer, being no longer applicable if there was felony, perished for lack of . sustenance, and the parentes occisi were reduced to getting what they cpuld by threats of an appeaP. That a man who kills d,nother in self-defence should [p.482] require a pardon will seem to us even more monstrous than that pardons should be needed where there has been mis- adventure, for the 'misadventure' of this age covers many a ))lameworthy act. But the author of the Leges Henrici, if we read him rightly, would demand a wer from the self-defender", and oui; law when she puts self-defence on a par with mis- adventure is accompanying her French sister. In France, as in

' La Oorone pledee devant justice:- Camb. Univ. Libr. Mm. i. 27, f. 124.

' Select Pleas of the Crown (Selden Soe.), pi. 102. In 1208 the kinsfolk of the dead man receive .the substantial sum of 40 marks; besides this, one of them is to be made a monk or canon at the expense of the offender, and the slayer is to serve seven years in the Holy Land for the good of the dead mftn's soul. This treaty is sanctioned by the king and recorded on « plea roll, but • probably in this case there had been mlful homicide. Ibid. pi. 47 : the king- pardoning a homicide bids his justices do what they can to make peace between the slayer and the paxentes interfecti. But the kinsfolk no longer havis a legal right to a wer., . ' Leg,Hpn. 80,.§7; 87,.§6.

31—2

484 Crime and Tort. [bk, n.

England, throughout the later middle ages and far on into modem times the king's lettres de gr.dce were granted to those ■who had slain a man per infortunium vel se defendendo\ We are not dealing with an insular peculiarity. Homicicie . It is with difficulty that even a child can escape the hard cMitenf law. 'Reginald aged four by misadventure slew Robert aged two; the justices granted that he might have his life and members because of his tender agel' A little later we hear that a child under the age of seven shall not suffer judgment in a case of homicide'. Limits of The records of this time are so curt that we can frame no

ture and"' Severe theory as to the boundary that divided felonious homicide Tetence from homicide by misadventure; only this we may notice, that the one word ' misadventure ' (Lat. infortwnium) does duty both in cases in which no human agency, unless it be the sufferer's own, has brought an untimely death upon him, so that there is nothing for justice to do but to exact a deodand, and also in cases in which the act of another has intervened and there is need for a pardon. Then again, in cases of the latter sort we never hear of 'negligence' or of any similar standard of liability, though just once by the way we see a boy, who frightened a horse which threw and killed its rider, sent back to gaol pro stultitia sua*. As to the limits of pardonable defence, we may guess that they were somewhat wide and that [p.< a man might ' without felony' slay in defence of his own life or that of his wife or of his lord or of any member of his house- hold" ; but there could be little law about this, for all depended upon the king's 'grace.' On the other hand, anything like vengeance or the prosecution of a feud, even against the homicide, would have been sternly suppressed. There are signs that the outraged husband who found his wife in the act of adultery raight no longer slay the guilty pair or either of them, but might emasculate the adulterer'.

1 Esmeln, Histoire de la procedure criminelle, p. 255. See also VioUet, ^tablissepients, i. 233.

' Northumberland Assize Bolls, 323.

» Y. B. 30-1 Edw. I. p. 511. See Wigmore, Harv. L. E. fii. 447; Hale, P. C. i. 20-9. * Munim. Gildh. i. 97.

» To this effect Britton, i. 113.

' For the old law see Alfred, 42, § 7; Leg. Will. i. 35 (which may be romanizing) ; Leg. Henr. 82, § 8. Matthew Paris, Chron. Maj. v. 85, tells how in 1248 a case of mutilation induced Henry IIL to decree as law 'ne prae-

CH. VIII. § 2.] Felony and Treason. 485

By this time it was law, except perhaps in the Welsh Homicide marches^ that if the king could not absolve a slayer from the able, suit of the kinsfolk of the slain, they on the other hand could not absolve him from the king's suit or save him from the gallows. In 1221 a Basset was hanged after he had made his peace with the family of the dead man, — a peace, that was ratified by a marriage and sanctioned by the sheriff — and the dead man's widow was amerced for discontinuing her appeaP. Still to the end of our period an appeal rather than an indictr ment is the normal procedure against criminals. Some offences are punished far more heavily when conviction has been secured by an appeal than when the offender is arraigned at the king's suit".

Every homicide that is neither justifiable nor yet excusable Murder, as the result of misadventure or self-defence, is in Bracton's age [p. 484] felonious ; also it is conceived as having been perpetrated by ' premeditated assault ' or by ' malice aforethought* ' ; also it earns the punishment of death — usually death by hanging; but this will be aggravated by 'drawing' if there has been petty treason, or, in other words, if a man has slain his lord, a servant his master, a wife her husband. If we leave out of sight this additional torment for traitors, we may say that our law knows but one degree of criminal homicide ; it does not yet know the line that will divide ' murder ' from ' manslaughter^'

sumat quis, nisi pro ooniuge, adulterum membris mutilare genitalibus.' See Select Pleas of the Crown, pi. 87 : in an appeal of wounds the appellee pleads that he found the appellor in his bed room intending his shame. Eot. CI. i. 126: in 1212 King John orders that A who has emasculated B is to have his land restored to him, if an inquest finds that B committed adultery with ^'s wife after being forbidden to visit her.

1 Note Book, pi. 1474. ^ Gloucestershire Pleas, pi. 101.

' Britton, i. 98: 'There are also some felonies where no other execution follows at our suit than such as takes place in trespasses, as in mayhems, wounds and imprisonment ; and there are others where judgment of death ensues, as well at our suit as another's, as in felonies for the death of a man, rape, arson, robberies and others.' When Britton wrote, rape had lately passed from the one class to the other. In Bracton's day (f. 143) there were some who thought that if, when an appeal had been quashed, the appellee was arraigned at the king's suit, his punishment should only be a fine.

* This appears from the forms of pardon. See above, vol. ii. p. 480.

" The one instance in which we have seen a trace of this line is the story told by Thomas Wykes (Ann. Monast. iv. 233-S). In 1270 the Earl of Warenne and Alan de la Zouohe were litigating before the justices in Westminster HaU. From words they came to blows and Warenne's retainers grievously wounded Alan so that after a while he died. Warenne was allowed

486 Crime and Tort. [bk. ii.

This is somewhat strange, for from of old the Germanic peoples have commonly treated under the head of morth a few aggravated kinds of homicide which were unemendable crimes, while mere open and intentional slaying was amendable. The word morth, which was known to Normans as well as to Englishmen*, seems to imply concealment, in particular the hiding away of the dead body'. But in our twelfth century a levelling process was at work ; it made ' unemendable ' all homicide that was regarded as worthy of heavy punishment. In Latin and French forms {murdrvmi, murdre) the old morth lived on, and in Glanvill's day one had still to distinguish that secret homicide which is murdrvm. from a mere homicidiwm. As the prosecutor for a murdrum only a near kinsman of the Slain may appear, while any one connected with the slain by blood, homage or lordship may take action if there has been open homicide'. The point of the distinction seems to be this, that normally an [p.485] appellor must declare that he saw the crime committed, but that, this being impossible in the case of a murdru/m, very close kinsmen are allowed to take action without protesting that they were eye-witnesses of the deed*. This distinction soon dropped away, for more and more the words about eye-sight became a ' common form ' which every appellor was expected to utter and

to make his peace on paying SOOO marks to the king and 2000 to the wounded man and on swearing with fifty compurgators that the deed was done ' non ex praecogitata malitia...8ed ex motu iracundiae nimis accensae.' Here we already have the contrast between 'malice aforethought' and a 'sudden falling out'; but apparently we have rather an act of grace than a judicial sentence,

1 TrSs ancien coutumier, p. 29 : He who slays his son wilfully {im}««) is exiled, but not put to death ; but he who murders {murdrierit) his son is burnt. Ibid. p. 64 : ' homicidium sive clam factum fuerit, quod hngua Daoorum murdrum dioitur, sive palam.'

'' Brunner, D. E. G. ii. 627. Jostioe et Plet (Documents in^dits) p. 290.

' This point seems to have escaped the attention of conmientators; it can be brought out by a few italics. Glanvill, xiv. 3: 'Duo autem sunt genera homicidii. TJnum est quod dicituV murdrum, quod nuUo vidente, nullo soiente clam perpetratur...ita quod raox non assequatur clamor populari8...In huiusmodi autem accusatioue non admittitur aliquis nisi fuerit de consanguinitate ipsius defitncti..,'EtSt et aliud homicidium quod...dicitur simplex homicidium. In hoc etiam placito non admittitur aliquis accusator ad probationem, nisi fuerit mortuo consanguinitate oouiunctus, vel homagio, vel dominio, ita ut de morte loquatursub visus sui testimonio.' We see the same distinction in the Ancienne coutume de Normandie, c. 70 (69), ed. de Gruchy, 172; Somma, p. 178. The nearest kinsman can bring an appeal of murder ; a vassal may bring an appeal pf homicide. But must have been present at his lord's death.

* See Bracton, f. 126.

CH. VIII. § 2.] Felony and Treason. 487

from which no appellor shrank ; also the vassal was slowly losing his right to bring an appeal for the death of his lord^

In this region therefore the old term had no further part to The play. It had also, however, found a place for itself in those cases fine. in which under the Conqueror's law"" the hundred paid a fine when a foreigner was slain and the slayer was not produced. This fine and its cause were alike known as a murdrwm : it was a fine occasioned by a secret homicide, a homicide secret in this sense that no one was brought to justice as its author. In every eyre of the thirteenth century numerous murdra were exacted and a jurisprudence of murdra was evolved'. We will notice only a few salient points^ The original murdrum was a sum of 46 marks, of which 40 went to the king, 6 to the kinsfolk of the slain ^; but our earliest rolls show us that this must have been a crushing penalty, for the sums actually demanded are much [p. 486] smaller'; no part of them, so far as we can see, goes to the kinsfolk. Large tracts of England, chartered boroughs and other ' liberties,' were quit of the murdrum ; it was unknown in some of the northern counties. The odd presumption that every slain man was a foreigner had been firmly established ; the hundred had to pay unless his Englishry was proved by the testimony of his kinsfolk. In some counties a murdrum was exacted by custom in case of accidental death ; Bracton regarded this as an abuse, and, as already said, it was abolished'.

This then became for a while the one and only meaning of Mnrder murder ; but probably in the popular mind that word still stood history.

^ Select Pleas of tlie Crown, pi. 80, 89, 197, appeals for the death of a lord ; pL 76, appeal for the death of a fellow- vassal ; pi. 121, appeal by A for the death of B whom A had sent on a message. Britton, i. 109, still allows the appeal to be brought by one who has done homage to, or been in the household of, the slain. In Select Pleas, pi. 29 [a.d. 1202] we seem to have a decision that even a brother of the dead man must allege that he witnessed the deed. This would over-rule Glanvill's distinction.

^ See above, vol. i. p. 89.

' Bracton, f. 135. It is evident that there were many diversities of practice. Bracton, for example, would excuse the hundred if it could name, though it could not produce, the slayer. Certainly some other judges did not hold this opinion.

'' For more, see Liebermann, Leges Edwardi, p. 108; Chadwyok Healey, Somersetshire Pleas, p. Iviii.

" Leg. Will. in. 3 ; Leg. Will. i. 22 ; Leg. Henr. 91 ; Leg. Edw. 15, 16.

" Pike, History of Crime, i. 454; also e.g. Gloucestershire Pleas,, pp. 118 ff.

' See above, vol. ii. p. 482.

488 Crime and Tort. [bk. n.

vaguely for homicide of the very worst kind'. In 1340 a statute", which abolished the murder fine, set the word free from the purpose that it had been serving, and at a later time by a process which it is not for us here to trace ' wilful murder by malice aforethought' became the name for an aggravated kind of felonious homicide which was excluded from the benefit of clergy and was to be contrasted with the felonious but 'clergyable' crime of man-slaughter '.

Suicide. As to suicide Bracton seems to have had many doubts, and

at one time he was for giving the name felo de se only to a criminal who killed himself in order to escape a worse fate. We think that the practice of exacting a forfeiture of goods in every case in which a sane man put an end to his own life was one that grew up gradually, and that thus the phrase felonia de se gained an ampler scope. We have seen before now that a similar forfeiture of the goods of one who died obstinately intestate was imminent for a while*.

Wounding Of the other felonies there is much less to be said. Wound, [p. 487] mayhem, or imprisonment might be made the foundation of aii appeal by the sufferer and the convicted appellee ' forfeited life and member,' that is to say, the justices might inflict the punishment of death or any other of the recognized penalties'. As a matter of fact the appellee seldom, if ever, lost life and seldom lost member ; still we can cite a case from 1221 in which a man who had wounded another in the arm and had been defeated in the judicial combat underwent a horrible mutilation". Britton holds that there should be strict retaliation — member

1 In the Assize of Clarendon murdrator is freely used. Perhaps it here covers all felonious homicide.

2 14 Edw. III. St. 1, c. 4.

' For the later history, see Stephen, Hist. Grim. Law, iii. 40, 43-5.

» See above, vol. ii. p. 359. Bracton, f. 150, speaks of suicide. Some sentences in this chapter are marginal additiones and seem to betray a fluctuating mind. Gloucestershire Pleas, a.d. 1221, pi. 22 : a, case of suicide is presented ; the township must answer for the chattels ; but a, loguendum is entered on the roll, which shows that the king is to be consulted. At a little later date the suicide's goods are always forfeited; Northumberland Assize EoUs, 83, 113, 338, 345. For later law, see Hale, P. 0. i. 411 ; for Norman law, Ancienne coutumfe, c. 21, ed. de Gruchy, p. 56 ; Somma, p. 56.

" Bracton, f . 144^6. Observe what he says of the punishment for castration (f. 144 b) : ' sequitur poena aliquando capitalis, aliquando perpetuum exUium cum omnium bonorum ademptione.'

" Gloucestershire Pleas of the Crown, pi. 87: 'Thomas devictus est et obcecatus et ementulatus.'

CH. VIII. § 2.] Felony and Treason. 489

for member, wound for wound, imprisonment for imprisonment' ; but here he is hebraizing and introducing an element that is foreign to the law of our race'. Already there was room for unpractical speculation. Appeals for wounds had not been uncommon; but the justices seem to have taken delight in quashing them as informal'. The appeal having been quashed, they arraigned the appellee at the king's suit ; if he was con- victed, he suffered no worse than imprisonment and fine*. Also about the middle of the thirteenth century the growth of the action of trespass afforded the injured party an alternative and preferable mode of procedure. Saying nothing of felony, he would sue for damages, and Britton strongly advised him to do [p.488] sol Thus once more instead of vengeance he could obtain, to use the old phrase, a sufficient hdt, but a h6t the amount of which was no longer fixed by law. The new procedure became so much more popular than the old that all ' offences against the person,' except homicide, dropped out of the list of felonies^ Our law, if it had once been too severe, became much too mild, and was at times tempted to retrace its steps by aid of the maxim that the will manifested in a murderous assault may be taken for the deed'. Little learning collected round these crimes in the age that is before us. The justices had a certain discretion in deciding whether there was a wound sufficient to

' Britton, i. 123-4; cf. Pleta, p. 59.

° Brunner, D. E. G. ii. 589. Long ago King Alfred (Laws, Introduotion, c. 19) had copied the Hebraic rule from Exodus, but mthout intending to enforce it. When crude retaliation appears in a medieval code, the influence of the Bible may always be suspected. What we may call characteristic punish- ment, e.g. castration for adultery, or loss of a hand for forgery, is a very different thing. See Giinther, Idee der Wiedervergeltung {Brlangen, 1889).

° For appeals of mayhem or wounds, see Select Pleas of the Crown, pi. 4, 9, 11, 24, 37, 41, 54, 79, 87, 155; Gloucestershire Pleas, pi. 87, 434; Note Book, pi. 134, 259, 346, 511, 548, 592, 943, 1084, 1697. Any one who looks through these cases will see that little comes of a great deal of talk.

* Bracton, f. 144; Britton, i. 98, 123. Northumberland Assize Bolls, p. 117: an appeal of wounding having been quashed, the appellee is arraigned and convicted at the king's suit; 'custodiatur pro transgressione.' So Munim. Gildh. i. 90: in 1244 three men convicted of a. murderous assault are fined but one mark, being poor. Staffordshire Collections, iv. 210: in 1272 a man is fined a half-mark for a wound.

" Britton, i. 123-4. Bracton, f. 145 b, already knows the civil action for wounds or imprisonment. See Northumberland Assize Bolls, pp. 49, 108 (a.d. 1256), for early instances.

' Blaokstone, Comment, iv. 206, 314 ; Stephen, Hist. Crim. Law, iii. 108.

' See above, vol. ii, p. 476, note 6.

490 Crime and Tort. [bk. ii.

support an appeaP. The distinction between wound and may- hem was of procedural importance. The man who had been maimed, that is, who had been deprived of the use of a member which would be serviceable in a fight", was not bound to offer or accept battle. In such case one or other of the parties was sent to the ordeal, until the Lateran Council of 1215 abolished that mode of trial ; in later days the appellee had to submit to the verdict of a jury'. We may gather from a case which occurred in 1225 that a mayhem committed in self-defence was justifiable^ ; the strict rules that were applied to homicide were relaxed when there was no death. Eape. The crime which we call rape had in very old days been

hardly severed from that which we should call abduction ; if it had wronged the woman it had wronged her kinsmen also, and they would have felt themselves seriously wronged even if she had given her consent, and had, as we should say, eloped^ Traces of this feeling may be found at a late time ; but rape in the sense of violentus concuhitus is soon treated as a crime for \s.' which the woman and only the woman can bring an appeal. Probably from the Conquest onwards it was deemed a bootless crime if she pressed her suit'. Famous words have told us of the Conqueror's severe treatment of an offence which may have been but too common in a land overrun by foreign soldiers'. The characteristic punishment of castration, often coupled with blinding, was considered appropriate to it ; but a story, which to oiu" regret is told in a reputable chronicle, shows us Eanulf Glanvill satisfying a private grudge by sending a man to the gallows for abduction^ Bracton reserves the gravest punish- ment, namely blinding and castration, for cases in which the appellor has been deflowered; in other cases some corporal

' Bracton, f. 145.

2 GlanvUl, xiv. 1; Bracton, f. 145; Britton, i. 123; Fleta, p. 58.

» Select Pleaa of the Crown, pi. 4, 11, 24; Glanvill, xiv. 1; Bracton, f. 142 b.

" Note Book, pi. 1084.

'' Brunner, D. B. G. ii. 666. For the treatment of violentus concubitm in A.-S. Law, see Alfred, 11, 18, 25, 26. Bracton, f. 147, in a marginal additio cites what he supposes to be an ancient English doom denouncing a punishment of life and member where Alfred would have been content with a 60 shilling Mt. We know nothing of the source whence he obtained this passage.

« Leg. Will. I. c. 18; Leg. Henr. 13, §6.

' A.-S. Chron. vol. ii. p. 355 (a.d. 1087).

8 Gesta Henrioi (Benedict), i. 314-5; Hoveden, ii. 286.

CH. VIII. § 2.] Felony and Treason. 491

chastisement falling short of loss of limb should be inflicted; but he looks back to a time when every rape was a capital offence'. Concerning these matters we can find little ' case- law.' Appeals of rape were often brought in the thirteenth century; but they were often quashed, abandoned or compro- mised". Glanvill in a curious passage protested that the appeal must not be so used as to force a noble man or noble woman into a disparaging union' ; but, as a matter of fact, an appeal of rape was not unfrequently the prelude to a marriage*. The judges seem to have thought that if the woman was satisfied, public justice might be satisfied. She could prosecute her ravisher and use ' words of felony ' ; but if she made no appeal and the man was arraigned at the king's suit, then [p. 490] imprisonment and fine were a sufficient punishment^. In 1275 the first Statute of Westminster gave the woman forty days for her appeal and fixed the punishment of an indicted ravisher at two years' imprisonment to be followed by ransom at the king's pleasure. Ten years later the second Statute of Westminster provided a judgment of life and member for all cases of rape, even though the woman was content not to sue, and thence- forward this crime fell into the ranks of those felonies which,, whether prosecuted by appeal or by indictment, were punished by death'.

^ Bracton, f. 147-148 b. In the precedent books we find aa words of common form ' abstulit ei virginitateni suam ' or ' pucellagium suum. ' On f. 127 b Braoton says that the man guilty of rape may even be sentenced to death if he fled for his crime.

2 Select Pleas of the Crown, pi. 7, 96, 141, 166; Gloucestershire Pleas, pi. 4, 16, 76, 102, 155, 179, 341, 426; Northumberland Assize Bolls, pp. 92, 94, 109, 111, 122, 329.

3 Glanvill, xiv. 6.

* Bracton, f. 148, with Glanvill's text before him, alters it and seems to allow that the low-born woman can force the high-bom ravisher to marry her.. Trfes ancien coutumier, p. 41. For actual oases, see Select Pleas of the Crown, pi. 7; Northumberland Assize EoUs, p. Ill; Coke, Third Inst. 181. Braoton, f. 147 b, has a romantic tale about King Eobert of Prance. Its origin we have not found.

^ Northumberland Assize Bolls (a.d. 1256), p. 92, the ravisher is fined one mark; p. 94, a similar fine ; (a.d. 1279), p. 329, a fine of four marks ; Somerset- shire Pleas, pi. 963 : a fine of two marks.

8 Stat. West. I. 0. 13 ; Stat. West. II. o. 84 ; Britton, i. 55 ; Coke, Third Inst. 180, 433 ; Hale, P. C. i. 627 ; Blackstone, Comment, iv. 212. It does not seem to us correct to say that by the first of the two statutes ' the punishment for rape was mitigated.' Bape, like mayhem, wounding and false imprison- ment, was in Henry III.'s day a crime which could be prosecuted by appeal with

492

Crime and Tori.

[bk. II,

Arson. The crime which we call arson and which our ancestors

called bwrnet was mentioned by Cnut as one of -the bootless crimes' ; ancient law is wont to put it in the same class with 'manifest' theft^ It naturally finds a place in the list of felonies'. We are told that the punishment was death by burning^ and are able to vouch a case from John's day in which this punishment was inflicted °; but the fully developed common law substituted the gallows for the stake. The thing that is burnt must be a 'house'; but this word has a large meaning^; already in 1220 we find the burning of a barn that was full of corn treated as felony'. This crime is of some interest as [p.49l] being one of the first in which the psychical element,., the intention, becomes prominent. At a very early time men must distinguish between fires that are and fires that are not intended*.

Burglary. ' A burglar,' says Coke, ' is by the common law a felon, that in the night breaketh and entreth into the mansion house of another, of intent to kill some reasonable creature, of to commit some other felony within the same, whether Ms felonious intent be executed or not'.' Though there are ancient elements in

' words of felony,' and, if so prosecuted, it would be punished by mutilation, at least where there was defloration and the woman would make no peace. On the other hand, if the ravisher was arraigned at the king's suit, he would, like the wounder or imprisoner, be punished merely by fine and imprisonment, and we may see very small fines inflicted. The first of, the two statutes gave the woman a longer time than she had previously enjoyed for her appeal, and also provided that the ravisher, if arraigned at the king's suit, should remain in prison for at least two years before making fine. The statute law is not fluctuating; the first statute is a step towards the second. See T. B. 30-1 Edw. I. p. 499. The unprinted tract La Gorone pledee devant justice says that blinding without emasculation was inflicted if the criminal's wife intervened in his favour.

1 Cnut, II. 64 ; Leg. Henr. 12, § 1. See also atheist, ii. 6, § 2 and Sohmid, App. xiii., also Sohmid, Glossar. s.v. bcemet.

" Brunner, D. E. G. ii. 657. ' Bracton, f . 146 b.

* Britton, i. 41. " Gloucestershire Pleas, pi. 216.

« Coke, Third Inst. 67 ; Hale, P. C. i. 567.

' Select Pleas of the Crown, pi. 203. Britton, i. 41, speaks of the burning of corn as well as of the burning of houses. /

8 Brunner, D. B. G. ii. 545-6, 654. Bracton, f. 146 b, expatiates on the mala conscientia that is necessary for this crime; he contrasts it *ith negli- gentia. In early indictments malice aforethought [malitia praecogitata) appears; Coke, Third lust. 66. For more of arson, see Coke, loc. cit.; Hale, P. C. i. 566 ; Blackstone, Comment, iv. 220 ; Stephen, Hist. Crim. Law, iii. 188.

8 Coke, Third Inst. 63. See also Hale, P. C. i. 547 ; Blackstone, Comment, iv. 223; Stephen, Hist. Crim. Law, iii. 150.

CH. VIII. § 2.] Felony and Treason. 493

this definition, it does not seem exactly to fit the crime that the men of the thirteenth century knew as burglaria. Britton gives the name of burglars to ' those who feloniously in time of peace break churches or the houses of others, or the walls or gates of our cities or boroughs'; he thus omits that 'by night' which is essential in after times; he also excuses the hungry man who enters the house of another for victuals worth less than twelve pence'. Unless we are mistaken, there was no well marked form of appeal for burglary, nor was that crime mentioned in the Assizes of Henry 11." The words which describe it first come to the front in presentments made by jurors, and we are not satisfied that a nocturnal crime is always indicated'. The old word hdmsocn was still being used by appellors who complained of robbery committed in their houses* ; it found a permanent home in the legal vocabulary of Scotland. Hdmsocn or hdmfare had been a reserved plea of the crown and a bad crime ; some aggravated form of it known (jp.492] as hAsbrice had been stigmatized by Onut as bootless'. The thought that crimes committed at night are to be punished more severely than similar crimes committed by day was not far from our ancestors', but we can as yet give no precise account of the genesis of burglary.

In later times robbery is regarded as an aggravated kind of Eobbery. theft'. In old law the two crimes are kept apart ; the one is the

1 Britton, i. 42.

^ The term in burgeria will sometimes appear in an appeal of robbery; Select Pleas of the Crown, pi. 122.

s Select Pleas of the Crown, pi. 6, 8 ; Gloucestershire Pleas, pi. 62, 139, 346, 862 ; Northumberland Assize Eolls, pp. 90-1-5-6-7 etc. If all these robberies were nocturnal, where are the presentments of robberies perpetrated by day ?

^ Select Pleas of the Crown, pi. 60, 86.

' Cnut, n. 64 ; Leg. Henr. 12, § 1. See Schmid, Glossar. s.v. husbrice, and Bruuner, D. E. G. ii. 653. The distinction seems to be between a mere invasio domus and an infractura domus. The first beginning of an attack on a house would be hdmsocn, e.g. if a stone were thrown at the door : Leg. Henr. 80, § 11.

* Brunner, ii. 646, 655. Bracton, f. 144 b, speaks of hamsokne in close connexion with the fur noctumus. Coke, Third Inst. 63, has two curious cases from Edward I.'s time which speak of crimes committed inter canem et Iwpum ; we have seen the same phrase on an unprfnted roU. See also Gross, Coroner's Eolls, pp. 1, 6, 16. Duoange, s.v. canis, says that entre chien et lowp means at an hour when the wolf can not be distinguished from the dog.

' Coke, Thii-d Inst. 68 ; Hale, P. C. i. 532 ; Blackstone, Comment, iv. 243 ; Stephen, Hist. Crim. Law, iii. 149. See the attempted definitions in the Cambridge gloss on Britton, i. 55.

494 Crime and Tort. [bk. n.

open, the other the secret crime. There is an ethical distinction between them ; theft is far more dishonourable than robbery'. We imagine that this difference was still felt in the thirteenth century; Bracton has to argue that the robber is a thief^ Appeals of robbery were common, and some of those against whom they were brought, though guilty, would hardly have been called thieves. Often enough their motive has been no desire for dishonest gain, but vengeance or. the prosecution of a feud, and the horse or sword or cloak was seized in a scuffle. Again, in Glanvill's day robbery was a royal, while theft was a vicecomital plea. Many an ancient trait still clung to the action for theft; it was an actio dupli, in which the plaintiff might recover twice the value of what he had lost'. However, by this time the rohator and the latro* were being placed in one [p. 493] class, that of 'felons.' According to Bracton, the sentence for robbery was sometimes death, sometimes mutilation"; a little later death by hanging was the invariable punishment'. Larceny. Theft or larceny {latrocinitim) is treated by Bracton as

though it were a crime which stood in a different class from that which comprises robbery and the other felonies'. He seems hardly to know that ' appeal of larceny ' which became fashionable at a later time, nor do we find appeals of larceny, as distinguished from robbery, on the earliest plea rolls. What he knows is the old English actio furti, and of this we have spoken in another place'. Only by slow degrees was larceny becoming

^ Brnnner, D. B. G. ii. 647.

2 Bracton, f. 150b, introducing from Instit. 4, 2, pr. the question 'Quia enim magis alienam rem invito domino contrectat quam qui vi rapit?'

' Glanv. i. 2 ; xiv. 8. Dial, de Scae. ii. 10. We see no reason for doubting the truth of Bishop Eichard's account of the action for theft. The recovery of double value may for a moment look Boman ; but it was known to Anglo-Saxon and to Frankish law (Brunner, D. B. G-. ii. 643), and the author of the dialogue Bpeaks of it in popular terms (solta et persolta) which he has to explain. The Conqueror had decreed that one who bought cattle in secret must be prepared solvere et per8olvere, i.e. to pay double value. See Laws of 'William (Select Charters), c. 5.

* Ass. Clarend. passim. It is somewhat curious that latrociniwm expels furtum from the technical language of the law,

" Bracton, f. 146 b.

« Britton, i. 119. In the fully developed common law robbery was a capital crime, though the thing taken was not worth a shilling ; Hale, F, 0. i. 532.

7 Bracton, f. 150 b.

8 See. above, vol. ii. p. 157 ff. As to the actions open to an owner of .chattels see Ames, History of Trover, Harv. L. E. vol. xi. We regret that these learned articles only come to our hands, as this sheet goes to press.

CH. viii. § 2.] Felony and Treason. 495

a plea of the crown ; hand-having larceny or manifest theft was still within the competence of the hundred courts and of such seignorial courts as enjoyed the franchise of infcmgthief. Larceny became a plea of the crown under cover of a phrase which charged the thief with breaking the king's peace ; to all appearance it was the last of the great crimes to which that elastic phrase was applied. This was natural, for to say of the thief that he has broken the king's peace is to say what is hardly true until those words have acquired a non-natural meaning. However, Henry II. had comprehended larceny within the net of that new indictment-procedure which he introduced'. The old action of theft, which might rightly be used against an honest man, and which was, at least in some cases, an action for double valued was becoming obsolete, and the loser of the stolen goods might thank his stars if he was able to get them back again, so keen was the king in pursuit of ' the chattels of felons'.' Larceny then takes its place among the felonies that are prosecuted by appeal or by indictment.

As to the thief's punishment, many old systems of law have *unish- at one time or another drawn two lines : they have distinguished larceny, between great and petty theft, and between manifest and [p. 494] non-manifest theft*. He who is guilty of a great and manifest theft is put to death in a summary fashion; other thieves receive a much milder punishment ; they escape with h6t and wite, and the hdt often represents the value of the stolen thing multiplied by two, three or some higher number". In England both an old English and an old Frankish tradition may have conspired to draw the line between ' grand ' and ' petty larceny '

1 Ass. Clarend. passim. ' Dial, de Soao. ii. 10.

« See above, vol. ii. pp. 158-164 ; T. B. 30-1 Edw. I. pp. S13-5, 527.

* It will be convenient to use tlie Eoman term manifest. In England one had spoken (Cnut, ii. 64) of open i>pf^ (which exactly translates furtum manifestum) ; or one had said that the thief was captured tst hcebbendre handa (Atheist, n. l)i In the thirteenth century one said that he was handhdbende mid bachberende, that he was seisitus de latroeinio, or that he was taken with the mainour (cum manuopere) or with the pelf (pelfra). The learned saw sub- stantially the same distinction in Instit. 4, 1, 3, and spoke of furtum mani- festum ; but there is here no borrowing from Eoman law, which, as it stands in the Institutes, demands no more than a fourfold bdt even in case of manifest theft.

» Brunner, D. E. G. ii. 637 ; Dareste, Etudes d'histoire du droit, 299. I'or England, see Sohmid, Gesetze, Glossar. s.v. Diebstahl and Dial, de Scao. ii. 10.

496 Crime and Tort. [bk. n.

at twelve pence'. Though the old dooms sometimes speak as if every ' open/ that is, manifest, theft were bootless", we take it that during the Norman period- only a theft that was both manifest and great was absolutely beyond all hope of emen- dation'. Henry I., we are told, decreed that all thieves taken in the act should be hanged^ and in his reign, as all know, Ralph Basset did a fine day's work in Leicestershire, for he hanged forty-four thieves, an exploit without a precedent". But the punishment fluctuated between death and mutilation. In the thirteenth century manifest grand larceny was a capital crime; the sentence was often pronounced in local courts and was frequently executed by the pursuer or 'sakeber" who struck off the thief's head or precipitated him from a rock into [p. 495] the sea'. But all grand larceny was becoming a capital crime ; the distinction between the fate of the manifest and that of the non-manifest thief was becoming a matter of procedure. The one after a summary trial, that was hardly a trial at all, was put to death by hanging or in some fashion sanctioned by antique custom ; the other, tried and sentenced by the king's justices, went to the gallows.

Mamfest Some would explain the difference between the treatment of

tteft. Ill-,

'hand-having and that of other thieves by referring us to

1 Brunner, D. E. G. ii. 640.

2 Cnut. II. 64; Leg. Hen. 12, § 1.

' This appears from the story of Ailward told in Materials for the Life of Becket, i. 156 ; Bigelow, Placita, 260 ; Stephen, Hist. Crim. Law, i. 78. Even the hand-having thief does not forfeit life or member if the goods are of small value.

* Flor. Wig. II. 57 (a.d. 1108) : ' ut si quis in furto vel latrooinio deprehensus fuisset suspenderetur.' Sir James Stephen, Hist. Crim. Law, i. 458, was mistaken when he supposed this story to rest upon Hoveden's testimony ; this is noticed by Henderson, Verbrechen uud Strafen, p. 15. Henry's ordinance seems to have spoken only of hand-having thieves.

5 A.-S. Ohron. vol. ii. p. 376 (a.d. 1124).

" See above, vol. ii. p. 160.

^ Northumberland Assize EoUs, p. 70 : ' oonsuetudo comitatus talis est, quod quamoito aliquis capiatur cum manuopere, statim decolletur, et ipse qui sequitur pro catallis ab ipso depridatis, habebit cataUa sua pro ipso decollaudo.' Other case of decollation, ibid. 73, 79, 80, 84 etc. In Hengham Parva, ed. 1616, p. 80, various customary punishments are mentioned. In some sea-port towns the criminal was tied to a stake below high-water mark and left to drown. At Winchester he was mutilated, at Dover precipitated from a cliff. See Green, Town Life, i. 222. Burying alive seems to have been practised at Sandwich, Lyon, Dover, ii. 301. See also Akerman, Furca ei Fossa, Archaeologia, zxxviii. 54.

CH. VIII. § 2.] Felony and Treason. 497

an age when the state was yet too weak to interfere with the vengeance done on those who were captured in flagrant delict, or to an age when the punishment of the criminal was measured less by his culpability than by the resentment of the injured man'. But we doubt whether we can wholly acquit our forefathers of the less logical idea that half-proven guilt is proven half-guilt". In 1166 Henry II., when he was intro- ducing the indictment, or sworn communal accusation, into our criminal procedure, declared that the thief or robber who was taken ' in seisin ' and who was of bad repute was to ' have no law'; other men indicted of theft were to go to the ordeal swearing that they had not to their knowledge stolen to the value of five shillings — a fairly high sum — since the beginning of the reign. He who was foul at the ordeal was to lose a foot ; ten years afterwards a hand also was taken". A new accusatory process was being tried, and for a while men were not certain that it was as just or as cogent as the appeal in which the [p. 496] accuser risked his body*. Even in the next century we may find that people who had stolen what was worth more than • twelve pence were allowed to abjure the realm or suffered but the loss of a thumb ; the justices, it is plain, had a considerable choice of punishments". But the line drawn at a shillings- worth reappears and our law at length stands committed to the rule that he who steals more than this must be hanged.

As to petty larceny, this is punished sometimes by a Petty whipping, sometimes by pillory or tumbrel, sometimes by loss of an ear. One ear may be taken for a first, another for a second offence, while the gallows awaits those who have no

' Maine, Ancient Law, oh. x. ; Dareste, JEtudes d'histoire du droit, 299-301.

" It is further to be remembered that among some barbarous folks, which are not utterly lawless, successful theft is regarded with tolerance, if not admiration, and gives rise to a mere claim for the restoration of the goods, while ' manifest theft ' is unsuccessful theft and exposes the thief to a beating. See Post, Bausteine, i. 288 ; KovaJevsky, Droit Oss^tieu, p. 341.

' Abs. Clarend. co. 1, 12; Ass. North, c. 1.

* There is an instructive parallel in the history of the canon law. The man who is convicted, not upon an accusatio, but under the new inquisitio, is not to suffer the full punishment. Esmein, Histoire de la procedure eriminelle, p. 76 ; Biener, Beitrage zur Gesch. d. Inquisitions-Processes.

" Note Book, pi. 1723, 1725 (a.d. 1226) : a woman who had stolen a piece of canvas was discharged because of its small value; afterwards she out a purse containing 3». 6d., and, though taken with the purse, she only lost her thumb.

P. K. II. 32

of larceny.

498 Crime and Tort. [bk. ii.

more ears to lose'. A man who has lost an ear in honourable warfare will sometimes obtain an explanatory charter from the king, for it is dangerous as well as shameful to go about earless. Under local custom the thief is sometimes forced to do the executioner's work ; his ear is nailed to a post and he may set himself free by the use of the knife ^. Folk are saying that the limit of twelve pence allows a man to steal enough to keep himself from starvation for eight days without being guilty of a capital crime; they are also boasting, rightly or wrongly, that the law of England is milder than that of France". Deflnition Bracton borrowed from the Institutes a definition of theft, but he modified it and omitted what did not suit him*. There can we think be little doubt that the ' taking and carrying away,' upon which our later law insists, had been from the first the very core of the English idea of theft'. 'He stole, took and [p. 497] carried away': this is the charge made against the thief. The crime involves a violation of possession; it is an offence against a possessor and therefore can never be committed by a possessor'. For this reason it is that one can not steal ' pigeons, fish, bees or other wild animals, found in a wild condition'; but ' it is otherwise 'if they have been feloniously stolen out of houses, or, if they are tame beasts, out of parks'.' Some of the

1 Bracton, f. 151 b; Pleta, pp. 54-6; Britton, i. 56, 61, 119. Stat. West. I. c. 15 helps to fix the limit at a shUling; petty larceny 'que ne amonte a la value de xii. deniers,' is a bailable ofEence.

2 Green, Town Life, i. 222. ' See the Cambridge gloss on Britton, i. 56. * Bracton, f. 150 b: 'Furtum est secundum leges contrectatio rei alienae

frandulenta cum animo furandi, invito illo domino cuius res ilia fuerit.' Instit. 4, 1, 1 from Dig. 47, 2, 1, § 8 (Faulus) : < Furtum est contrectatio rei frauduloea [lucri faciendi gratia] vel ipsins rei vel etiam usus eius possessionisve.' The bracketed words are not in the Institutes. See Stephen, Hist. Orim. Law, iii. 131.

° Brunner, D. B. O. ii. 638, says of the continental folk-laws that they require an asportation {auferre) as essential to theft.

° Britton, i. 115 : ' embla et prist et amena.'

' See above, vol. ii. pp. 157-170, where we have discussed the English actio furti ; also Ames, History of Trover, Harv. L. E. xi. 277, 374. Curia Eegis Eolls, No. 569, m. 31 (Norfolk eyre of 53 Hen. III.) : jurors find that the prisoner kept (custodivit) the sheep of T and sold one of the sheep of his lord ; also that another prisoner kept the sheep of W and of R and, having lost two of R's lambs, gave R one of W'b sheep. The Court adjudges that this is not mere latrocinium, but orders that the accused be imprisoned for the transgressio. They make, or one of them makes, fine with one mark.

8 Britton, i. 122. Brunner, D. E. G-. ii. 689, cites the Eipuarian law, ' noU hie re possessa sed de venationibus agitur,'

CH. VIII. § 2.] Felmy and Treason. 499

decisions of a later day about ' things capable of being stolen ' were probably dictated by a desire to mitigate law that had become too severe^. We can, for example, cite from the year 1200 a charge of stealing title-deeds". In the old days slaves could be stolen, but we hear nothing of stolen villeins, and no one seems to have ever supposed that land could be stolen*. Bracton, as his habit is, insists on the mental factor ; there must be an animxis furandi*^ Nevertheless, we believe that in the past any one who without due legal formalities took a chattel from another's possession ran a great risk of being treated either as a robber or as a thief. Britten supposes a man going to replevy his beasts. He who has got them claims them as his own. What is to be done? The hue is to be levied and an appeal of robbery is to be begun*. The man who has unceremoniously taken what is his own may escape the [p.498] gallows, but he loses irreparably the thing that he has taken''. Old law, if we may so say, did not wish to put every open taking on a par with robbery, or every secret taking on a par with theft. But how to try the thought of man? The dis- trainor who did not observe all the complex rules of the code of distress was lucky if he extricated his neck from the noose*. An old book tells us that concealing the king's - chattels is equivalent to theft', and later writers speak of a concealment

' Stephen, Hist. Crim. Law, iii. 142-5.

' Select Pleas of the Crown, pi. 82 (a.d. 1200) : ' et cartas de terria suia in roberia asportavit.'

' Brunner, D. E. G. ii. 639, 648.

* Bracton, f. 150 b ; ' sine animo furandi non committitur.'

° See above, vol. ii. p. 168. Y. B. 33-S Edw. I. p. 503 : ' One B beoausfe his rent was in arrear took his farmer's corn and carried it off and did what he pleased with it ; and he was hanged for that deed.'

« Britton, i. 138.

' Britton, i. 116. Sir James Stephen, Hist. Grim. Law, iii. 133, says, 'If the appellee could prove that the horse was his own, and that he lost him, it is difficult to. see why he should not keep him after retaking him.' Britton gives the reason : — ' for we will that men proceed by judgment rather than by force.' One or two modern decisions have lost sight of this principle.

8 This seems to be the point of Ailward's case, cited above, p. 496, note 3. AUward breaks a house in the process of distraining his debtor, gets Ire ited as a hand-having thief, is mutilated and has need of a miracle. See also p. 499, note 5.

' Leg. Henr. 13, § 5 : ' Dominica oaptalia regis celata pro f urto habean- ■tur.'

32—2

500 Crime and Tort. [bk. ii.

of treasure trove as akin both to treason and to larceny'. But the king 'was prerogative".' Treason We have yet to speak of treason. In later times the crimes

yntii known to our law were classified as (1) treasons, high or petty,

(2) felonies, (3) misdemeanours ; and several important charac- teristics marked off high treason from all other crimes. For one thing, it earned a peculiarly ghastly punishment. For another, it was 'unclergyable,' while every felony was 'clergyable' unless some statute had otherwise ordained". Thirdly, while the felon's land escheated to his lord, the traitor's land was forfeited to the king. This last distinction influenced the development of the law. Kings wished to extend treason at the expense of felony ; the magnates resisted. A lord whose tenant had, for example, slain a king's messenger was much concerned that this offence should be felony, not treason. In the one case he would get an escheat; in the other case, far from getting an escheat, he would lose seignorial dues, unless the king took pity on him, for the king would hold the traitor's land and no one can be the king's lord*. Contrast These distinctions, however, become plain but slowly. It [p.499j

fcreasoiT ^^ indeed long been felt that hanging was too good a death

and felony fQj. oj^g ^Jjq kiHed his lord. He should perish in torments to a novelty. . . .....„,

which hell-fire will seem a relief. This is the origin of that

' drawing ' which forms the first part of the penalty for high and petty treason. The malefactor was laid on the ground and tied to a horse which dragged him along the rough road to the gibbet. The hurdle that we afterwards hear of may be in- troduced of mercy; we suspect that originally it fulfilled its object by securing for the hangman a yet living body". In

1 Glanvill, i. 2 ; xiv. 2 ; Bracton, f . 119 b : ' quasi crimen furti.'

" Brittou, i. 60, speaks as though cheating, e.g. by selling brass for gold, could be treated as felony. At present this statement is unsupported.

' There may be some doubt as to two crimes, (1) insidiatio viarum et depopulatio agrorwm, (2) wUful burning of houses; Hale, P. C. ii. 333.

■• Hale, P. C. i. 254 : ' Where land comes to the crown by attainder of treason all mesne tenures of common persons are extinct; but if the king grants it out, he is de iure to revive the former tenure, for which a petition of right lies.'

" Leg. Henr. 75, § 1. The comatio et excoriatio is the German Strafe «u Haul und Hoar : Brunner, D. B. G. ii. 605-6.

" Blackstone, Comment, iv. 92 : ' Usually (by connivance at length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement.' In

CH. viu. § 2.] Fehny and Treason 501

course of time the law was not content with this in the graver cases of high treason. It demanded drawing, hanging, dis- embowelling, burning, beheading, quartering. But there are many signs that it attained the full height of its' barbarity by trying to punish one man for many capital crimes. The famous traitors of Edward I.'s day, David of Wales and William Wallace, had in the sight of Englishmen committed all crimes against God and man and were to suffer four or five different deaths'.

Again, a distinction between ' clergyable ' and ' unclergyable ' ^.™"*^ °' [p. 500] crimes was not in the thirteenth century a main outline of the between criminal law. The benefit of clergy was as yet a privilege of and fdony. ordained clerks, and was but slowly showing its impotence to shield them from charges of high treason'. Lastly, if we are not mistaken, the rule that gave the felon's land to his lord, the traitor's to the king, was the compromise of a struggle. It is ignored or slurred over in the law books'. John, however, was compelled to promise that after year and day the land of one who was convicted oifelonia should be surrendered to his lord*. On the other hand, the terrae Normamiorwn, the lands of the Normans who had renounced their allegiance, and who in English eyes were traitors, remained in the king's hand to the

33 Lib. Ass. f. 200, pi. 7, the judge expressly forbids the use of an alleviating hurdle. Of Thomas de Trubleville executed in 1293 we are told in Ann. Wigorn. (Ann. Mouast. iy. 533) that 'super corium bovinum tractns, ne concito moreretur...suspendebatur.' For stories recorded by the chroniclers, see Henderson, Verbrechen und Strafen, 16-18. See also Select Pleas of the Crown, pi. 179; Tr6s ancien coutumier, p. 30.

' Therefore mere drawing and hanging remained the punishment for petty treason, and for counterfeiting the coin; perhaps a counterfeiter of the great seal could be let off with this. See Hale, P. C. i. 187. In 1238 a man who attempted the king's life was drawn, hanged, beheaded, quartered; Mat. Par. Chron. Maj. iii. 498. According to Ann. DnnstapL 294, David of Wales was drawn for treason, hanged for homicide, disembowelled for sacrilege, beheaded and quartered for compassing the king's death. So Wallace was drawn for treason, hanged for robbery and homicide, disembowelled for sacrilege, beheaded as an outlaw and quartered for divers depredations. See his sentence in T. B. 11-12 Edw. III. (ed. Pike), p. 171, and the editor's preface, pp. xxix-xxxiv. The evisceration and quartering however occur already in the sentence of William de Marisoo executed in 1242 ; Mat. Par. Chron. Maj. iv. 196.

^ See above, vol. i. pp. 441-7.

' See e.g. Bracton, f. 118 b ; Britton, i. 40.

* Chaiter, 1215, c. 82: 'Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi per unum annum et unum diem, et tunc reddantur terrae dominis feodorum.'

502 Crime and Tort. [bk. ii.

profit of his exchequer'. The words of the Great Charter, to which we have just now referred, had an important effect. If there was any crime which would give the offender's land not to his lord but to the king, that crime could not be a mere felonia. Some term was wanted which would specify the cases in which seignorial must yield to royal claims, and though 'words of felony' were habitually used where there was a charge of high treason", and though men were slow to forget that every treason is a felony', still felony was soon contrasted with treason, and such words as proditio, traditio, seditio and seductio become prominent. Ultimately proditio triumphs in our law Latin and becomes a sacramental term; but traditio, traitio*, trahison, treason triumph in French and English, while seditio and sedtictio gradually disappear, and felony no longer alludes, as once perhaps it did, to a breach of fealty'. Treason Treason has a history that is all its own, While as yet the [p.ooi]

Btetnte felonies were being left to unenacted common law, treason of 1352. became in 1352 the subject of an elaborate statute. This statute, though in all probability it preserved a great deal of the then current doctrine, became the whole law of treason for after times; every word of it was weighed, interpreted and glossed by successive generations. Our task therefore is hard if we would speak of treason as it was before the statute, for we have no unbroken stream of legal tradition to guide us".

' See Staundford, Frerog. Begis, c. 12 ; and see above, vol. i. p. 462, Most of the traitors of the twelfth century were tenants in chief or the Tassals of rebellious tenants in chief, and the king could claim their lands either as king or as lord. The defection of the Normanni raised a new question on a large scale.

" Bracton, f. 119. Britton, i, 100 : < felouuosement cum feloun et tray- touressement cum traytre.'

0 Coke, Third Inst. 15 : 'In ancient time every treason was comprehended under the name of felony, but not e contra; and therefore a pardon of all felonies was sometimes allowed in case of high treason.' Hale, P. C. i. 179.

■ TrSs ancien coutumier, p. 30.

' As to seditio and seductio, see Hale, P, 0. i. 77. In mss. of this time they seem to be used interchangeably and as though they were really but one word.

^ 25 Edw. ni. Stat. 5, cap. 2. Briefly stated, the statute declares the following to be treasons : — (1) to compass or imagine the death of the king, his queen or eldest son ; (2) to defile the king's wife or his eldest unmarried daughter or his eldest son's wife ; (3) to levy war against the king in his realm ; (4) to be adherent to his enemies, giving them aid and comfort ; (5) to counter- feit the king's great or privy seal or money ; (6) to bring false money into the realm ; (7) to slay certain officers or justices being in their places doing their offices. See Hale, P. C. i. 87-252 ; Stephen, Hist. Crim. Law, ii. 248-297.

CH. VIII. § 2.] Felony and Treason. 503

Treason is a crime which has a vague circumference, and Early more than one centre. In the first place, there is the centre treason." that is to this day primarily indicated by the word betray. In the earliest days to which we can go back the man who aided the enemies of his own tribe was hanged ; probably his death was sacrificial'- This element is well marked in our old books; it is the seditio exercitus vel regni, a betraying of the army or of the realm". When our law crystallizes in the famous statute, 'adhering to the king's enemies' finds a natural place in the list of high treasons. Flight from battle stands as a capital crime in the laws of Cnut and the Leges Henrici, and the coward's lands go to his lord or to the king^. The bond of fealty is another centre. To betray one's lord was already in Alfred's day the worst of all crimes; it was the crime of Judas; he betrayed his lord*. Then a Roman element entered when men [p. 602] began to hear a little of the crimen laesae maiestatis'. Less emphasis was thrown upon the idea of betrayal, though such terms as traditio, proditio, seditio are always pointing back to this, — and plotting against the king's life or the lord's life be- came prominent'. In marked contrast to the general drift of our old criminal law, the crime was in this case found, not in a harmful result, but in the endeavour to produce it, in machina- tion, 'compassing,' 'imagining.' The strong feudal sentiment claimed as its own this new idea ; the lord's life, as well as the

' Tacitus, Germania, o. 12 ; Brunner, D. E. G. ii. 685-7.

' Glanvill, i. 2 : ' ut de nece vel seditione peraonae domini Eegis vel regni Tel exercitng.' Bracton, f. 118b: 'ad seditionem domini Begis vel ezercitas Bui. We believe that in these passages the best rendering for seditio is, not ' sedition, but betrayal.

' Cnut, n. 77; Leg. Henr. 13, § 12, See Schmid, Gesetze, Glossar, s.v. fyrd.

* Alfred, Introduction, 49, § 7. Dante's placing of Brutus and Cassius in the same extreme of infamy is the weU-known high- water mark of this doctrine ; its adoption by Fra Angelioo in a Last Judgment now in the Museum at Berlin shows that this was no mere private imperialist opinion of the poet's.

» Brunner, D. B. G. ii. 688.

* JJthelr. V. 30 ; vi. 37, mention only the king ; Cnut, ii. 67, speaks also of the lord ; Leg. Henr. 75, § 2. In old times the king had a wergild ; but before we draw inferences from this we must remember both that a wergild was exacted when the slaying was unintentional, and that the price set on the king was no less than £240. Hardly in any case could such a sum be raised, except when the death of the king of one folk could be charged against another folk, as when Ine obtained a heavy sum from the men of Kent for the death of MuL See A.-S. Chron. (a.d. 694), p. 66, and the note to Thorpe's translation.

504 Crime and Tort. [bk. ii.

king's, is to be sacred against plots or ' imaginations.' In the twelfth qentury' another wave of Romanism was flowing. The royal lawyers began to write about laesa maiestas, to paint in dark colours the peculiar gravity of the crime, to draw a hard line between the king and mere lords'. But they could not altogether destroy the connexion between vassalship and treason ; men were not yet ready to conceive a ' crime against the state.' Petty treason perpetrated against a lord was but slowly marked off from high treason perpetrated against the king ; and in much later days our law still saw, or spoke as if it saw, the essence of high treason in a breach of the bond of ' ligeance".' Elements Meanwhile, in this feudal stage of its history, treason [p-

gathered round it and embraced some offences which can be regarded as the vilest breaches of the vassal's troth, such as adultery with the lord's wife, violation of his daughter, forgery of his seal. Glanvill and Bracton at the suggestion of civilians would like to institute a crimen falsi^. But English law was not ready for this. The only forgery that it was prepared to treat with great severity was forgery of the king's seal or of the seal of the forger's lord ; and these it dealt with under the name of treason! Under the same head were brought the clipping of the king's coin and the making of counterfeit

1 Bracton, f. 118 b : 'est enim tam grave crimen istud quod vix permittitur hereditus quod vivant.'

2 Bracton, having laesa maiestas before his eyes, says nothing of ' treason ' against a lord. In one place however, f . 105, he says, ' Igne conoremantur qui saluti dominorum suorum insidiaverint.' Here he is copying, but with notable omissions, from Dig. 48, 19, 28, § 11 : ' Igni oremantur plerumque servi qui saluti dominorum suorum insidiaverint, nonnunquam etiam liberi plebeii et humiles personae.' He holds therefore that to plot against one's lord's life is a capital crime. We imagine that this crime would have been punished in England rather by drawing and hanging than by burning. See Select Pleas of the Crown, pi. 179 ; TrSs ancien coutumier, p. 30. Britton, i. 40, seems to be the first writer who talks expressly of high (or rather, great) and petty treasons ; with him to ' procure ' the death of one's lord is great treason, and one is hanged and drawn for forging one's lord's seal or committing adultery with his wife. By 1352 a change had taken place, or else a change was effected by the statute of that year ; ' treason ' against any one but the king is always ' petty,' and only exists where a, servant (not vassal) actually kills (not compasses to kill) his master (not lord), or a wife her husband, or a clerk his prelate. See Hale, P. C. i. 378.

'Glanvill, xiv. 7; Bracton, f. 119 b. « Britton, i. 41 j Fleta, p. 32.

CH. VIII. § 2.] Felony and Treason. 505

money'. The crimes of the moneyers had long been severely punished : frequently by loss of a hand", under Henry II. by various mutilations'. That issuing bad or clipping good money should be a capital offence will not surprise us. The inclusion of these offences in the class of high treasons seems due to Roman influence*; they were regarded, however, not as mere frauds fraught with grave harm to the community, but also and chiefly as the invasion of a specially royal right which our kings had jealously guarded, and any tampering with the king's image and superscription on seal or coin was assimilated to an attack upon his person.

In the statute of 1352 there is an item which every modern Treason by reader will expect to find there. To ' levy war against our lord ^^-^^ the king in his realm ' — this should certainly be an act of high treason. Nevertheless we believe that this is the newest item in the catalogue. So long as the feudal sentiment was at its strongest, men would not have been brought to admit in per- fectly general terms that the subject who levies war against the king is a traitor. The almost slavish obedience that a vassal owes to his lord is qualified by a condition : if a lord persistently refuses justice to his man, the tie of fealty is broken, the man [p. 504] may openly defy his lord, and, having done so, may make war upon him'. Kings of England who were homagers of the kings of France might by their own mouths have been sen- tencing themselves to shame, and even to shameful death, had they declared that in no case whatever could a vassal without treason levy war upon a king in his realm. Edward III. was the first of our kings since the Conquest who could afford to make such a declaration, for, being in his own eyes king of France, he owed homage to nobody. Earlier kings of England had levied war against the kings of France in the realm of France, and the cause of war was often enough one which

1 GlanviU. xiv. 7 ; Braoton, f. 119 b.

» .Slthelst. II. 14 ; .SJthelr. iii. 8, 16 ; Cnut, ii. 8 ; Leg. Heur. 13, § 3.

» Flor. Wigom. ii. 57 {a.d. 1108) ; Henr. Huntingd. 246 (a.d. 1125).

• Cod. 9, 24, 2. The Eoman idea of maiestas includes a religious element ; falsifying Caesar's image is a kind of sacrilege.

° See for Angevin law, VioUet, feablissements, i. 180. In England the high- water mark of the purely feudal conception of treason is Stephen's conduct after the siege of Exeter in 1136. He spared the garrison, having listened to the plea that they had never sworn fealty to him but were the men of Baldwin de Bed vers ; Gesta Stephani, 27 ; Henr, Huntingd. 257.

506 Grime and Tort. [bk, ii.

arose in France and one which would in no wise have concerned a mere king of England. Could they mete the acts of their barons by a measure other than that by which they meted their own acts ? Was not the case of a Count of Britanny who was Earl of Eichmond sufficiently parallel to that of a King of England who was Duke of Aquitaine ? For two centuries after the Conquest, the frank, open rebellions of the great folk were treated with a clemency which, when we look back to it through intervening ages of blood, seems wonderful'. Henry II., for example, spared the rebels of 1173, though he had thoroughly subdued them and had been within an ace of losing his king- dom ^ Never was there anything that we could call a pro- scription of defeated partizans. The Dictum of Kenilworth shines out in startling contrast to the attainders of the fifteenth century. In part perhaps we may account for this by saying, if this be true, that men became more cruel as time went on ; but also we ought to see that there had been a real progress, the development of a new political idea. Treason has been becoming a crime against the state; the supreme crime against [p. 605] the state is the levying of war against it. A right, or duty, of rising against the king and compelling him to do justice can no longer be preached in the name of law; and this is well'. CompaBsof Although during the thirteenth century treason may have cenTxliT been a vague enough crime, such stories as have come down to us do not entitle us to say that many persons, except the Jewish money-clippers', suffered for it. A fomenter of civic

' Are not the cases of Waltheof and WiUiam of Eu almost tlie only cases in ■which a high-born rebel loses either life or limb by jndicial sentence? As to Waltheof, see above, vol. i. p. 91. In the case of William of Bu we have a rare example of a regular appeal of treason and a trial by battle. The garrison of a castle taken in flagrant delict was sometimes hanged out of hand, and the chief rebels were sometimes kept in prison even until they died, but their imprison- ment was rather 'a measure of state' than the outcome of a sentence.

^ It must be to this that Diceto refers vrhen (see above, vol. ii. p. 461, note 6) he speaks as though mere exile were the punishment of treason.

' The famous passage inserted in Braoton's book, f. 34, by his own or some other hand, comes near to a declaration that it may be the right and duty of the barons to rise against the king. The change in the treatment of rebels can not be put down to the insecure titles of the Lancastrian, Torkist and Tudor kings. Every king from the Conqueror to Henry III. had to fight against insurgents, and in many cases the insurrection was headed by his son or brother.

< Ann, Dunstapl. 279 (a.d. 1278) : two hundred and eighty Jews hahged in London, and many elsewhere, for clipping.

CH. VIII. § 2.] Felony and Treason, 507

sedition would sometimes be hanged in an exceedingly sum- mary fashion: witness the fate of William Fitz Osbert in 1196S and of Constantine Fitz Athulf in 1222". The severest doctrine that we hear is that he who knows of a plot against the king and does not at once reveal it is himself guilty of treason". We may see perhaps that a wide scope might be given to the phrase which condemned those who 'imagined' the king's death. One Peter of Wakefield was hanged for predicting that by next Ascension-day John would no longer be king*; under James I. he would have suffered a similar punishment for a similar prophecy". To declare that there was no king's peace, as the king was among his enemies in Wales and would never return, — this also seems treason in John's reign*. It was of treason that Robert de Montfort appealed, and by battle convicted, Henry of Essex, and though the real charge against the royal standard-bearer was in our eyes a charge of cowardly flight from battle, we are told in a [p. 606] significant way by a chronicler, who had the tale from Henry's own lips, that he was also accused of having cried aloud that the king was slain'. Betraying the king's secrets to his enemies and thus 'adhering' to them was treason under Edward I.' Any one who grossly insulted the king might have found that the law of treason was expansive. Walter de Clifford, who in 1250 had been guilty of making a royal process- server eat writ and wax, was, we are told, in peril of a judgment of death and disherison, but, making humble submission,

' Palgrave, Bot. Cur. Eeg. vol. i., Introduction.; Stubbs, Const, Hist. i. 547; Hoveden, iv. 6 ; Dieeto, ii. 143 ; Gervase, i. 532.

2 Mat. Par. Chron. Maj. iii. 73 ; Ann. Waverl. 297 ; Ann. Dunstapl. 79.

3 Bracton, f. 118 b. Therefore our law needs no such crime as the 'mis- Krision of treason ' of later days. For a relevant story, see Ann. Dunstapl. 97.

* Mat. Par. Chron. Maj. ii. 535, 347.

^ Compare the fate of WiUiams, the author of Balaam's Ass ; Stephen, Hist. Grim. Law, ii. 306.

* Select Pleas of the Crown, pL 115.

' Jocelin of Brakelonde (Camd. Soc), p. 52.

8 Oxford City Documents, p. 204 (a.d. 1285): 'Magister Nioholaus de Wautham contra fidelitatem suam et contra foedus suum et ligeitatem...seditiose nt seductor se confederavit Guydoni de Monteforti et Emerico fratri suo et Lewelino quondam prinoipi WaUiae inimioo domini Eegia ; et venit ad curiam domini Eegis et moram in eadem curia fecit ut privatus et speojalis curiae praedictae, insidiando et explorando secreta domini Eegis et ea (iuae...explorare potuit...inimicis domini Eegis. ..nuntiavit...et parti ipsorum adhaesit.' The Montforts had slain Henry of Almain and Edward regarded them as deadly foes.

508 Crime and Tort. [bk. ir.

escaped with a heavy fine'. A case that was much discussed at the time, and has at intervals been discussed ever since, arose in 1305, when after a long hesitation Nicholas Segrave was declared worthy of death for having deserted the king's army in Scotland and summoned an adversary to meet him in battle before the French king's court, thus 'subjecting the realm of England to the king of France'.' Any one who understands the relationship between Edward and Philip will understand why our king wished to secure the conviction of a baron whose conduct seemed to imply that an appeal ' for default of justice ' lay from the English to the French court. The conviction having been secured, the king was merciful; Segrave was bound to render himself to prison if called upon to do so ; soon afterwards he was pardoned. This is one of the very few early cases of treason which have what we can call a political interest. Even into the statute of 1352 and the con- troversy that preceded it we may too easily introduce modem notions. There had, we may be sure, been no debate about the legitimate limits of political agitation. The king wanted for- feitures; the lords wanted escheats. Some of the king's justices had been holding for treason mere murders and robberies — for [p. 507] example, the murder of a king's messenger — which should, so the magnates thought, bring lands to them instead of destroying their seignories^ A rude compromise was established*.

' Mat. Far. Chron. Maj. t. 95. At least one similar case occurs in the early history of the Court of Chancery. By that time the notion of contempt as a distinct offence was available,

'^ Bot. Pari. i. 172 ; Memoranda de Farliamento, 1305, pp. Ixxvi, 255. See on this Hale, P. C. i. 79; Stephen, Hist. Crim. Law, i. 147; ii. 245. The record does not expressly say that the offence was treason.

'^ See the cases from the first half of the fourteenth century in Hale, P. 0. L 76-82, and Stephen, Hist. Crim. Law, ii. 245-7.

* Stephen, Hist. Crim. Law, iii. 247, says, ' Probably the great importance of the Act of Edward [HI.] as a, protection to what we should now caU political agitation and discussion, was hardly recognized till a much later time.' With this we heartily agree. But what Sir James Stephen rightly calls the ' extreme leniency of the statute ' was not due altogether to the fact that in 1352 Edward was powerful, popular and secure. The gaps in the statute which were afterwards supplied by ' construction ' were gaps natural to our old law. It had started from the principle that an attempt to do harm is no offence. Very early, under Eoman influence, it had admitted one exception to this rule, namely, that a plot against the king's life is a crime ; but for centuries it was extremely unwilling openly to extend this to plots for imprisoning or deposing or coercing the king. ■ The thought of man shall not be tried.'

CH. VIII. § 2.] Felony and Treason. 509

Ancient law has as a general rule no punishment for those Accessories who have tried to do harm but have not done it. The idea of fact, punishment is but slowly severed from that of reparation, and where no harm is done there is none to be repaired. On the other handj it is soon seen that harm can be done by words as well as by blows, and that if at A'& instigation B has killed G, then A is guilty of O's death^. Anglo-Saxon law knows the rCed-bana as well as the dced-bana, the slayer by rede as well as the slayer by deed. In Bracton's day there was a common proverb that met this case^ The man who has commanded or counselled a murder has committed no crime until there has been a murder; but when the murder is committed he is guilty of it. The law of homicide is wide enough to comprise not only him who gave the deadly blow and those who held the victim, but also those who ' procured, counselled, commanded or abetted' the felony. On the other hand, we already meet with the rule that the accessory can not be brought to trial until the principal has been convicted or outlawed^ This rule lived on into modem times, when it looked absurd enough and did much mischief*. It was the [p. 608] outcome of strict medieval logic. If you convict the accessory while the principal is neither convicted nor outlawed, you beg a question that should not be begged. The law will be shamed if the principal is acquitted after the accessory has been hanged. The modes by which guilt and innocence were proved were, or had lately been, sacral and supernatural processes which could not be allowed a chance of producing self-con- tradictory results. What should we think of the God who suffered the principal to come clean from the ordeal after the accessory had blistered his hand? Hence a complex set of rules which permit the escape of many accessories".

1 Brunner, D. B. G. ii. 565. ^thelr. viii. 23 ; Leg. Henr. 85, § 3.

2 Bracton, f. 142 : ' Dicitur enim vulgariter quod satis pcoidit qui praeoipit.' On the other hand, f. 139 : ' ubi factum nullum, ibi foroia nulla, nee praeceptum nocere debet cum iniuria non habet efteotum.'

3 Bracton, f. 128, 139 ; Note Book, pi. 1548. * Stephen, Hist. Crim. Law, ii. 232.

' There are many niceties that we must pass by. Persons who, as We should say, were principals in the second degree, were said to be appealed not de facto but de vi or de forcia, and hence they are often spoken of as being the vis and the forcia of the chief malefactor. You can not bring them to trial by your appeal until he has been convicted or outlawed. If. as is possible, several

510 Crime and Tort. [bk. ll.

Accessories The accessories of whom we have been speaking are laet, ' accessories before the fact.' Our law was beginning to give

the name 'accessories after the fact' to those who 'receive, relieve, comfort or assist ' the felon. Such persons deserve the same punishment that he has earned. The crime of receiving outlaws or thieves was among the oldest and was severely handled by ancient law. Often the receiver suffered the punishment that was meet for him whom he had received*. Under the Assizes of Henry II. the receivers of murderers, robbers and thieves incur the penalty which is ordained for murder, robbery and thefts In Bracton's day it was a capital or unemendable crime to receive a felon or outlaw knowing him to be such'. Roman law could be cited in favour of the principle that there is a parity of guilt between the receiver and the received*. The same principle is applied to those who voluntarily allow a prisoner to escape; if he was guilty, they [p. 509] are participators in his guilt. On prisoners for crime who broke prison the law of Bracton's day was exceedingly severe ; death was their punishment, even though they were innocent of the crime for which they were imprisoned and that crime was not capitals A statute of 1295 mitigated this rigour by declaring that the prison-breaker should not have judgment of life or member, unless that was the judgment provided for the offence which was the cause of his incarceration". Old law is apt to treat an escape from prison as a confession. What need has it of further witness'?

appellors bring appeals against several appellees for one death, each appellee is charged with at least one deadly wound, ' ita quod de plaga ilia mortuus asset si aliam non haberet ' ; Select Pleas of the Crown, pi. 197 ; Note Book, pi. 1460. For the later law as to accessories see Hale, P. 0. i. 612-626.

^ Bruuner, D. B. Q. ii. 575 ; Schmid, Oesetze, Glossar, s.T. flpmena-JyrwfS.

' Ass. Glar. u. 1, 2 : ' robator vel mardrator vel latro vel receptor eorom.'

» Braoton, f. 128 b.

* Braoton, f. 128 b : ■ et ad hoc facit lex C. de iis qni latrones et maleficos oocnltant, 1. prima [=Cod. 9, 39, 1] ubi dicitnr quod eos qui se cum alien! criminis reo occultando eum sociarunt, par ipsos et reos poena expectet.' Bracton's reading of the text was not quite that which is now received and here given. Tr^s ancien ooutumier, p. 33 : ' si captus fuerit fugitivus in domo alicuius, receptator omnia oatalla sua amittet, ni forte membrorum vel vitae incurret periculum.' See TioUet, Etablissements, i. 251.

" Bracton, f. 24.

6 23 Edw. I. ; Statutes, i. 113.

r See Select Pleas of the Crown, pi. 154, 165, 199, 201.

CH. VIII. § 3.] The Trespasses. 511

If now we glance back over the ground that we have lately Review traversed, we see that towards the end of the thirteenth century Monies, our law knows only some seven crimes which it treats as very grave, namely, treason, homicide, arson, rape, robbery, burglary, and grand larceny, to which we may perhaps add breach of prison. For all these the punishment is death: in general death by hanging, but for petty treason a man shall be drawn as well as hanged and a woman shall be bumt^, while, at least in the worst cases, high treason demands a cumulation of deaths. Three other crimes, namely, wounding, mayhem and imprisonment, have been called felonies, and perhaps might be still treated as such if the injured man brought an appeal; but they are fast falling into the category of minor crimes. High treason may be somewhat elastic and it covers some forgeries, the making of counterfeit money and the clipping of coin. But we can not call this list comprehensive or cruel. Its rude leniency we shall only perceive when we have spoken of the fashion in which the minor crimes were punished.

[p. 510] § 3. The Trespasses.

When the felonies are put on one side, we find hardly ciassiflca- anything that can be called either a classification of punishable offeucea. acts, or a general doctrine about them. In later days, as is well known, the following scheme is fashioned : —

Treasons Felonies

Offences are punishable

'Upon in- dictment

Misdemeanours

Upon summary conviction^.

Then with the punishable offence we contrast the tort which gives rise to a civil action, though the tort may also be, and very often is, a punishable offence. Torts again fall into two classes, and only those which involve some violence — the violence may be exceedingly small — are known as trespasses.

In the thirteenth century we see but the germs of this

' Women were sometimes burnt for felony; Select Pleas of the Crown, pi. 191; Munim. Gildh. 1. 101, a woman burnt for arson.

3 Occasionally an ofEence may be punished either summarily or upon indictment.

512 Crime and Tort. [bk. ii.

Trespass scheme. Trespass (transgressio) is the most general term that sense. there is; it will cover all or almost all wrongful acts and defaults. Every felony, says Bracton, is a trespass, though every trespass is not a felony ^ In a narrower sense therefore trespass is used as a contrast to felony'. The word misdemeanow belongs as a term of art to a much later age. In the past even the gravely punishable ofifences have been contemplated from the point of view of the person who has been wronged. Thus

! Felonies to be prosecuted by appeal. Mere trespasses giving rise to actions in which no words of felony are used^.

Only by slow degrees is the procedure which begins, not with [p.BU] the complaint of 'the party grieved,' but with a communal accusation (indictment or presentment), becoming a prominent part of the law's machinery. Henry II. had set it going only against 'murderers, robbers and thieves and the receivers of such.' In a later ordinance he spoke of arson and forgery*. We have already seen that there were crimes which were treated as felonies if there was an appeal, but as trespasses if there was only an indictment". However, long before the beginning of Edward I.'s reign, numerous offences that are no felonies are being punished upon indictment or present- ment, while many others are being punished in the course of civil actions. We shall perhaps breathe the spirit of the age if we say that —

(a) In civil actions.

(6) Upon presentment before local courts.

. (c) Upon presentment before the king's justices.

Offences less than felony are punished

' Bracton, f. 119 b : ' utrum scilicet sit ibi felouia vel transgressio, quia quaelibet transgressio dici non debet felonia, quamvis e convereo.'

2 Bracton, f . 125 : ' quodlibet factum non eontinet sub se feloniam quamvis aliquando contineat iniuriam et transgressionem.' Britten, i. 105 : ' soit trespas ou felonie.' Tort again is a large, loose word. Britton, i. 77, heads a chapter on some of the smaller offences presented in the eyres by the title De plusours tortz. Coke, Second Inst. 170, 418, has remarked the large sense which trespass bears in our oldest statutes.

' Even these classes, as we have seen above, are not mutually exclusive. The wounded man has a choice between an appeal of felony and an action for damages. Bracton often uses actio as a very general word capable of including an appeal. See e.g. f. 103 b.

' Ass. Olarend. and Ass. Northampt. See above, vol. i. p. 152.

' See above, vol. ii. p. 485, note 3.

CH. viii. § 3.] The Trespasses. 513

To this table we shall return, but meanwhile a few words Minor must first be said of the punishments that are inflicted, ments.' These are in the main two, namely, (i) amercement, (ii) in- definite imprisonment redeemable by fine.

Thousands of amercements are being inflicted by courts of Amerce- all kinds. The process is this : — So soon as the offender's guilt "^" ^' is proved, the court declares that he is in mercy {in misericordia). If it be a royal court, he is in the king's, if it be a county court, he is in the sheriff's, if it be a seigoorial court, he is in the lord's mercy. Thereupon, at least in the local courts, the offender ' waged ' an amercement, that is to say, he found gage or pledge for the payment of whatever sum might be set upon him when he should have been amerced. For as yet he had not been amerced {amerciatus). At the end of the session some good and lawful men, the peers of the offender (two seem to be enough) were sworn to 'affeer' the amercements. They set upon each offender some fixed sum of money that he was to pay; this sum is his amercement {amerciamentumy-. [p. 612] In the thirteenth century amercements are being inflicted History of right and left upon men who have done very little that is ment. wrong. The sums that they have to pay are small, and most men in England must have expected to be ainerced at least once a year. Therefore this punishment could not be very terrible. Nevertheless it seems to have its origin in a heavy penalty. We can hardly doubt that at first the declaration that a man is in the king's or the lord's mercy implies that the king or lord may, if he pleases, take all his goods. Henry II.'s treasurer has told us this explicitly^. We have here again what Dr Brunner calls an offshoot of outlawry'. In the old days of fixed wites there were offences which put life and limb, lands and goods 'in the king's mercy^.' As the differentiating process went on, there came into existence offences which put the offender's goods in the king's mercy, but not his life, limb or lands. Feudalism multiplied these offences. Many of the smaller misdeeds were regarded as exhibitions of an infideUtas,.

^ This old procedure yet lives in the game of forfeits. A forfeiture (foris- factura) having been committed, a wed is given, which is afterwards redeemed when the amercement is affeered by good and lawful children.

2 Dial, de Scao. lib. ii. c. 16. •" Forschungen, 465.

• D. B. ii. 7: ' Qnidam clericus...iudicatus est esse in misericordia regis et de omni cessu suo et de corpore suo.'

P. M. II. 33

514 Crime and Tort. [bk. ii.

which, however, did not amount to a felonia. Also the Norman kings wielded a large power of ' banning ' misdeeds, that is of declaring that certain offences would bring down the king's ' full forfeiture ' on the heads of the guilty, and they were not always careful to explain what this ' full forfeiture ' was'. The Conqueror and Rufus had made free use of the notion that many of the smaller offences, — those which did not amount to perfidia or scelus, — put the whole of the offender's chattels at the king's mercy. Henry I. when he was buying the crown had to promise an abandonment of this doctrine and a return to the old English system of pre-appointed wites^ This promise, like many other promises, he broke, and we may be glad that he did not keep it. The amercement marks an advance in the theory and practice of punishment. A basis for arbitrary or rp.5i3] ' unliquidated ' wites had thus been found, and in course of time men began to see that arbitrary wites — if they be not oppressively used — are far more equitable than the old fixed penalties. Account can now be taken of the offender's wealth or poverty, of the provocation that has been given him, of all those ' circumstances of the particular case ' that the rigid rules of ancient law had ignored. So the misericordia, when the central power is strong, begins to devour the old wites. Bestiiction We hear of attempts to establish some fixed maximum men™.^"* for the amercement. Becket alleged that there was such a maximum in every county, and that the law of Kent knew no amercement higher than forty shillings'. In both the England and the Normandy of Glanvill's day the rule had grown up that the amercement was to be ' affeered ' by the oath of lawful men*. The oldest Norman custumal is very instruc- tive, for it still regards this punishment as being in strictness a forfeiture of all chattels. The function of the sworn affeerers is to declare what goods the offender has. In the case of a

' See e.g. Laws of William (Sel. Charters), oo. 9, 10: 'Ego prohibeo... super plenam forisfaoturam meam.'

' Coronation Charter, c. 8 : 'Si quis baronum sive hominum -meorum forisfecerit, non dabit vadium in misericordia pecuniae suae, sicut faciebat tempore patris mei vel fratris mei, sed secundum modum forisfacti ita emendabit sicut emendasset retro a tempore patris mei, in tempore aUorum antecessorum meorum. Quod si perfidiae vel sceleris conyictns fuerit, sicut iustum fuerit, sic emendet.' A germ of (1) treason, (2) felony, (3) misdemeanour, may be seen in {!) perfidia, (2) scelus, (3) forisfactura.

8 William FitzStephen (Materials for the Life of Becket, iii.), p. 62.

* Glanvill, ix. 11.

CH, VIII. § 3.] The Trespasses. 515

knight the duke is to have all, except his arms, destrier, palfrey and rouncey, his ploughs and beasts of the plough, his seed-corn and victuals enough for a year. So too the roturier's victuals, team and arms are spared. But there also seem to be maximum amercements varying with the wrong-doer's rank; the baron will not have to pay more than a hundred pounds, nor the roturier more than five shillings^ Parallel to this lies the famous passage in Glanvill which saves for the amerced his 'honourable contenement'.' Then the Great Charter decreed that all amercements were to be set or ' affeered ' by good men of the neighbourhood ; that earls and barons were to be amerced by their peers; that amercements should vary with the gravity of the oifence ; that the knight's contenement, the merchant's merchandise, the villein's wainage should escape', [p. 514] The amercement became the most flexible and therefore it could be the smallest of all punishments. Threepenny amerce- ments were common in the local courts*.

^ Tr^s ancien coatumier, p. 45, It must be remembered that Norman money is worth much less than English money. Compare the veiy similar rules in Dial, de Scac. lib. ii. c. 14, as to the chattels that may not be sold for the satisfaction of a debt due to the crown.

^ Crlanvill, ix. 11 ; Bracton, f. 116 b. The origin and exact meaning of the term contenement seem to be very obscure. See Oxford Engl. Diet.

' Articles of the Barons, o. 9 ; Charter, 1215, c. 20.

* In the Anglo-Saxon dooms a general forfeiture of 'aU that one has ' begins to recur with increasing frequency as time goes on. See Schmid, Oesetze, p. 657. But this is confined to grave crimes. For ' contempts ' of king or lord these dooms have a special wite, the oferhprnee, or in Leg. Henr. overseunessa. See Sohmid's Glossary under these words. The king's o/erhprneg was however the very serious mulct of 120 (Saxon) shillings. The first stages in the development of the amercement are, we imagine, rather Frankish than Enghsh ; they may be found in a forfeiture of goods for the elastic offence of infidelitas. The 'tr6s ancien coutumier de Normandie' is here of the utmost value. Already in Henry I.'s charter for the Londoners we have a promise that the citizen who is adjudged in misericordia pecuniae shall not have to pay more than his wer of 100 shillings. This points to heavy amercements, for £5 is a large sum. In Glanvill's day however men are always falling into the king's mercy in the course of civil actions. The transition from a loss of all chattels exceptis excipiendis to a very moderate amercement was much easier in the twelfth century than it would be now. If a Norman knight of that age lost all his goods, except arms, horses, ploughs, beasts of the plough, seed-corn and victuals for a year, he might still be far from ruin. At some time or another a fixed tariff 'for the amerciament of the nobility' was allowed to develop itself in England; a duke paid £10, an earl £5, and so forth. See Coke, Second Inst. 28. Nobles were amerced by their 'peers,' the barons of the exchequer.

33—2

516, Crime and Tort. [bk. ii.'

Imprison. , The use of imprisonment as a punishment.^npore especially

™*° ■ if it be imprisonment for a definite period fixed by the sentence, -^is a sign of advancing civilisation. Of prisons, as of places of detention for those who are not yet condemned, we begin to read in ,the tenth century, and sometimes the law requires that a man shall be kept in gaol for forty days before his kinsfolk may redieem him\ Imprisonment would have been regarded in these old times as an useless punishment ; it does not satisfy revenge, it keeps the criminal idle, and, do what we may, it is costly. If -the man guilty of a bad offence is to be neither killed nor mutilated, he should be sold, or forced to sell himself, into slavery as a wite-'^edw, so that thus the hdt or wer that is due from him may be raised^ Afterthe Conquest we hear no more of this penal servitude, and for a, while we hear little of imprisonment ,as an ordinary punishment, though the Norman :

kings, will; sometimes keep, in prison rebels or enemies whom, for one reason or another, they do not put to death. Henry II, had to provide for the erection of a gaol in every county ; but these gaols were wanted chiefly for the detention of the [p. 515] indicted who had iiot yet gone to the ordeaP. Detentive imprisonment was by this time becoming common and the old ' stocks '■ were no longer an adequate ■ engine. For . example, the appellor who Would not prosecute his appeal was in Glanvill'S day thrown into prison- to make him change his mind*. The Exchequer had its prison, and already, there was some classifi- cation of the inmates ; some were in durance vile, others .were merely confined within the ambit of the walls^ Bracton speaka as'thoiigh'a prison were never a place of punishment; but hej is borrowing from Ulpian, and by his time peoal incarceratioa was being inflicted".

Punitive. In a few cases men could be sent to gaol for definite periods.

imprison- Ug^j.^ jj^ ordained that recog'nitors who perjured themselves in a g;r^nd assize should be kept- in prison for a year at least'. Xluder 3enry III.'s charter the punishment for .a breach of forest law was to be a year's imprisonment, after which the malefactor .had to find sureties for good behaviour or abjure

1 1 Schmid,: Gesetze, p. 657. " Brunner, D. E. G. ii. 594.

» Ass. eiarend. 0, 7. - <> Glanvill, i. 32.

^ Dial, de Soac. lib. ii. o. 21;

« Bfactbn,- f. 105 (=Dig. 48. 19. 8 | 9): 'career ad continendos et non ad puniendos hfcbeii ' debet.' - . ■

' GlanviU, ii. 19.

-CH, VIII. § 3.] The Trespasses. ' 517

■the realm'. We believe, however, that imprisonment for a

• fixed term was in all cases regarded as having its orig'in in , some definite assize or ordinance ; in other words it was not

thought of as 'a common law punishment.' The statutes of Edward I. made a great change in this province of law ; they •freely distributed short terms of imprisonment'. Even in these cases, however, the imprisonment was as a general rule but preparatory to a fine. After a year or two years the wrong- doer might make fine; if he had no money, he -was detained for a while longer'.-

It is, however, with an indefinite imprisonment that we -are Finea. chiefly concerned. In the thirteenth century the king's justices ilp.sie] wield a wide and a 'common law' power of ordering that aii offender be kept in custody. They have an equally wide power of discharging him upon his ' making fine with the king.' We must observe the language of the time. In strictness they have no power to ' impose a fine.' No tribunal of this period, unless we are mistaken, is ever said to impose a fine. To order the offender to pay so much money to the king — ^this the judge may not do. If he did it, he would be breaking or evading the Great Charter, for an amercement should be affeered, not by royal justices, but by neighbours of the wrong-doer. What the judges can do is this : — they can pronounce a sentence of im- prisonment and then allow the culprit to ' make fine,' that is to make an end {finem facere) of the matter by paying or finding security for a certain sum of money. In theory the fine is a ■bilateral transaction, a bargain ; it is not ' imposed,' it is ' made.' Now, so far as we can see, the justices of Henry III.'s reign used their power of imprisonment chiefly as a means of inflicting pecuniary penalties. The wrong-doer but rarely goes to prison

• even for a moment. On the plea roll the Gustodiatur which sends him to gaol is followed at once by Finem fecit per unavi marcam (or whatever the sum may be), and then come the names of those who are pledges for the payment. The justices

,do not wish to keep him in gaol, they wish to make him pay

1 Forest Charter, 1217, c. 10.

• -2 See e.ff. Stat. West. I. CO. 9, 13, 15, 20, 29, 31,- 32.

' As a typical case we may take Stat. West. I. c. 9. The bailiff of a •franchise who makes default in the pursuit of felons shall be imprisoned for one year and shall then make grievous fine, and, if fie fias not wherewithal, lie shall be imprisoned for another' year. '

518 Crime and Tort. [bk, ii,

money. Such a system would sometimes be abused when the

king desired to crush an enemy', but, after looking through

many rolls, it seems to us that normally the fines were light,

much lighter than the wites of old times^ The causes for

fines were now very numerous, and the king preferred a power

of inflicting many small penalties to that of demanding heavy

sums in a few grave cases.

other There are three or four other punishments which deserve a

punisji- passing word. A complete forfeiture of all chattels is insisted

™™ ^' on when a man ' flies for a felony,' even if he has not committed

it'. True exile is unknown ; but the criminal who has taken

sanctuary abjures the realm and occasionally, by way of grace,

other criminals are allowed to do the like. Now and again we [p. 517]

hear of a man compelled to abjure a town*. Manorial courts

will sometimes decree a removal fi-om the village ; probably the

delinquent in such a case is a villein. In the boroughs a loss of

' liberties ' or firanchises is sometimes denounced against peccant

burgesses; or they may have to abjure their trades or their

crafts. Pillory and tumbrel seem to be reserved almost

exclusively for bakers and alewives who break the assizes of

bread and beer". Bracton speaks of whipping*, and it became

a ' common law ' punishment for misdemeanours ; we do not

remember a case of his time in which it was inflicted, except

as an ecclesiastical penance.

Procedure We Can now speak briefly of the offences that were punished

mnor Isy amercement or by imprisonment, remembering that as a

offences, general rule imprisonment really means fine. We have said

that there were three main modes of procedure.

^ See e.g. Note Book, pi. 770, where the ex-treasurer, bishop of Carlisle, is amerced at 100 marks for unlawful distraint.

2 Northumberland Assize EoUs, 92, 94: in two cases a man oonyioted of rape is fined one mark (13s. id.) and is at once set free on finding sureties for payment. So Munim. Gildh. i. 90 : three men guilty of murderous assault are fined one mark and liberated : they were poor.

2 Bracton, f. 125. This is common on the eyre rolls.

* Note Book, pi. 1179 : a Jew who has fornicated with a Christian woman must abjure the realm ; the partner of his guilt abjured the town of Bristol. Bracton, f. 136 § 4, speaks in romanesque terms of exile ; he is thinking of abjuration and of outlawry. Liber de Antiquis Legibus, p. 70 ; in 1260 certain barons abjured England for a year and went into exile in Ireland.

' Britton, i. 61 : petty theft is punished by an hour of pillory. Ibid. p. 41 : the forger also may be pilloried.

0 Bracton, f. 151 b, in case of petty theft.

CH. VIII. §3.] Tlie Trespasses. 519

1. Offences punished in the course of civil actions. Every (i) civil tort, nay, every cause of civil action, was a punishable offence. '^ '°°^' Every vanquished defendant, even though the action was ' real ' or was contractual, had earned punishment. At the least he had been guilty of an unjust detention (pro iniusta detentione). In the lower courts he could only be — but he would be — amerced. By the king's court he might even be imprisoned. This would be his fate if he had broken the king's peace with force and arms, if he had infringed a ' final concord ' made in the king's court, if he had falsely disputed his own deed, if he had relied on a forged charter, if he had intruded on the king or disobeyed a writ of prohibition\ A plaintiff too might be imprisoned, if, for example, he had failed in the endeavour to reduce a free man to villeinage". But every defeated plaintiff could be amerced 'for a false claim.' Incidentally too any falsehood (falsitas), that is, any fraudulent misuse of the [p. 518] machinery of the law, would be punished by imprisonment'. Then again every default in appearance brought an amercement on the defaulter and his pledges. Every mistake in pleading, every miskenning or stultiloquium, brought an amercement on the pleader if the mistake was to be retrieved*. A litigant who hoped to get to the end of his suit without an amercement must have been a sanguine man ; for he was playing a game of forfeits ^

2. Offences punished upon presentment in the local courts. (2) Pre- The process of presentment had been introduced into the local in turn courts by Henry II., but only, so it seems, for the purpose of ™'' ^®^'- collecting accusations of grave offences. However, in course of time many other presentments were made there. A general understanding seems to have allowed the sheriff in his ' turns ' and the lords of franchises in their ' leets ' ' to demand present- ments about any matter that concerned the king's rights or his peace. ' Articles of the Turn ' or ' Articles of the View of Frankpledge ' were drawn up. The different copies which have

> Note Book, pi. 187, 256, 286, 351, 384, 496, 498, 566, 583, 1105. Y. B. 20-1 Edw. I. p. 41.

2 Northumberland Assize Eolls, pp. 46-7.

» Note Book, pi. 10, 208, 342, 788, 980, 1443, 1633, 1946.

* Note Book, pi. 298 ; Britton, i. 101.

' Tr68 auoien eoutumier, p. 57, where we learn that already in the twelfth -centnry a Norman baron compared the procedure of the duke's court to a boys' giime.

520

Crime and Tort.

[bk. ir.

Present- ments in seignorial coarts.

(3) Pre- sentment in the eyre.

come down to us, though they bear one general character, differ ill many details. They leave us doubting whether any of them had received a solemn sanction from the central powers In part their object is to collect accusations of felonies which will come before the king's justices ; of this purpose we need say no more. But also they ask for charges of minor offences which are dealt with on the spot by a summary procedure leading to amercements. These offences are most miscellaneous. There are the minor acts of violence, brawls, affrays, bloodshed. There are some minor acts of dishonesty, such as taking other people's pigeons, or knowingly buying stolen meat or stolen clothes. There are nuisances, especially the straitening of highways — these can be summarily redressed or 'addressed.' There are those never ceasing breaches of the assizes of bread and beer.

As yet we know more of the seignorial courts and the [p. borough courts than of courts in which the sheriff presided. In the seignorial courts the presentment was used indis- criminately as a means for punishing by amercement all the small breaches of peace and order, even abusive words, and all breaches of the manorial custom ; it gave the lord a tight grip on his villein tenants. In the boroughs, as they grew in wealth and independence, the presentment might secure the punishment of the forestaller who raised the price of goods and of the cook who sold unsound victuals, it might even protect a nascent commercial policy". Altogether the local tribunals seem to have been allowed a large liberty in the infliction of amercements.

3. Offences pvnishahle upon presentment before the king's justices. The justices in eyre of the thirteenth century carry with them a list of interrogatories, known as the Articles of the Eyre (Gapitula Itineris), which are to be addressed to the local

519]

' The set given in the Statutum Walliae (Stat. i. 57) seems to be the only one which comes to us from an authoritative source. See also the apocryphal Statute de Visu Franoiplegii (Stat. i. 246) ; Fleta, p. 112 ; Britton, i. 179 ; Tlie Court Baron (Seld. Soc), pp. 71, 93 ; and see the Articles for the London Wardmotes, Munim. Gildh. i. pp. .257, 259, 337.

2 See Leet Jurisdiction in Norwich (Selden Soc). In London at a later day we find a tariff ordained for small breaches of the peace : for a blow with the fist, 2s. or eight days in Newgate ; for drawing blood, 3s. id. or twelve days ; for drawing ^ weapon, 6s. -8(i. or fifteen days ; for drawing blood with & weapon, 20s. or forty days: Munim. Gild. i. 475.

,CH. VIII. § 3.] The Trespasses. 521

juries. This list grows longer and longer^ When we have put on one side the questions which deal with the felonies, we still have before us a miscellaneous mass. We find, however, three main groups of articles. One consists of those which desire information about the king's proprietary rights, escheats, wardships and so forth: These do not lead to any punishment or any trial.. Information is all that is wanted; it will hereafter be used in various ways. Another group asks for tales about the assumption or misuse of 'franchises.' Here again, as a general rule, information is all that is immediately ■wanted. When the justices' rolls come to the king's treasury, his advisers will consider whether "writs of Quo warranto should [p. 520] not be issued for the recall of liberties that have been abused^. A third and a large group of articles relates to the official misdoings of royal officers, sheriffs, coroners and bailiffs. Some- times the justices will at once declare that the offender is in mercy or must be kept in custody. More often they seem to be content with having got a charge which will be used against him in an administrative, rather than in a strictly judicial way. When, for example, he renders his accounts at West- minster he will find that all that he has extorted from the people he owes to the king.

These three groups being exhausted, we perceive that only Miade- by slow degrees and in a hap-hazard way do any inquiries about "'^"■'"'^ ordinary and non-official crimes that are less than felonies steal their way into the articles. A very large part of the justices' work will indeed consist of putting in mercy men and com- munities guilty of a neglect of police duties. This, if we have regard to actual results, is the main business of the eyre — for the amount of hanging that is done is contemptible. But the justices collect in all a very large sum from counties, hundreds, boroughs, townships and tithings which have mis- conducted themselves by not presenting, or not arresting

^ The Articles of 1194 and 1198 are given by Hoveden, iii. 263 ; iv. 61. Then see the Articles of 1227 for an eyre in the Cinque Ports, Eot. CI. vol. ii. p. 213, and Bracton, f. 117 b. Then see Braoton, f. 116, and Ann. Burton, p. 330, for a later set, and Statutes, vol. i. p. 233, for a yet later; The articles for the London eyre of 1244 are in Munim. Gildh. i. 79 ; those for the eyre of 1321 are in Munim. GUdh. ii. 347 ; the latter are fully seven times as long as the former and fill fifteen octavo pages.

, -.For the practice of Edward. I.'s day, see Britton, i. 76. In some cases proceedings were taken upon the presentment ; in others a writ was necessary.

522 Crime and Tort. [bk. ll.

criminals. With the coroners' rolls and the- sheriflfs' rolls before them, they have a check upon the presenting jurors, and probably no single ' community ' in the county will escape without amercement. There are a few offences which are specially brought to the notice of the commissioners by the articles. If bread and beer are left to humbler courts, wiae and cloth are under the protection of the king's justices. But neither in the articles nor on the eyre rolls of Henry III.'s reign — and it is of that time that we are speaking — do we see any general invitation to present, or many actual presentments of, those crimes which are the typical misdemeanours of the fully developed common law. Penal Useful though this laborious scheme of presentments may

have been, — useful because it revealed abuses, because it served as a check upon sheriffs and lords, because it reminded every man of his always neglected police duties — the law did not place much reliance upon it as an engine of punishment. We are now in the act of passing from the sphere of criminal to that [p. 52i] of civil justice, and therefore let us notice that under Edward I. a favourite device of our legislators is that of giving double or treble damages to 'the party grieved.' They have little faith in 'communal accusation' or in any procedure that expects either royal officials or people in general to be active in bringing malefactors to justice. More was to be hoped from the man who had suffered. He would move if they made it worth his while. And so in a characteristically English fashion punish- ment was to be inflicted in the course of civil actions : it took the form of manyfold reparation, of penal and exemplary damages'.

Actions for But we have gone too fast. An ' action for damages ' was a damages.

^ Doable damages appear in a crude form in Stat. Mert. c. 6 : if a male ward marries without the lord's consent, the lord may hold the land for an additional period so as to obtain twice the value of that ' marriage ' of which he has been deprived. Then in Stat. West. I. cc. 15, 17, 19, 24, 26, 27, 30, 32, 35, double and treble damages are lavishly distributed. A good example of heavy punishment inflicted in a civil action is given by Stat. West. II. c. 35; an action for 'ravishment of ward' may lead to the perpetual imprisonment of the defendant. It is just possible that actions for manyfold damages were suggested by what the Institutes (4. 6. 21) say of actiones emceptae in dwplum, triplvm, quadruplum. But Bracton, f. 102, had slurred over this passage, and we believe that the general drift of the romano-canonioal influence was by this time in favour of a strict separation of criminal from civil causes and an ex officio prosecution of crimes.

CH. VIII. § 3.] The Trespasses. 523

novelty. By an action for damages we mean one in which the plaintifif seeks to obtain, not a fixed h6t appointed by law, but a sum of money which the tribunal, having regard to the facts of the particular case, will assess as a proper compensation for the wrong that he has suffered. We repeat that this was a novelty. We may doubt whether Glanvill ever presided at the hearing of such an action'.

This may for a moment seem strange. In later days we Damages learn to look upon the action for damages as the common law's fio relief, panacea, and we are told that the inability of the old courts to give ' specific relief was a chief cause for the evolution of an 'equitable jurisdiction' in the chancery. But when we look back to the first age of royal justice we see it doing little else than punishing crime and giving ' specific relief.' The plaintiff who goes to the king's court and does not want vengeance, usually goes to ask for some thing of which he is being [j.522] 'deforced.' This thing may be land, or services, or an ad- vowson, or a chattel, or a certain sum of money; but in any case it is a thing unjustly detained from him. Or, may be, he demands that a 'final concord' or a covenant may be observed and performed, or that an account may be rendered, or that a nuisance may be abated, or that (for sometimes our king's court will do curiously modern things) a forester may be appointed to prevent a doweress from committing waste". Even the feoffor who fails in his duty of warranting his feoffee's title is not condemned to pay damages in money; he has to give equivalent land. No one of the oldest group of actions is an action for damages.

Moreover, the practice of giving damages even as a supple- Damages ment for specific relief is one that we may see in the first stage mentaiy^ of its growth. It makes its appearance in an infiuential quarter, '^®'"* • in the popular assize of novel disseisin. Glanvill's text shows us the embryo. The writ which begins the action commands the sheriff ' to cause the tenement to be reseised of the chattels taken in it ' by the disseisor, and ' to cause the tenement with the chattels to be in peace ' until the hearing of the cause". So the disseisee is to recover the chattels as well as the land of

' Glanvill, x. 13, holds that if a thing that has been lent perishes in the borrower's hands, he is bound to return its rationabile pretium. He then asks how this is to be assessed, and gives no answer.

" Note Book, pi. 56 ; Bracton, f. 316. « Glanvill, xiii. 33.

524 ■ Crime and Tort. [bk. ii.

which he has been dispossessed ; but even this is specific relief. We further learn, however, that the disseisee can obtain the 'fruits' of the tenement from the disseisor, and we are left to imagine that, if he can not get the corn or hay itself, he may be able to get money instead'. In a few years all had changed; Bracton has noticed the change". The sheriff was no longer expected to ' reseise the tenement ' of the abstracted chattels; the recognitors in the '-assize were being told to estimate in money the dampnd which the disseisee- had suffered. Along with the land he now ' recovered' a sum of money assessed as a compensation for the wrong done himl Long the Hovel disseisin remained the only action in which both land and damjiges could be obtained; slowly in the course of the thirteenth century our legislators multiplied the cases' in which this double remedy was to be had*. Growth of When the sacred ' freehold ' was not concerned, the hands [p. 523] damages?'^ of the justices were freer. They could award damages as a subsidiary remedy in actions of detinue, debt and the like^ The assize of novel -disseisin suggested to them a method of assessing pecuniary compensation: the verdict of a jury. To find the exact place at which they first crossed the narrow line which divides an action for mere damages from an action in which damages may be given as complementary to the recovery of a specific thing or specific debt would be a toilsome task'. . Here it must suffice that one by one there came into existence actions in which the plaintiff could obtain nothing but a money compensation assessed by justices or jurors. In this context we may mention the action for vee de naam {de vetito namii) brought against a distrainor, who, though he has now given back the beasts, has been guilty of detaining them ' against gage and pledge ' ; also those frequent actions brought against men who have persisted in going to the ecclesiastical tribunals

1 Glanvill, xiii. 38, 39. " Braoton, f. 186 b § 7 : ' illud hodie non observatur.'

s Already in 1200 ; Select Civil Pleas, pi. 4.

* Stat. Merton, c. 1, damages for the doweress, for widows are favoured persons; Stat. Marlb. o. 16, damages against the lord in the mort d'ancestor, for he is almost as guilty as a disseisor ; Stat. Glouc' c. 1, a very general enactment.

•> Some of the continental folk laws know what seems to be an established 6(5( for delay in payment, which is called dilatura, or wirdira; Brunner, D. R. G., ii. 624.

6 Select Civil Pleas, pi. 86 : in 1201 we have a claim for mere damages.

CH. viTE § 3.] The Trespasses. 525

after receipt of a royal prohibition^- But there is one all- imp'ortant action which is stealing slowly to the front, the action of trespass {de tratisgressione) against those .who to a plaintiff's damage have broken the king's peace with force and arms. Though early precedents may be found for it, this fertile /mother of actions was only beginning her reign in the [p. 524] last years of Henry III. Her progeny throve and multiplied, until a time came when, the older forms having been neglected, an action for damages, an action which traced descent from the breve de tratisgressione, seemed to be almost the only remedy offered by the common law'^.

What did men before they had this action ? What did The days they in 'Glanvill's day ? For one thing, we suspect that they ' damages. uttered ' words of felony ' upon slight provocation. For another thing, the old action of theft could be used for the recovery of goods from an honest hand, and a two-fold hot could sometimes be obtained'. As to blows and bruises, we take it that they sued for some pre-appointed bdt in the local courts. The king Was not to be troubled with such trifles. The early disappearance from English law of the pre-appointed b6t is remar]£able. The sister-law of Normandy after Bracton's death, still knew a tariff for the minor acts of violence — five shillings for a: slap, eighteen for a knock-down blow, thirty-six for a wound ; but this tariff, simple when compared with thoge of older days, apparently obtained only among the roturiers, and

' The writs in Glanvill, xii. 12, 15, which touch replevin suppose that the chattels are still in the distrainor's hands and the action aims at specific relief. The action (xii. 22) for impleading in court Christian may at first have aimed only at punishment. But soon we see the action against a distrainor who has given up the chattels ; Note Book, pi. 477. The action on a prohibition is brought for damages ; Ibid. pi. 1423. Damages can be obtained in actions of 'mesne ' ; Ibid. pi. 390; 506 ; but even here again the plaintiff is thought of as claiming specific relief, ' acquittance ' from a burden. For a long time the plaintiff in 'an action of covenant is usually seeking possession of a tenement. On th0 whole we seem to be right in regarding two actions, viz. novel disseisin and trespass, as the chief, though not the only, channels by which damages- spread, and the way in which damages are given in the novel disseisin as a substitute for ' fruits' recovered in specie shows that the lawyers are not blindly 'receiving' the romano>canonical procedure, but are elaborating home-grown materials.

r As to trespass, see above, vol. ii. pp. 108, 166. After looking through some unprinted rolls, we feel entitled to say that this action was still Uncommon in 1250, but. was quite common in 1272.

' See above, vol. ii. p. 495.

526 Crime and Tort [bk. ii.

the compensation due to a knight was a suit of armour'. Unfortunately the records of our local courts do not begfin until the influence of Westminster is supreme and its action for damages is well known throughout the country; still we should not be surprised to find that the doomsmen of the hall-moots when they assigned damages for a blow or a ' villein word' were guided by traditional and half-forgotten tariffs and thought but little of ' the circumstances of the particular case^' Actions of The writs of trespass are closely connected with the appeals [p.] respass. ^^^ felony. The action of trespass is, we may say, an attenuated appeal. The charge oi felonia is omitted ; no battle is offered ; but the basis of the action is a wrong done to the plaintiff in his body, his goods or his land ' by force and arms and against the king's peace.' In course of time these sonorous words will become little better than a hollow sound; there will be a trespass with force and arms if a man's body, goods or land have been unlawfully touched, From this we may gather that the court had never taken very seriously the ' arms ' of the writ or fixed a minimum for the ' force ' that would beget an action. Still the action was aimed at serious breaches of the king's peace, and, so far as we can see, the court in Henry III.'s reign was seldom, if ever, troubled with 'technical trespasses' or claims for ' nominal damages'.' If we take the plaintiffs at their word,'

* Somma, p. 204; Ancienne ooutujne, o. 85, ed, de Gxiiohy, p. 195. For Aiijon, Bee Viollet, EtabliasementB, i, 245,

^ In Leg. Will. i. 10, a wounded man, besides the bdt for the woand, receives a sum of money fixed by his own oath. This our French text calls sun lecheof. The Latin text says lichfe quantum scilicet in curam vulneris expendit. Sobmid would make this into lic-feoh, body-money. But Dr Murray tells us that it is very probably Icece-feoh, Uce-feoh, the leech fee. With the Lels Williame should be compared a curious clause in the Preston oustumal: Dobson and Harland, History of Preston Gild, p. 76. In the Lombard laws the wounder in addition to the price of the wound must pay mercedes medici, ' the doctor's bill ' ; Brnnner, D. B. G., ii. 613 ; Palgrave, Commonwealth, p. oxi. In Leg. Henr. 39, 84, there are exceedingly curious passages which show that in the twelfth century the man who sued for a Mt when he had been beaten was regarded with contempt. Some courts would in such a case exact a wlte from the stricken as well as the striker. This is justified by a batch of proverbs : ' Ubi unus non vnlt, duo non certaut ; et omnis unlaga frater est alterius ; et qui respondet stulto iuxta stultitiam suam similis est eius.' The first of these phrases means that it takes two to make a quarrel. But at any rate it is dirty to ask a Mt for dry blows.

' In 1279 a man recovers six pence for a blow on the head; Northumberland Assize Bolls, p. 351,

CH. VIII. § 3.] The Trespasses. 527

there have been force enough and arms enough. There has been a marauding foray ; a few years earlier it would have given rise to a batch of appeals for wounds and robbery^- Even when we have made allowance for the froth of ' common form,' we see that there are often some twenty defendants, and this tells a tale of deliberate violence, of rapine and pillage". Edward I. when he introduced this action into Wales set forth in strong words its punitive and exemplary character'.

In the days when the writ of trespass was taking a foremost Limits of place in the scheme of actions, the king's court had its hands full if it was to redress and punish the wrongs done by gentle- men who at the head of armed bands of retainers ravaged the manors of their neighbours. We must not therefore expect to find cases which indicate the limits of trespass. We may guess [p. 526] that some self-defence was permissible*, while all self-help, unless it took the form of the timely ejectment of a disseisor, was strictly prohibited. Also we may guess that this somewhat terrible action could not have been used against those who were not to be charged with any assault on a person, entry on land or asportation of goods, but were guilty of some misfeasance while engaged in a lawful operation. In later days, slowly and with difficulty, the court gave an action against the clumsy smith who lames the horse that he is shoeing, against the stupid surgeon who poisons the wound that he should cure". Such persons could not be charged with breaking the king's peace by force and arms. We may well doubt whether Bracton or any contemporary lawyer would have told them that they had committed no tort, we may perhaps doubt whether they could not have been successfully sued in some of the local courts; but the king's justices were not as yet busied with these ques- tions, and such records of the lowlier tribunals as are in print do not hold out much encouragement to the investigator who is in search of a medieval law of negligence, though he might

' Britton, ii. 123, advises the wounded man to bring an action of trespass, though an appeal of felony is open to him.

' Northumberland Assize Eolls, p. 162 : an action of trespass for bmming a mill is brought against 128 defendants.

' Stat. Wall. 0. xi. (Statutes, i. 66) : ' Ita quod castigatio ilia sit aliis in exemplum et timorem praebeat delinquendi. '

* Self-defence could be pleaded even in an appeal of mayhem : Note Book, pi. 1084.

* Ames, History of Assumpsit, Harv. L. R. ii. pp. 2-4.

528

Crime and Tort.

[bk. II.

Master's liability.

Becent history of master's liability.

find some rules, probably severe rules, about damage done by straying cattle, goring oxen, biting dogs and fire'. Hardly a germ is to be found of any idea which will answer to the Eoman culpa or become our modern negligence".

In the dominance over our growing law of torts exercised by an action which came of a penal stock we may find an explana- tion of a debated episode of legal history, namely, the genesis of ' employer's liability'.' In order to clear the field, we may take for granted that the man who commands a trespass, which is committed in obedience to his command, is himself a trespasser. About this our law of the thirteenth century and of much earlier [p. 527] times had no doubt whatever. From of old the 'rede-bane' had been as guilty as the 'deed-bane*.' What is done by a man's command may be imputed to him as though it were his own act. From the grave crimes we may argue a fortiori to the minor oifences, though the law in all cases observed that strict rule of logic which required that a principal should be con- victed or outlawed before an accessory was put on his trial". All this, however, lies beside our present mark, for we would raise the question as to the liability of superiors for torts which they have not commanded but which have been committed by their inferiors.

Now it would seem that our present doctrine about the liability of a master for a tort committed by a servant who was 'acting within the scope of his employment' can hardly be traced in any definite shape beyond the Revolution of 1688°. Before that date there lie several centuries, comprising the age

1 As to these matters, see Wigmore, Eesponsibility for Tortious Actions, Harv. L. E. vii. 316, 383, 441. As to fire, see the Chester custom in Domesday Book, i. 262 b : ' ^i ignis civitatem comburehat, de cuius domo exibat emendabat per iij. eras denariorum et suo propinquiori vicino dabat ij. solidos.' Apparently the liability is absolute.

^ Though Bracton can speak of culpa (e.g. f. 155, ' neo dolus nee culpa ') this word is not received. As to negligentia, which Bracton, f. 146 uses in connexion with fire, this seems to have as its precursors stultitia, insipientia (Note Book, pi. 1249), Fr. folic.

5 See the two learned articles on Agency by Mr Justice Holmes, Harv. L. E. iv. 346 : v. 1.

* See above, p. 509.

^ Plaoit. Abbrev. 129 (Line); Rot. Pari. i. 24-5. In later days it was otherwise ; the commander of a trespass eould be treated as a principal, or, in other words, the rule as to principal and accessory was confined to cases of felony.

« The principal cases and dicta are conveniently collected by Mr Wigmore in Harv. L. E. vu. 380, 383.

CH. VIII. § 3.] The Trespasses. 529

of the Year Books and the days of Tudors and Stuarts, during ■which exceedingly few hints are given to us of any responsibility of a master for acts that he has not commanded', and, when our new rule is first taking shape, we see it working under cover of phrases which still thrust command to the forefront, phrases which teach that a master is liable for acts that he has ' impliedly,' as well as for those which he has ' expressly commanded.'

On the other hand, it is hardly to be doubted that, if we go Liability back far enough, we shall see a measure of responsibility far owner and severer than that which we now apply to 'masters' or 'em- ^"j^g^'j^ ployers,' applied to some superiors. A man was absolutely °^^ ^'^^ liable for the acts of his slaves — though some penal conse- quences he might be able to escape by a noxal surrender — and a householder was in all probability liable for what was done by the free members of his household. A lord, on the other hand, could not be charged with the acts of his free ' men,' his IP 528] tenants or retainers, who formed no part of his family. The most that could be expected of him was that he should produce them in court so that they might 'stand to right' if any one accused them. Then already in the dim age that lies behind the Norman Conquest we seem to see the lords reducing their liability. In Caufc's day they would, if they could, ignore the difference between their slaves and those numerous free, but very dependent tenants who would soon be called villani ". At a yet earlier time the duty of producing their free men in court had been slipping from their shoulders. They had beea allowed to substitute for it the duty of keeping their men in groups, such that each group would be solidly liable for the production of all its members'. At the end of the twelfth century almost every vestige of the lord's liability had dis- appeared. Anything that we could call slaveiy was extinct. The mere relationship between lord and villein did not make the one responsible for the acts of the other. The lord was not even bound to produce his villein in court. The villeins were in frankpledge. As to the liability of the groups of pledges,

^ T. B. 2 Hen. IV. f. 18 (Paseh. pi. 6), a case relating to the custody of fire, seems to be the most important case in the Year Sooks.

■' Cnut, II. 20 § 1.

' ^thelstan, in. 7. We believe that this text points to the origin of frank- pledge; but this much-debated point can not be discussed here.

P. M. 11. 34

530 Crime and Tort. [bk. ii,

we may perhaps see traces of a rule which would, not merely subject the tithing to an amercement if it failed to produce an accused member, but would exact from it a recompense for the wrong that he had done*. But in the thirteenth century the tithing has only to produce members charged with felony, and, if it makes default, it is merely amerced. Bonse- Any theory therefore that would connect our 'employer's

inability in liability ' with slavery has before it a difficult task. Between ^aoton s ^]jg modern employer and the slave-owner stand some centuries of villeinage, and the medieval lord was not liable for the acts of his villein. A more hopeful line of tradition may lie within the household. The householder of Bracton's day was bound to produce any member of his mainpast or household who was accused of felony, and, failing to do so, was amerced, but only amerced. We may detect, however, some scattered traces of a civil liability for wrongs, and very possibly other traces would be found were the rolls of our local courts systematically perused. In a book of precedents for pleas in manorial courts which comes [p-i from the last half of the thirteenth century we find that a defendant, who is charged with the act of two men who cut stubble in the plaintiff's close, pleads that these men were not of his mainpast but labourers hired from day to day*. Tort, The king's courts, however, were approaching the field of

ma™ter^s^ tort through the field of crime. A criminal procedure which liability, aimed solely at pure punishment, at loss of life or member, was being established, and the time had long gone by when a man could be made to answer for such an act as homicide if he had neither done nor taken part in, nor commanded, nor counselled the deed : — quia quis pro alieno facto non est pv/niendus, said Edward I.° To exact a wer from the slayer's master had been possible ; to send the master to the gallows — no one wished to

' Leg. Edw. Conf. c. 20. But this is not high authority.

a The Court Baron (Selden Soc), pp. 36, 38, 53; Harvard Law Eey. vii. 832-3. Leg. Henr. 66 § 7 : 'Si mauupastna alicuius aocusetur de furto, solus -pal^erfamilias emendare potest, si yelit, fracta lege sine praeiuranie.' We read this to mean that the housefather may if he pleases defend an accusation for -theft brought against his mainpast. The nature of his oath indicated by the last words of the clause we can not here discuss. The householder of Cnut's day was bound to produce a member of his family accused of crime and, failing to do so, had to pay the accused man's wer to the Ising, a far heavier penalty than an amercement of the thirteenth century; Cnut, It. 31; Leg. Henr. 41 § 6.

» Stat. West. II. 0. 35.

CH. VIII. § 3.] The Trespasses. 531

do that. In Henry III.'& day disseisin was still for the king's court the one interesting misdeed that did not involve felony, and it is only about disseisin and wrongful distraint that Bracton has given us anything that can be called a doctrine oi employer's liability. If we understand him rightly, he holds that if X's servants are guilty of disseising A, then X can not at once be charged with a disseisin ; but it is his duty to make amends to A, and if X after the facts have been brought to his knowledge refuses to make amends, then he is a disseisor and can be sued. It is our misfortune that in this context we read only of disseisin and wrongful distraint, for these are wrongs of subtraction, and it is easy to say that if a man, when he knows what has happened, refuses to give up the land or beasts that his underlings have grabbed for him, he ratifies or ' avows ' their act and becomes a participator in the wrong. We are not sure that Bracton means more than this^ What he would [p. 530] have said had the wrong consisted, not in the subtraction of a thing for the master's use, but in some damage to person, lands, or goods, we can not say for certain, but we imagine that he would have absolved the master if he neither commanded nor ratified the wrongful act. The only action to which such damage could have given rise was the penal quare vi et armis. Soon after his day this action came to the fore and for some centuries it reigned over our law of torts. Throughout the Year Books men are ' punished ' for trespasses, and, when we are to be told that an action of trespass will not lie against the master, we are told that the master is not to be ' punished ' for his servants' trespasses — quia quis pro alieno facto nan est

That our common law in thus sparing the master from civil identifica- liability was not in full harmony with current morality is master and possible' ; and the local courts may have continued to enforce ^^'^*°'-

' Bracton, f. 158 b, 171, 172 b, 204 b. On the whole what Bracton says hardly goes beyond an application of the maxim Hatihabitio retrotrahitur, which he quotes, anfl which was current among the. lawyers of Edward I.'s time ; Y. B. 30-1 Edw. I. p. 129. See also Note Book, pi. 779, 781. Somerset- shire Pleas, pi. 1427, 1437, 1497, cases heard by Bracton. These cases do not clearly indicate any other principle.

2 Harv. L. B. vii. 387-391. The usual dictum in the sixteenth century is that if I send my servant to make a distress and he misuses the thing that he takes, I shall not be 'punished.'

' Mr Wigmore, Harv. L. E. vii. 384, sees for a century after 1300 'an undercurrent of feeling' in favour of the master's liability.

34—2

532 Crime and Tort. [bk. ii.

an old doctrine about the mainpast ; but we gravely doubt whether there was any wide discrepancy between the law of the king's court and common opinion, and in particular we can not believe that either law or morality was guilty of any theory of ' identification'.' We see this best in the case in which there was most temptation towards such a theory, the case of husband and wife. Lawyers were always ready to proclaim that husband and wife are one, but, as already said, they never threw much real weight upon this impossible dogma''. Of course we do not expect to hear that they hanged the husband for the wife's felonies' : but they held that wrongs done by the wife died with her. So of wrongs done by the monk; you can not sue the abbot after the offender's death. But further, if we look for the best legal ideas of the thirteenth century to Edward I.'s [p. 531] statutes, we shall see no ' identification ' of the servant with the master and, what is more, no very strong feeling in favour of ' employer's liability.' It is true that a sheriff is in some cases absolutely responsible for the acts of his underlings, in par- ticular he must account to the king for all that they receive* ; but we are never safe in drawing inferences about general principles from the rigorous law that is meted out to royal oflBcers or royal debtors^ We see, however, that the lords of franchises are not made responsible for all the unauthorized acts of their bailiffs. If such a lord is guilty of taking out- rageous toll, his franchise is to be seized into the king's hands ; but if his bailiff does the like without commandment, the bailiff must pay double damages and go to prison for forty days'.

' Mr Justice Holmes, Harv. L. E. iv. 354 and v. 1, ascribes to this fiction a greater efficacy than we can allow it, at all events within the sphere of tort.

2 See above, p. 403. T. B. 82-8 Edw. I. p. 474: 'the act of the wife is the act of the husband.'

3 Gloucestershire Pleas, pi. 244. In 1221 a husband escapes with a fine of a half-mark for not having produced a wife accused of arson.

* Stat. West. I. 0. 19: 'And let every sheriff beware that he have a receiver for whom he will answer, for the king will betake himself for all [money received] against the sheriff and his heirs.'

' Down to Henry II. 's day the exchequer would seize the chattels of knights to satisfy a debt due from their lord to the king. Dial, de Scac. ii. 14. Respondeat inferior.

" Stat. West. I. c. 31. See also co. 9, 15. In 1256 Northumbrian jurors present that the bailiff of Bobert de Eos arrested a man and kept him in prison for two days. 'Eostea quia praedicti iuratores dicnnt super sacramentum

CH. VIII. § 3.] The Trespasses. 533

To us however at this moment the chief interest of these Seapondeat

HUT) PT^O IT

statutes lies in their introduction of the phrase Respondeat superior. In no case does this phrase point to an absolute liability of the superior for wrongs done by the inferior, or even for those done ' in the course of his employment.' In all cases it points to a merely subsidiary liability of the superior, which can only be enforced against him when it is proved or patent that the inferior can not pay for his own misdeed'. This [p. 532] indicates, as we believe, what has first and last been one of the main causes of 'employer's liability.' Should we now-a-days hold masters answerable for the uncommanded torts of their servants if normally servants were able to pay for the damage that they do ? We do not answer the question ; for no law, except a fanciful law of nature, has ever been able to ignore the economic stratification of society, while the existence of ■large classes of men 'from whom no right can be had' has raised difficult problems for politics and for jurisprudence ever since the days of .lEthelstan. However, our common law when it took shape in Edward I.'s day did not, unless we are much misled, make masters pay for acts that they had neither

suuxa quod ostensnm fait praedicto Bobecto de Bos de praedicta captione, et ipse illam emendare noluit, ideo praedictus Bobertus in misericordia et constabolarius capiatur.' See Northumberland Assize Bolls, 115. The constable's act is not attributed to the castellan ; he only became guilty when he refused to release the prisoner.

^ Stat. West. II. 0. 2 : When beasts are replevied, the sheriff is to exact security for their return to the distrainor in case a return is awarded. If any exact pledges in any other form, he shall answer for the price of the beasts, and if a bailiff does this 'et non habeat unde reddat, respondeat superior suus.' Stat. West. II. 0. 11 : When an accountant is committed to gaol, if the keeper allows tiim to escape, the keeper must pay double damages. If the keeper can not pay, ' respondeat superior suus.' Articuli super Cartas (28 Ed. I.), c. 18 : An escheator must answer for waste committed by a subesoheator, if the latter can not pay for it. Stat. West. II. c. 43 : The conservators of the liberties of the Templars and Hospitallers appoint subordinates to hold ecclesiastical courts, in which men are sued for matters cognizable in the king's courts. If the obedientiaries of the order offend in this matter, 'pro facto ipsorum respondeant sui superiores ac si de proprio facto suo oonvicti essent.' This last case is analogous to the others, for the obedientiary, being civilly dead, can not be sued. See also the ordinance as to the liability of the sheriff's clerk; Statutes, i. 213. The liability of the county to the king for sums due from the coroner is of the same kind, a subsidiary liability; see Fourth Institute, 114, where Coke speaks of Respondeat superior. But in the case of communities we come upon a different idea ; the community is liable for wrongs done by any member of it in the prosecution of communal interests.

534 Crime and Tort. [bk. ii.

commanded nor ratified. Had it done so, it would have 'punished' a man for an offence in which he had no part'.

Damage Besides trespasses in the narrow sense of the word, namely,

' wrongs which give birth to the action quare vi et armis, our law knows many other wrongs which are redressed in civil actions. But these are, at least for the more part, infringe- ments of proprietary rights or of seisin, and the actions for them are, in the phrase that Bracton adopts, rei perseoutoriae. To what we have said of them in various parts of this book we must here add nothing. The action, however, for the abate- ment of a nuisance deserves a word, because it gave Bracton occasion to use a phrase that afterwards became famous. The nuisance (nocumentvm) that is to be actionable must do both [p-533] 'damage' and 'injury.' If I erect a mill upon my land and so subtract customers from your mill, I do you damage, but no injury. We see here an incipient attempt to analyze the actionable wrong ; few similar attempts will be made for many years to come^.

We must now remark some notable defects in our nascent ' law of torts.'

Deceit. Protection against unlawful force has reached, at least in

theory, a high stage of perfection while protection against

'' Bogo de Glare's case (1290), Bot. Pari. i. 24, is important. Action against Bogo by a summoner of an ecclesiastical court wlio has been ill treated by members of Bogo's mainpast and compelled to eat certain letters of citation. Action dismissed, because plaintiff does not allege that Bogo did or commanded the wrong. Thereupon, because this wrong was done within the verge of the palace, the king takes the matter up and Bogo has to produce all his familia ; but after all he is dismissed as the offenders can not be found.

2 As to the phrase damnum absque iniuria, see Pollock, Law of Torts, 6th ed. p. 142. Bracton, f. 221, 24 b, 45 b, 92 b, contrasts iniuria with damnum. For him in this context (see f. 45 b) iniuria is omne id quod non iure fit. Our tramgressio or tre^ass has a fate similar to that of the Eoman iniuria. It will stand for omne id quod non iure fit (see above, p. 612), but under the influence of the quare vi et armis begins to signify in particular one group of actionable wrongs. Then tort was a very wide word. The formula of defence shows us Fr. tort et force =Tuat. vis et iniuria and, by means of a Scottish Book (Leges Quatuor Burgorum, Statutes of Scotland, i. p. 338), we may equate this with an Eng. wrong and unlaw. So far as we have observed, iniuria is hardly ever used (except by Bracton in a few romance passages) to stand for anything narrower than omne id quod non iure fit. Thus all our terms are at starting very large and loose ; still no medieval lawyer would have been guilty of that detestable abuse of injury that is common among us now. One of the few words descriptive of wrong that obtains a specific sense in the age with which we are dealing is Lat. nocumentum, Fr. nuisance.

CH. VIII. § 3.] The Trespasses. 535

fraud is yet in its infancy. In the thirteenth century our king's court had in general no remedy for the man who to his damage had trusted the word of a liar. Already in John's day it knew a writ of deceit (breve de deceptioneY ; but for a long time the only cause which will justify the issue of such a writ is a deceit of the court (deceptio curiae). The defendant is to answer, not only the private person whom he has defrauded, but also and in the first instance the king; he is charged with having in some fashion or another 'seduced* or deceived the court. In modem terms we may say that the cause of action is no mere fraud, but a fraudulent perversion of the course of justice. Common as examples of 'deceit* are the cases in which there is personation, the bringing or defending of an action in the name of one who has given no authority for the use of his name. Common also is the case of the attorney who colludes with his client's adversary. In these and similar cases the person who is defrauded can obtain [p. 634] sometimes a money compensation, sometimes a more specific remedy, the collusive proceedings being annulled ; but the punitive element in the action is strong; the defendant has deceived the court and should be sent to gaol ; he must answer the king as well as 'the party grieved.' We must wait for a later age before we shall see the court extending the action of deceit beyond these narrow limits, and giving in a general way relief to those who have suffered by placing faith in a lie'.

We can hardly suppose that in this case lowlier tribunals Fraud as were doing the work that the king's court left undone. Even as a defence we seldom read of fraud. Bracton indeed can speak of the exceptio doZi, just as he can speak of the exceptio which is founded on metus^ ; but, while we should have no

1 Select CivU Pleas, pi. Ill [a.d. 1201].

2 Plaoit. Abbrev. p. 62 Buck. ; p. 106 Kent ; Note Book, pi. 10, 208, 500, 645, 1173, 1184, 1946 ; Beg. Brev. Orig. f. 112 ; Fitz. Nat. Brev. p. 96 ; Fitz. Abr. Oisceit. The following is an interesting instance: Coram Eege Eoll, Hich. 9-10 Edw. I. (No. 64) m. 46 d (unprinted) : Adam is attached to answer the king and Christiana, Adam's wife, why by producing a woman who personated Christiana he levied a fine of Christiana's land, ' et. unde praedicta Christiana queritur quod praedictus Adam praedictam falsitatem et deceptionem fecit ad exheredationem suam et deceptionem curiae domini Begis manifestam ...unde dicit quod deteriorata est et dampnum habet ad valentiam centum librarum.' Adam, unable to deny the. charge, goes to gaol.

1 Bracton, f. 396 b, 398 b.

536 Crime and Tort. [bk. ir.

difficulty in finding cases which illustrate a growing doctrine oF ' duress',' it would, not be easy to come by instances in which a defendant relies upon fraud, except where the fraud consists in an abuse of the machinery of the law. Taking the execution of a charter as the typical 'act in the law,' we are warranted in believing that the person whose seal it bore might defend himself by alleging that he was tricked into sealing an instru- ment of one kind while he thought that it was an instrument of another kind I In later days he might have said in such a case that the charter was ' not his deed'' ; but the English exceptio doli seems to have stopped here. In truth the law would hardly allow that a man could protect himself against a document which bore the impress of his seal, even though he was ready to assert that the seal had been afiSxed without [p- his authority and by the fraudulent act of another*. Our law, — though quite willing to admit in vague phrase that no one should be suffered to gain anything by fraud", — was inclined to hold that a man has himself to thank if he is misled by deceit : —'It is his folly.' Defama- The king's court gave no action for defamation. This in

our eyes will seem both a serious and a curious defect in the justice that it administered. What is usually accounted the first known instance of such an action comes from the year 1356, and even in that instance the slander was complicated with contempt of court^ In 1295 a picturesque dispute between two Irish magnates had been removed to Westminster, and Edward I.'s court declared in solemn fashion that it would not entertain pleas of defamation ; in the Irish court battle had been waged'. At the end of the middle ages we may see the

' Note Book, pL 182, 200, 229, 243, 750, 1126, 1643, 1913; Braoton, f. 16 b.

" Bracton, f. 396 b : ' Item si per dolum, ut si donatorius fecit sibi cartam de feofFamento, ubi fecisse debuit cyrographum de termino.' Fleta, p. 424.

s Y. B. 30 Edw. III. f. 31. For later law, see Thorovghgood's Case, 2 Coke's Beports, 9 a.

* GlanviU, x. 12 : ' et suae malae custodiae imputet si damnum incarrat per sigillum snnm male oustoditum.' The rule takes a, milder form in Bracton, f. 396 b, Fleta, p. 424, and Britton, i. 163, 165.

= Eeg. Brev. Orig. f. 227 : ' et fraus et dolus nemini debent patrocinari.' Plaoit. Abbrev. p. 237 (26 Edw. I.) : ' cum oontemptus, fraus et dolus in curia Begis nemini debent subvenire.'

6 Lib. Ass. f. 177, pi. 19 (30 Edw. III.).

' Eot. Pari. i. 133 : ' et non sit usitatum in regno isto • placitare in curia Begis placita de defamationibus.'

tiou,

CH. VIII. § 3.] The Trespasses. 537

royal justices beginning to reconsider their doctrine and to foster an ' action on the case for words ' ; but they were by this time hampered by the rival pretensions of the courts Christian^ The tribunals of the church had been allowed to punish defamation as a sin, and the province which had thus been appropriated by the canonists was not very easily re- covered from them until the Protestant reformation had weak- ened their hands'.

We should be much mistaken, however, if we believed that Defama-

, . tion in

the temporal law of the middle ages gave no action to the the local defamed. Nothing could be less true than that our ancestors in the days of their barbarism could only feel blows and treated hard words as of no account. Even the rude Lex Salica decrees that if one calls a man ' wolf or ' hare ' one must pay him three [p. 536] shillings, while if one calls a woman 'harlot,' and can not prove the truth of the charge, one must pay her forty -five shillings'. The oldest English laws exact b6t and wite if one. gives another bad names*. In the Norman Custumal it is written that the man who has falsely called another ' thief or ' manslayer' must pay damages, and, holding his nose with his fingers, must publicly confess himself a liar". Shame was keenly felt. In almost every action before an English local court of the thirteenth century the plaintiff will claim compensation, not only for the damage (damnum) but also for the shame (huntage, hontage, dedecus, pudor, vituperimn) that has been done him', and we may suspect that in the king's court this element was not

1 Y. B. 22 Bdw. IV. f. 20 (Trin. pi. 47) ; f. 29 (Mich. pi. 9) ; 12 Hen. VII. f. 22 (Trin. pi. 2).

2 Circumspecte Agatii, Statutes, vol. i. p. 101; Articuli Cleri, Statutes, 7ol. i. 171. See Palmer v. Thorpe, i Coke's Eeports, 20 a.

" Lex Salica, tit. 30 (Hessels and Kern, col. 181) ; Brunner, D. B. G. ii. 672.

' ^loth. and Ead. i;. 11.

' Ancienne coutume, cap. 86 (ed. de Gruchy, p. 197) ; Somma, p. 207 : 'nasum suum digitia suis per summitatem tenebit.' For Anjou, see Viollet, Etablissements, i. 243.

» Select Pleas in Manorial Courts (Selden Soc), pp. 13, 56, 138 £f.; The Court Baron (Selden Soc), passim, especially p. 47, where even in an action of debt the plaintiff requires amends for shame as well as for damage. We may believe that the same formula had been used in the king's court, but that the practice of expressly asking a, compensation for disgrace died out in the first half of the thirteenth century. Select Civil Pleas, pi. 183 : in John's reign the Bishop of Ely has wronged the Abbot of St Edmunds, doing him shame to the amount of £100 and damage to the amount of 100 marks.

538 Crime and Tort. [bk. ii.

neglected when compensation was awarded'. But further, we find that in the local courts, not only were bad words punished upon presentment in a summary way, but regular actions for defamation were common". We may gather that in such an action the defendant might allege tbat his words were true; Veritas non est defamatio'. We may gather that the English for meretrix was actionable, though an interchange of this against the English for latro left one shilling due to the man*. We already hear that a slander was uttered ' of malice afore- thought,' and sometimes a plaintiff alleges 'special damage'.' But until further researches have been made among the records [p. 637] of our manorial courts, we shall know little of the medieval law of defamation. Probably in this matter those courts did good enough justice, and for this reason it was that no royal writ was devised for the relief of the slandered*. In later days, when the- old moots were decaying, the ecclesiastical procedure against the sin of defamation seems to have been regarded as the usual, if not the only, engine which could be brought to bear upon cases of libel and slander, and in yet later days the king's court had some difficulty in asserting its claims over a tract of law that it had once despised'.

' Thus when in 1256 Bobert de Bos has to pay £20 in damages for having driven off to his castle two oxen and two horses belonging to the Prior of Kirkham, it is clear that he is not making compensation merely for ' pecuniary damage.' See Northumberland Assize Bolls, pp. 43-4.

2 Select Pleas in Manorial Courts, pp. 19, 36, 82, 95, 109, 116, 143, 170; The Court Baron, pp. 48, 57, 61, 125, 138, 186.

^ Select Fleas in Manorial Courts, p. 82.

* The Court Baron, p. 133.

" Bolls of the court of the Hundred of Wisbech, now in the Bishop's Palace at Ely, 34 Edw. I. (a.d. 1306): 'J. G. queritur de T. E. de plaoito quarc.adivit Magistrum Oerardum de Stuthbnri, Magistrum negotiorom Terrae Sanctae, apud Ely, et clericos suos ibidem, et ipsum J. accusant malitia praeeogitata, dicendo quod ipse J. debuit perturbasse negotinm Terrae Sanctae, contradiceudo ne quis legaret aunlos et firmacula in subsidium Terrae Sanctae, per quam accusationem dictus J. fnit summonitus coram clericis praedicti Magistri...et adiudicatus fuit ad purgationem suam cum quinta mann ...pro qua purgatione redimenda dictus J. solvit ziij. denarios et ulterins ezpendidit catalla sua ad valentiam iij. solidorum, ad dampnum suum dimidiae marcae etc'

° Bracton, f. 155, but in Boman phrase, speaks of an action for injurious words as' a possibility : ' Fit autem iniuria, non solum cum quis pugno peroussuB fuerit...vero cum ei convitium dictum fuerit, vel de eo factum carmen famosum et huiusmodi.'

' If we were dealing with the law of the later middle ages, we should have to speak of the statutes against scandalum magnatumi Stat. West. I. o. 34;

CH. VIII. § 3.] The Trespasses. 539

Wrongful prosecution may be regarded as an aggravated Wrongful form of defamation. It is a wrong of which ancient law speaks tion. fiercely. In England before the Conquest a man might lose his tongue or have to redeem it with his full wer if he brought a false and scandalous accusation*. Probably the law only wanted to punish the accuser who made a charge which he knew to be false ; but it had little power of distinguishing the pardonable mistake from the wicked lie, and there was a strong feeling that men should not make charges that they could not prove. Roman influence would not tend to weaken this feeling. The law of the later empire required that any one bringing a criminal charge should bind himself to suffer in case of failure the penalty that he had endeavoured to call down upon his adversary'. So soon as our judicial records begin, we see that |p.638] an amercement is inflicted upon every unsuccessful plaintiff profalso clamore suo, whatever may have been the cause of his failure. In the appeal of felony the appellor, vanquished in battle, still pays the old wite of sixty shillings to the king'. For a time, however, appeals were being encouraged, and we may see an appellor excused from punishment quia pugnavit pro Rege*. Under Edward I. the tide turned, and a statute decreed that if the appellee was acquitted, his accuser should lie in prison for a year and pay damages by way of recompense for the imprisonment and infamy that he had brought upon the innocent. This statute is a typical piece of medieval legislation. It desires to punish malicious appeals; it actually punishes every appeal that ends in an acquittal". Even before this statute an acquitted appellee may have had an action against his accuser'. A few years later it was necessary to invent the writ of conspiracy for use against those who were abusing the new process of indictment'. In time past the offence of false

2 Eic. II. Stat. 1, c. 5 ; 12 Eie. II. o. 11. See Eot. Pari. iii. 168-170; Cromwell's case, 4 Coke's Eeports, 12 b.

i Edgar, ni. 4; Cnut, ii. 16; Leg. Henr. 34 § 7. See Schmld, Gesetze, p. 563 ; Brnnner, D. E. G. ii. 675.

^ Giinther, Wiedervergeltung, i. 141. ' See above, vol. ii. p. 459.

* Note Book, pi. 1460. " Stat. West. U. i;. 12.

" Select Civil Pleas (temp. Joh.) pi. 181: action by an acquitted appellee against one who procured the appeal.

' Articuli super Cartas, c. 10 ; Statutes, vol. i. pp. 145, 216 ; Eot. Pari. i. 96. Coke, Sec. Inst. 383-4, 562, says that before the Edwardian statutes the appellee had an action for damages and the writ of conspiracy was already in existence. He relies however upon the fables in the Mirror.

540 Crime and Tort. [bk. ii.

judgment had been often placed beside that of false accusation; but even in Edgar's day the doomsman could free himself from punishment by swearing that he knew no better doom than that which he had pronounced^ By slow degrees the charge of false judgment became a means of bringing the decisions of the inferior courts before the supreme tribunal; it ceased to import moral blame, though it would lead to an amercement or in some cases to the suppression of a ' liberty.' Forgei7. To account for the lenient treatment that forgers and

perjurers received at the hands of 'our fully-grown common law is by no means easy. Forgery and perjury were common enough in the twelfth and thirteenth centuries. The escape of forgery from the catalogue of the felonies must have been narrow; Henry II. seems to put it on a par with arson, robbery and murder''. We have clear evidence that in 1221 a Jew who [p. 539] forged what purported to be a deed of the Prior of Dunstable was only saved from the gallows by a large payment made to the king*. Glanvill speaks as though the crimen falsi stood among the grave crimes*. But when once the royal lawyers have brought the counterfeiting of the king's seal or the king's money within the compass of high treason, they apparently think that they have done almost enough, though for a short while we hear that for a man to counterfeit his lord's seal is treason "- Fleta speaks of infamy, pillory and tumbrel in connexion with this offence'. So far as we can see, however, forgery was dealt with but incidentally and in the course of civil actions, and was merely a cause for an imprisonment redeemable by fine. What is more, the ofifence that is thus hit is not exactly that which we call forgery ; it is not ' the making of a false document with intent to defraud'; rather it is the reliance on a false document in a court of law'. Civil pro- cedure was not adapted for the purpose of tracing the false

1 Edgar, iii. 3 ; Onut, ii. 15 § 1 ; Leg. Will. i. 13, 39 ; Leg. Heur. 13 § 4.

* Abs. Northampt. o. 1.

^ Ann. Dunstapl. 66; the record of this curioas case is printed Taj Cole^ Documents illustrative of Eng. Hist. p. 312.

* Glanvill, xiv. 7.

» Bracton, f. 119 b ; Britton, i. 40, 41, 25 ; Fleta, 32.

« Fleta, p. 63 (falsely numbered).

' See e.g. Note Book, pi. 934 : A litigant produces a charter which he says is twenty-four years old. The justices see from the state of the wax that it is not three years old. He is committed to gaol, Y. B. 20-1 Edw. I. p. 331: imprisonment for production of a false tally.

CH. vm.§3.] The Trespasses. 541

document to its source ; and we have not observed any action based upon a fraud committed by forgery. Apparently a statute of 1413 was needed to give such a remedy'. Severe legislation does not begin until 1563^ Meanwhile a vast deal of harm must have been done by the negligent lenience of the law. The plea Nienb mon fet was freely used by honourable gentlemen, while monks and burgesses did not scruple to impose upon the king's court would-be charters of the Anglo- Saxon time which had not even the dubious merit of clever- ness.

Very ancient law seems to be not quite certain whether it Perjury, ought to punish perjury at all. Will it not be interfering with [1.540] the business, of the gods?' If a punishment is inflicted, this is likely to be the loss of the right hand by which the oath was sworn. Then the church asserted her interest in this sin. In Cnut's day the man who swore falsely upon a relic lost his hand or redeemed it with half his wer, and this ransom was divided in equal shares between his lord and the bishop*. The growing claims of the church tended to abstract this offence from the lay power, and at the same time tended to reduce even the moral guilt of a periurium, for this name was being given, not only to false assertory oaths but to those breaches of promissory oaths which the church was striving to draw within the pale of her jurisdiction". Then at the same time a different stream of events was tending to make the temporal law careless of oaths, except oaths of one special kind, namely, the oaths of assize- recognitors. The main weight of the probative procedure of the king's courts was being thrown upon the oaths, not of the parties, nor of witnesses adduced by them, but of jurors. In most cases, however, even these jurors stood in no terror of a law against perjury, for the rule was established that if both the parties to the litigation had voluntarily 'put themselves' upon a jury, neither of them could complain of the verdict. On the other

1 Stat. 1 Hen. V. e. 3.

" Stat. 5 Eliz. c. 14. For more of forgery at common law, see Coke, Third Instit. 169 ; Blackstone, Comment, iv. 247 ; Stephen, Hist. Crim. Law, iii. 180. The Star Chamber did much to supplement the meagre common law.

' Brunner, D. E. G. ii. 681. Kovalevsky, Droit coutumier Oss6tien, p. 324.

* Cnut, II. 36 ; Leg. Henr. 11 § 6. Schmid, Gesetze, Glossar. s. v. Meineid.

' See above, vol. ii. p. 190. The author of the Mirror would make every kind of official misdeed & perjury, as being a breach of the offender's oath of fealty. This is ridiculous but instructive.

542 Crime and Tort. [bk. u.

hand, ' assizes,' as distinct from 'juries,' are the outcome not of consent but of ordinance. An assize therefore may be attainted, that is to say^ the verdict of the twelve men can be brought before another set of twenty-four men and the twelve will be punished and their verdict reversed if the twenty-four disagree with them\ The punishment for the false twelve looks upon paper a heavy punishment''. They are to be imprisoned and to lose their chattels ; also they ' lose the law of the land,' that is to say they cease to be ' oath-worthy.' As a matter of fact we may sometimes see attainted jurors escaping with moderate [p.54l] fines'. The law seems to have no procedure which directly strives to distinguish among untrue verdicts those which are sworn with a knowledge of their falsehood. Bracton feels the gravity of this distinction, but leaves its application to the discretion of the justices, who should not deal very harshly with those who from ignorance or stupidity have sworn the thing that is not*. Here we may see one of the difficulties that beset a law against perjury. We do not want to punish with equal severity all persons who swear oaths that are untrue; but how to try their thoughts? Perjury During the rest of the middle ages the perjury of jurors

church. seems to have been the only form of peijury that was punished by the lay courts, and this was punished only in a casual, inci- dental fashion in the course of attaints which were regarded mainly as a means for reversing untrue verdicts". But in the twelfth and thirteenth centuries jurors were not the only men who swore ia court. True that as yet no sworn evidence was laid before a jury ; but still a principal swearer with his train of oath-helpers was often to be seen. For his and their im- munity, for the consequent contempt into which compurgation fell and for the wide-spread immorality that its degradation occasioned, we can only account by saying that perjury was

1 It seems perfectly clear from Bractou's text (especially f. 290 b) and the practice of Ma time that only an atnaa could be attainted, never a iurata, unless perhaps one that had given » verdict against the king. Note Book, pi. 1294; T. B. 21-2 Edw. I. 331. Bracton will not allow an attaint of a grand assize. See also 21-2 Edw. I. p. 429. But we learn from GlanvUl, ii. 19, that the ordinance which established that assize had specially provided a punishment for jurors. We shall, return to the attaint in our next chapter.

a Glanvill, ii. 19; Bracton, f. 292 b.

s Note Book, pi. 917.

* Bracton, f. 289. See also f. 292, and Biitton, ii. 228.

' Stephen, Hist. Crim. Law, iii. 240.

CH. VIII. § 4.] Ecclesiastical Offences. 54[

a sin cognizable by the ecclesiastical courts^ We may see a few evanescent traces of an old practice whereby a swearer was 'levied from his oath^' His outstretched hand was seized, the charge of perjury made and battle offered. All this soon disappeared, for perjury, including breach of promissory oaths, was claimed by the ecclesiastical forum. A miserable jealousy blunted the edges of those two swords of which men were always speaking; neither power would allow the other to do anything effectual. The church could not keep up thecharacter of the compurgators in her own courts. To say of a man that he was a common swearer before the ordinary was to blast his character". And so our ancestors perjured themselves with impunity.

[p.542] § 4, Ecclesiastical Offences.

Some other crimes which old law had treated with great The aexaal severity were appropriated by the church and so escaped from lay justice. Almost the whole province of sexual morality had been annexed. Rape it is true was punished — though not always very severely — by the temporal courts'*, and in the manorial hall-moots the old fine for fornication, the leger-wite, was often exacted from the girl or from her father, but the payment of it, like the payment of merchet, was commonly regarded as a mark of villeinage. But fornication, adultery, incest and bigamy were ecclesiastical offences, and the lay courts had nothing to say about them, if we disregard the trifling leger-wite and some police discipline for common prostitutes who plied their trade in the neighbourhood of the king's house or among the clerks of Oxford". If the church had left the

I Bracton, f. 290b: 'satis est euim quod Deum ezpecteut nltorem.' Britton, ii. 227.

' See above, vol. ii. p. 162. •

" Munim. Gildh. i. 475 : Witnesses in the civic court must be ' gentz de bone fame, et ne pas comune seutiers ne proeves devauut lez ordinaires au Seint Poule ne aillours.'

* See above, vol. ii. p. 490. ■

' Fleta, p. 69, Edward I. ordained that no ' femme coursable ' should dweE within the city of London ; Munim. Gildh. i. 283. The London citizens used to arrest fornicating chaplains and put them in the Tun as night-walkers ; in 1297 the bishop objected and the practice was forbidden: ibid. ii. 213. At a later time severe by-laws were made for the punishment of prostitutes, bawds, adulterers, and priests found with women : ibid. i. 457-9. In 1234 the king ordered the expulsion of prostitutes from Oxford : Prynne, Eeoords, ii. 445.

544 Crime and Tort. [ek. ii.

matter to laymen, it is probable that some of these crimes would have been sternly, if not savagely, punished*. But the canonists had made such a capricious mess of the marriage law that the names of incest, bigamy and adultery had lost half their sting. Sometimes these offences were punished in the courts Christian by whipping and other bodily penances' ; too often they were paid for with money. The church may take [p. 543] credit for an attempt to establish equality between the adulterous husband and the adulterous wife; but the out- come of this effort was rather a mitigation of her than an aggravation of his guilt. Heresy. It remains for us to speak of an offence of which few

Englishmen were guilty, and about which therefore our courts seldom spoke. The first English statute that denounced the penalty of death against heretics was passed in the year 1401'. Whether before that statute the law that was in force in our land demanded or suffered that such persons should be burnt is a question that has been eagerly debated ; on it in the days of Elizabeth and James I. depended the lives of Anabaptists and Arians ; it has not yet lost its interest ; but it is a question that buzzes in a vacuum, for until Lollardy became troublesome there was too little heresy in England to beget a settled course of procedure. In order to understand the controversy we must first look abroad. Heresy O^ the mainland of Europe obstinate heresy had long

contineiit. ^®fore the date of our statute been trea,ted as a crime worthy of death by burning. There is still some doubt among scholars as to the legal history of this punishment, in particular as to the abiding influence of ordinances issued by the first Christian emperors. They dealt separately with divers heretical sects;

' For adultery and incest in Anglo-Saxon and other old Germanic laws, see Brnnner, D. E. G. ii. 662-6 ; Sohmid, Geaetze, Glossar. s. v. Ehebruch, Sib- leger. As to the mutilation of the man who commits adultery with another man's wife, see above, p. 490. German law of a later time still enforced this punishment : Giinther, Wiedervergeltung, i. 261. We even hear from northern Switzerland of a bigamist being cut in half: ibid. 262. The worst forms of incest had been punished by death : Brnnner, D. E. Q. ii. 665. A queer story about the treatment of a fornicator by the woman's friends stands in Flacit. Abbrev. 267.

2 Eegist. Palat. Dunelm. ii. 695 : in 1315 a woman guilty of inoestuons adultery is to be whipt six times ronnd the market-place at Durham and six times round the church at Auckland.

» Stat. 2 Hen. IV. c. 15.

CH. VIII. § 4.3 Ecclesiastical Offences. 54^

they condemned the Manicheans to death merely for being Manicheans ; they did not pronounce this pain against heretics in general, but to teach heretical doctrines or frequent heretical assemblies was a capital crime^. After the barbarian invasions and the final disappearance of the Arian heresy the western church enjoyed a long repose; but the law against the Mani- cheans was still being copied as part of the Lex Romana". A change came in the eleventh ctotury; the Cathari appeared upon the scene and with strange rapidity their doctrines spread over Italy and southern Gaul. What we may call the medieval period of persecution begins early in that century. In the year 1022 heretics were put to death at Toulouse and at Orleans'; we see a Norman knight active in bringing the [p. 544] canons of Orleans to the stake*. Upon what theory of the law their judges acted we do not precisely know ; but it is to be remembered that the medieval heretic was very generally suspected, nor always wrongly, of being a Manichean. The renewed study of Justinian's code confirmed men in their persuasion that Manicheanism is a capital crime, and an ingenious combination of the texts that were preserved in that book would serve to prove that other heretics were in no better case*. The prevailing doctrine seems to have been that law human and divine demands the death of the obdurate heretic, and this doctrine was enforced by church and state, except where heresy was so pestilent that there was need for a holy war, rather than for judicial decisions. At length there was definite legislation. In the Lateran Councils of 1179 and 1215 the church uttered her mind. The impenitent heretic when convicted by the ecclesiastical court is to be handed over to the lay power for due punishment. The church does not mention, does not like to mention, the punishment that is due ; but every one knows what it is^ The spiritual judge will even go through the form of requesting that the victim's life may be spared, in order that the ' irregularity ' of blood-guiltiness may be decently avoided ; but the lay prince who pays heed to this request will be guilty of much worse than an irregularity'.

1 Tanon, Histoire des tribunaux de I'mquieition en France, 127-133 ; God. Theod. 16. 5 ; Cod. lust. 1. 5 ; Lex Bom. Visig. ed. Hanel, pp. 256-8.

2 Tanon, op. cit. 135. ^ Tanon, op. cit. 13. * C. Schmidt, Histoire de la seote des Cathares, p. 30.

6 Tanon, op. cit. 130, 460.

0 Tanon, op. cit. 462. ' Tanon, op. cit. 473.

P. M. II. 35

546 Crvme cmd Tort. [bk. ii.

Then, early in the thirteenth century, constitutions of that un- orthodox emperor Frederick II. spoke but plainly and fiercely against heretics', and, being promulgated and confirmed by papal bulls, they were received as law even in countries which lay beyond the limits of the empire. They became, as it were, a common law for the western churchy- England These things concern us, for when in the fifteenth century [p. 546] thienw the English canonist Lyndwood had to answer the question, heresy. Why are heretics burnt ? his reply was in efifect, ' Because certain constitutions of Frederick II. have been sanctioned by a decretal of Boniface VIII. which is part of the body of the Canon Law'.' We must also remember that Englishmen of the thirteenth century, however orthodox they themselves might be, had heard much of heresy as of a terrible reality. They had praised the 'just cruelty' of Philip of Flanders*; they had watched the excesses of that 'hammer of heretics' Kobert le Bugre°; already in 1214 King John had sent out

1 Tanon, op. cit. 147. These constitutions extend over the years 1220-39.

' We have been relying on the vrork of M. Tanon ; see especially pp. 441- 463. An opposite opinion treats Frederick's constitntionB as the first laws which punish heresy with death, and regards as the outcome of arbitrary power or of political necessities, the numerous cases of an earlier date in which heretics were burnt. According to this theory the decisive step was taken iu the year 1231 when Gregory IX. published vrith his approval a constitution issued by Frederick in 1224. See Ficker, Die gesetzliche Einfiihiung der Todesstrafe fiir Eetzerei, iu Mittheilungen des Instituts fiir oesterreichische Gescbichtsforschung, i. 179 ; Havet, L'hSr6sie et le bras s^culier, Bibl. de r&ole des chartes, vol. xli. pp. 488, 570, 603 ; Havet, (Euvres, ii. 117; also Lord Acton, Eng. Hist. Bev. iii. 776. The question is difficult because to the last the canon law never says in so many words that death is to be inflicted : it merely does this indirectly by approving the pious edicts of the emperor.

' Lyndwood, Provinciale, de Haeretiois (S. 5) c. Beverendissimae, ad v. Poenas in iure (ed. 1679, p. 293) : 'Sed hodie indistinote illi qui per iudioem ecclesiasticum sunt damnati de haeresi, quales sunt pertinaces et relapsi, qui non petuut misericordiam ante seutentiam, sunt damnandi ad mortem per saeculares potestates, et per eos debent comburi seu igne cremari, ut patet in quadam oonstitutione Frederici quae incipit Ut commissi § Item mortis [= Const, of March 1232, Mon. Germ., Leges, ii, 288], et in aUa constitutione ipsius quae incipit Inconsutilem § Contra tales [= Const, of 22 Feb. 1239, Mon. Germ., Leges, ii. 327]; quae sunt servandae, ut patet, e. tL Ut inquisitionis in prin. Ii. 6 et c. fi. e. ti. [=co. 18, 20 in Sexto 5. 2].' See Stephen, Hist. Or. Law, ii. 448, Lyndwood does not think that the imperial constitutions as such are of force in England ; but a constitution approved by the text of the Canon Law ia a different matter. Sir James Stephen, p. 441, is vrrong in thinking that Lyndwood's Frederick was Barbarossa.

* Balph of Coggeshall, p. 122; Lea, History of the Inquisition, i. 112.

» Mat. Par. Chron. Maj. iii. 361, 520.

CH. VIII. § 4.] Ecclesiastical Offences. 547

from England strict orders for the suppression of heresy in his French dominions^ ; repentant Cathari from Languedoc were frequent pilgrims to the shrine of St Thomas" ; the ill-fated Raymond of Toulouse had married a daughter of our Henry II.; our great Earl of Leicester was the son of the ruthless crusader. A king of England, who held Gascony and had claims on the Quercy, was interested in the doings of papal inquisitors' ; the machinery of English law was employed to enforce in England sentences of confiscation which had been pronounced in the south of France*. [p. 646] But we must speak of sentences passed in England °. The Heresy in first heretics that we read of were some thirty foreigners ; they °^ " seem to have been Flemings and to have belonged to some offshoot of the Oatharan sect. They were condemned in a provincial council held at Oxford in or shortly before 1166 and were relinquished to the secular arm. *By the king's orders they were whipt, branded in the face and exiled ; some of them perished of cold and hunger; they made, it is said, but one convert here, and she recanted'. Then the Assize of Clarendon decreed that none should receive any of their sect and that any house in which they were entertained should be pulled down'. This is said to be the first law issued by any medieval prince

1 Eot. Pat. Job. p. 124. ' Lea, Hist. Inquisit. ii. 31.

' For the inquisition in the Quercy, see Lea, op. cit. ii. 30.

* Bot. Pat. 20 Hen. III. m. 11 d. de vinis et catalUs Emaldi de Feregorde^ Eot. Pat. 26 Hen. III. pt. 1. m. 15, de Stephana Pelicer de Agenensi. These writs are referred to by Hale, P. C. i. 394, as if they related to sentences pronounced in England; but they do not. The first of them orders the arrest at Boston fair of wines belonging to Amaud de Pgrigord who, as the king hears, has been convicted of heresy. The second of them orders the bailiffs of Bristol to restore to Stephen Pelicer certain goods of his that have been arrested, he having produced letters of the bishop of Agen and Amaud guardian of the Friars Minor in Agen — the name of the famous Bernard de Canz is here written but cancelled — testifying that he (Stephen) is not suspected of heresy. For a case in which Edward I.'s seneschal in Gascony had trouble with the inquisitors about some relapsed Jews, see Langlois, Le r6gne de Philippe le Hardi, 221.

■ " See Makower, Const. Hist, of Church, pp. 183 ff.

» Will. Newburgh, i. 131; Ealph of CoggeshaU, 122; Diceto, i. 318; Mapes, De Nugis, 62; Schmidt, Histoire de la sects des Cathares, i. 97; Lea, Hist. Inquis. i. 113; Havet, Bibl. de I'^cole des chartes, xli. 510; Stubbs, Const. Hist. iii. 365.

' Ass. Olarend. o. 21. The destruction of houses plays a large part in the procedure against heretics on the continent; Tanon, op. cit. 519; Lea, op. eit. i. 481.

35—2

548 Crime and Tort. [bk. il

against heretics^; it was mild; the voice of the universal church had not yet spoken in the Lateran Councils. Then we are told that in 1210 an Albigensian was burnt in London; we are told this and no more^. A better attested case follows. In 1222 Stephen Langton held a provincial council at Oxford, and there he degraded and handed over to the lay power a deacon who had turned Jew for the love of a Jewess. The apostate was delivered to the sheriff of Oxfordshire, who forth- with burnt him. That sheriff was the unruly Fawkes of Breaut^, then at the height of his power. His prompt action seems to have surprised his contemporaries ; but it was ap- proved by Bracton', who however did not write until after the constitutions of the Emperor Frederick had received the approval of the Pope, and the church was deeply committed to the infliction of capital punishment. In the same council the cardinal archbishop condemned to ' immuration,' that is, to close and solitary imprisonment for life, two of the laity, a man who had given himself out to be the Saviour of men, a woman [p. 547] who had called herself His Virgin Mother. All this seems to have been done in strict accordance with the continental pro- cedure; the penitent fanatics were immured, the impenitent lover was burnt ^. In 1240 the Dominicans at Cambridge arrested a Carthusian who would not go to church, said that the devil was loose and reviled the pope. The sheriff was ordered to take him from the hands of the Preaching Friars and bring him to West- minster. He was brought before the legate Otto, among whose assessors we may see the Hostiensis of canonical fame. What became of this man we do not know ; but he said some things about the holy father which made the legate blush and amused Matthew Paris". A little earlier the Dominicans were arresting

^ Lea, op. cit. i. 114. Already in 1157 a synod at Beims had threatened the heretics with branding and banishment: Hefele, Conoiliengesehiohte, ed. 2, V. 568.

.2 Liber de Antiquis Legibus, p. 3 : ' Hoc anno eonerematus est quidam Ambigensis apud Londonias.'

s Braoton, f. 123 b.

* Maitland, The Caiion Law in England, Kssay vi. In 1240 a relapsed Jew was in prison at Oxford awaiting trial by the bishop : Prynne, Eecords, ii. 630. As to ' immuration,' see Tanon, op. cit. p. 485 : ' Toutes ces prisons [the prisons in which heretics were confined] ^taient d^signSes sous le nom particulier da mur, murus, la mure, la meure, et les prisonniers sous oelui d'emmures, immurati, en langue vulgaire emmurate.' See also Lea, op. cit. i. 486.

" Prynne, Eecords, ii. 560 ; Mat. Par. Chron. Maj. iv. 32. '

CH. VIII. §4,] Ecclesiastical Offences. 549

heretics in Yorkshire and had to be told that this was the sheriff's business^ But even the trained scent of the Preachers could find little heresy in England, and they themselves were soon developing opinions which earned condemnation^.

As to the text writers, Glanvill has no word of heresy ; Heresy in Bracton approves the fate of the apostate deacon'; Fleta holds text-books, that apostates, sorcerers 'and the like' should be drawn and burnt, while Christians who marry with Jews should be buried ahve"*; Britton would burn renegades and miscreants, and so would his glossator' ; the author of the Mirror, who is at times frantically orthodox, treats apostasy, heresy and sorcery as the crime of laesa wxiiestas divina, treason against the heavenly King ; according to him the punishment of heresy is fourfold, excommunication, degradation, disherison, incineration ^ He holds too that heresy can be prosecuted by way of appeal in a temporal court and talks much nonsense about this matter. Britton admits an inquiry ' of sorcerers and sorceresses, of apostates and heretics ' among the articles of the sheriff's turn ; Fleta in this context speaks only of sorcerers and apostates'- In other copies of the articles we find no such inquiry". All this suggests that lawyers, with an increasing horror, but no real experience, of heresy, think themselves at liberty to specu- late about what ought to be done if heretics appear. According to the canon law the lay prince who determined a cause of heresy would be almost as guilty as would be he who refused to aid and complete the justice of the church'. [p.548] We must carry our history a little further. In 1324 Richard Later Ledrede, a Franciscan friar who had become Bishop of Ossory, heresy. instituted a vigorous prosecution against certain sheep of his flock who were suspected of the heresy that consists of witchcraft.

' Prynne, Eecords, ii. 475. ^ Bashdall, Universities, ii. 527.

8 Braoton, f. 123 b, 124.

* Fleta, p. 54. His words are ' oontrahentes vero cum Judaeie vel Judaea- bus.' In 1236 a Jew who had sexual intercourse with a Christian woman had to abjure the realm, while she was put to penance and abjured the town of Bristol; Note Book, pi. 1179.

= Britton, i. 42.

' Mirror, pp. 59, 135. The comparison of heresy to treason is found in a decretal of Innocent III. of 1199 ; c. 10, X. 5, 7.

' Britton, i. 179; Fleta, p. 113.

' See Stat. Walliae (Statutes, i. 57); and the apocryphal statute De visu franciplegii (ibid. p. 246); The Court Baron, pp. 71, 93.

» c. 18 in Sexto, 5. 2.

550 Crime and tort. [bk. ii.

The chief offenders eluded him ; they were of kin to men very- powerful in Ireland who obstructed his efforts. At one time he was himself cast into prison. Incarceration stimulated his zeal. At length he triumphed. In the presence of the justiciar, chancellor and treasurer he tried his heretics. One miserable woman he caused to be flogged until she made an absurd confession about demonolatry and so forth. She and others remaining impenitent were committed to the flames, while in proper inquisitorial style the bishop condemned the penitent to wear crosses on their garments. The case is exceedingly interesting. We see on the one hand that the Anglo-Irish law was utterly unprepared to deal with heretics ; it had no proper process for arresting the suspects and keeping them arrested; we see also that the king's judges and officers disliked the bishop's proceedings — not the less because he was an intruding Englishman ; — but we see on the other hand that they had to give way, that they quailed before a prelate who resolutely flourished in their faces the imperious decretal of Boniface VIII. We have some satisfaction in reading that at a later time he himself was accused of heresy — perhaps the heresy of the 'Spiritual' Franciscans — and was driven from his diocese'. We are told that among the Minorites who in 1330 were martyred for resisting the decrees of John XXII. some were burnt in England 'in a wood'; but this story needs confir- mation ^ No English The chief lesson that we learn from Bishop Ledrede's apt'ftw™^ proceedings, namely that in England there was no machinery heresy* ^P^^J Suited for the suppression of heresy, is enforced by the case of the Templars. Edward II. urged on by Clement V., who had become the tool of Philip the Fair, suffered the admission into England of papal inquisitors and the use of torture. The Order was dissolved, the knights were dispersed, [p. 549] their wealth was confiscated; but, though the usual tales of

1 See Proceedings against Dame Alice Kyteler (Camden Society, ed. Wright); Lea, Hist. Inquis. i. 354; iii. 456; Diet. Nat. Biog. Lederede, Richard. On pp. 23, 27 of the Proceedings we see the bishop producing 'Extra de haeretiois, Ut Inquisitionis,' that is to say, the decretal of Boniface VIII. which appears as c. 18 in Sexto, 5. 2.

■■' Chron. de Melsa, ii. 323. The text may be corrupt; an execution 'in quadam sylva ' would be very strange. See on this passage, Stubbs, Const. Hist. ii. 492, and compare Lea, op. cit. iii. 77,

CH. VIII. § 4.] Ecclesiastical Offences. 551

devil-worship were told, they were not convicted and there was no burning*.

Such are the principal cases of heresy that we find before English the days of the Lollards. If now we ask what law about heresy ^Ziesj. was in force in England, we must in the first place answer that according to the law of the catholic church the man convicted by the bishop of his diocese as an impenitent or a relapsed heretic was to be delivered over to the secular power. We must add that the officer or the prince, who neglected to do what was implied in the bishop's sentence, was liable to excommunication, while if he persisted in his contumacy for a year, he himself was a heretic ^ To ask what was the law of our temporal courts about this matter is to ask what would have been done in a case unprecedented or touched by very few precedents. The answer will vary from reign to reign, from pontificate to pontificate. If we ask it in the middle of the fourteenth century, when our parliaments were entering on a course of anti-Roman legislation, when statutes of Provisors and Praemunire were being passed, when the papacy in its Babylonish captivity had fallen from its high estate, when the theories of Ockham and Marsiglio were in the air, when England had repudiated her feudal dependence on Rome, when heresy no longer meant some strange, dualistic faith which rejected the Christian creeds, when Franciscans were heretics in the eyes of Dominicans, and Spirituals were heretics in the eyes of Conventuals, we may give a tolerant answer : — we see Wyclifife favoured at court and dying in peace at Lutterworth. But if we ask the same question at an earlier time, in Henry III.'s day, when the fate of the Counts of Toulouse was not forgotten, when the papacy was yet grand and terrible, when it could strike down an emperor the wonder of the world, when the flagrant heresy was Catharism, which to the popular mind implied devil-worship and nameless vices, when there were plausible and modern reasons for the doctrine that England was a papal fief, then we must say that the sheriff, the judge, the king, who neglected to enforce the church's law about this spiritual crime, would have been a bold man. [p. 550] To the smaller, the technical, question 'whether there was The a writ de haeretico comburendo at common law ?' we must reply t^ing that no one has yet produced any such writ older than that i^eretics. 1 Lea, op. cit. iii. 298-301. ' oo. 9. 13, X. 5. 7; o. 18 in Sexto, 5. 2.

552 Grime and Tort. [bk. n.

which was made in the parliament of 1401 for the burning of William Sawtre, and that the events of that year, which we must not here discuss, suggest first that no such writ had theretofore been issued, secondly that the orthodox party was anxious that Sawtre should be burnt ' at common law ' (that is to say, without any aid from the statute which they were on the point of obtaining), and thirdly that they had their way^ We must also remember that according to the doctrine of the canon law no such writ was requisite ; the sheriff or other officer who received the 'relinquished' miscreant would be bound to burn him and would run a risk of excommunication if he waited for orders''. Under Elizabeth and James I., when there were no statutes which punished heresy with death, Sawtre's case and the case of the apostate deacon were the two precedents on which our lawyers based their theory that the writ lies at common law, though not as a writ ' of course.' Of the legality of the flames which then burnt the bodies of Arians and Anabaptists we must here say nothing, but assuredly it was hard to find any logical theory which would send heretics to death and yet not admit that papal decretals were still valid law in England'. Sorcery. Closely connected with heresy is sorcery; indeed it is

probable that but for the persecution of heretics there would have been no persecution of sorcerers. Here again therefore we find some difficulty in stating the law of England as it was in the twelfth and thirteenth centuries, for heresy was not trouble- [p 551] some and therefore we read little of diabolic arts^

1 StubbB, Const. Hist. iii. 357-8; Stephen, Hist. Cr. Law, ii. 445-450.

° Coke, 12 Beports, 56, admits this : ' and if the sheriff was present, he might deliver the party convict to be burnt without any writ de haeretico ccmiburendo.'

' The discussion may be traced thus : — Fitzherbert, Natura Brevium, 269 ; Coke, 5 Beports, 23 a ; 12 Beports, 56, 93 (not a book of high authority) ; 3rd Inst. 39; State Trials, v. 825; Hale, P. C. i. 383-410; Blaokstone, Comm. iv. 44 ; Stephen, Hist. Or. Law, ii. 437-469 ; Stubbs, Const. Hist. iii. 365-70 ; Stubbs, Lectures, 328-9; Lea, Hist. Inquis. i. 221-2; Makower, Verfassung der Eirche, Berlin, 1894, pp. 193 ff. The theory which would draw a distinction between a conviction before the ordinary and a conviction before a provincial council is founded only on what happened in two isolated oases, that of Sawtre and that of the apostate deacon; it has no warrant in medieval canon law. Again, the theory which holds that a cause of heresy is beyond the competence of the bishop's official rests, we believe, on a mistranslation of some words used by Lyndwood. As to this point, see L. Q. B. xiii. 214.

* As to the. whole of this subject, see Lea, Hist. Inquis. vol. iii. ch. vi. vii

CH. viii. § 4.] Ecclesiastical Offences. 553

The first Christian emperors had made savage laws against History of magicians and the like, and these, preserved in the Code, did ^""^'y- much harm in after ages^ The Bible too enshrined that hideous text, 'Thou shalt not suffer a witch to live".' The Anglo-Saxon dooms, like the parallel folk-laws of the continent, have a good deal to say about sorcery =; the remnants of heathen rites were regarded as devil-worship, and in England the successive swarms of Norsemen were but slowly weaned from their old faith. Even Cnut had to legislate against the witchcraft which is heathenry*. But when once the western world had been safely won by the catholic religion and there was no Ibnger any fear of a relapse into paganism, there came a time of toleration for those who dabbled in the black arts'. Doubtless if they compassed criminal ends by their practices, if, for example, they slew a man by maltreating a waxen image of him — and few doubted that such things were possible — they would be hanged or burnt". Again, the mere practice of their arts was sinful; but no very severe measures would be taken if they did not obtrude themselves upon the notice of the church. The exact boundary between the legitimate and the illegitimate sciences was vague; astrology hovered on the border line. A little harmless necromancy would be met by blame that was tinctured by awe and admiration ; bishops and even popes, it was whispered, had trifled with the powers of evil. In Henry I.'s day Archbishop Gerard of York was reputed a necromancer, and, when he died a sudden death with a book of astrology under his pillow, his body could not find burial in his cathedral ; but then he had taken the wrung, the unclerical, side in the strife about investitures. It was not until the thirteenth century was at an end that the church [p. 552] began in various parts of the world a stringent prosecution of sorcerers. This grew out of the warfare against heresy.

The association of magic with heresy and rebellion was part of the imperial Eoman heritage of the Church. Such charges were constantly made against the early Christians.

1 Cod. Theod. 9. 16; Lex Bom. Visigoth, (ed. HSnel), p. 186; Cod. lust. 9. 18.

= Exod. xxii. 18.

» Lea, op. cit. iii. 420; Brunuer, D. E. G. ii. 678.

* Cnut, II. 4.

' Lea, op.Ht. iii. 422.

' Leg. Hen. 71. See Sohmid's note on invultuatio, Gesetze, Glossar. p. 617; Brunner, D. B. G. ii. 679. •

554: Crime and Tort. [bk. n.

The sorcerer is a heretic and should be punished as such : John XXII. made this plaint Sorcery in In Edward I.'s day our English lawyers seem to have law-books, adopted the opinion that sorcerers ought to be burnt". Britton and Fleta declare that an inquiry about sorcerers is one of the articles of the sheriff's turn'; but this is not borne out by other evidenced A little later we read that it is for the ecclesiastical court to try such offenders and to deliver them over to be put to death in the king's court, but that the king himself ' as a good marshal of Christianity' may proceed against them if he pleases". Cases of Of actual cases we see but very few. In 1209 onfe woman

England, appealed another of sorcery in the king's court; the accused purged herself by the ordeal of iron'. In 1279 a Northumbrian jury made the following curious presentment: — 'An unknown woman, who was a witch (sortilega), entered the house of John of Kerneslaw at the hour of vespers and assaulted the said John because he signed himself with the cross above the candles when the Benedidte was said. And the said John defended himself as against the devil (tanquam de diabolo) and struck the witch with a staff so that she died. And afterwards by the judgment of the whole clergy she was burnt. Then John went mad, and, when he had recovered his wits and remembered what he had done,, he fled.' Upon this presentment the judgment is that, since John is not suspected of any felony, he may return if he pleases, but that his chattels axe forfeited for the flight^. Edward L's treasurer, Walter Langton, bishop of Lichfield, was accused before the pope of murder and adultery. A charge of sorcery, homage to Satan and the foul kiss was thrown in ; but he cleared himself with compurgators. Another royal clerk, Adam of Stratton, was believed to have preserved nail- parings and other nasty things in a cabinet, which he made away with when he was arrested for offences less dubious than

' Lea, op. cit. iii. 453.

" Fleta, p. 64; Britton, i. 42, and the note from the Cambridge us. 8 Britton, i. 179 ; Fleta, p. 113. * See above, vol. ii. p. 549. 0 Note on Britton, i. 42.

' Plaoit. Abbrev. 62. It is possible that the charge was not of mere sorcery but of murder or mayhem effected by sorcery.

' Northumberland Assize Bolls (Suit. Soc), 343.

CH. VIII. § 4.] Ecclesiastical Offences. 555

[p. 553] sorcery^ The miserable beings whom the Bishop of Ossory sent to the stake were sorcerers as well as heretics; one of them was the first witch burnt in Ireland =. The bishop showed an all too close familiarity with the latest decretals. Many of the phenomena which characterize the witch trials of a later day appear already in this case — the hell-broth brewed from miscellaneous filth and the rest of it. Sorcery and devil-worship were charged against the Templars ; but in England, as already said, they could not be convicted even after torture. In 1325 upwards of twenty men were indicted and tried in the King's Bench for having perpetrated a murder by tormenting a waxen image; the jury acquitted them'- In 1371 a man was brought before the King's Bench having been arrested in South wark with a dead man's head and a book of sorcery in his possession. No indictment was found against him and he was let go ; but the clerks made him swear that he never would be a sorcerer, and the head and book were burnt on Tothill at his cost*. But all this means very little.

A change came in the fifteenth century. In 1406, soon Sorcery after our first statute against heretics, Henry IV. empowered tunes^' the bishop of Norwich to arrest sorcerers and witches, and to keep them in prison after conviction until further order". By this time a witch could be tried and burnt under the statute against heretics. Also the king's council began to take notice of sorcery, and accusations thereof were used for political purposes'. The epidemic which was raging on the continent reached our shores; but it came here late and mild. Where there is no torture there can be little witchcraft. Statutes were made by Henry VIII. and Elizabeth which condemned various forms of sorcery as crimes to be punished by the temporal courts'; but these statutes were neither so severe nor so comprehensive as the canon law; they seem to have been

1 Earth. Cotton, 172. ^ See above, vol. ii. p. 550.

^ Procefedings against Alice Kyteler, Introduction, p. xxiii, where the record is printed.

* Y. B. 45 Edw. III. f. 17 (Trin. pi. 7).

" Proceedings against Alice Kyteler, Introduction, p. x, from the Patent Boll,

' Ibid. pp. xi-xx. Lea, op. cit. iii. 466-8. As to the witch of Bye, see also Coke, 3rd Inst. 44.

' Stat. 33 Hen. VIII. o. 8 (a.d. 1541), repealed by 1 Edw. VI. o. 12; Stat. 5 Eliz. c. 16 (a.d. 1562). See as to these statutes Stephen, Hist. Cr. Law, ii. 431.

crime.

556 Crime and Tort. [bk. ii.

occasioned by attempts to use divination for purposes that [p. 554] were regarded as treasonable^, and very few people were done to death by them. A bloodier statute was passed by that erudite demonologist James I.^; but it was left for the Puritans in the moment of their triumph to enforce with cruel diligence this statute and the written law of God. The days of the Commonwealth were the worst days for witches in England'.

But we have transgressed our limits. The thirteenth century seems to have been content to hold as an academic opinion that sorcerers, being heretics, ought to be burnt, if convicted by the courts of Holy Church^ ; but no serious eflfort was made to put this theory into practice. Sorcery is a crime created by the measures which are taken for its suppression. Unnatural The crime against nature seems to have had a somewhat similar history^ It was so closely connected with heresy that the vulgar had but one name for both". Possibly an old Germanic element appears when Fleta speaks of the criminal being buried alive' ; but we are elsewhere told that burning is the due punishment^, and this may betray a trace of Roman law'. It was a subject for ecclesiastical cognizance, and apparently there was a prevailing opinion that, if the church relinquished the offenders to the secular arm, they ought to be burnt". As a matter of fact we do not believe that in England they were thus relinquished; in the twelfth century Anselm had been compelled to deal less severely with a prevailing vice". The statute of 1533 which makes it felony affords an almost sufficient proof that the temporal courts had not

' Francis Hutohiuaon, Essay on Witchcraft (1718), pp. 173-6.

2 Stat. 1 Jac. I. u. 12; Stephen, Hist. Or. Law, ii. 433.

' Hutchinson, op. cit. p. 49 : ' In this collection, that I haye made, it is observable, that in 108 years from the statute against witchcraft in 33 Hen. VHI. till 1644, when we were in the midst of our civil wars, I find but about 15 executed. But in the 16 years following while the government was in other hands, there were 109, if not more, condemned and hanged.'

* Coke, 3rd Inst. 44 and Hale, P. C. i. 383 take this to have been the law.

° Coke, 3rd Inst. 58; Blackstone, Comm. iv. 215; Stephen, Hist. Cr. Law, ii. 429.

" Lea, Hist. Inquis. i. 115, also Oxford English Dictionary.

' Fleta, p. 54. 8 Britton, i. 42 and the note from the Cambridge ms.

^ Cod. Theod. 9. 7. 3. This passes into common knowledge through Iiex Eomana Visigothorum ; see Hand's ed. p. 178.

" Lea, Hist. Inquis. iii. 256.

^ Letters of Anselm, Migne, Patrol, vol. clix. col. 95 ; Eadmer, p. 143.

CH. vni. § 4.] Ecclesiastical Ofences. 557

[p. 565] punished it and that no one had been put to death for it for a verj long time past'.

We must not end this chapter without recording our belief ineffici- that crimes of violence were common and that the criminal law S°r.i was exceedingly inefficient. The justices in eyre who visited '*^- Gloucester in 1221 listened to an appalling tale of crime which comprised some 330 acts of homicide. The result of their visitation was that one man was mutilated, and about 14 men were hanged, while about 100 orders for outlawry were given. As the profits however of the minor offences, chiefly the offences of ' communities,' they raised some £430 by about 220 fines and amercements^ The period of which they took note was long and comprised a time of civil war. But even in quiet times few out of many criminals came to their appointed end. In 1256 the justices" in Northumberland heard of 77 murders ; 4 murderers were hanged, 72 were outlawed. They heard of 78 othet felonies, for which 14 people were hanged and 54 were outlawed. In 1279 their successors in the same county received reports of 68 cases of murder, which resulted in the hanging of 2 murderers and the outlawry of 65, while for 110 burglaries and so forth 20 malefactors went to the gallows and 75 were left 'lawless,' but at large^. Thus, after all, we come back to the point whence we started, for, whatever the law might wish, the malefactor's fate was like to be outlawry rather than any more modem punishment.

' Stat. 25 Hell. VIII. o. 6: 'forasmuch as there is not yet sufficient and condign punishment appointed and limited by the due course of the laws of this realm.'

^ Gloucestershire Pleas, ed. Maitland.

' Page, Northumberland Assize Eolls, pp. xviii-xix.

CHAPTEB IX,

PROCEDUEE.

§ 1, The Forms of Action.

Our After all that has hitherto been said, and now that we are tp.556]

system*'^ nearing the end of our long course, we have yet to speak of the most distinctively English trait of our medieval law, its 'formulary system' of actions. We call it distinctively English; but it is also in a certain sense very Roman. While the other nations of Western Europe were beginning to adopt as their own the ultimate results of Roman legal history, England was unconsciously reproducing that history; it was developing a formulary system which in the ages that were coming would be the strongest bulwark against Romanism and sever our English law from all her sisters. An EngUsh The phenomenon that is before us can not be traced to any ' exceptional formalism in the procedure which prevailed in the England of the eleventh century. All ancient procedure is formal enough, and in all probability neither the victors nor the vanquished on the field at Hastings knew any one legal formula or legal formality that was not well known throughout many lands. No, the English peculiarity is this, that in the middle of the twelfth century the old, oral and traditional formalism is in part supplanted and in part reinforced by a new, written and authoritative formalism, for the like of which we shall look in vain elsewhere, unless we go back to a remote stage of Roman history. Our legis cktiones give way to a formulary system. Our law passes under the dominion of a system of writs which flow from the royal chancery. What has made this possible is the exceptional vigour of the English kingship, or, if we look at

Oh. IX. § 1.] The Forms of Action. 559

[p. 557] the' other side of the facts, the exceptional malleableness of a thoroughly conquered and compactly united kingdom.

The time has long gone by when English lawyers were ^S^ tempted to speak as though their scheme of ' forms of action ' lorms. had been invented in one piece by some all-wise legislator. It grew up little by little. The age of rapid growth is that which lies between 1154 and 1272*. During that age the chancery was doling out actions one by one. There is no solemn Actionem dabo proclaimed to the world, but it becomes under- stood that a new writ is to be had or that an old writ, which hitherto might be had as a favour, is now ' a writ of coursed' It was an empirical process, for the supply came in response to a demand ; it was not dictated by an abstract jurisprudence ; it was conditioned and perturbed by fiscal and political motives ; it advanced along the old Roman road which leads from experiment to experiment. Our royalism has debarred us from affixing to the various writs the names of the chancellors who first issued them or of the justices who advised their making; they have no names so picturesque as Publiciana or Serviana ; but if a hundredth part of the industry that has been spent on Roman legal history were devoted to our plea rolls, we might with but few errors assign almost every writ to its proper decade'.

The similarity between these two formulary systems, the Onr Roman and the English, is so patent that it has naturally system^not aroused the suggestion that the one must have been the model "rig^™™ for the other. Now it is very true that between the years 1150 and 1250 or thereabouts, the old Roman law, in the new medieval form that it took in the hands of the glossators, exercised a powerful influence not only on the growth of legal theory in England, but also on some of our English rules*.

1 See above, vol. i. pp. 150, 195.

^ For an instance, see above, vol. ii. p. 64.

" In some of the early ms. Eegisters we find by way of supplement a group of new writs which are ascribed to Bracton's master, William Ealeigh ; Maitland, History of the Eegister, Harv. L. B., iii. 175-6. See also Braoton, f. 222: 'breve de constitutione de Merton secundum quod tunc provisum fuit per W. de Ealegh insticiarinm.' Ibid. £ 437 b : 'oonsulitur heredi per tale brdve per W. de Ealegh formatnm pro Eadulfo de Dadescomb.'

* We have admitted this as regards the novel disseisin, vol. i. p. 146, vol. ii. p.46 ; the livery of seisin, voL ii. p. 89 ; the treatment of the termor, vol. ii. p. 114; the conception of laesa maiestas, vol. ii. p. 503. One of our actions, namely, the Cesiavit per biennium was borrowed; see voL i. p. 353. Other

560 Procedure. [bk. ii.

i But before a case of imitation can be proved, or even supposed [p. 558] 1, as probable, we must do much more than discover a resemblance ,iK-j, between an English idea or institution and some idea or 'institution which at one time or another had a place in the Eoman scheme. We must show a resemblance between English ' law and that Roman law which was admired and taught in the middle ages. The medieval civilians had little knowledge of and little care for the antiquities of the system that they studied. They were not historians ; they had no wish to disinter the law of the republican or of the Antonine period. They were lawyers, and the Roman law that they sought to restore was the law of Justinian's last years. That was for them the law which, unless it had been altered by some emperor of German race, was still by rights the law of the Roman world. All that Justinian or any of his predecessors had abolished was obsolete stuff which no one would think of reviving. What they knew of the formulary system was that it had been swept away by imperial wisdom ^ Therefore their influence was all in favour of a simple system of procedure, under which a magistrate would decide all questions of fact and law without any division of labour and without any formula. If they could have had their way in this country, the procedure of our temporal would have been, like that of our spiritual courts, a libellary procedure, which had no place either for the ' original writ ' with its authoritative definition of the cause of action or for the ' issue ' submitted to a jury. Compari- But further, so soon as we begin to penetrate below the

Eoman and Surface, the differences between the two formulary systems are formidas. ^* least as remarkable as the resemblances. For a moment our cancellarius with his registrum brevium looks very like the praetor with his album, but, while the praetor listens to both parties before he composes the formula, the chancellor when he issues the original writ has never heard the defendant's story, and in most cases the plaintiff obtains a writ ' as of course ' by merely saying that he wants it and paying for it. So obvious

particulars might easily be mentioned. We have also admitted that the very idea of a science of law comes from civilians and canonists ; see vol. i. pp. 131-5. ' Cod. 2. 57. 1 : ' luris formulae auoupatione syllabarum insidiantes cunctorum actibus radicitus amputentur.' Contrast Bracton, f. 413b: 'Tot erunt formulae brevium quot sunt genera aotionum.' lb. f. 188b: 'Item procedore non debet assisa propter errorem nominiB.,,item si erratum sit in syllaba.'

CH. IX. § 1.] The Forms of Action. 561

is this, that we are soon compelled to change our ground, to compare, not the chancellor, but the justices with the praetor, and to see the Roman formula, not in the original writ, but in the 'issue' that is sent to a jury. However, a very slight acquaintance with our own history is enoiigh to convince us that in this direction there can be no link of imitation between the two systems. Whatever likeness we may see between the jurors, when at the end of the middle ages they are becoming 'judges of fact,' and the index to whom the praetor committed a cause, there is no likeness whatever (beyond common humanity) between this index and those jurors of the thirteenth century who came to bear witness of facts or rights. Between the Index esto and the Veniat iurata ad recognoscendum there lies an unfathomable gulf ^

Our forms of action are not mere rubrics nor dead categories; Life of they are not the outcome of a classificatory process that has been applied to pre-existing materials. They are institutes of the law; they are — we say it without scruple — living things. Each of them lives its own life, has its own adventures, enjoys a longer or shorter day of vigour, usefulness and popularity, and then sinks perhaps into a decrepit and friendless old age. A few are still-born, some are sterile, others live to see their children and children's children in high places. The struggle for life is keen among them and diily the fitttst survive ^

The metaphor which likens the chancery to a shop is trite ; Choice we will liken it to an armoury. It contains every weapon of theJorms. medieval warfare from the two-handed sword to the poniard. The man who has a quarrel with his neighbour comes thither to choose his weapon. The choice is large; but he must remember that he mil not be able to ©hange weapons in the middle of the combat and also that every weapon has its proper use and may be put to none other. If he selects a sword, he must observe the rules of sword-play; he must not try to use his cross-bow as a mace. To drop metaphor, our

' If any point of contact is to be found between the jury and a Boman institution this mnst be sought at a remote period in the history of Gaul when Frankish kings borrow a prerogative procedure from the Boman Jiscus. See vol. i. p. 141 ; also Brunner, D. E. G. .i. 525.

" Henceforward we shall give capital letters to the names of the forms, so that Debt will mean the form known as an action of debt.

P. M. II. 36

562

Procedure.

[bk. II.

Modern and

medieval procedure,

plaintiff is not merely choosing a writ, he is choosing an action, fc. 560] and every action has its own rules'. Little law The great difference between our medieval procedure and in general, that modem procedure which has been substituted for it by statutes of the present century lies here : — To-day we can say much of actions in general and we can say little of any procedure that is peculiar to actions of particular kinds. On the other hand, in the middle ages one could say next to nothing about actions in general, while one could discourse at great length about the mode in which an action of this or that sort was to be pursued and defended".

It must not escape us that a law about ' actions in general ' involves the exercise by our judges of wide discretionary powers. If the rules of procedure take now-a-days a far more general shape than that which they took in the past centuries, this is because we have been persuaded that no rules of procedure can be special enough to do good justice in all particular cases. Instead of having one code for actions of trespass and another for actions of debt, we have a code for actions; but then at every turn some discretionary power over each particular case is committed to ' the court or a judge.' One illustration will be enough. We lay down rules for actions in general about the times within which litigants must do the various acts which are required of thein, for example, the time within which a defendant must 'enter an appearance,' or the plaintiff must deliver his statement of claim. Such rules would not be tolerable unless they were tempered by judicial discretion, and so a short clause about ' applications for an enlargement of time'' takes the place of the bulkiest chapter of our old law, the chapter on essoins, or excuses for non-appearance. That law strove to define the various reasonable causes wkich might prevent a man from keeping his day in court — the broken bridge, the bed-sickness (malum lecti), the crusade, the pilgrimage to Compostella. Por every cause of delay it assigned a definite period : — even

1 Britten, i. p. 162: 'Voloms...qe ohesouu bref eyt sa propre nature et qe Bul ne soyt pledS par autre.'

^ During cents, xvii., xviii. much was done by fiction towards introducing an Dniform procedure in the only actions that were commonly used ; but the first great statutory change was made by, the Uniformity of Process Act, 2 & 3 Will. IV. c. 39.

' Eules of the Supreme Court, 0. 64, E. 7.

OH. IX. § 1.] The Forms of Action. 563

[p. 561] a bed-sickness will not absolve a man for more than year and day^. But further, it here distinguished between the various forms of action. No essoin at all will be allowed to a man who is charged with a disseisin; the long essoin for year and day can only be allowed where there is a solemn question of ' right ' in dispute and the litigants are in peril of being 'abjudged' from the debatable land for ever. Now it is just because we know that such rules as these, particular though they may be, are not particular enough, that we have recourse to an exceedingly general rule tempered by judicial discretion.

Let us not be impatient with our forefathers. ' Discretion ' No room is not of necessity ' the law of tyrants,' and yet we may say oretion with the great Romanist of our own day that formalism is the p^oradure. twin-bom sister of liberty^. As time goes on there is always a larger room for discretion in the law of procedure ; but dis- cretionary powers can only be safely entrusted to judges whose impartiality is above suspicion and whose every act is exposed to public and professional criticism. One of the best qualities of our medieval law was that in theory it left little or nothing, at all events within the sphere of procedure, to the discretion of the justices. They themselves desired that this should be so and took care that it was or seemed to be so. They would be responsible for nothing beyond an application of iron rules. Had they aimed at a different end, they would have ' received ' the plausibly reasonable system of procedure which the civilians and canonists were constructing, and then the whole stream of our legal history would have been turned into a new channel. For good and ill they made their choice. The ill is but too easily seen by any one who glances' at the disorderly mass of crabbed pedantry that Coke poured forth as 'institutes' of English law; the good may escape us. But when we boast of 'the rule of law' in England, or give willing ear to the German historian who tells us that our English state is a Rechtsstaat, we shall do well to remember that the rule of law was the rule of writs. When Ihering assures the unamiable English traveller who fights a ' battle for right ' over his hotel

1 The germs of these rules are to be found ahready in the earliest Germanic laws ; Brunner, D. E. Or. ii. 336.

^ Ihering, Geist des romischen Eeehts, ii. (2) § 45: 'Die Form ist die geschworene Peindin der Willkur, die Zwillingssohwester der Freiheit.'

36—2 .

564 Procedure. [bk. ii.

bill, that his is the spirit that built up the Roman law', he [p.i speaks of nothing new. In the thirteenth century our justices kept to the old Roman road of strict adherence to ' word and form.' From the alien Corpus luris they turned aside, just because the spirit that animated them was (though they knew it not) der Oeist des romischen Mechts". The golden The last years of Henry III.'s day we may regard as the forms. golden age of the forms. We mean that this was the time in which the number of forms which were living and thriving was at its maximum. Very few of the writs that had as yet been invented had become obsolete, and, on the other hand, the common law's power of producing new forms was almost exhausted. Bracton can still say Tot erunt formulae brevium quot stmt genera actionum^. A little later we shall have to take the tale of writs as the fixed quantity and our maxim will be Tot erunt genera actionwn qiiot sunt formulae brevium*. Only some slight power of varying the ancient formulas will be conceded to the chancellor; all that goes beyond this must be done by statutes, and, when Edward I. is dead, statutes will do little for our ordinary private law. The subsequent development of forms will consist almost entirely of modifi- cations of a single action, namely. Trespass, until at length it and its progeny — Ejectment, Case, Assumpsit, Trover, — will have ousted nearly all the older actions. This process, if regarded from one point of view, represents a vigorous, though contorted, growth of our substantive law ; but it is the decline and fall of the formulary system, for writs are being made to do work for which they were not originally intended, and that work they can only do by means of fiction. Number of How many forms of action were there ? A precise answer to this simple question would require a long prefatory discourse, for we should have to draw some line between mere variations upon the one hand and the more vital differences upon the other ; and after all when the line was drawn it would be an arbitrary line of our own drawing. We might easily raise the tale of forms to some hundreds, but perhaps we shall produce the right effect if we say that there were in common use

1 Ihering, Der Kampf urn's Eeoht (10th ed.), 45, 69.

" As to what happened in Prance when the reverence for ' word and foim ' disappeared, see Brunner, Wort und Form, Porschungen, pp. 272-3, » Bracton, f. 413 b. * See vol. i. p. 196.

CH. IX. § 1.] The Forms of Action. 565

[p. 563] some thirty or forty actions, between which there were large differences \

A few statistics may set this matter before our readers in statistics. a clearer light. We will therefore make an analysis of the actions that were brought before the justices who in three different years near the end of our period made an eyre in Northumberland", while in the fourth column we give the results of an examination to which we subjected the roll of the Common Bench for the Easter term of 1271'.

Eyre Eyre Eyre Easter 1256 1269 1279 1271

Miscellaneous Actions for Land*	25	14	12	185
Writ of Right*	8	1	2	12
Writ of Entry*	18	17	22	21
Novel Disseisin'	39	27	19	5
Mort d' Ancestor 8	31	26	18	7
Aiel, Besaiel, Cosinage*	0	7	6	8
De Eationabili Parte i»	0	0	1	2

1 The nature of the dififioulty can be briefly explained by reference to the most important instance. We may take as a single ' form ' the Writ of Entry. Or we may make Writ of Entry a genus of which, (1) sur disseisin, (2) mr intrusion, (3) iui in vita etc. are species, and so we may make some twelve 'forms.' Or, taking each of these species separately, we may divide it into many forms, since the writ may be (a) in the per, (6) in the per and cui, and (c) in the post ; and again it may be (i) sine titulo, i.e. for the first person who was deprived of the land, or (ii) cum titulo for his heir; so that we get six 'forms' within each species and thus force up the number of 'forms' of this one genus to seventy or eighty. See above, vol. ii. pp. 63, 67. Then if we distinguish between land and incorporeals we may rapidly increase this total by permutation and combination. A more familiar example would be raised by the question, Is Debt one form, while Detinue is another, and, if so, shall we count Debt in the debet and Debt in the detinet as two forms? See above, vol. ii. pp. 173, 206.

" Northumberland Assize Bolls (Surtees Society).

3 Curia Eegis Boll, No. 202. It would be long to explain exactly our method of computation. We believe that in the main the picture that we draw is truthful, but stress must not be laid on details.

* An entry relating to one of the initial stages of an action for land (placitum terrae) often leaves its form undetermined. These actions will for the more part be Writs of Eight or of Entry; they wiU not be Possessory Assizes.

» See above, vol. ii. p. 62. ' See above, vol. ii. p. 63.

' See above, vol. ii. p. 47. This includes the assize of nuisance. Possessory Assizes rarely came before the Bench. They were taken by justices of Assize.

8 See above, vol. ii. p. 36. ' See above, vol. ii. p. 57.

'"> For partition among parceners ; proprietary.

566

Procedure.

[bk. It.

	Eyre	Eyre	Eyre	Easter
	1256	1269	1279	1271
Nuper Obiiti	1	0	1	1
Little Writ of Right*	0	0	0	1
Monstraverunt'	0	0	0	2
Eight of Advowson*	0	0	0	1
Darrein Presentment*	0	0	0	15
Quare impedit, Quod permittat
presentare, Quare non.admisit'	0	0	1	14
Assize Utrum'	0	0	0	6
Quare eiecit infra terminum'	0	1	0	3
De Rationabilibus Divisis'	0	1	0	0
Dower 1"	9	12	12	189
Formedon"	0	0	1	0
Escheat 12	0	0	0	1
Quod permittat habere"	5	6	8	7
Quod permittat fugare"	0	0	0	1
Quod permittat prostemerei*	0	1	3	0
Quare levavit mercatum	0	0	0	1
Quod reparari faoiat stagnum	0	0	0	1
De secta ad molendinum^'	1	0	2	0
Quo iure"	1	2	1	1
Quod capiat homagiumi*	2	0	0	0
Customs and Services i'	4	4	i	15
Mesne2»	3	0	0	17
Writs relating to wardships ^i	0	3	5	12
De native habendo^^	6	12	2	10
De libertate probanda^	1	2	2	0
Quare non permittit se talliari**	0	0	0	1
Per quae servicia^s	0	0	0	1
Warantia Cartae^^	18	6	10	26

1 For partition among parceners ; possessory.

2 See above, vol. i. p. 385. ' See above, vol. i. p. 387.

* See above, vol. ii. p. 137. ^ See above, vol. ii. p. 137.

* See above, vol. ii. p. 139. ' See above, vol. i. p. 247. 8 See above, vol. ii. p. 107.

' For settling a disputed boundary; proprietary.

10 This includes several diEEerent writs. " See above, vol. ii. p. 28.

^'^ See above, vol. ii. p. 23. i' For ways, rights of common, etc.

'■' Claiming a right to hunt. "' For abatement of nuisances.

1* To compel suit to a mill.

" Negatory of common rights ; see above, vol. ii. p. 142.

'8 To compel receipt of homage. ^ See above, vol. ii. p. 12S.

^ See above, vol. i. p. 238.

^' There are several different writs, some possessory, some proprietary.

23 Affirming villeinage. ^ Negatory of villeinage.

^ Claiming a right to tallage.

"^ Calling upon a tenant to say why he should not be attorned.

^ Largely used for the purpose of levying fines; see above, vol. ii. p. 98.

[p. 564]

CH. IX. § 1.] The Forms of Action.

567

Iip.B€5]

	Bp:e	Eyro	Eyre	Easter
	1256	1269	1279	1271
De Fine Facto i	0	2	0	9
Wasted	0	0	0	1
Account*	0	0	1	8
Annuity*	2	6	2	18
Quare subtrahit*	0	0	0	1
Covenant*	7	10	6	35
Debt'	6	6	288	53
Detinue'	2	1	3	11
Deoeiti"	0	1	0	1
Rescueii	0	0	2	2
Eeplevini2	1	0	0	35
Statutory Actions for unlawful
distress 1'	0	0	0	11
Trespass 1*	6	3	9	85
Actions analogous to Trespass"	0	0	0	3
Appeal of homicide"	0	0	4	3
Appeal of robbery	1	0	5	4
Appeal of larceny (by approvers)	3	0	0	0
Appeal of wounds and mayhem	1	0	5	1
Appeal of rape	11	0	2	0
Appeal of imprisonment	1	0	0	1
Appeal of felony (unspecified)	4	0	0	1
Attainti^	1	0	3	0
Certification	0	0	1	0
False Judgment	1	0	0	6
Error	0	0	0	1
Prohibitionis	0	0	0	11

1 See above, vol. ii. p. 100.

2 See above, vol. ii. p. 9. ' See above, vol. ii. p. 221. ■> See above, vol. ii. p. 133. ' An action for a corody.

6 See above, vol. ii. p. 216. ' See above, vol. ii. p. 203.

8 Mostly due to the activity of one money lender.

» See above, vol. ii. p. 172. " See above, vol. u. p. 534.

" For unlawfully rescuing distrained beasts. ^'^ See below, p. 577.

" Given by various sections of the Statute of Marlborough.

" See above, vol. ii. pp. 167, 526.

15 For interfering with rights of chase, for interrupting a court, etc.

" There is no crimmal business on the roll of 1269 as printed. Appeals were still being heard by the [Common] Bench section of the High Court as well as Coram Bege. An appeal against several appellees is counted here as a single appeal.

1' We shall speak below of this and the four following items.

18 We believe that the only very important action not mentioned here is the royal Quo Waranto for the revocation of franchises. The Novel Disseisin and Mort d'Anoestor are not fairly represented. Hundreds of them are taken every year by justices of Assize.

568 Procedure. [bk. ii.

Di£ferencea Now the differences between these various forms of action [p. 566] the forms, were such as would be brought out by answers to the following questions, (i) What is the ' original process ' appropriate to this form, or, in other words, what is the iirst step that must be taken when the writ has been obtained ? Is the defendant to be simply summoned, or is he at once to be ' attached by gage and pledges,' that is, required to give security for his appearance ? Again, will the sheriff at once empanel an assize ? (ii) What is the ' mesne process,' or, in other words, what is to be done if the defendant is contumacious ? Will the land that is in dispute be ' seized into the king's hand ' or will the compulsion be directed against the defendant's person ? In the latter case what form will the compulsion take ? Can he, for example, be exacted and outlawed, or can he only be dis- trained ? (iii) Is a judgment by default possible ? Can you, that is, obtain judgment against a defendant who has not appeared ? (iv) What are the delays or adjournments' ? (v) What essoins are allowed ? Is this, for instance, one of those actions in which a party can delay proceedings by betaking himself to his bed and remaining there for year and day? (vi) Can a ' view ' be demanded, that is to say, can the de- fendant insist that the plaintiff shall, not merely describe by words, but actually point out the piece of land that is in dispute ? (vii) Can a warrantor be vouched ? If so, may you only vouch persons named in the writ, or may you ' vouch at large"' ? (viii) Must there be pleading and, if so, what form ■will it take? (ix) What is the appropriate form of trial or proof? Can there be wager of battle ? Can there be wager of law — a grand assize — a petty assize — a jury? (x) What is the relief which the judgment will give to a successful plaintiff? Will it give him a thing or sum that he has claimed, •or will it give him ' damages,' or will it give him both ? (xi) What is the ' final process ' ? By what writs can the judgment be executed; for example, can outlawry be employed? (xii) "What is the punishment for the vanquished defendant ? Will he be simply amerced or can he be imprisoned until he makes fine with the king?

' Thus if an ordinary case comes before the court on the octave of Michaelmas, the next court-day to which it will be adjourned is the octave of Hilary; but an action of dower would be adjourned to a much nearer day. See Statutes, i. 208. " See above, vol. ii. p. 71.

CH. IX. § 1.] The Forms of Action. 569

[p. 567] If we addressed this catechism to the various actions, we ciasaifica- might arrive at some tabular scheme of genera and species, for forma, we should find that an answer to one of our questions would often imply an answer to others. Thus, to mention one in- stance, there is a connexion between trial by battle and the long essoin de malo lecti, so that we may argue from the former to the latter^ But many of these lines intersect each other, so that we must classify actions for one purpose in one manner, for another purpose in another manner. Often enough the sharpest procedural lines are drawn athwart those lines which seem to us the most natural.

An instructive example is worth recalling. There is one Affinities small family of actions which is marked off from all others by forms, numerous procedural distinctions. It is the family of Petty Assizes. It has but four members, namely, the Novel Disseisin, the Mort d' Ancestor, the Darrein Presentment and the Utrum^ The procedure in these four cases is not precisely the same ; the Novel Disseisin is swifter than the others; but still they have a great deal in common. In particular they have this in common : — the original writ directs the sheriff to summon a body of recognitors who are to answer a question formulated in that writ — formulated before there has been any pleading. Now if, instead of regarding procedure, we look at the sub- stantive purposes that these actions serve, we see in Bracton's day little enough resemblance between the Mort d'Ancestor' and the Utrum, which has become ' the parson's writ of rightV On the other hand, there is the closest possible affinity between the Mort d' Ancestor and the action of Cosinage'. If I claim the seisin of my uncle, I use the one ; if I claim the seisin of a first cousin, I use the other. But procedurally the two stand far apart. The explanation is that the one belongs to Henry II.'s^ the other to Henry III.'s day. The commonest cases are provided for by an ancient, the less common cases by a modem action. In the one place we find a round-headed, in the other a pointed arch. No theory of cathedrals in general will teach us where to look for the round-headed arches, though common sense assures us that as a general rule substructure must be older than superstructure; and so no attempt to

1 Braoton, f. 318 b, 346 b, 347.

2 See above, vol. i. p. 149. ' See above, vol. ii. p. 56. ^ See above, vol. i. p. 247. " See above, vol. ii. p. 57.

570 Procedure. [bk. ii.

classify our actions will prevail if it neglects the element of [p- 668] time and the historic order of development. Attempts It was natural and perhaps desirable that English lawyers

Koman should try to arrange these forms in the pigeon-holes provided tion? "* I'y a- cosmopolitan jurisprudence, should try to distribute them under such headings as ' criminal ' and ' civil,' ' real ' and ' personal,' ' possessory ' and ' proprietary,' ex contractu and ex delicto. The effort was made from time to time in desultory wise, but it was never very fruitful. A few of the diflBculties that it had to meet deserve notice. We see that Bracton can not make up his mind as to whether the Novel Disseisin is real or personal. On the one hand, the compulsory process in this assize is directed in personam and not in rem. In a Writ of Right or a Writ of Entry the process is directed against the thing, the land, that is iu dispute. If the tenant, that is, the passive party in the litigation, will not appear when summoned, the land is 'seized into the king's hand,' and if there is con- tinued contumacy then the land is adjudged to the demandant. In a possessory assize it is otherwise; the land is not seized before judgment. On the other hand, the plaintiff in the assize is attempting to obtain the possession of a particular thing, a piece of land, and, if he succeeds, this will be awarded to him. Bracton therefore holds that the Novel Disseisin, though m persecutoria, is not in rem but in personam; it is founded on delict, while as to the Mort d' Ancestor, that is in personam and quasi ex contractu^. For all this, however, he speaks of the Novel Disseisin as realis". After his day less and less is known of the Institutes ; the reality of a real action is found either in the claim for possession of a particular thing, or in a judgment which awards to the plaintiff or demandant possession of a particular thing. The Possessory Assizes are accounted real actions, and at length even an action of Covenant, which surely should be in personam and ex contractu, is called real when the result of it will be that the seisin of a piece of land is awarded to the plaintiff*.

1 Bracton, f. 103 b, 104. ' Bracton, t. 169 b.

5 Even in Bracton, f. 439, Covenant is in rem: ' Actio. ..civiUs... super aliqua promissione vel oonventione non observata vel finis faoti...ubi prin- cipaliter agitur in rem, ad aliquam rem certam mobilem vel immobilem consequendam.' The action of Covenant Eeal was abolished in 1838 (Stat. 3 & 4 ■Will. IV. c. 27, sec. 36) among the ' real and mixed actions.' The same statute epoke of Ejectment as though it were either real or mixed; but as a matter of

CH. IX. § 1.] The Forms of Action. 571

[p. 669] After a brief attempt to "be Roman our law falls back into Eomanand old Germanic habits. Old Germanic law, we are told, classifies v^^?^ its actions, not according to the right relied on, but according to the relief demanded. It does not ask whether the plaintiff relies upon dominium, upon iiis in re aliena, upon an obligation, contract or tort; it asks the ruder question — What does the plaintiff want; is it a piece of land, a particular chattel, a sum of money' ? Probably there is another very old line which answers to a difference between the various tones in which a man will speak when he has haled his adversary before a court of law. He comes there either to demand (Lat. petere, Fr. demander) or to complain (Lat. queri, Fr. se plaindre) ; he is either a demandant or a plaintiff. , And so his adversary is either a tenant (Lat. tenens) or a defendant (Lat. defmdens), being there either to deny (defendere) a charge brought against him or merely because he holds (tenet) what another demands. Ancient law must, we should suppose, soon notice this distinction. The querela, as distinct from the petitio, often comes from one who is with diiBculty persuaded to accept money instead of vengeance, while the petens may have no worse to say of his opponent than that he has unfortunately purchased from one who could not give a good title. This distinction we find in our classical common law; but it cuts across the line between those actions which seek for land and those which seek for money. The active party in the Novel Disseisin is not a demandant; he is a plaintiff''. To have called him petens would have been impossible, for the Novel Disseisin is indubitably a possessory actiofa, and it was common

early history Ejectment was an ofEshoot of Trespass and as personal as it could be. If we make the distinction turn on the form of writ and declaration, then Ejectment is personal as late as 1852 (15 & 16 Vie. c. 76, sec. 168 ff.). If, on the other hand, we look to the form of the judgment, then at the end of the middle ages Ejectment is becoming mixed, for a judgment will be given for possession of land and also for damages. So in Prance when the clergy protested that they could not be sued by personal action in the temporal court, the royal lawyers maintained that the Novel Disseisin was, not personal, but real. See the account of the dispute at Vinoennes : Biblioth. S. Patrum, Paris, 1589, vol. iv. col. 1211. Compare Grosseteste, Epistolae, p. 222.

^ Laband, Die vermogensreohtlichen Klagen, p. 5 ff. Above, vol. ii. p. 205, note 2, we have noticed Dr Heusler's assault on this doctrine.

2 According to Bracton's usage, in the Novel Disseisin we have querens and tenens, in the Mort d' Ancestor petens and tenens, in the Darrein Presentment qiierens and impediens or deforcians. Only in abstract disquisitions are actor and reus found.

criminal.

572 Procedure. [bk. ii.

knowledge that a possessory action can not be ' petitory.' On the other hand, in early instances of the action of Debt the active party is often put before us, not as complaining, but as demanding*, and, as we have seen, there were close affinities [p- 570] between the action of Debt and the Writ of Right, the most real and petitory of all real and petitory actions^ The man who sues for a debt is regarded as merely asking for his own ; he ought not to speak in that angry tone which is excusable or laudable in one who has been assaulted or disseised. But then we have seen how Bracton, fixing for six centuries our use of words, denied that the action for a specific chattel is an action in rem, for the judgment will give the defendant a choice between surrendering the chattel and paying its value'. Lastly, we have seen how possessoriness is regarded as a matter of degree, how between the Possessory Assizes and the Writ of Right there arise those Writs of Entry which for some are possessory, for others proprietary, while for yet others they are 'mixed of possession and right*.' 'Mixed' is a blessed word. The impatient student who looks down upon medieval law from the sublime heights of 'general jurisprudence' will say that most of our English actions are mixed and many of them very mixed. Civil and Even between civil and criminal causes it was by no means

easy to draw the line, though Glanvill, under foreign influence, points to it in the first words of his treatise". We must repeat once more that every cause for a civil action is an offence, and that every cause for a civil action in the king's court is an offence against the king, punishable by amercement, if not by fine and imprisonments An action based on felony and aiming at pure punishment, death or mutilation, has indeed become very distinct from all the other actions; it has a highly distinctive procedure and a name of its own ; it is an Appeal (appellum). The active party neither 'demands' nor 'com- plains' ; he appeals (appellat) his adversary. But we have seen how the action of Trespass is closely related to the Appeal, and how the outlawry process which was once characteristic of the Appeal is extended to Trespass and thence to more purely civil

' Note Book, pi. 5g, 177, 325, 381, etc. " See above, vol. ii. pp. 206-7.

' See above, vol. ii. p. 174. '' See above, vol. ii. p. 72.

' Glanvill, i. 1 : ' Flacitorum, aliud est crimiuale, aliud civile.' ° See above, vol. ii. p. 519.

CH. IX. § 1.] The Forms of Action. 573

actions'. We have also seen how in Edward I.'s day Trespass aimed at a punitive and exemplary result and how throughout the age of the Year Books men were 'punished' for their [p. 571] t^espasses^ More native to our law was the distinction be- tween Pleas of the Crown and Common Pleas, which was often supposed to coincide with, though really it cut, the more cosmopolitan distinction; but even this could not always be drawn with perfect neatness. Cnut's modest list of his ' rights over all men' has been wondrously expanded' ; kings and royal justices are unwilling to close the catalogue of causes in which the crown has or may have an interest. Trespass vi et armis, even when in truth it had become as civil an action as civil could be, was still not for every purpose a Common Plea, for, despite Magna Carta, it" might 'follow the king' and be entertained by the justices of his own, as well as by the justices of the Common Bench*. In these last days a statute was needed to teach us that an action of Quo Waranto is not a criminal cause', and even at the present moment we can hardly say that crime is one of the technical terms of our law'.

Now to describe our medieval procedure in detail would be Ovx

, cours

a task easy when compared with that of stating the broad outlines of the substantive law. Much we might say, for example, of essoins, for Bracton has written much, and his every sentence might be illustrated by copious extracts from the plea rolls. In all such matters the working lawyer of the thirteenth century took a profound and professional interest of the same kind as that which his successor takes in the last new rules of court. But our reader's patience, if not our own, would soon fail if we led him into this maze. Some also of the more important and the more picturesque sides of the old procedure have been sufficiently described by others ; this will determine our choice of the few topics that we shall discuss'.

1 See above, vol. ii. pp. 449, 466.

2 See above, vol. ii. pp. 526, 531. ' See above, vol. ii. p. 453.

* Hale, Concerning the Courts of King's Bench and Common Bench, Hargrave's Law Tracts, p. 360. Novel Disseisin, Ejectment of Ward, and some other actions were in the same category.

= Stat. 47 & 48 Vic. c. 61, sec. 15.

* Stephen, Hist. Crim. Law, i. pp. 1-5. See also the large crop of decisions touching the meaning of ' any criminal cause or matter ' in the Judicature Act, 1873, sec. 47.

' We shall, for example, pass backwards and forwards between civil and criminal procedure, just because most modern writers have sedulously kept them apart.

574 Procedure. [bk. rt.

§ 2. Self-help.

Self-help Had we to write legal history out of our own heads, we [p. 572]

law. might plausibly suppose that in the beginning law expects men

to help themselves when they have been wronged, and that by slow degrees it substitutes a litigatory procedure for the rude justice of revenge. There would be substantial truth in this theory. For a long time law was very weak, and as a matter of fact it could not prevent self-help of the most violent kind. Nevertheless, at a fairly early stage in its history, it begins to prohibit in uncompromising terms any and every attempt to substitute force for judgment. Perhaps we may say that in its strife against violence it keeps up its courage by bold words. It will prohibit utterly what it can not regulate. Rigorous This at all events was true of our English law in the

of °eif-' '™ thirteenth century. So fierce is it against self-help that it can ''^'P- hardly be induced to find a place even for self-defence. The

man who has slain another in self-defence deserves, it is true, but he also needs a royal pardon^ This thought, that self-help is an enemy of law, a contempt of the king and his court, is one of those thoughts which lie at the root of that stringent protection of seisin on which we have often commented. The man who is not enjoying what he ought to enjoy should bring an action ; he must not disturb an existing seisin, be it of land, of chattels, or of incorporeal things, be it of liberty, of serfage, or of the marital relationship. It would be a great mistake were we to suppose that during the later middle ages the law became stricter about this matter ; it became laxer, it became prema- turely lax. Some of the 'fist-right,' as the Germans call it, that was flagrant in the fifteenth century would have been impossible, if the possessory assizes of Henry II.'s day had retained their pristine vigour. In our own day our law allows an amount of quiet self-help that would have shocked Bracton. It can safely allow this, for it has mastered the sort of self-help that is lawless''.

^ See above, vol. ii. p. 479.

" We are here differing from Mr Nichols vfho (Britton, i. 288) sees after Bracton's day a ' rapidly growing inclination on the part of the king's court to

CH. IX § 2.] Self-help. 575

[p,573] What may at first seem a notable exception to this broad Distress, prohibition of self-help lies in the process of extra-judicial distress (districtio) ; but we may doubt whether this should be regarded as a real exception. The practice of distraining one's adversary, that is, of taking things from him and keeping them, so that by a desire to recover them he may be compelled to pay money or do some other act, is doubtless very ancient. But among the peoples of onr own race law seems to have very soon required that in general a ndm should not be taken until the leave of a court had been obtained and a great deal of forbearance had been shown \ Down one channel the extra- judicial develops into the judicial distress. The court not only licenses the process but sends an officer or party of doomsmen to see that it is lawfully performed, and at a later time the officer himself does the taking, and the beasts that are taken will be kept in the court's pounds A distress without licence may perhaps be allowed when a man is found in the act of committing some minor offence which would not be a sufficient cause for a seizure of his body. In such a case you may, if you can, take his hat, his coat or the like ; this may be your one chance of compelling him to appear in a court of law. In particular, however, if you find beasts doing damage on your land, you may seize them and keep them until their owner makes amends'. Down this channel the right becomes that carefully limited right to distrain what is ' damage feasant ' (damnum facientem) which our law still knows in the present day ^

repress the practice of recovering possession without judgment.' We see just the opposite inclination and think that the learned editor of Britton has been misled by Braoton'a habit of calling four or five days longum tempus. The relaxation of possessory protection can not be doubted by any one who compares Braoton with Littleton. Ultimately the true owner has almost always at common law a right of entry; see The Beatitude of Seisin, L. Q. E. iv. 24, 286. Now-a-days the true owner always has a right of entry ; aU that he has to fear is statutes which make ' forcible entry ' a crime. Tet our actual practice is not far from the ideal of the thirteenth century.

1 Sohm, Process der Lex Salioa; Brunner, D. E. G. ii. 445; Viollet, 6tablissements, i. 185. For England, Ine, 9 ; Cnut, ii. 19 ; Leg. Will. i. 44 ; Leg. Henr. 51, § 3 : ' et nulli sine iudicio vel licentia namiare lieeat alium in Buo vel alterius.' As to the word ndm, see Bruimer, D. E. G. ii. 446.

' As to judicial distress, see Brunner, D. E. G. ii. 452.

' Brunner, D. E. G. ii. 531-5. In old days, however, the notion that tha beast has offended and should be punished makes itself felt at this point,

* Bracton, f. 158 ; Britton, i. 141 ; Note Book, pi. 1680.

576 Procedure. [bk. ii.

Distress But the landlord's power to distrain a tenant for rents or

lor rent. , . , . . ,

other services that are m arrear is the one great instance of a

power of distress'. In the thirteenth century that power is [p-574]

being freely used and it is used extra-judicially : by which we

mean that no order has been made by any court before the

goods are seized. However, to all appearance there are many

traces of a time when the landlord could not distrain until his

court or some other court had given him leave to do so''. As a

matter of fact we sometimes see lords obtaining a judgment

before they seize the goods of their tenants. In England the

transition from judicial to extra-judicial distress was in this

case easy,^ because our law admitted that every lord had a

right to hold a court of and for his tenants. Probably in the

twelfth century most landlords had courts of tbeir own. Their

tenants were also their justiciables. A right to distrain a man

into coming before your court to answer why he has not paid

his rent may in favourable circumstances become a right to

distrain him for not paying his rent, and the king's justices,

who professed a deep interest in this process of distress, had no

love for feudal justice. Here as in so many other cases a

levelling process was at work ; all landlords were put on a par

and the right of distress began to look like a proprietary right.

But we may at least be sure that the historical root of the

landlord's right to take his tenant's chattels was no 'tacit

hypothec' At every point that right still bore a justiciary or

' processual ' character. It was not a right of ' self-satisfaction'.'

The lord might not sell the beast§; he might not use them.

When he has taken them they are not in his possession ; they

are, as the phrase goes, in custodia legis*. He must be always

ready to show them ; he must be ready to give them up if ever

the tenant tenders the arrears or offers gage and pledge that

he will contest the claim in a court of law. Nor can the lord

' The owner of a rent-charge has a similar power, but this is given him by express bargain. See above, vol. ii. p. 129.

' Leg. Eeur. 51, § 3 : ' et uuUi sine indioio yel licentia namiare lioeat alium in sno yel alterius.' See Bigelow, Hist. Procedure, 202-8, and above, vol. i. p. 353.

' Brunner, D. B. G. ii. 451. Observe that when words are correctly used one does not distrain a thing; one distrains a man by {per) a thing.

* In early continental law the thing taken in distress sometimes became the property of the distrainor if the debtor did not redeem it within a fixed time.

CH. IX. § 2.] Self-help. 577

take just what he likes best among the chattels that are upon [p. 575] the tenement. On the contrary he is bound by rules, a breach of which will make him a disseisor of his tenant'. Some of these rules, which place chattels of a certain kind utterly beyond the reach of distress, or suffer them to be taken only when there are no others, are probably of high antiquity ; but we must not pause to discuss them^

Just because the power of extra-judicial distress is originally Beplevin. a justiciary power, the king's courts and officers are much con- cerned when it is abused. If the distrainor will not deliver the beasts after gage and pledge have been offered, then it is the sheriff's duty to deliver them. For this purpose he may raise the hue, call out the whole power of the county (posse comitatiLs) and use all necessary force'. ' When gage and pledge fail, peace fails,' says Bracton*: in other words, the distraining lord is beginning a war against the state and must be crushed. The offence that he commits in retaining the beasts after gage and pledge have been tendered, is known as vetitum nmrdi, or vee de nam"- It stands next door to robbery'; it is so royal a plea that very few of the lords of franchises have power to entertaia it'. It is an attack on that justiciary system of which the king is the head. Disputes about the lawfulness of a distress were within the sheriff's competence. He could hear them without being ordered to do so by royal writ. But when he heard them he was acting, not as the president of the county- court, but as a royal justiciar'. Before the end of the thirteenth century the action based upon the vee de nam was losing some

' Bracton, f. 217.

2 Co. Lit. 47 ; Blackstone, Comment, iii. 7. Por parallel rules on the continent, see Brunner, D. E. G. ii. 449.

3 Bracton, f. 157 ; Britton, i. 137 ; Stat. West, I. c. 17.

' Bracton, f. 217 b : ' ubi deficiuut vadia et plegia deficit pax.'

' Blackstone, Comm. iii. 49, suggests that de vetito namii is a corrupt reading of de repetito namii. This is a needless emendation. If you refuse to give up a thing, you are said vetare that thing. See next note.

' Bracton, f. 157 b : ' cum iniusta captio et detentio contra vadium et plegium dici poteiit quaedam roberia contra pacem domini Begis, etiam plus quam nova disseisina.' Ibid. f. 158 b : ' et notandum quod iniusta captio emendari potent per vicinos, iniusta autem detentio non, quia hoc est manifesto contra pacem domini Eegis et contra coronam suam.' Ibid. f. 217 b : ' si averia capta per vadium et plegium vetentur, vetitum illud non solum erit querenti iniuriosum, immo domino Eegi, cum sit contra pacem suam.' Britton, i. 139.

' Bracton, f. 155 b. See the Earl of Warenne's case, P. Q. W. 751.

8 Bracton, f. 155 b; Britton, i. 136.

P. M. II. 37

578 Procedure. [bk. ii.

of its terrors; either party could easily procure its removal [p.5761 from the county court to the king's court'. Under the name of Replegiare or Replevin, an action was being developed which was proving itself to be a convenient action for the settlement of disputes between landlord and tenant ; but it seems to have owed its vigour, its rapidity, and therefore its convenience to the supposition that a serious offence had been committed against the king''. Distress One Other trait in our law of distress deserves notice. The

power to distrain flows from seisin, not from ' right.' On the one hand, a lord or would-be lord must not distrain unless he can allege a recent seisin of those services the arrears of which he is endeavouring to recover. On the other hand, a recent, if wrongful, seisin of those services gives him the right to distrain'. We may say that even the negative self-help, which consists in a refusal to continue a compliance with unjust demands, is forbidden. The man who has done services must still do them until he has gone to law and disproved his Lia- bility. He may easily be guilty of disseising his lord*.

§ 3. Process.

We have now to speak of the various processes which the law employs in order to compel men to come before its courts. They vary in stringency from the polite summons to the decree of outlawry. But first we must say one word of an offshoot of outlawry, of a species of summary justice that was still useful in the thirteenth century". Summary When a felony is committed, the hue and cry (hutesium et clamor) should be raised. If, for example, a man comes upon a dead body and omits to raise the hue, he commits an amer- ciable offence, besides laying himself open to ugly suspicions. Possibly the proper cry is ' Out ! Out !' and therefore it is

1 Stat. West. n. c. 2.

' There was a tradition among the lawyers of Edward I.'s day that the plea ■de vetito namii was not so old as Henry II.'s time (P. Q. W. 232) but was invented under John (Y. B. 30-1 Edw. I. p. 222). The replevin writ in Glanvill, xii. 15, differs in important respects from that in Bractou, f. 157, and Eeg. Brev. Orig. f. 81.

* Braoton, f. 158. * See above, vol. ii. pp. 125-6.

0 Brunner, D. E. G. ii. 481.

pH.,ix.§3.] Process: 579

:p.577] uthesium ov hutesium^. The neighbours should turn, out with the bows, arrows, knives, that they are bound to keep'' and, besides much shouting, there will be horn-blowing ; the ' hue ' will be 'homed' from vill to vill'.

Now if a man is overtaken by hue and cry while he has Thehand-

' . . . . . . haying

still about him the signs of his crime, he will have short shnft. thief. Should he make any resistance, he will be cut down. But even if he submits to capture, his fate is already decided. He will be bound, and, if we suppose him a thief, the stolen goods will be bound on his back*. He will be brought before some court (like enough it is a court hurriedly summoned for the purpose), and without being allowed to say one word in self- defence, he will be promptly hanged, beheaded or precipitated from a cliff, and the owner of the stolen goods will perhaps act as an amateur executioner". »

In the thirteenth century this barbaric justice is being Snmmary brought under control*. We can see that the royal judges do the king's not much like it, though, truth to tell, it is ridding England '""^'" of more malefactors than the king's courts can hang. The old rule held good that if by hue and cry a man was captured when he was still in seisin of his crime — if he was still holding the gory knife or driving away the stolen beasts — and he was brought before a court which was competent to deal with such cases, there was no need for any accusation against him, for any appeal or any indictment, and, what is more, he could not be heard to say that he was innocent, he could not claim any sort or form of [p.678] (triaP. Even royal judges, if such a case is brought before them,

1 See Brunner, D. E. G. ii. 482, as to the various cries used for this purpose. The famous Norman Haro seems to mean Hither. See also Viollet, Etablissements, i. 189.

2 See the Writ of 1252 in Select Charters.

8 Select Pleas of the Crown, p. 69 : ' et tunc cornaverunt hutes.'

< Bigelow, Placita, p. 260. ° See above, vol. ii. p. 496.

» Palgrave, Commonwealth, p. 212 ; T. B. 30-1 Edw. I. pp. 503, 545.

' Bracton, f. 137 : ' haec est constitutio antiqua ' ; Britton, i. 37, 56. Good instances of the enrolments that will be made when the king's justices come round are these :— Northumberland Assize Bolls, p. 73: 'W. Y. burgavit domum T. F. in W. et furatus fnit...septem vellera... Et homines de eadem villa secuti fuerunt ipsum et ipsum decoUari fecerunt praesente ballivo domini Eegis. Oatalla eiusdem...ix sol. vi. d.... Et super hoc veniunt ballivi Cpmitis Stratheme.'..et diount quod huiusmodi oatalla pertinent ad eos, eo quod ipse lecepit indicium in curia sua.' Ibid. 78; ' S. de S....oaptns fuit cum quodam eqno fnrato per sectam W. T. et decollatusfuit praesente ballivo domini Eegis,

37—2

580

Procedure.

[bk. II.

Snmmary justice and out- lawry.

Outlawry as process.

act upon this rule'. It is not confined to cases of murder and theft. A litigant who in a civil suit produces a forged writ is hanged out of hand in a summary way without appeal or indictment, and the only chance of exculpation given him is that of naming a warrantor". Even in much later days if a man was taken 'with the mainour' {cum maniiopere), though he was suffered and compelled to submit the question of his guilt or innocence to the verdict of a jury, he could be put on his trial without any appeal or any indictments

There is hardly room for doubt that this process had its origin in days when the criminal taken in the act was ipso facto an outlaw*. He is not entitled to any 'law'^, not even to that sort of ' law ' which we allow to noble beasts of the chase. Even when the process is being brought within some legal limits, this old idea survives. If there must be talk of proof, what has to be proved is, not that this man is guilty of a murder, but that he was taken red-handed by hue and cry. Our records seem to show that the kind of justice which the criminal of old times had most to dread was the kind which we now associate with the name of Mr Lynch".

We may now say a few last words of outlawry'. It was still the law's ultimate weapon. When Bracton was writing, a tentative use of it was already being made in actions founded on trespasses committed with force and arms. This was a novelty. In the past the only persons who were outlawed were [p. 579]

et praedictus equus deliberatus fuit praedieto W. qui sequebatur pro equo illo in pleno eomitatu.' See also Thayer, Evidence, 71.

' Gloucestershire Pleas, pi. 174 ('non potest dedioere'), 189, 394 ('non potest defenders') ; Select Pleas of the Crown, pi. 106, 124, 125, 169, 195 ; Note Book, pi. 136 ('non potest dedioere tunioam'), 138 ('non potest defendere') 1461, 1474, 1539.

2 Note Book, pi. 1847, cited by Bracton, f. 414.

' Hale, P. C. ii. 156. In Stat. WalUae, c. 14, Edward I. concedes to the Welsh that a thief taken with the mainour shall be deemed convicted.

^ Brunner, D. E. G. ii. 483. A gloss on the Sachsenspiegel says, ' Some are declared outlaw {friedhs) by a judge; others make themselves outlaw, as those who break into houses by night.' With reference to the closely analogous process of excommunication, we might speak of an outlawry lata sententia.

^ Ass. Glarend. c. 12 : ' non habeat legem.' But under this assize the man taken with the mainour may go to the Ordeal if he be not of ill fame.

' The Halifax Gibbet Law, described by Stephen, Hist. Crim. Law, i. 265, is a relic of this old summary justice. Observe that Lynch law is not ' self-help.'

' S6e above, vol. ii. p. 449.

CH. IX. § 3.] Process. 581

those who were accused of felony either by appeal or by indictment. An Appeal was a proceeding which was normally commenced in the county court without any writ. If the appellee did not appear, the ceremony of ' exacting ' or ' inter- rogating' ' him was performed in four successive county courts : that is to say, a proclamation was made bidding him ' come in to the king's peace,' and if he came not, then the dread sentence was pronounced. Then again, if any one was indicted before the king's justices and was not forthcoming, they would make inquisition as to his guilt and, being assured of this, would direct that he should be exacted and outlawed in the county court. In either case he might, it will be seen, remain contumacious for some five months without being put outside" the peace-. Outlawry was still a grave matter. It involved, not merely escheat and forfeiture, but a sentence of death. If the outlaw was captured and brought before the justices, they would send him to the gallows so soon as the mere fact of outlawry was proved^. Therefore an important step in consti- tutional history was made in the year 1234 when the outlawry of Hubert de Burgh was declared null on the ground that he had been neither indicted nor yet appealed, though he bad broken prison and the king was treating him as a rebel*. This weapon was as clumsy as it was terrible. There were all manner of cases in which a man might be outlawed without being guilty of any crime or any intentional contumacy. The exaction might, for example, take place in a county distant from his home. There was therefore great need for royal writs [p. 580] inlawing an outlaw and many were issued ; but no strict line

' In our records interrogetur=exigatw=let him be demanded.

' Old English and old FranMsh law would lead us to expect but three exactions. The London custom required but three, which were made at fortnightly intervals ; but in cent, xiil this was thought too hasty. See Munim. Gildh. i. 86 ; ii. 333-8. What is in substance the same procedure may be said to involve three, four or five exactions; for we may or may not count what happens at the first, or what happens at the last court as an exaction. See Bracton, f. 125 b; Gross, Coroners' Bolls, p. xli.

" The 'minor outlawry' for 'trespasses' that was being invented did not involve sentence of death. Bracton, f. 441.

« Note Book, pi. 857; Mat. Par. Ohron. Maj. ann. 1284. Bracton, f. 127, is thinking of this case when he says: 'Item nulla [erit utlagaria] si ad praeceptum Begis vel sectam Begis fuerit quis utlagatus, nisi prius facta inquisitione per iustitiarios, utrum ille, qui in fuga est, cnlpabihs sit de crimine ei imposito vel non.'

582 Procedure. [bk. il;

could here be drsiwn between acts of justice and acts ^f grace'.

Arrest. From outlawry we may pass to arrest, which in our eyes

may seem to be the simplest method of securing a malefactor's presence in court. Now of the law of arrest as it was in these early days we should like to speak dogmatically, for thus we might obtain some clue to those controversies touching 'the liberty of the subject' which raged in later ages.. Our guidesj however, the lawyers of the time, will not give us the help that we might hope for; they seem to be much more deeply inter- ested in the essoin de malo lecti and other remunerative tithes of mint and cumin than in the law of arrest which does not directly concern those decent people who pay good fees.

Law of The law" of arrest is rough and rude ; it is as yet unpolished

by the friction of nice cases. Before we. say more of it we must call to mind two points in our criminal procedure. In the first place, any preliminary magisterial investigation, such as that which is now-a-days conducted by our justices of the peace, is still in the remote future, though the coroners are already makiQg inquest when there is violent death. This simplifies the matter. We have but to consider two or three cases. The man whose arrest we are to discuss either will have been, or he will not have been, already accused of an offence. In the former case he will have been either appealed or indicted. Secondly, there is no professional police force. The only persons who are specially bound to arrest malefactors are the sheriff, his bailiffs and servants and the bailiffs of those lords who have the higher regalities.' The constables who are becoming apparent at the end of our period are primarily military officers, though it is their duty to head the hue and cry^

Arrest of The main rule we think to be this, that felons ought to

felons. . , - . i A 11 1

be summarily arrested and put m gaol. All . true men ought to take part in this work and are punishable if they neglect it. We may strongly suspect, however, that in general the only persons whom it is safe to arrest are felons, and that a man leaves himself open to an action, or even an appeal, of false [p.68i]

1 Braoton, f. 127b: 'de iure couoomitante gratia ad omma restituendi sunt.' Ibid. 132b : 'reoepi debet. ..ad pacem et sine difiScultate, et aliquantnlum de iure.' Ibid. 133: 'facit tameu rex aliquando gratiam taUbus, sed contra iuBtitiam.'

s Writ of 1252 in Select Charters.

CH. IX. § 3.] Process. 583

imprisonment if he takes as a felon one who has done no felony. In other words, it seems very doubtful whether a charge of false imprisonment could have been met by an allegation that there was reasonable cause for suspicion. This was not always the case, for before the end of Henry III.'s reign there were ordinances which commanded the arrest of suspicious persons who went about armed without lawful cause, and very probably the sheriff and his officers could always plead a justification for the caption of persons who were suspected, though not guilty, of felony'. The ordinary man seems to have been expected to be very active in the pursuit of malefactors and yet to ' act at his peril.' This may be one of the reasons why, as any eyre roll will show, arrests were rarely made, except where there was hot pursuit after a 'hand-having' thief ^.

When there had been an indictment of felony, the sheriff's Arrest duty was to arrest the indicted, and as the indictment might aocus^ed. take place in the sheriff's turn, or some co-ordinate court which could not try felons, the arrest of some accused persons was thus secured. Then again, at the beginning of the eyre the names of those who were suspected of felony by the jurors were handed in to the justices, who ordered the sheriff to make arrests. But, as a matter of fact, those who thought that they were going to be indicted usually had an ample opportunity [p. 682] for flight and then they could only be outlawed. The law

' See Northumberland Assize EoUs, p. 108. In 1256 two women bring an action against Thomas of Bickerton, alleging that he arrested them and another woman, who has died in prison, as thieves and sent them to Newcastle gaol Thomas defends himself by alleging that the three women stole a bushel of malt in his house. The jurors find that the dead woman committed the theft and that the two plaintiffs are innocent. Thomas has to make fine with the heavy sum of £40. No word is said by either party of ' probable cause.'

^ The Assize of Clarendon, o. 2, speaks of the arrest of the indicted ; it also, e. 16, orders the arrest of a waif or unknown man ; even in a borough he must be arrested, if he has stayed there for more than one night. The ordinance of 1195 commands all men to arrest outlaws, robbers, thieves and the receivers of such. That of 1233, which institutes the night-watch, commands the. arrest of the man who enters a vill by night and the man who goes armed. The ordinance of 1252 mentions also ' quoscunque perturbatores pads nostrae, praedones et malefactores in parcis vel vivariis.' These documents are in the Select Charters. The oath taken by every youth (Bracton, f. 116) contained a promise, not only to join the hue and cry, but also to arrest any one who bought victuals in a vill in such wise as to found a suspicion that they were meant for the use of criminals (' et suspeotus habeatur quod hoe sit ad opus malefactorum ').

584 Procedure. [bk. ii.

seems to believe much more in outlawry than in arrest. When there is an appeal of felony in the county court — and it is there that an appeal should be begun — we can see no serious effort made to catch the absent appellee. The process of ' exacting ' him begins. If the fear of outlawry will not bring him in, we despair. - Much had been done towards the central- ization of justice; still the county boundary was a serious obstacle. The man outlawed in one shire was outlaw every- where ; but a sheriff could not pursue malefactors who had fled beyond his territory. Mainprise. If a man was arrested he was usually replevied (replegiatus) or mainprised {mamucaptiLs) : that is to saj', he was set free so soon as some sureties (jplegii) undertook (manuceperunt) or be- came bound for his appearance in court. It was not common to keep men in prison. This apparent leniency of our law was not due to any love of an abstract liberty. Imprisonment was costly and troublesome. Besides, any reader of the eyre rolls will be inclined to define a gaol as a place that is made to be broken, so numerous are the entries that tell of escapes^ The medieval dungeon was not all that romance would make it ; there were many ways out of it. The mainprise of substantial men was about as good a security as a gaol. The sheriff did not want to keep prisoners ; his inclination was to discharge himself of all responsibility by handing them over to their friends. Eeplevis- The sheriffs seem to have enjoyed a discretionary power of

prisoners, detaining or releasing upon mainprise those who were suspected of felony ; but the general rule had apparently been that, even after an appeal had been begun or an indictment had been pre- ferred, the prisoner should be replevied unless he was charged with homicide. Glanvill seems to have regarded even this excep- tion of homicide as one that had been introduced by ordinance, and he speaks as though a man appealed of high-treason would in the ordinary course of events be replevied^ The rigorous

1 See e.g. Northumberland Assize Bolls, pp. 74, 76, 80, 89, 91, 96, 98.

" Glanvill, liv. 1, says that one appealed of high treason is usually attached by pledges, if he can find them. <In omnibus autem placitis de felonia solet aoousatus per plegios dimitti praeterquam in placito de homioidio, ubi ad terrorem aliter statutum est.' Munim. Gildh. i. 113: 'Secundum antiqnam legem civitatis [Londoniae] semper consneverunt replegiare homines rectatos de morte hominis.' See also Ibid. i. 296. So late as 1321 (Ibid. ii. 374) the Londoners asserted this custom of replevying men indicted of homicide, but

CH. IX. § 3.] Process. 585

[p. 583] forest law introduced a second exception, for those who were 'taken for the forest' were to be detained. Again, the sheriff should not set at liberty any one who was imprisoned by the special command of the king or of his chief justiciar. A writ De homine replegiando soon came into currency. It told the sheriff to deliver the prisoner unless he had been taken at the special command of the king or of his chief justiciar, or for the death of a man, or for some forest offence, or for some other cause which according to the law of England made him irreplevisable^. Such a writ could apparently be obtained 'as of course' from the chancery. As we understand the matter, it did but remind the sheriff of what had all along been his duty : in other words, he was not bound to wait for a writ. It will be observed that this precept was so penned as to throw upon him the responsibility of deciding whether ' according to the law of England ' the prisoner should be kept in custody. Four cases are specially mentioned as cases in which there should be no replevin ; but he is warned that the list is not exhaustive. Clearly it is not, for we may say with certaiuty that this ' writ of course ' would not warrant the delivery of a condemned felon, or of an outlaw. But we can see that in yet other cases a sheriff might be justified in refusing mainprise. The law was gradually growing less favourable to release. In one passage Bracton repeats Glanvill's words : — If a man has been appealed or indicted of any felony, other than homicide, he is usually replevied^. In another passage we find a far severer doctrine : — The man who has been taken for high treason is absolutely irreplevisable; the man who has been taken for any crime which is punished by death or mutilation will hardly be able to extort from the king the privilege of being released on bail'. The records of practice seem to show that some sheriffs were only too glad to dismiss prisoners from

the juBtiees treated it as an intolerable infringement of common law. The Assize of Clarendon, c. 3, provides that an indicted man is to be replevied, if within three days he is demanded by his lord, his lord's steward or his lord's men. This reminds ns that in the twelfth century a feudal force was making • for replevin. The lords will not approve the detention of their men.

' This writ is in Bracton, f. 154: 'nisi captus sit per speciale praeceptum nostrum, vel eapitalis iustitiarii nostri,. vel pro morte hominis, vel foresta nostra, vel pro aliquo retto quare secundum legem Angliae non sit replegiandus.'

" Bracton, f. 123. Compare f. 139.

» Bracton, f. 437. Observe that there is room for a variety of opinions.

586 Procedure. [bk. il.

custody'; Then in 1275 one of Edward I.'s momentous statutes, [p.684]. after accusing the sheriffs both of retaining those who were, and releasing those who were not, replevisable, and after admitting that the law about this matter had never been precisely determined, proceeded to lay down rules which correspond rather with Bracton's severer than with his more lenient doctrine, and these statutory rules became the law for the coming centuries". Action of In later days our interest in 'the liberty of the subject'

court!"^^ finds its focus in the king's courts at Westminster. Our question is: What will these courts do with those men who have not been sentenced to imprisonment but who are in prison ? If we ask this question of the thirteenth century, we suppose too perfect a centralization. In theory, no doubt, the central court had a control over the whole province of criminal justice. We can see, for example, that it will sometimes direct a sheriff to send up prisoners to Westminster for trial, though this is a rare event and such mandates generally come from the chancery, not from the justices, and are to be considered rather as governmental than as judicial acts'. We may also believe that if a man who thought himself unlawfully imprisoned by the sheriff or by some lord of a fi-anchise made his voice heard in the king's court, the justices had power to order that his body should be brought before them and to liberate him if they were persuaded that his detention was wrongful. But we have seen no definite machinery provided for this purpose, nor do our text- writers speak as if any such machinery was necessary. The central power for the time being seems to fear much rather that there will not be enough, than that there will be too much imprisonment of suspected malefactors, while upon merely lawless incarceration the appeal or action for false imprisonment* seems a sufficient check. Those famous words Habeas corpus are making their way into divers writs, but for any habitual use of them for the purpose of investigating

^ Seee.^. GlouceBtershire Fleas (a.d. 1221), pi. 245: prisouera for homicide delivered by the sheriff for five marks.

' Stat. West. I. c. 15. For commentaries on this famous statute, see Ooke, Second lustit. 185 ; Hale, P. 0. ii. 127 and Stephen, Hist. Crim. Law, i. 233.

^ See e.g. Bot. 01. 429. Approvers are often moved about from prison to prison.

* See above, vol. ii. p. 488.

CH. IX. § 3.] Process. 587

[p. 685] the cause of an imprisonment we must wait until a later time'.

In particular, we must not as yet set the king's court in Eoyal opposition to the king's will. His justices were his very obe- <"»'*'^°'- dient servants. As we have lately said'', a memorable triumph for law over arbitrary power was won in 1234 when the royal court by the mouth of William Ealeigh declared null and void that outlawry of Hubert de Burgh which the king had specially commanded. But this victory was only gained after a revolt and a change of ministry. The man committed to gaol per mandatum domini Regis would have found none to liberate him. The luckless Eleanor of Britanny was kept in prison to the end of her days. Her one offence was her birth ; she had never been tried or sentenced; but we may safely say that none of the king's justices would have set her free^

There is, however, another writ that deserves mention. We The writ have seen how in Glanvill's time homicide was the only crime ^latia. for which men were usually detained as irreplevisable. But even in this case the law of the twelfth century showed no love for imprisonment, and a writ was framed for the relief of the incarcerated appellee, the writ de odio et atia. Un- fortunately the mention of this writ compels us to unravel a curious little node in which the history of provisional imprison- ment is knotted with the history of pleading and the history of trial. We must be brief

In the twelfth century the only mode of bringing a felon to origin of justice has been the appeal ; the only mode of meeting an * ^" ' appeal has been a direct negation, and the normal mode of proof has been battle. But the king has his royal inquest- procedure for sale, and the canonists are teaching our English lawyers how to plead exceptiones, that is to say, pleas that are not direct negations of the charge made by the plaintiff. Now sometimes a defendant will plead such an easceptio and buy from the king the right to prove it by a verdict of the country,

1 We shall see hereafter (p. 593) that a Habeas corpus was at one time a part of the ordinary mesne process in a personal action.

2 See above, vol. ii. p. 581.

8 Mat. Par. Chron. Maj. iv. 163: 'obiit Alienora filia Galfridi...in clausura dintini carceris sub arcta custodia reservata.' Coke's laborious attempt (Second Instit. 187) to make le maundement le roy of Stat. West. I. c. 15, * mean the order of the king's court will deceive no student of history. See Stephen, Hist. Crim. Law, i. 234, note. 8,

588 Procedure. [bk. ii.

One of these ' exceptions ' is the plea of spite and hate {de odio [p. 586] et atiay. The appellee asserts and undertakes to prove that the appeal is, if we use modern terms, no bona fide appeal, but a malicious prosecution^. Sometimes, if not always, he alleges a particular cause for the spite and hatred'. He is not directly meeting the appeal by denying his guilt, he is raising a different question. This having been raised, he obtains a writ directing that an inquest shall be taken. Is he appealed of spite and hatred or is there a true, that is, a bona fide appeal ? EfEectof Such is the writ de odio et atia. Suppose now that the

jurors testify in favour of the appellor. The appellee is not convicted ; he can still meet the appeal with a direct negation and go to battle* ; meanwhile he will remain in prison. Suppose on the other hand that the verdict is favourable to him, then the appeal will be quashed and he can obtain a writ directing the sheriff to let him out of prison. But the king is now asserting his right to have every one who is appealed of felony arraigned at his suit, even though the appeal has broken down. So our appellee' will not be wholly acquitted; he will be replevied and must come before the king's justices when next they make their eyre. Later lu a few years a great part of this procedure has become

the writ, obsolete. Trial by jury has made further encroachments on trial by battle. The appellee has gained the right to submit, not merely special pleas, but the whole question of his guilt or innocence to a verdict of the country. Also the Great Charter has ordained that the writ de odio et atia shall issue as of course and that no fee shall be taken, for it — so rapidly popular

^ It seems possible that this famous formula occurred first in some fore-oath de caluvmia which could in some instances be required of a plaintiff. See Leg. Will. I. oc. 10, 14 : 'li appelur iurra...que pur haur nel fait.' The A.-S. form may have been ' ne for hete ne for hfile ' ; Schmid, App. i. c. 4.

' The question is ■ Utrum appellatus sit de morte ilia odio et atia, vel 60 quod inde culpabilis sit.' Sometimes the contrast is between an appeal ex odio et atia and verum appellum, where verum implies, not the truth of the accusation, but the good faith of the accuser.

^ Select Fleas of the Grown, pi. 84 : ' Et dicit quod ipse . B. facit hoc appellum.,,per attiam et vetus odium, unde tres causas ostendit. Quarum prima est... Alia causa... Tertia causa...' Ibid.. pi. 87: 'Et dioit quod ipse W. appellat eum per odium et athiam quia ipse quaesivit versus eum dedecns et damnum ut de uxore sua.' Bracton, f. 123 : 'et si de odio et atia, quo odio et qua atia.'

< Select Fleas of the Crown, pi. 91, 92, 93.

CH. IX. § 3.] Process. 589

[p. 687] have the recent improvements in royal justice become' Hence- forth the writ sinks into a subordinate place. It merely enables a man, who is imprisoned on a charge of homicide, to obtain a provisional release upon bail when an inquest has found that the charge has been preferred against him ' of spite and hatred".'

We have spoken, perhaps too indifferently, of ' mainprise ' Mainprise and of 'bail.' There was some difference between these two institutions, but at an early time it became obscure'. Bail implied a more stringent, mainprise a laxer, degree of responsi- bility*. English, Norman and French tradition seem all to point to an ancient and extremely rigorous form of suretyship or hostageship w^hich would have rendered the surety liable to •suffer the punishment that was hanging over the head of the released prisoner*. In Normandy these sureties are compared to gaolers, and a striking phrase speaks of them as ' the Duke's living prison".' In England when there is a release on bail

1 Articles of the Barons, c. 26 ; Charter, 1215, c. 36. We know from Bracton, f. 121 b, 123, that the writ of inquest which is to be denied to no one is the wrilr de odio et atia.

2 The story here told is substantially that which was first told by Brunner, Entstehung der Schwurgerichte, p. 471. The publication of excerpts from the earliest plea rolls have gone far to prove the truth of his briUiaut guess, which has been confirmed by Thayer, Evidence, 68. See Gloucestershire Pleas, pi. 76, 434 ; Select Pleas of the Crown, pi. 25, 78, 81-4-6-7-8, 91-2-3-4-5, 104, 202-3 ; Note Book, pi. 134, 1548. Our classical writers missed the track because they were inclined to treat trial by jury as aboriginal. As regards the later history of the writ, Foster (Crown Cases, 285) and Sir James Stephen (Hist. Crim. Law, i. 242 ; iii. 87) have contended that it was abolished in 1278 by Stat. Glouc. c. 9, which deals with homicide by misadventure. This doctrine can hardly be true, for the writ is mentioned as an existing institution in 1285 (Stat. West. II. c. 29) and in 1314 (Eot. Pari. i. 323). Coke, Second Instit. 43, and Hale, P. C. ii. 148, certainly supposed that the vmt could be issued in their own days. Coke thought that it had been aboUshed by Stat. 28 Edw. III. c. 9, and restored by Stat. 42 Edw. HI. c. 1. The writ with which the Statute of Gloucester deals had nothing whatever in it about odium et atia ; it directly raised the issue ' felony or self-defence [or misadventure].' See above, p. 481. The writ de odio went out of use as gaol-deliveries became frequent.

» Hale, P. C. ii. 124.

* Bracton, f. 139 : ' non est per plegios dimittendus, nisi hoc fuerit de gratia, et tunc per ballinm, scilicet, corpus pro corpore.'

' Ktz. Abr. tit. Mainprise, pi. 12 ; Hale, P. C. ii. 125 ; Ancienne coutume, cc. 68, 75 (ed. de Gruchy, pp. 163, 180); Somma, p. 168; Esmein, Histoire de la procedure criminelle, 55.

» Ancienne coutume, p. 180; Somma, p. 188: 'viva prisonia Duois Nor' manniae': 'la vive prison au Due de Nonnendie.' On the other hand, a

590 Procedure. [bk. il.

the sureties are often said to be 'bound corpus pro corporeK [p.588] However, so far as we can see, whether there has been bail or whether there has been mainprise, the sureties of the thirteenth century, if they do not produce their man, escape with amercement. The undertaking to forfeit a particular sum and the formal recognizance, which afterwards become familiar, seem to be very rare in this age^. The. strict theory seems to be that all the chattels of ■ the sureties are at the ' king's mercy, while in case of bail they may have to render their own bodies to gaol. Very often the prisoner was handed- over to a tithing; sometime a whole township was made responsible for his appearance ^ Sanctuary One of the commonest results of the attempt to catch a Imtuon. criminal was his flight to sanctuary and his abjuration of the realm. This picturesque episode of medieval justice has been so admirably described by other hands that we shall say little about it*. Every consecrated church was a sanctuary. If a malefactor took refuge therein, he could not be extracted ; but it was the duty of the four neighbouring vills to beset the holy place, prevent his escape and send for a coroner. The coroner came and parleyed with the refugee, who had his choice be- tween submitting to trial and abjuring the realm. If he chose the latter course, he hurried dressed in pilgrim's guise to the port that was assigned to him, and left England, being bound by his oath never to return. His lands escheated ; his chattels were forfeited, and if he came back his fate was that of an outlaw. If he would neither submit to trial nor abjure the realm, then the contention of the civil power was that, at all events after he had enjoyed the right of asylum for forty days,

prison is sometimes spoken of as a pledge, e.g. Select Fleas of the Crown, pi. 197: 'plegius Eustaohii gaola de Plete.'

1 Braoton, f. 139. See the bail-bond for Nicholas Seagrave, Eot. ParL i. 173.

2 Hale, P. C. ii. 124 : ' Always mainprise is a recognizance in a sum certain.' This was not so in cent. xiii. Any eyre roll will show that the regular punishment for defaulting mainpernors was amercement! Munim. Gildh. i. 92, 115: in London the mainpernor forfeited his wer of 100 shillings. This will be an old trait.

^ Gloucestershire Pleas, pi, 45 : ' et villata de P. cepit in manum habendi eum, et non habuit, ideo in misericordia.' Ibid. pi. 71 : ' et . thethinga sua cepit in mannm habendi eos.' Ibid. pi. 219 : ' Gaufridus..,oaptas fuit et postea commissus Bogero de Gromwelle de Eorsheie et thethingae suae... Et Bogerns et thethinga sua in misericordia pro fuga.' '

* B6ville, L'Abjuratio regni, Bevue historique, vol. 50, p. 1 (1892).

CH. IX. § 3.] Process. 591

he was to be starved into submission ; but the clergy resented [p. 589] this interference with the peace of Holy Church. However, large numbers of our felons were induced to relieve England of their presence and were shipped off at Dover to France or Flanders^

In contrast to the procedure against felons by way of Civil Appeal which is begun with ' fresh suit/ we have the civil p™*^®^^- procedure which is begun by Original Writ''. Here the original writ itself will indicate the first step that is to be taken, in other words, the ' original process ' ; and the subsequent steps (the ' mesne process '), which will become necessary if the defendant is contumacious, will be ordered by 'judicial' writs which the justices issue from time to time as defaults are committed. Throughout, the sheriff acts as the court's minister ; he does the summoning, attaching, distraining, arresting ; but his action is hampered by the existence of 'liberties' within which some lord or some borough community enjoys 'the return of writs.'

Our readers would soon be wearied if we discoursed ofForbear- mesne process. Its one general characteristic is its tedious medieval forbearance'. Very slowly it turns the screw which brings °'^' pressure to bear upon the defendant. Every default that is not essoined is cause for an amercement, but the law is re- luctant to strike a decisive blow. If we would understand its patience, we must transport ourselves into an age when steam and electricity had not become ministers of the law, when roads were bad and when no litigant could appoint an attorney until he had appeared in court*. Law must be slow in order that it may be fair. Every change that takes place in

' For the right of asylum under the continental folk-laws see Brunner, D. E. G. ii. 610 ; for A.-8. law see Schmid, Gesetze, p. 584. M. ESville holds that the law of abjuration is developed from ancient English elements and passes from England to Normandy. It must have taken its permanent shape late in the twelfth century. Some leading passages are Leg. Edw. Oonf. c. 5 ; Bracton, f . 135 b ; Britton, i. 63 ; Fleta, p. 45 ; Mat. Par. Chron. Maj. vi. 357. For early oases see Select Pleas of the Crown, pi. 48, 49, 89, etc.; Gross, Coroners' Eolls passim.

2 In Braoton's day men are already beginning to make appeals in the king's central courts. In this case a writ issues which directs arrest or, in some cases, attachment. Bracton, ff. 149, 439, regards criminal and civil procedure as two variations on one theme.

' Eeeves, Hist. Engl. Law, oh. vii, has written at length of this matter.

* See above, vol. i. p. 213.

592 Procedure. [bk. ii.

procedure is an acceleration'. Were we to say more we should have to tell of the formal summons . which is made in the [p. 590] presence of witnesses, and then of the various kinds of ' attach- ment ' — for a man may be attached ' by his body 'or 'by gage and pledge'" — of the various kinds of distress which will take away his chattels and deprive him of the enjoyment of his land. We see much that is very old and has been common to the whole Germanic race, as for example the principle that a man is entitled to three successive summonses ; but a few words as to the real and a few as to the personal actions of Bracton's day must sufficed Process If we reduce the process in the real action to its lowest

actions, terms, it consists of Summons and Gape and Judgment by Default. If the tenant does not appear when summoned, then a writ {Magnum Cape) goes out bidding the sheriff seize the debatable land into the king's hand and summon the tenant to explain his default*. If at the new day that has been thus given to him he fails to appear, or fails to heal (sanare) his former default, then the land is adjudged to the demandant, and the tenant's only chance of recovering it will lie in a new action begun by writ of right. We have put the simplest case of pure contumacy. An almost infinite number of other cases are conceivable as we permute and combine all the possibilities of essoin and default. But the broad general idea that runs through the maze is that the land will be taken from the contumacious tenant, and, after an interval, which gives him another opportunity of submitting to justice, it will be ad- judged to his adversary. But even when this has been done we see the extreme patience of medieval law. A judgment by

1 See Stat. Marlb. o. 7 (Writs of Wardship) ; c. 9 (Suit of Court) ; o. 12 (Dower, Quare impedit etc.); u. 13 (general as to Essoins); o. 23 (Account).

^ The Court Baron (Seld. Soc), p. 79: 'duplex est attaohiamentum per corpus yideUcet et per manucaptores sive per plegios.' The Scottish tract Quoniam attaehiamenta (Acts of Pari. i. 647) is full of instruction for English- men.

" I'or the antiquities of 'original and mesne process,' see Brunner, D. E. G. ii. 332, 452, 457, 461. In the oldest stage the summoning is done by the plaintiff himself ; it is a mannitio as opposed to the bannitio of later days which proceeds from the court. In England the triple summons can be traced thus : — .ffithelst. II. 20; Edg. ni. 7; Cnut, ii. 25; Leg. Will. i. 47; Leg. Will. in. 14 j Leg. Henr. 51, § 1 ; Glanvill, i. 7 ; Select Pleas in Manorial Courts, pp. 114-5 ; but it was common elsewhere ; Tardif, Procedure civile et criminelle, p. 53.

' In Glanvill's day (i. 7) three successive summonses preceded the Cape.

CH.ix. §3.] Process. 593

default — unless indeed the default was committed at the very [p. 591] last stage of the action' — will, not preclude the defaulter from reopening the dispute by a proprietary writ 2.

When there was no specific thing that could be seized and Process in

i--m. 1 personal

adjudged to the plaintiff as being the very thing that he actions, demanded, the law had at its command various engines for compelling the appearance of the defendant. Bracton has drawn up a scheme which in his eyes is or should be the normal process of compulsion ; but we can see both from his own text and from the plea rolls that he is aiming at generality and simplicity, and also that some questions are still open'. The scheme is this : — (1) Summons, (2) Attachment by pledges, (3) Attachment by better pledges, (4) Habeas corpus, (5) a Distraint by all goods and chattels, which however consists in the mere ceremony of taking them into the king's hand ; (6) a Distraint by all goods and chattels such as to prevent the defendant from meddling with them ; (7) a Distraint by all goods and chattels which will mean a real seizure' of them by the sheriff, who will become answerable for the proceeds (issues, eositus) to the king; (8) Exaction and outlawry^

Bracton however has to argue for the use of outlawry. He Outlawry

• 1 • 1 m civil

has to suggest that there can be a minor outlawry just as there process, can be a minor excommunication : in other words, that a form of outlawry can be employed which will not involve a sentence

> Bracton, f. 367.

' Our Gape in manum corresponds to the Missio in bannum Begis of Prankish law ; Brunner, D. E. G. ii. 457 ; but whereas in the old Frankish procedure the land stays in the king's hand for a year and a day, in the England of GlanviU's day the period for replevying the land has already been out down to a fortnight ; Glanvill, i. 16.

s Bracton, f. 439-41 ; Beeves, Hist. Bng. Law (ed. 1814), 1. 480.

* The Braotonian process which inserts a Habeas corpus between Attachment and Distress is fully illustrated by Note Book, pi. 526, 527, 1370, 1376, 1407, 1408, 1420, 1421, 1446. A little later this Habeas corpus seems to disappear, but the writ of Distress commands the sheriff quod distringat etc. et habeat corpus, see e.g. Northumberland Assize Bolls, pp. 51, 59, 60, 178, 199 etc. Then Stat. Marlb. c. 12 and Stat. West. I. c. 45 accelerated the procedure by cutting away all that intervened between First Attachment and Grand Distress. Thus we pass to the process described by Britten, j. 125-134. Bracton'a scheme does not provide for any 'imprisonment upon mesne process'; the sheriff is not directed, as he is by the later Capias, to take the defendant's body and keep it safely; but the Habeas corpus would, we suppose, justify the sheriff in arresting the defendant when the court-day was approaching in order to bring him into court.

P. M. II. 38

594 Procedure, [bk. ii.

of deaths At a little later time a distinction is here drawn. In some of the forms of action, for example Trespass vi et [p. 592] armis, there can be arrest {Capias ad respondendum) and, failing this, there may be outlawry; in other forms 'distress infinite' is the last process''. At a yet later stage, partly by statute, partly under the cover of fictions, Gapias and Outlawry became common to many forms, and 'imprisonment upon mesne process' was the weapon on which our law chiefly relied in its struggle with the contumacious^ No One thing our law would not do: the obvious thing. It

against the would exhaust its terrors in the endeavour to make the de- personaf °^ fendant appear, but it would not give judgment against him action. until he had appeared, and, if he was obstinate enough to endure imprisonment or outlawry, he could deprive the plaintiff of his remedy. Now this is strange, for Bracton had pointed to the true course, 'It would, so it seems, be well to distinguish between pecuniary actions arising from contract and actions arising from delict. In the former case it would be well to adjudge to the plaintiff seisin of enough chattels to satisfy the debt and damages, and also to summon the defendant ; and then, if he appeared, his chattels would be restored to him and he would answer to the action, and if he did not appear the plaintiff would become their owner. And in the case of delict it would be well that the damages should be taxed by the justices and paid out of the defendant's rents and chattels*.' Now, at all events in the case of Debt, this course had some- times been taken in the early part of the century". But Bracton was speaking to deaf ears. Our law would not give

1 Bracton, f. 441, proposes to use outlawry in such actions as Debt and Covenant as well as in Trespass. For early cases of outlawry in Trespass, see Note Book, pi. 85, 1232.

" Britton, i. 132. Northumberland Assize Eolls (a.d. 1269), p. 179 : in Debt the sheriff reports that the defendant has no land open to distress : ' ideo inde niohil ' ; there is no more to be done. Ibid. pp. 273-7-9 ; in 1279 we see the Capias in trespass.

s The extension of the Capiat is best studied in Hale's tract Concerning the Courts of King's Bench and Common Pleas, printed in Hargrave's Law Tracts, p. 359. See also Blackstone, Comm. iii. 279 ff.

* Bracton, f. 440 b. We have abbreviated the passage.

' Note Book, pi. 900. For an earlier age see Laws of William (Select Charters), o. 8 : 'Qaarta autem vice si non venerint, reddatur de rebus hominis illius, qui venire uoluerit, quod oalumniatum est, quod dioitur ceapgeld, et insuper forisfactura Begis.'

CH. IX. § 3.] Process. 595

judgment against one who had not appeared. Seemingly we have before ns a respectable sentiment that has degenerated [5.593] into stupid obstinacy. The law wants to be exceedingly fair, but is irritated by contumacy. Instead of saying to the defaulter 'I. don't care whether you appear or no,' it sets its will against his will : — ' But you shall appear.' To this we may add that the emergence and dominance of the semi-criminal action of Trespass prevents men from thinking of our personal actions as mere contests beween two private persons. The con- tumacious defendant has broken the peace, is defying justice and must be crushed. Whether the plaintiff's claim will be satisfied is a secondary question'. Near six centuries passed away before Bracton's advice was adopted^

Passing by the trial of the action, in order that we may say Specific a few words about the ' final process,' we must repeat once ^^ ' more that the oldest actions of the common law aim for the more part, not at 'damages,' but at what we call 'specific relief'.' By far the greater number of the judgments that are given in favour of plaintiffs are judgments which award them seisin of land, and these judgments are executed by writs that order the sheriff to deliver seisin. But even when the source of the action is in our eyes a contractual obligation, the law tries its best to give specific relief. Thus if a lord is bound to acquit a tenant from a claim for suit of court, the judgment may enjoin him to perform this duty and may bid the sheriff distrain him into performing it from time to time*. In Glan- vill's day the defendant in an action on a fine could be compelled to give security that for the future he would observe his pact^ The history of Covenant seems to show that the judgment for specific performance {quod conventio teneatwr) is at least as old as an award of damages for breach of contract °. We may find a local court decreeing that a rudder is to be made in accordance with an agreement', and even that one man is to serve another". Nor can we say that what is in substance an

1 To this may be added that the judgment by default in Debt (Note Book, pi. 900) may be a sign that the action has been regarded as 'real.'

•' Stat. 2 Will. IV. 0. 39, sec. 16. See Co. Lit. 288 b for a curious apology.

' See above, vol. ii. p. 523. * Note Book, pi. 837.

» Glanvill, viii. 5. ' See above, vol. ii. pp. 216-220.

' The Court Baron (Selden See), p. 115.

8 Select Pleas in Manorial Courts, p. 157.

38—2

process.

596 Procedure. [bk. II.

'injunction' was as yet unknown. The 'prohibition' which forbids a man to continue his suit in an ecclesiastical court on pain of going to prison^, is not unlike that weapon which the courts of common law will some day see turned against them [p. 694] by the hand of the chancellor^. But further, a defendant in an action of Waste could be bidden to commit no more waste upon pain of losing the land*, and a forester or curator might be appointed to check his doings*. The more we read of the thirteenth century, the fewer will seem to us the new ideas that were introduced by the chancellors of the later middle aiges". What they did introduce was a stringent, flexible and summary method of dealing with law-breakers. The common law has excellent intentions; what impedes it is an old- • fashionfeid dislike for extreme measures. Final When judgment has been given for a debt, the sheriff will

be directed to cause the sum that is needful to be made {fieri facias) out of the goods and chattels of the defendant, or levied (levari facias) out of his goods and the fruits of his land. But our common law will not seize his land and sell it or deliver it to the creditor ; seignorial claims and family claims have pre- vented men from treating land as an available asset for the payment of debts. A statute of 1285 bestowed upon the creditor a choice between the old writ of fieri facias and a new writ which would give him possession of one half of his debtor's land as. a means whereby he might satisfy himself". It is not a little remarkable that our common law knew no process whereby a man could pledge his body or liberty for payment of a debt, for our near cousins came very naturally by such a process, and in old times the wite-]>e6w may often have been working out by his labours a debt that was due to his master'.

1 Bracton, f. 410.

^ Of course there is this diflerenee: a prcihibition could, and still can, be Eent to the judge ecclesiastical {ne teneat placitum) as well as to the party (ne sequatv/r), while the chancery could lay no 'injunction' on the courts of common law.

^ Note Book, pi. 540. Such judgments as this were rendered unnecessary by Stat. Gloue. c. 5, Stat. West. II. o. 14, which enabled the plaintiff to recover the wasted land.

* Note Book, pi. S6 ; Bracton, f . 316, 316 b ; Second Instit. 300.

6 Holmes, Early English Equity, L. Q. E. i. 162.

6 Stat. West. II c. 18.

7 Kohler, Shakespeare vor dem Forum der Jurisprudenz, passim.

CH. IX. § 3.] Process. 597

Under Edward I. the tide turned. In the interest of commerce a new form of security, the so-called 'statute merchant,' was [p. 595] invented, which gave the creditor power to demand the seizure and imprisonment of his debtor's body^

What some modern practitioners may think the most in- Costa. teresting topic of the law was as yet much neglected. We read little or nothing of 'costs.' No doubt litigation was expensive, as we know from the immortal tale which Richard of Anesty has bequeathed to us of the horses that he lost and the loans that he raised in his endeavour to get justice from Henry 11.^ It is highly probable that in some actions in which damages were claimed a successful plaintiff might often under the name of 'damages' obtain a compensation which would cover the costs of litigation as well as all other harm that he had sustained' ; but we know that this was not so where damages were awarded in an action for land^ and in many actions for land no damages, and therefore no costs, could be had^. It is only under statute that a victorious defendant can claim costs, and at the time of which we write statutes which allowed him this boon were novelties'. In expensarum causa victus victori condemnandus esf — this is a principle to which English, like Roman, law came but slowly.

1 Stat. 11 Edw. I. (Aoton-Burnel) ; 13 Bdw. I. ; Statutes, vol. i. pp. 53, 98. If we are to have from comparative jurisprudence any grand inductive law as to the legal treatment of debtors, it can not possibly be of that simple kind which would see everywhere a gradually diminishing severity. May not the mildness of our English law in cent. ziii. be due to its refusal to cultivate the old formal contract, the fides facta 1

2 Palgrave, Eng. Commonwealth, p. ix ; Hall, Court Life, p. 129.

3 Coke, Second Instit. 288 ; Blackstone, Comment, iii. 399. Sometimes on a compromise costs were paid eo nomine ; Note Book, pi. 439, 1430.

' Stat. Glouo. c. 1. The profits of the land had been the measure of damages. In various actions this statute gave to a successful plaintiff damages which were to cover ' the costs of his writ purchased.'

5 See above, voL ii. p. 524.

^ Stat. Marlb. c. 6 gives the defendant damages and costs in an action charging him with a feoffment destined to defraud his lord of a wardship.

' Cod. 3. 1. 6. For costs awarded in an ecclesiastical suit, see Note Book, pi. 544.

598

Procedure.

[bk. II.

§ 4. Pleading and Proof.

Ancient modes of proof.

The ordeal.

We are now to speak of what happens when two litigants of the twelfth or thirteenth century have at length met each other in court. But first we must glance at the modes of proof which those centuries have inherited from their predecessors^ [p. 596] In so doing we must transfer ourselves into a wholly different intellectual atmosphere from that in which we live. We must once for all discard from our thoughts that familiar picture of a trial in which judges and jurymen listen to the evidence that is produced on both sides, weigh testimony against testimony and by degrees make up their minds about the truth. The language of the law, even in Bracton's day, has no word equiva- lent to our trial. We have not to speak of trial ; we have to speak of proof.

The old modes of proof might be reduced to two, ordeals and oaths ; both were appeals to the supernatural. The history of ordeals is a long chapter in the history of mankind ; we must not attempt to tell it. Men of many, if not all, races have earned the red-hot iron or performed some similar feat in proof of their innocence'- In Western Europe, after the bar- barian invasions, the church adopted and consecrated certaia of the ordeals and composed rituals for them*. Among our

^ See Brunner, Zeugen- und Inquisitionsbeweis (Porschungen, p. 88) ; Wort nnd Form (ibid; p. 260) ; Entstehung der Sohwurgeriohte ; Bigelow, History of Procedure; Thayer, Evidence, ch. 1; Lea, Superstition and Force.

" See Thayer, Evidence, p. 16. Our Eng. try comes from Fr. trier. This (see Diez, s.v. trier) comes from » Lat. tritare, a frequentative from terere. The Fr. trier begins to appear in the law books of cent, xiii., chiefly in connexion vrith the practice of challenging jurors; the challenges are tested or tried. See e.g. Britton, i^ 30. Then the Lat. forms triare, triatio are made from the Fr. word. In the vulgate text Braoton, f. 105, is made to say 'ubi triandae sunt actiones ' ; but the Mss. have the far more probable terminandae. A similar mistake may be suspected in Fleta, p. 236, § 4.

3 Fatetta, Le Ordalie, Turin, 1890 ; Lea, Superstition and Force (3rd ed.), p. 249 ff. ; Brunner, D. B. G. ii. 399. In Paul's Grundriss d. german. Philol. ii. pt. 2, p. 197, von Amira has argued that the German races had no ordeals until after they had accepted Christianity. Dr Liebermann has recently discovered the ordeal of the cauldron in the laws of Ine: Sitzungsberichte der Berliner Akademie, 1896, p. 829.

* The rituals are collected in Zeumer, Formulae Merovingici et Karolini Aevi (Motium. Germ.), 4to. p. 638. An English ritual is given in Schmid, Gesetze, p. 416.

CH. IX. § 4.] Pleading and Proof. 599

own forefathers the two most fashionable methods of obtaining a iudicium Dei were that which adjured a pool of water to receive the innocent and that which regarded a burnt hand as a proof of guilt. Such evidence as we have seems to show that the ordeal of hot iron was so arranged as to give the accused a considerable chance of escape \ In the England of the [p. 597] twelfth century both of the tests that we have mentioned were being freely used ; but men were beginning to mistrust them. Rufus had gibed at them". Henry II. had declared that when an indicted man came clean from the water, he was none the less to abjure the realm, if his repute among his neighbours was of the worst'. Then came a sudden change. The Lateran Council of 1215 forbad the clergy to take part in the ceremony*. Some wise churchmen had long protested against it; but perhaps the conflict with flagrant heresy and the consequent exacerbation of ecclesiastical law had something to do with the suppression of this old test". In England this decree found a prompt obedience such as it hardly found elsewhere ; the ordeal was abolished at once and for ever'. Flourishing in the last records of John's reign, we can not find it in any later rolls'. Our criminal procedure was deprived of its handiest weapon ; but to this catastrophe we must return hereafter.

1 The only statistical information that we have comes from a Hungarian monastery which kept a register of judgments in cent. ziii. This is said to show that it was about an even chance whether the ordeal of hot iron succeeded or failed. See Dareate, l^tudes d'histoire du droit, pp. 239-264. In certain cases our English procedure gave the appellee a choice between bearing the iron and allowing the appellor to bear it. See Select Fleas of the Crown, pi. 24, and Glanvill, xiv. 6. This seems to show that the result could not be predicted with much certainty.

2 Eadmer, Hist. Nov. 102 ; Bigelow, Placita, 72. Of fifty men sent to the ordeal of iron aU had escaped. This certainly looks as if some bishop or clerk had preferred his own judgment to the judgment of God, and the king did well to be angry.

' Ass. Clarend, a. 14.

* Concil. Lateran. IV. c. 18.

' Concil. Lateran. IV. c. 3 deals with heretics; e. 8 defines the new procedure by inquisition; o. 18 abolishes the ordeal.

8 See the letters patent of 26th Jan. 1219 ; Foedera, i. 154 : ' cum prohibitum sit per ecclesiam Bomanam iudicium ignis et aquae.' England was for the moment at the pope's foot.

' EoUs of the King's Court (Pipe Boll Soc), 80, 86, 89 etc. Select Pleas of the Crown, paesim. Note Book, pi. 592 : ' quia ante guerram [1215] habuerunt iudicium ignis et aquae.' Thayer, Evidence, 37 ; Lea, op. cit. 421.

600 Procedure. [bk. ii.

Proof by The iudicial combat' is an ordeal, a bilateral ordeal. The

battle. •' . ' 1-11

church had shown less favour to it than to the unilateral

ordeals, perhaps because it had involved pagan ceremonies'. Therefore we hear nothing of it until the Normans bring it hither. In later days English ecclesiastics had no deep dislike for it°. It was a sacral process. What triumphed was not brute force but truth. The combatant who was worsted was a [p. 598] convicted perjurer. Proof by The Ordeal involves or is preceded by an oath; but even

when the proof is to consist merely of oaths, a supernatural element is present. The swearer satisfies human justice by taking the oath. If he has sworn falsely, he is exposed to the wrath of God and in some subsequent proceeding may perhaps be convicted of perjury; but in the meantime he has performed the task that the law set him; he has given the requisite proof In some rare cases a defendant was allowed to swear away a charge by his own oath ; usually what was required of him was an oath supported by the oaths of oath-helpers*. There are good reasons for believing that in the earliest period he had to find kinsmen as oath-helpers'. When he was denying an accusation which, if not disproved, would have been cause for a blood-feud, his kinsmen had a lively interest in the suit, and naturally they were called upon to assist him in freeing himself and them from the consequences of the imputed crime. The plaintiff, if he thought that there had been perjury, would have the satisfaction of knowing that some twelve of his enemies were devoted to divine vengeance. In course of time the law no longer required kinsmen, and we see a rationalistic tendency which would convert the oath-helpers into impartial 'witnesses to character.' Sometimes the chief swearer must choose them from among a number of men designated by the court or by his opponent ; sometimes they must be his neigh- bours. Then again, instead of swearing positively that his oath is true, they may swear that it is true to the best of their

' Brunner, D. E. G. ii. 414; Lea, op. cit. 101 ff.; Neilson, Trial by Combat; Thayer, Evidence, 39.

2 Brunner, B. B. G. ii. 416.

' See above, vol. i. pp. 50, 74. Note Book, pi. 551 : in 1231 the bishop of London produces his champion. Neilson, op. cit. pp. 50-1.

' Brunner, D. B. G. ii. p. 378 ; for England, Sohmid, Gesetze, pp. 563-7.

^ Brunner, D. E. G. ii. p. 379 ; Lea, op. cit. oh. iv.; Leg. Henr. 64, § 4.

CH. IX. § 4.] Pleading and Proof. 601

knowledge'. In some cases few, in others many helpers are demanded. A normal number is 12; but this may be reduced to 6 or 3, or raised to 24, .36, 72". A punctilious regard for [p. 599] formalities is required of the swearers. If a wrong word is used, the oath 'bursts' and the adversary wins. In the twelfth century such elaborate forms of asseveration had been devised that, rather than attempt them, men would take their chance at the hot iron'.

Besides the oaths of the litigants and their oath-helpers. Oaths of the law also knew the oaths of witnesses ; but apparently in the oldest period it did not often have recourse to this mode of proof, and the oaths which these witnesses proffered were radically different from the sworn testimony that is now-a-days given in our courts*. For one thing, it seems to have been a general rule that no one could be compelled, or even suffered, to testify to a fact, unless when that fact happened he was solemnly ' taken to witness'.' Secondly, when the witness was adduced, he came merely in order that he might swear to a set formula. His was no promissory oath to tell the truth in answer to questions, but an assertory oath. We shall see hereafter that the English procedure of the thirteenth century expects a plaintiff to be accompanied by a ' suit ' of witnesses of this kind, witnesses who are prepared to support his oath in case the proof is awarded to him.

^ Compare on the one hand the A.-S. oath, Sehmid, Gesetze, p. 406 ('On Jjone Drihten, se kS is olsne and unmsne J)e N. sw6r'), with the formula used in the London of cent. xiii. (' quod secundum gcientiam suam iuramentum quod fecit fidele est'), Munim. Gildh. i. 105. The same change took place in the canon law and was consecrated by Innocent III. ; u. 13, X. 5. 34 ; Lea, op. cit. 71-2.

2 Brunner, D. E. G. ii. 384. The question whether when a man is said iurare duodecima manu he has twelve or only eleven compurgators, must, according to Dr Brunner, be answered sometimes in the one, sometimes in the other way. The inclusive reckoning seems to be the older, and is sanctioned by the Statutum Walliae, c. 9, where eleven helpers are required; but in London during cent. xiii. the other reckoning prevailed ; Munim. Gildh. i. 104- 5. In the last reported English case of compurgation, King v. Williams (1824), 2 Barnewall & Cresswell, 538, the court declined to aid the defendant by telling him how many helpers were needed; he produced eleven helpers, whereupon the plaintiff withdrew from his suit.

3 Leg. Henr. 64, § 1 ; Brunner, Forsohungen, 328.

* Brunner, D. B. G. ii. 391; Sehmid, Gesetze, Glossar. s.v. gewitnes; Thayer, Evidence, 17.

« Brunner, D. E. G. ii. 395.

602 Procedure. [bk. n.

AJlotment Such being the modes of proof, we must now understand that the proof is preceded by and is an attempt to fulfil a judgment. The litigants in court debate the cause, formal assertion being met by formal negation. Of course it is possible that no proof is necessary and the action will be, as we should say, ' decided upon the pleadings.' So soon as the plaintiff has stated his claim, the defendant will perhaps declare that he is not bound to give an answer, because the plaintiff is an outlaw, or because the plaintiff has omitted some essential ceremony or sacramental phrased But if an un- [p.eoo] exceptionable assertion is met by an unexceptionable answer, then the question of proof arises. The court pronounces a judgment. It awards that one of the two litigants must prove his case, by his body in battle, or by a one-sided ordeal, or by an oath with oath-helpers, or by the oaths of witnesses. It has no desire to hear and weigh conflicting testimony. It decrees that one of the two parties shall go to the proof It sets him a task that he must attempt*. If he performs it, he has won his cause. Upon this preliminary or 'medial' judgment' follows the wager^ The party to whom the proof is awarded gives gage and pledge by way of security for the fulfilment of the judgment. The doomsmen have declared for law that he must, for example, purge himself with oath-helpers ; thereupon he ' wages,' that is, undertakes to fulfil or to ' make' this ' law'.'

1 Brunner, D. B. G. ii. 346.

2 A beautiful example of this award of the proof is given by Modbert's suit in the court of the Bishop of Bath in 1121; Bigelow, Plaeita, p. 114; Bath Cbartularies (Somerset Bee. Soc), pt. 1, pp. 49-51.

' Bigelow, History of Procedure, p. 288, has introduced the term ' medial or proof judgment ' as an equivalent for the BewHsurteil of German writers.

* Brunner, D. E. G. ii. 365. Even in the present century the form of the record of an action showed the old medial judgment. Any one who for the first time saw such a record might well believe that, after the oral altercation in court was at an end, the court adjudged that proof should be made by a jury ; for the record, after stating the pleadings, went on to say, ' Therefore it is commanded to the sheriff that he do cause twelve men to come etc' In the thirteenth century this order for a jury is still regarded as a judgment. ' Consideratum est quod inquiratnr per sacramentum xii. hominum ' says the record; Note Book, pi. 116.

" As to this use of lex, see Brunner, D. E. G. ii. 376. We may suppose that the judgment began with some such words as the Nous vous dioms pur lei of our Year Books. Then it would be easy to transfer the lex, lei or law to the probative task imposed by the judgment. Salmond, Essays in Jurisprudence p. 17.

CH. IX. § 4.] Pleading and Proof. 603

A great part of the jurisprudence of the wise has consisted Euleefor in rules about the allotment of the proof- Their wisdom has proof.™^ consisted in ability to answer the question — 'These being the allegations of the parties, which of them must go to the proof and to what proof must he go?' It is in the answer to this question that a nascent rationalism can make itself felt. The general rule seems to have been that the defendant must [p. 601] proved If the accusation against him was a charge of serious crime, he would perhaps be sent to a one-sided ordeal; but usually he would be allowed to swear oif the charge with oath- helpers, unless he had been frequently accused. The difficulty of the oath or of the ordeal would vary directly with the gravity of the charge. Then again, there were some defences, in particular that of a purchase in open market, which could be proved by witnesses. Lastly, it was possible for a plaintiff to cut off the defendant from an easy mode of proof by an offer to undergo the ordeal or by a challenge to battle'. There were some stringent rules about these matters ; still it is here, and only here, that we can see an opening for the play of reason, for an estimate of presumptions and probabilities. When once the proof has been awarded, when once a lex has been decreed, formalism reigns supreme.

Now this old procedure was still the normal procedure in Proof in the days of Glanvill ; and even in the days of Bracton, though it was being thrust into the background, it was still present to the minds of all lawyers. A new mode of proof was penetrating and dislocating it, namely, the proof given by the verdict of a sworn inquest of neighbours or proof by 'the country.' The early history of the inquest we have already endeavoured to tell when we were regarding its constitutional or political side^ The revolution which it worked in our legal procedure and in our notions of proof now claims our attention. First however, we should notice that the days of Glanvill and Bracton were critical days for the law of proof in other countries besides England. In many lands men were dissatisfied with the old

1 Brunner, D. E. G. ii. 369.

2 Brunner, D. E. G. ii. 370. .ffithelr. Ii. 9, § 8. Pleta, p. 137 : ' Et in hoo easu semper incumbit probatio neganti.'

'' See the offers of proof in Domesday Book collected in Bigelow, Plaoita, pp. 37-46. '

* See above, vol. i. Dp. 138-150.

604 Procedure. [bk. il.

formal tests. The catholic church was dissatisfied with the ordeal and was discovering that the oath with helpers, though it had become the purgatio canonica, would allow many a hardy heretic to go at large. And everywhere the reformers have the same watchword — Inquisitio. What is peculiar to England is not the dissatisfaction with waged 'laws' and supernatural probations, nor the adoption of an 'inquisition' or 'inquest' as the core of the new procedure, but the form that the inquest takes, or rather retains. By instituting the Grand Assize and the four Petty Assizes Henry II. had placed at the disposal of [$.' litigants in certain actions that inquest of 'the country' which ever since the Norman Conquest had formed part of the governmental machinery of England. His reforms were ef- fected just in time. But for them, we should indeed have known the inquest, but it would in all likelihood have been the inquest of the canon law, the enqu^te of the new French jurisprudence'. The The litigants are in court. All pleading' is as yet oral

co^t.^ ^ pleading, though when a plea has been uttered it will be recorded on the roll of the court. When the parties stand

^ Trial by jury became in .this century the theme of a large controversial literature, for the more part German. At the present time the student will hardly find occasion to pursue this debate further back than Brunner's Entstehung der Schwurgerichte (1871), and Zeugen- nnd Inquisitionsbeweis (Forschungen, p. 88) : but much useful material was collected by Biener, Daa englisehe Geschwornengericht (1852). In this country light began to dawn when Beeves, Hist. Engl. Law (ed. 1814, i. 249), said that the iudicium parium -of Magna Carta does not point to trial by jury. But the decisive step was taken by Palgrave, English Commonwealth (1832), chap, vin. Among more recent books dealing with this matter are Forsyth, History of Trial by Jury (1852), and Bigelow, History of Procedure (1880). Lately Mr J. B. Thayer has published in Harv. L. Bev. v. 249, 295, 357, three articles so full and excellent that we shall make our own sketch very brief, and insist only upon what seem to las to be the more vital or the more neglected parts of the story. We are glad to hear that Mr Thayer is about to publish his papers in a collected form. (We can now add that they are published as Part 1 of a Treatise on Evidence, Boston, 1896.) As to France, the important Ordinance of St Louis substituting for trial by battle an enquete of witnesses will be found in YioUet, EtabUssements, i. 487. It is dated in 1257-8 by J. Tardif, Nouv. rev. hist, de droit, 1887, p. 163. See also Biener, Beitrage zu der Geschichte des Inquisitions-Processes ; Esmein, Histoire de la procedure criminelle en France, ch. ii. When all has been said, the almost total disappearance in France of the old enquete du pays in favour of the enquUe of the canon law, at the very time when the inquisitio patriae is carrying all before it in England, is one of the grand problems in the com- ' parative history of the two nations.

CH. IX. § 4.] Pleading and Proof. 605

opposite to each other, it then behoves the plaintiff' to state his case by his own mouth or that of his pleader. His state- ment is called in Latin narratio, in French conte ; probably in English it is called his tale\ It is a formal statement bristling with sacramental words, an omission of which would be fatal, [p. 603] For example, if there is to be a charge of felony, an irretrievable slip will have been made should the pleader begin with ' This showeth to you Alan, who is here,' instead of 'Alan, who is here, appeals William, who is there',' and again in this case the ' words of felony ' will be essential. In a civil action begun by writ, the plaintiff's count must not depart by a hair's-breadth irom the writ or there will be a ' variance ' of which the defendant will take advantage*. On the other hand, the brief statement that the writ contains must be expanded by the count. Thus a writ of Debt will merely tell William that he must say why he has not paid fifty marks which he owes to Alan and unjustly detains ; but the count will set forth how on a certain day came this William to this Alan and asked for a loan of fifty marks, how the loan was made and was to have been repaid on a certain day, and how, despite frequent requests, William has refused and still refuses to pay it. The count on a Writ of Right will often be an elaborate history". A seisin ' as of fee and of right ' with a taking of ' esplees' will be attributed to some ancestor of the demandant, and then the descent of this right will be traced down a pedigree from which no step may be omitted.

It is not enough that the plaintiff should tell his tale : he The offer must offer to prove its truth. In an Appeal of Felony he offers proof 'by his body" ; in a Writ of Right he offers proof 'by the body of a certain free man of his A. B. by name' who, or whose father, witnessed the seisin that has been alleged; in other

J As we must speak very briefly, we shall use plaintiff to cover appellor and demandant, while defendant will include appellee and tenant.

2 The book whose iatiu title is Novae Narrationes was also known as Les NoveU Talei (Y. B. 39 Hen. VI. i. 30). As to the use of the Eoman terms demonstratio and intentio, see Pike, Introduction to T. B. 12-3 Edw. III. pp. Ixxiv-lxxxiii.

" Britton, i. 103.

4 See e.g. Note Book, pi. 921.

' Bracton, f. 372 b.

" It is not unknown about the year 1200 that the appellor will offer proof by the body of another person ; Select Pleas of the Crown, pi. 84.

606 Procedure. [bk. n.

cases he produces a suit (seota) of witnesses'. No one is en- titled to an answer if he offers nothing but his bare assertion, his nude parole. The procedure in the Appeal of Felony is no real exception to this rule. The appellor alleges, and can be called upon to prove, fresh ' suit ' with hue and cry, so that the neighbourhood (represented in later days by the coroner's rolls) is witness to his prompt action, to the wounds of a wounded man, to the torn garments of a ravished woman. It should not escape us that in this case, as in other cases, what the plaintiff relies on as a support for his word is 'suit.' This [p. 604] suggests that the suitors (sectatores) whom the plaintiff pro- duces in a civil action have been, at least in theory, men who along with him have pursued the, defendant. Be that as it may, the rule which required a suit of witnesses had been regarded as a valuable rule; in 1215 the barons demanded that no exception to it should be allowed in favour of royal officers ^ The suit. And now we must observe the manner in which the suitors

are introduced. If Alan is bringing an action against William, his count, unless there is a provocation to battle, will end with some such words as these : — ' And if William will confess this, that will seem fair to Alan : but if he will deny it, wrongfully will he deny it, for Alan has here suit good and sufficient, to wit, Ralph and Roger'.' Pnnction When we first obtain records from the king's court, the

suitors. production of suit is beginning to lose its importance, and we know little as to what the suitors did or said when they had thus been introduced to the court. But we may gather from the Norman books that each of them in turn ought to have stepped forward and said : ' This I saw and heard and [by way of

> Thayer, Evidence, 10 £f. In a Writ of Bight the demandant can not oSer proof by his own body ' desicut non potest esse secta sai ipsius ' ; Note Book, pi. 1935.

' Articles of the Barons, o. 28 ; Charter, 1219, o. 38 : ' Nullus balliyns pouat de cetero aliquem ad legem simplici loquela sua, sine testibns fidelibus ad hoc inductis.' In 1217 after legem the words manifestam vel iwramentum were added. See B^mont, Ghartes, p. 65. Also see Fleta, p. 137. The lex manifesta does not necessarily point to an unilateral ordeal ; it may well stand for trial by battle. See Thayer, Evidence, pp. 11, 37 ; Brunner, Schwurg. p. 178.

s Braoton, f. 297 ; Britton, ii. 257 ; The Court Baron (Seld. Soc), pp. 20, 23 ; Y. B. 20-1 Edw. I. pp. 451-3. In a French book (Jostioe et Plet) a similar formula occurs : ' s'il le conoist, biau men est ; s'il le nie, joa sui prez dou mostrer et de I'av^rer': Brunner, Forsohungen, p. 309.

CH. IX. § 4.] Pleading and Proof. 607

proof] I am ready to do what the court shall awards' At this

stage the suitors make no oath and are not questioned. They

are not yet making proof; the proof will not be made until the

court has spoken after hearing what the defendant has to say.

And so in the Writ of Eight the proffered champion will speak

thus : ' This I saw and heard — or, this my father saw and heard

and of this when dying he bade me bear witness" — and this I

am ready to prove by my body when and where the court shall

award.'

[p. 605] As regards the number of suitors requisite when no battle Number

was offered, the only rule of which we find a trace is the Testis suUora.

unus, testis nullus, which — so men thought — could be deduced

from holy writ*. This would make two suitors sufficient ; but

as a matter of fact we find three, four, six, seven, ten, eleven,

thirteen produced*. The reason for these numerically weighty

suits will appear when we describe the modes of defepce.

The time has now come when the defendant must speak, fhe

. uefence. and as a general rule the only plea that is open to him is a

flat denial of all that the plaintiff has said. He must ' defend ' all of it, and in this context to defend means to deny". In the past he has been bound to 'defend' the charge word by word with painful accuracy". By the end of the thirteenth century he is allowed to employ a more general form of ne- gation. He may, for example, in an appeal of homicide say such words as these : ' William, who is here, defends against Alan, who is there, the slaying and the felony and all that is against the king's peace word by word'.' In a writ of right

1 Somma, p. 157 ; Anoienne coutume, o. 62, ed. de Gruchy, p. 150. Compare Lyon, Dover, ii. 292.

2 Glanvill, ii. 3. Note Book, pi. 185.

* Note Book, pi. 396, 790, 1603. For the history of Testis unus, testis nullus, see VioUet, ifetablissements, i. 203.

" Note Book, pi. 890, 1065, 265, 279, 194, 1390, 1919 ; Northumberland Assize Bolls, 56.

' See Oxford Engl. Diet. In cent. xiii. defenders is currently used in both its two senses (1)= protect, and (2)= deny with accusative of thing denied or with a quod which introduces the statement that is denied. See e.g. Note Book, pi. 1467: 'Et Bobertus defendit quod nullum plaoitum seoutus fuit...et hoa offert defendere...Con3ideratum est quod defendat se xii. manu.'

" Brunuer, Forschungen, 311 ; Esmein, Histoire de la procedure crimiuelle, p. 45.

' Britton, i. 101-2. Note Book, pi. 1460 gives a full form including the words 'nee per ipsum fuit morti appropiatus nee a vita elongatus, neo idem

ut-naj/.

608 Procedure. [bk. ii.

he will say : ' William, who is here, defends against Alan, who is there, his [Alan's'] right and the seisin of Bertram [Alan's ancestor] and all of it word by word.' In an action for trespass he will say ; ' William, who is here, defends against Alan, who [p. 603] is there, and against his suit [of witnesses] the tort and the force and all that is against the peace, and the damages and all that he [Alan] surmiseth against him word by word.' Such is the ' defence V Thwert- For reasons that will appear hereafter, the 'defence' is

losing its old meaning. Men are beginning to regard it as a mere formal preamble which serves to introduce the more material part of the defendant's answer. They call this clause a defence of ' the words of court,' that is of the formal, technical words, and when they enrol it they make a free use of the <&c.'. But it seems to tell us plainly that as a general rule all 'exceptions' or 'special pleas,' all answers which are not flat negations of the plaintiff's story are novelties*. In 1277 the burgesses of Leicester obtained from their lord. Earl Edmund, a charter remodelling the procedure of the borough court. One of the grievances of which they complained was this, that a defendant was treated as undefended unless, before, he said anything else, he met the plaintiff's tale with a thwert-ut-nay,

Bogerus {appellator] hoc vidit.' In a caee of felony the appellee must make a ' defence ' before he seeks counsel and may afterwards repeat his defence more formally by the mouth of a Serjeant. Munim. Gildh. i, 114 : ' ' Boberia et paz fracta et raptus et felonia... omnia ista et talia defendenda sunt ante consilium captum et post consilium.' See Brunner, Forschungen, 319. It is clear from Britton, i. 102, that the appellee may have a Serjeant to speak his defence.

' We are abbreviating this form. The record will say that the tenant venit et defendit ius suum, but as Blackstone, Comm. iii. 297, has rightly remarked, this means that he defends (= denies) the demandant's right. Note Book, pi. 86: there are two demandants ; the tenant ' venit et defendit ius eorum. '

^ See the forms in the Court Baron (Seld. Soc.) which are very full. On early plea rolls the words of ' defence ' are but hinted at, unless in the particular case some objection was taken to them. Therefore negative inferences from these rolls should be sparingly drawn. In the Court Baron, pp. 41, 48, 84, we see a defendant vanquished because he omits the words 'and his suit.'

5 As to the phrase verba curiae, les moz [paroles] de la court, see Y. B. 32-3 Bdw. I. pp. XXXV, 105 ; Select Pleas in Manorial Courts, pp. 82, 113. We are not satisfied with the suggestion that the phrase should really be the words of course ; but already in 1292 paroles de la court seems to mean formal words which must be used but may not be taken very seriously ^ T. B. 20-1 Edw. I. p. 281.

* An assertion that for some reason or another one is not bound to answer et idea non vult inde respondere we do not here count as an answer.

CH. IX. § 4.] Pleading and Proof. 609

that is, a downright No. A downright No has been in the past the one possible answer; it is still the indispensable preliminary to every possible answer', [p. 607] Now we will suppose for a while that our defendant really Examina- wishes to rely upon a downright No. In that case, as we pTaiatiff'^s* understand the matter, one of the things that he may do is ^""• to demand an examination of the plaintiff's suit of witnesses^ Perhaps he can object that no suit at all has been produced. This in the early years of the thirteenth century is done successfully with a frequency that is somewhat curious. In such cases the defendant protests that he need not answer the 'nude parole' (simpleoc dictum, simplex vox) of the plaintiff °. If, on the other hand, a suit has been produced, the defendant may demand that it be heard^- We take it that in the old procedure, which was vanishing, this would have led to a formal and indisputable oath on the part of the suitors. If they had duly pronounced the requisite words, the defendant would have been vanquished, though he might perhaps have charged them with perjury and provoked them to battle'. But in the thirteenth century the procedure is not so formal ; the suit can be ' examined.' This implies, not merely, that suitors

1 Eeeords of the Borough of Leicester, ed. Bateson, pp. 156-8 : ' E pur ceo ke ■ns6 fu avaunt ces cures quant les parties deveient pleder e le pleintif aveit dit sa querele, si le defendant taunt tost cum la parole ly fust issue de la buche ne

deist thwerthutnay H fu tenji cum non defendu, e ceo apelerent swareles E

pur ceo ke avaunt fu ub6 ke le defendaunt ue poeit a la pleinte le pleintif autre

chose respuudre for tut granter ou tut dire thwerthutnay ' Mr W. H. Stevenson

tells us that the forms thwertutnay and swareles [=indefensus, non defendu] seem to point to a Scandinavian [Old Norse] influence. The idea of a thwertutnay is preserved in our traverse ; it is the ' defence tut atrenche ' of our Y. BB., e.g. 32-3 Bdv?. I. pp. 8, 375. In the Soots Leges Quatuor Burgorum (Act of Pari. i. p. 388) vre read that in defending ' wrong and unlaw ' a twertnay is used. The Earl of Chester had conceded to his .tenants that if any of them ■was impleaded by the earl's officers without a suit, 'per tweitnic [corr. twertnie?] Be defendere poterit.' This charter is known from an Inspeximus, Eot. Pat. 28 Ed. L m. 22.

" In Note Book, pi. 396, a defendant loses his right to object to the nullity of the plaintiff's secta by making a ' full defence.' See also The Court Baron (Seld. Soc), p. 84. But other eases seem to show that a defendant had to do a. good deal in the way of ' defending ' even though he was going to rely on an objection of this kind. See Note Book, pi. 424, 479, 574, 1693; Northumberland Assize Bolls, p. 275.

3 See e.g. Note Book, pi. 37, 494, 1868 ; T. B. 20-1 Edw. I. p. 69.

* See e.g. Note Book, pi. 1693.

' See above, vol. ii. pp. 162- 3.

P. M. II. 39

610 Procedure. [bk. ii.

can be rejected for good cause, as being villeins, interested

persons or the plaintiff's attorneys^ — this could have been done

even in earlier days — but also that the court will give audience

to the suitors one by one and try to discover whether they

really know anything about the- facts. If they break down

under examination, if they know nothing, if they disagree,

'the suit is null' and the plaintiff fails''.

The But the defendant who called for an examination of the

offer of plaintiff's secta was, we take it, throwing away every other

*" ■ defensive weapon'. He has chosen a test and must abide by

the choice. He will probably desire that 'the proof should be [p-' awarded to him rather than to his adversary. He must there- fore offer to make good his downright No. When battle has been offered, he must — for we are at present neglecting as novelties all forms of the jury — accept the offer. Having 'de- fended' the charge, he professes his willingness to defend it once more, in some cases by his own body, in others by the body of a certain freeman of his, G. D. by name, ' when and where the court shall consider that defend he ought.' When there has been no offer of battle, he will follow up his defence by the words: 'And this he is ready and willing to defend when and where he ought as the court shall consider.' In the former case the court will award a wager of battle. In the latter case the court will award to the defendant some other ' law,' to wit, an oath with helpers ; he must at once wage this law, that is, find gage and pledges that he will on a later day ' make ' this law by performing the task that has been set him. The court will fix the number of the compurgators that he must produce, and this may in some cases depend upon the number of suitors tendered by the plaintiff ^

1 Note Book, pi. 740, 941, 953.

2 Note Book, pi. 424, 479, 574, 613, 649, 761, 762, 1693, 1848.

• Braoton, f. 315 b, and Fleta, p. 137, allow a defendant to go to the proof ■with oath-helpers after there has been an ' examination ' of the plaintiff's secta. "We are inclined to regard this procedure, which goes near to 'admitting ■evidence on both sides,' as an innovation. The judges seem to be trying for a ^hort while to make something reasonable out of the secta. Little comes of the effort, because the habit of referring questions to 'the country' is growing rapidly. At Sandwich the plaintiff in Debt seems to have been allowed to go i;o the proof with three suitors, even though the defendant desired to wage law. It was otherwise in Trespass. See Lyon, Dover, ii. 292-4.

* Bracton, f. 315 b : ' duplicatis ad minus personis iuratorum.' Fleta, p. 137,

CH. IX. § 4. J Pleading and Proof. 611

Such have been the modes whereby a man made good his Special thwert-ut-nay. In Bracton's day they are being concealed from p^^^'^'^s- view by an overgrowth of special pleading and -the verdicts of jurors. But the background of the law of pleading and trial still is this, that the defendant must take his stand upon a downright No, whereupon there will be a wager of battle or of some other law*, [p. 609] For some time past, however, a new idea has been at The

work. We have here no concern with the ancient history of ^^'^^ '°°" the Roman eteceptio ; but must notice that in what became a classical passage Justinian used words which might well bewilder the medieval lawyer^ Knowing little or nothing of any system of ' equity ' which could be contrasted with a system of 'law,' he could not mark off a proper sphere for

repeats this rule, but holds that twelve is the maximum number of helpers that can be required.

^ In later days a defendant, even though he is going to deny the competence of the court, or the validity of the writ, or the ability of the plaintiff, is bound to begin by 'defending the wrong [or, in some oases, the force] and injury.' This is called a ' half defence.' If he defends more than this, if he makes a ' full defence,' he is apt to lose his right of raising these ' dilatory exceptions.' If, e.g. he ' defends the damages,' he waives all objections to the ability of the plaintiff. In course of time some of these subtleties were evaded by a formula which made use of the convenient c^e. See Co. Lit. 127 b; 2 Wms. Saund. 209 b, note c ; Stephen, Pleading (ed. 1824), 430-4. It is difficult to pursue this doctrine into Bracton's age, because the <&c. is already being used on the roll. On very old rolls there is sometimes no ' defence ' at aU when a dilatory exception is pleaded. See T. B. 21-2 Edw. I. pp. 9, 167. Sometimes, on the other hand, we see what looks like a fuU defence. The art of enrolling with mechanical regularity was not perfected in an hour. We have seen above (p. 609, note 2) that there was a defence even when the plaintiff produced no sufficient secta and the defendant was going to rely upon this defect. It seems to us that the ancient reasons for giving no answer are (under the influence of the exotic exeeptio) being mixed up with the new kinds of answer that are being introduced. In the end the form of a defendant's plea is quaintly illogical, if we take all its words seriously. For instance, if he is going to plead in abate- ment, he wiU come and defend (=deny) the wrong and injury and then, after suggesting certain facts, will go on to ask the court whether he need answer, just as if a denial were no answer. On the whole our evidence seems to point to a time when the defendant's only choice lay between (1) refusing to answer and (2) relying on a downright No. Compare Brunner, Forschungen, pp. 316-8; D. E. G. ii. 346. The supposed rule that in Dower there is no 'defence' (Stephen, Pleading, 431-4) seems to be a mere matter of words. See e.g. Note Book, pi. 1383 : ' Et W. venit et defeudit quod non debet inde dotem habere ' ; but in later days defendit in this context gave way to dicit.

" Inst. 4. 13 pr. : ' saepe enim accidit ut, licet ipsa perseoutio qua actor experitur insta sit, tamen iniqua sit adversus eum cum quo agitur.'

39—2

612 Procedure. [bk. il.

exceptiones, and was apt to believe both that every kind of answer to an action was an exceptio, and that Roman law allowed an almost unlimited licence to the pleaders of excep- tiones^. This new idea set up a ferment in England and elsewhere. When the old rigid rules had once been infringed, our records became turbid with 'exceptions/ and a century passed away before our lawyers had grasped the first principles of that system of pleading which in the future was to become the most exact, if the most occult, of the sciences". Exceptions Now the region in which the 'exception' first obtained a [p.eio] firm footing was to all seeming one which we have been neglecting, namely, the new and statutory procedure of the Petty Assizes. These, it will be remembered, are actions in which there need not be any pleading at all ; they are regarded as summary actions which touch no question of 'right.' The plaintiff obtains a writ which directs that recognitors shall be summoned to answer on oath a particular question. The recognitors appear ; if they answer that question in the plain- tiff's favour, he obtains seisin'. From the first, however, it must have been plain that in some instances a gross injustice would thus be done to the defendant. We will put a simple case. Alan brings an assize of Mort d' Ancestor on the seisin of his father Bernard against William. The question stated in the writ will be this : ' Did Bernard die seised in his demesne as of fee, and is Alan his next heir?' Now it is possible that both clauses of this question ought to receive an affirmative answer, and yet that William ought not to be turned out of possession ; for the case may be that on Bernard's death Alan, his son and heir, entered and afterwards enfeoffed William. It would be scandalous if Alan, despite his own act, could now

' Bethmann-Hollweg, Oivilprozess des gemeinen Eeohts, vol. vi. p. 55 ; Fournier, Les offioialitfis au moyen ige, 160-1. Azo distinguishes between a laxer and a stricter use of the term exceptio. 'Large ponitur pro omni defensione quae reo competit, etiamsi nulla actorl competat actio..,. Stricte vero ponitur et proprie pro ea defensione quae competit reo contra actionem competentem in eum.' This doctrine is repeated by later civilians and canonists; but they seem to use exceptio habitually in the large sense which makes it cover any and every kind of answer.

^ The elements of this science were in its last days admirably explained by H. J. Stephen, Principles of Pleading, a book which contains some excellent historical remarks. We purposely use a copy of the first edition, which was issued in 1824, while as yet the system was unretormed.

' See above, vol. i. pp. 144-9 ; vol. ii. pp. 47, 56, 137.

CH. IX. § 4.] Pleading and Proof. 613

recover the land ; and yet he will do this if the assize proceeds. Therefore we must allow William an opportunity of asserting that for some reason or another the assize ought not to proceed {quod non debet assisa inde fieriy, and if we are justified in appropriating the Koman word exceptio for any English purpose, we may surely use it in this context. William will show cause against the further continuance of that procedure which the writ has ordained; this plea of his we call an exceptio. It is soon evident that the Mort d'Ancestor and the Darrein Presentment can often be 'elided' by 'exceptions' of this character ^ [p.eii] But we do not stop here, for we begin to see that the Elasticity assize-formulas contain words which are rapidly acquiring a exception, technical import, such as ' disseised,' ' free tenement,' ' as of fee ' and so forth. A defendant may well fear that, with such phrases before them, the jurors, though they ought to answer the question in his favour, will give his adversary a verdict. The defendant, for example, has ejected a tenant in villeinage, who forthwith brings the Novel Disseisin against him. The jurors ought to say that the plaintiff has not been disseised from a ' free tenement.' But will they do so, unless their attention is specially directed to the villein character of the tenure ? So we allow the defendant to raise this point ; we allow him to do so by way of an assertion that the assize should not proceed ; this assertion we call an exceptio. Obviously our exceptio is becoming a very elastic term'.

' For an early (1194) instance of this formula, see Eolls of the King's Court (Pipe Boll Soc), p. 68.

2 For an early instance, see Select Civil Pleas, pi. 122. It is in this context that Glanvill, xiii. 11. 20, introduces the term exceptio. As to the large sphere left for exceptions by the formula of Darrein Presentment, see above, vol. ii. pp. 137-8. In course of time the justices began to require that the plaintiff in an assize should give some explanation of his case, see above, vol. ii. p. 49 ; but on the rolls of the early part of cent, xiii., if there is any pleading at all, the defendant begins it with Non debet assisa inde fieri. This is the reason why there is no ' defence ' to an Assize : Stephen, Pleading, p. 434. There is nothing to deny, for the plaintiff has not spoken.

' See the whole of Bracton's treatment of the exceptions to assizes, ff. 187b-210, 240-245 b, 266b-274. The Note Book is full of examples; a single one (pi. 270) may serve to show the form of the exceptio and the wide scope that is given to it. The defendant dicit quod assisa non debet inde fieri, and states as his reason certain facts whence he concludes that the plaintiff was never seised of free tenement (quod nullum liberum tenementum inde habere possit). Thus in form we get from the defendant an assertion that a question

614 Procedure. [bk. ti.

From the province of the Petty Assizes the escceptio spread exception, with great rapidity throughout the domain of the other actions'. For one thing, the old reasons for refusing to answer were brought under the new rubric. From of old a defendant must have had some power of urging such reasons: for example, of saying, ' I will not answer, for this court is not competent to decide this cause,' or ' I will not answer you, for you are an outlaw.' Under the influence of the romano-canonical procedure these preliminary objections were now called exceptions ; they were ' temporary' or 'dilatory' exceptions. A classification of Dp- 612] exceptions and a theory about the order in which they should be propounded was borrowed. First you must except to the jurisdiction of the court, then to the person of the judge, then to the writ, then to the person of the plaintiff, then to the person of the defendant, and so on°. About all this much might be said, and it would be interesting to trace the fortunes in England of this once outlandish learning'. But we must hasten to say that in a very short time we find the defendant propounding by way of exception, pleas that we can not regard as mere preliminary objections, for they are directed to the heart of the plaintiff's case ; these are ' peremptory' or ' per- petual ' exceptions, the ' special pleas in bar' of later law. For a while the utmost laxity prevails. Of this the best examples are to be found among the Appeals. By way of exception to an appeal of homicide the appellee is suffered to plead that the appeal is not a 'true' (that is, not a bona fide) appeal but is the outcome of spite and hatred {odium et atia)*. A climax seems to be reached when an appellee pleads an alibi by way of exceptio : a climax we say, for the plea of alibi can be nothing but an argumentative traverse of the charge that has been

ought not to be asked because it ought to be (but perhaps will not be) answered in his favour.

1 In speaking of exceptions rather than of special pleas we are following the records of this age. The technical usage of plea {placitum) which makes it stand for the first utterance of the defendant (provided that utterance is not a demurrer) seems to be comparatively recent. That utterance is often called responsum, response. But throughout the Y. BB. of Edw. I. the word excepcioun is constantly used, and apparently stands for any first utterance of the defendant, at all events if that utterance is not a simple negation See e.g. T. B. 20-1 Edw. I. p. 275, where ezcepcioun and respounce are contrasted.

" See Braoton, ff. 399 b, 400 b, 411b, 413, 415 b, 429 b.

' For the ultimate form of the doctrine, see Stephen, Pleading, pp. 63, 429 and Note 78. * See above, vol. ii. p. 587.

CH. IX. § 4.] Pleading and Proof. 615

made against him, a charge that he will already have traversed in large and explicit words by his ' defence'.' And here we may see how exotic the exceptio once was, though it is now flourish- ing but too luxuriantly in our soil : — it is always, or almost always, preceded by a thwert-ut-nay, that is by a flat denial of the plaintiff's assertions" [p. 613] The exception may be met by a replication, the replication Laxity of by a triplication and so on ad infinitum. We may occasionally p^^**™8- find long debates between the parties'. Not only are they long, but, if judged by the standard of a later time, they are loose and irregular. The pleaders must be charged with many faults which would have shocked their successors ; they habitu- ally • plead evidence,' they are guilty of argumentativeness and duplicity*. The curious rule which in later days will confine a

^ Bracton, f. 148 : ' Item excipere poterit quod anno et die quo hoc fieri debnit fuit alibi extra regnum vel in provinoia in tam remotis partibus quod verisimile esse nou poterit quod hoc quod ei imponitur fieri posset per ipsum.' Select Pleas of the Crown, pi. 84: 'Et Thomas totum defendit. . .et dicit quod die iUo... fuit ipse...apud L....et inde ponit se super patriam.' Eec. Off. Assize EoU, No. 82 (Cambridgeshire, 45 Hen. III.) m. 32: an appellee accused of committing a crime at Cambridge, ' petit sibi allocari quod quando factum fieri debuit, si factum esset factum, fuit apud Ely et non apnd Cauntebrig...et, istis sibi allocatis, ponit se super patriam, praeterquam super villam de Cauntebrig." However, in this last case the appellee had to join battle, was vanquished and hanged. T. B. 21-2 Edw. I. p. 391 : in a civil action a litigant tries to plead an alibi by way of exception ; but is driven to a direct traverse. Long afterwards the criminal practice of Scotland treated an alibi as a preliminary exception that must be disposed of before the evidence for the prosecution could be heard,

* See above, p. 611, note 1. Observe how a special plea is pleaded to an action of debt. Note Book, pi. 177: 'Et W. venit et defendit contra eum et contra sectam suam quod nihil ei debet. Sed verum vult dioere. Dicit quod bene potest esse quod etc' The phrase Sed veritatem vult dicere is commonly used to usher in a 'confession and avoidance.' The defendant first denies everything, but then ' wishes to tell the truth,' and admits that there is some truth in the plaintiff's case.

2 Note Book, pi. 716, cited by Bracton, f. 436, is a good specimen. Under Edward I. the answer to an excepcion is currently called a replicacion ; T. B. 21-2 Edw. I. pp. 142, 426. We have not met with triplication except in the text books, nor with rejoinder and rebutter, which seem to belong to a later day.

* Stephen, Pleading, Note 38, has remarkfed these faults. His examples might now be indefinitely multiplied. Under Edward I. objections to duplicity are becoming common. There is a regular formula by which what we should call evidence is pleaded : et hoe bene patet quia. See e.g. Note Book, pi. 612, 669, 979, 1565, 1616, 1663. In Northumberland Assize Eolls, pp. 12, 191, will be found two early instances of the phrase absque hoc, but it is not as yet a technical phrase. See also Y. B. 30-1 Edw. I. p. 199. Under Edward I. the

616 Procedure. [bk. ii.

man to a single 'plea in bar^' appears already in Bracton, justified by the remark that a litigant must not use two staves to defend himself 'withaP. But this rule had not always been observed ; defendants were allowed a second staff, at all events if, when using the first, they expressly reserved the right of picking up another*. The ex- These men are drunk with the new wine of Romanism: — [p-6l4]

the jury, such may be the comment which a modern reader will make when for the first time he watches the exploits of our ancient pleaders. But we ought to see that there is an under-current of good sense running beneath their vagaries. The extension of the exceptio is the extension of a new mode of proof; it is the extension of a mode of proof which will become famous under the name of trial by jury. Proof of He who excepts must, like a plaintiff, offer to prove his

exceptions. x t i i i i ,

case . it may be that he can rely upon the record of a court or upon a charter; but in general the modes of proof that would seem open to him would be a 'suit' of witnesses or, in appropriate cases, a single witness who is ready to do battle'.

term traverse is eommon and we may find demur (Y. B. 20-1 Edw. I. p. 323 ; 21-2 Edw. I. p. 163), tender an averment (21-2 Edw. I. p. 263), the issue of a plea (33-5 Edw. I. 297).

' Stephen, Pleading, pp. 151, 290 and Note 57.

" Braoton, f . 400 b : ' sieut posset se pluribus baculis defenders, quod esse non debet, cum ei sufScere debeat tantum probatio unius [peremptoriae exceptionis].' Y. B. 33-5 Edw. I. p. 359 : ' vous ne averez point deus bastons.' This seems an allusion to trial by battle. Bracton, f. 301b, 302, permits a defendant in Dower to plead another plea after failing in the allegation that the ■ husband is still living. But this point seems to have been questionable.

^ See e.g. Note Book, pi. 272. Writ of Bight against a prior; he first excepts on the ground of royal charters ; ' et si curia consideraverit quod super hoc debeat respondere, dicet aliud.' Judgment, 'quod prior dioat aliud.' He pleads another plea, 'et si curia consideraverit quod debeat respondere super cartas sine Eege, dicet aliud.' The attempt to retain a right 'dicere aUud' is not very uncommon. The limits of the rule against two peremptory exceptions were doubtful in 1292 ; Y. B. 20-1 Edw. I. pp. 457, 463 ; 21-2 Edw. I. p. 593. At present we are inclined to think that the rule which holds a defendant to have been totally defeated if any one issue of fact is found against him is a rule which punishes a Uar for having lied. See Bracton, f. 432 : ' amittet rem quae petitur propter mendaoium.' If so, the rule was but slowly defined, for an appellee who had been beaten on the issue of odium et atia was allowed to join battle. See above, vol. il. p. 588.

* Bracton, f. 399 b : 'Nam qui exoipit videtur agere.' Dig. 44. 1. 1: 'Agere etiam is videtur, qui exoeptione utitur: nam reus in exoeptione actor est.* Stephen, Pleading, Note 84.

" Observe how alternative proofs are offered, Note Book, pi. 95 : ' et inda

CH. IX. § 4. J Pleading and Proof. 617

At this point, however, the procedure of the Petty Assizes Assize and once more became of decisive importance. In other actions when the litigants are pleading they stand in the presence of the justices, but there are no recognitors, no representatives of ' the country ' at hand. If, however, the action is a Petty Assize, then when the litigants first meet each other in court they stand in the presence of the twelve men who have been summoned to answer the formulated question. If now the defendant ' excepts,' a method of testing the truth of his 'exception' is within easy reach. The recognitors have been summoned to answer one question, but why should they not answer another? The facts alleged in the exception aire as likely to be within their knowledge as the facts suggested by the plaintifif's writ. The transition is the easier because, as (p. 615] we have explained above', the defendant's so-called 'exception' is often a statement which, if it were true, would preclude the jurors from giving an affirmative answer to the original ques- tion. One example will suffice. The recognitors in an assize have been summoned to say whether Richard disseised John^ ; Richard asserts that the assize should not proceed, because John gave the land by feoffment to Richard's villein and the villein surrendered it to Richard, who entered by reason of this surrender. Now if this assertion is true, Richard did not disseise John. Richard, however, is desirous that the question which the jurors are to answer should be the question that he has defined. Of course if John consents to this change there is no difficulty; but further, we can say that he ought to consent, and that, if he will not, his action should be dismissed, for his case is that he was disseised by Richard, and this he can not have been if Richard's story is true. Of the verdict of twelve men as a mode of deciding this dispute the plaintiff can not complain, for he himself has invoked it. Thus it becomes common that a question raised by pleading should be answered by a jury and that a litigant should find himself

producit seotam, et si hoe non suffioit ponit se super iuratam patriae.' Ibid. pi. 116: 'et inde producit sectam...et si hoc non suffioit offert dirationare per corpus...' The Norman Custumal, c. 103 (100), ed. de Gruchy, p. 317, gives ua much information as to the defendant's secta (lex probabilis) ; we shall return to it hereafter, Somma, p. 323.

' See above, vol. ii. p. 613.

2 Note Book, pi. 1256.

618 Procedure. [bk. ii.

driven, on pain of losing his cause, to accept the offer that his opponent makes of submission to a verdict'. The jury The offer of a verdict of the country as proof of an excep-

appeal. tion soon invades the other actions. The excipients desire that this should be so, for if they offered proof by a secta of witnesses, this would very properly be met by a wager of law''. The king also gains by the new procedure for it is a royal commodity and he sells it. Far into the thirteenth century men will sometimes offer him money if they want an inquest'. Very often, again, the plaintiff is quite willing that the excep- [p. 616] tion should be submitted to a verdict, either because he is confident in the righteousness of his cause, or because he is by no means certain of being able to make a law. But, even if unwilling, he may be compelled to give a reluctant consent to the intervention of a jury. The exception is a novelty, and plaintiffs have in this case no traditional right to any of the antique modes of proof. a?heex- One last line had yet to be crossed: that, namely, which

the denial, divides the exception from the mere denial. However broad this line should have been, practice had reduced it to the utmost tenuity. If to a charge of homicide the plea of an alibi is a proper exceptio, we can hardly deny the name exceptio to the plea ' I am not guilty.' In the department of criminal law the forces which worked in favour of the jury were at their strongest. For one thing, the king was interested in all breaches of his peace, and he trusted to inquests rather than

1 When an assisa is turned into a iv/rata ex consensu partium it is often plain that the original recognitoiB answer the new question, for the record shows no trace of any ' jury process ' subsequent to the pleading. See e.g. Note Book, 87, 93, 1256, 1833, 1899, 1924. Sometimes, howeyer, a new jury will be summoned after the pleading. See pi. 205 and the marginal note, also pi. 61. This subject is discussed by Mr Pike in his Introduction to Y. B. 12-13 Edw. IH. pp. xli-lxxi.

2 Braeton, f. 400 b, §9.

» See e.g. Note Book, 86, 90, 184, 145, 233, 241, 816, 895, etc. On the other hand in 1220 (pi. 102) William Marshall offers the enormous sum of a thousand marks for the privilege of fighting Fawkes of Breautfi. Before the end of Henry III.'s reign a litigant can generally get a jury for nothing. If he makes a payment, this is for something unusual, e.g. a jury drawn from two counties. But even in the nineteenth century the tenant in a writ of right could purchase an advantage by tendering 6s. 8d. to the king at the proper moment. See T. B. 20-1 Edw. I. p. 293 ; Littleton, sec. 514. This was actually done so late as 1833 in Spiers v. Morris, 9 Bingham, 687.

CH. IX. § 4.] Pleading and Proof. 619

to the arms of appellors. Secondly, an appeal generally came before justices in eyre who were presiding over an assembly in which every hundred of the county was represented by a jury which had come there to answer inquiries. Indeed the justices as a general rule first heard of the appeal because it was ' presented ' to them by a jury. Thirdly, the abolition of the ordeal in 1215 had left a gap. When men are appealed by women or by other non-combatants, the truth of the appeal can no longer be tested, as it once was^ by iire or water, and the duel is out of the question, so the verdict of a jury appears as the only possible mode of proof. If then in such a case the appellee may have recourse to this test, why not in others? An objection on the part of the appellor could be met by the argument that, not he, but the king was the person primarily interested in a breach of the king's peace, and that the king wished for proof by verdict. By Bracton's day the right of the appellee to ' put himself upon his country for good and ill,' that is, to submit to a verdict the general question of his guilt, ^.617] seems to have been conceded ; but even Bracton is doubtful whether an accusation of poisoning, an act done in secret, could be met in this manner".

In civil causes also we begin to find defendants desirous of ^''^i^'"? referring to a jury what in substance, if not in form, is a general general negation of the plaintiff's statements. In some in- ^^^"^' stances they are expected to do this. For example, when there is a charge of ' Waste ' by cutting down trees or the like, the court holds that a general negation should be made good by a verdict rather than by a ' law,' for it might well fall out that the formal negatory oath would be a flagrant denial of visible facts^. And then, in contrast to the old actions into which the

> Select Pleas of the Crown, pi. 4, 9, 11, 19, 24, 68.

2 Bracton, ff. 142 b, 137 b. The practice of allowing the appellee to put himself upon the country for good and ill, if he will purchase this privilege from the king, seems to be establishing itself about the year 1200. See Select Pleas of the Crown, pi. 69, 64, 78, 81. Towards the end of Henry III.'s reign ihe appellor rarely has a chance of urging any theoretical right to a duel that he may have, for the justices as a matter of course quash the appeal for informality and arraign the appellee at the king's suit. We write this after perusing various imprinted eyre rolls. See also Ohadwyok-Healey, Somersetshire Pleas, p. 136. In Normandy the appellor's right to a duel was more respectfully treated : Somma, p. 177 ; Anoienne coutume, c. 69 (ed. de Gruchy, p. 171) ; Brunner, Schwurgericht, 475.

8 Bracton, f. 315 b. So far as we have observed, Waste is the first action

620 Procedure. [bk. il.

jury must slowly work its way, we see newer actions which, if we may so speak, are bom into an atmosphere of trial by jury. Two of these are of special importance. The Writs of Entry, which look like an infringement of feudal principles, are de- fended by the statement that they deal with recent events well known to the neighbours \ The action of Trespass is a semi-criminal action in which the king has an interest, and when it comes into being men are no longer suffered to wage their law in the king's court by way of answer to a charge of breaking his peaces Before the end of Henry III.'s reign it is a common incident in most kinds of litigation that the parties agree to submit to ' the country ' some question that has been, raised by their pleadings. The proposal is made by the. one [p.eis] party and accepted by the other. The one ' puts himself upon the country, and,' says the record, 'the other does the like.' In the hands of the second or third generation of professional pleaders, of Serjeants at law', the system of pleading begins to recrystallize in a new shape. Trial by jury is now its centre, and very soon it has become so peculiarly English that legists and decretists would be able to make nothing of it. We must not explore its later history, but of its nucleus, the trial by twelve men, a few more words must be said*.

in which a defendant habitually pleads what we should call ' the general issue ' and puts himself upon a jury. See Note Book, pi. 388, 443, 485, 580, 640, 717, 718, 880, 1371. In this action the inquest procedure is specially appropriate, for usually the verdict is taken, not by the justices in court, but by the sheriff on the spot where the alleged waste was committed.

1 See above, vol. ii. p. 65, and Bracton, f. 317 b.

^ Stat. Walliae (1284) c. 11 (Statutes, i. 66): 'Et cum vix in placito transgressionis evadere poterit reus quin defendat se per patriam, de consensu partium iuquirat veritatem iustitiarius per bonam patriam.' In the first days of Trespass a wager of law was not unknown : Somersetshire Pleas, pi. 572.

' See above, vol. i. p. 214.

^ We agree with H. J. Stephen (Pleading, Note 38) that anything that could be called a formulated science of pleading is hardly to be traced beyond the time of Edward I. Our theory of the part played in earlier times by the Eomanesque exceptio may be open to dispute. To anyone who knows only the exceptio of classical Eoman law the statement that the English ' general issue ' is in its origin an 'exception' would seem an absurd paradox. Nevertheless we believe that it would be near the truth. A plea of alibi was regarded by Bracton as an exceptio, and from alibi to Not guilty the step is of the shortest. Here we find the reason why a plea of the general issue contains a two-fold denial. Take the form that was still used in our own century : ' And the said CD. comes and defends the force and injury when etc. and says that he is not guilty of the said trespasses above laid to his charge, or any part thereof, in

CH. IX. § 4.] Pleading and Proof. 621

A grand assize is composed of twelve lawful knights of the Composi- district in which the disputed tenement lies, who have been the^jury. chosen in the presence of the justices by four knights, who have been chosen by the sheriff'. This double election is peculiar to a grand assize, a solemn process safeguarded by precautions [p.6i9] against the sheriff's partiality. To form a petty assize or an |)rdinary jury, twelve free and lawful men of the neighbourhood are summoned directly by the sheriff''. In the case of a jury summoned after there has been pleading, he is bidden to choose those 'through whom the truth of the matter may be best known ^' The litigants have an opportunity of ' excepting ' to or challenging the jurors, and our law has borrowed for this purpose the canonist's scheme of 'exceptioas to witnesses*.' The jurors must be free and lawful, impartial and disinterested, neither the enemies nor the too close friends of either litigant^ We must not think of them as coming into court ignorant, like their modern successors, of the cases about which they will have to speak. In every case the writ that summons them — whether it be an 'original' writ calling for an assize, or a 'judicial' writ

manner and form as the said A.B. hath above complained. And of this the said CD. puts himself upon the country.' To state this more briefly, CD. denies that he trespassed and says that he did not trespass. A modern denial, suggested by the practice of excepting, is tacked on to the ancient denial, the Defence or Thwert-ut-nay . The rules as to the use of the three phrases 'Et hoe paratus est verificare,' ' Et de hoc ponit se super patriam ' and ' Et petit C[Uod hoc inquiratur per patriam,' are not so old as the time of which we speak. Thus e.g. Northumberland Assize Bolls, pp. 236, 244, a defendant ' petit quod inquiratur,' and a plaintiff 'ponit se super patriam.' An affirmative plea often ends with a ' ponit se super patriam.' The rule (Stephen, Pleading, pp. 247-8) which in later days allows the defendant to ' put himself ' on the country, while the plaintiff must ' pray ' for an inquiry, suggests that defendants acquired an absolute right to a jury while plaintiffs stUl had to pay if they wanted one ; but . we have failed to verify this suggestion.

' Glanvill, ii. 10-12 ; Bracton, f. 331 b. For an early case of election, see Select Civil Pleas, pi. 212. It is abundantly clear that, whatever may have been the practice at a later time, the grand assize was a body of twelve, not of sixteen knights : in other words, the four electors took no part in the verdict.

' For the petty assizes, see Glanvill, xiii. 3, 19, 33 ; Bracton, f. 179, 238, 253 b.

3 The classical words are ' per quos rei Veritas melius soiatur.' See Bracton, f. 316 : ' qui melius sciant et velint veritatem dicere.'

* Glanvill, ii. 12.

* Bracton, f. 185. Jurors are often removed as being too poor; e.g. Select Civil Pleas, pi. 126, 253. Of the 'peremptory challenges' of our later criminal procedure we have seen nothing in this age.

622 Procedure. [bk. n.

issued after the litigants have ended their pleadings — will define some question about which their verdict is wanteds l^Zy. =o That in old times ' the jurors were the witnesses ' — this

witnesses, doctrine has in our own days become a commonplace. For the purposes of a popular exposition it is true enough. Neverthe- less it does not quite hit the truth. If once the jurors had been called testes, if once their veredictvm, had been brought under the rubric testimonium, the whole subsequent history of the jury would have been changed, and never by imperceptible degrees would the jurors have ceased to be 'witnesses' and become 'judges of factl' In all probability a time would have come when the justices would have begun to treat these testes [p.eaoj in the manner in which witnesses ought to be treated according to our ideas : each witness would have been separated from his fellows and questioned about his belief and its grounds. The court, instead of receiving the single verdict of a jury, would have set itself to discuss the divergent testimony of twelve jurors. Where there was flat contradiction it might have been puzzled ; still the simple device of counting heads was open to it, and at all events it might have insisted that each juror whose testimony was received should profess a first-hand knowledge of the facts about which he spoke, for already the elementary truth that 'hearsay' is untrustworthy had been apprehended'. Therefore we have to explain why the history of the jury took a turn which made our jurors, not witnesses, but judges of fact, and the requisite explanation we may find in three ancient elements which are present in trial by jury so soon as that trial becomes a well-established institution. For

' In other words, the ' issue ' will be embodied in the Venire facias. See for some elaborate instances, Bracton, f. 325.

" The ¥erb testari is often used of jurors; e.g. Northumberland Assize EoUs, p. 72: 'et iuratores testantur quod...non sunt oulpabiles.' But recog- noscere and dicere are from the first the usual words. The term recogno- scere seems to imply a calling to mind, a recalling. The Constitutions of Clarendon were a reeordatio vel recognitio of the king's rights. We must remember, however, that in good Latin recognoscere, if it will stand for recollect, will also stand for examine, investigate. When at length English became the language of formal records, recognoscere was rendered by recognize. Any other translation of it would be dangerous ; but to find is our best modern equivalent.

' See e.g. Select Pleas of the Grown, pi. 29 (a.d. 1202): 'Et hoc offert probare...sicnt ille qui non Ti4it hoc sed per alios habet eum suspectum. Nullum est appeUum.'

CH. IX. § 4.] Pleading and Proof. 623

want of better names, we may call them (1) the arbitral, (2) the communal, and (3) the quasi-judicial elements.

(1) Jurors are not arbitrators. We have seen, however, Arbitral that the verdict of jurors becomes a common mode of proof the jury, only because litigants ' put themselves ' upon it, and that the summons of a jury (in the narrow sense of that term which opposes iurata to assisa) is always in theory the outcome of consent and submission. Both litigants have agreed to be bound by a verdict of the country. They might perhaps have chosen some other test. We naay, for example, see a plaintiff and a defendant ' putting themselves ' upon the two witnesses named in a charter, or upon the word of some one man^ Now [p. 621] in such a case neither of the litigants can quarrel with the declaration that he has invoked. He has called for it, and must accept it. So with the verdict of the country; he has asked for it, and by it he must stand or fall. It is, says Bracton, ' his own proof and therefore he can not reprobate it^ If he produced as compurgators men who at the last moment refused to help him in his oath, he could not force them to give an explanation of their conduct. So with the jurors ; it is not for him to ask them questions or expose their ignorance, for he has put himself upon their oath. What he can not do for himself, the court will not do for him. The justices are not tempted to analyze the process of which an unanimous verdict is the outcome ; that verdict has been accepted iu advance by the only persons whom it will affect'.

1 Note Book, pi. 255 (a.d. 1227). The question is whether Philip de Colombiers was of sound mind when he executed a charter. Two witnesses named in the charter are still living. ' Et omnes ponunt se super illos duos testes. Et ideo vicecomes.. .illos venire faciat...ad recognosoendum si... Philippus tempore quo fuit compos 8ui...oartam illam fecit vel non.' These witnesses are, like jurors, to come ad reeognoscendum. Curia Eegis Rolls [Eeo. Off.] No. 140, Pasch. 34 Henr. III. m. 17: The defendant asserts that the plaintiff 'assigned' him to pay money to the Earl of Oxford. The plaintiff denies this, 'et de hoc ponit se super ipsum Comitem.' The defendant does the like. A writ is sent to the Earl. ' Et venit Comes in propria persona sua et recordatur ' that the assignment was made.

' Bracton, f. 290 b. Therefore a iurata can not be attainted. When this rule was altered in 1275 (Stat. West. I. c. 38) it was already becoming evident that the consensual origin of the iurata was a fiction.

^ The arbitral element is clearly seen in a case of John's day in which the Bishop of Ely and the Abbot of St Edmund's ' put themselves ' upon a jury of eighteen knights, of whom six are to be chosen by each litigant, while the remaining six are named by Hubert Walter and Geoffrey Fitz Peter: Select

624 Procedure. [bk. ii.

Communal (2) The verdict of the jurors is not just the verdict of thTjury™ twelve men ; it is the verdict of a pays, a ' country,' a neigh- bourhood, a community'. There is here a , volatile element which we can not easily precipitate, for the thoughts of this age about the nature of communities are vague thoughts, and we can not say that ' the country ' is definitely persona ficta. Still we may perceive what we can not handle, and, especially in criminal procedure, the voice of the twelve men is deemed to be the voice of the country-side, often the voice of some hundred or other district which is more than a district, which [p. 622] is a community. The justices seem to feel that if they analyzed the verdict they would miss the very thing for which they are looking, the opinion of the country. Quasi- (3) Lastly, we may already detect in the verdict of the

element in jurors an element which we can not but call quasi-judicial, the jury, 'w^hatever theory may have prevailed^ the parties to an action are often submitting to 'the country' questions which the twelve representatives of the country will certainly not be able to answer if they may speak only of what they have seen with their own eyes '. Some of the verdicts that are given must be founded upon hearsay and floating tradition". Indeed it is the

Civil Pleas, pi. 183. Again, when Edward I. in his Carta Mereatoria (Munim. Gildh. ii. 207) grants that a foreign merchant may have six foreign merchants on the jury, we see the arhitral element. Already the idea is that a jury, taken as a whole, should be impartial, while its component parts should in some sort represent the interests of both litigants. Even in our own century when a jury was summoned, the sherifi was told to call in the twelve men ' because as well (quia tarn) the said CD. as the said A.B., between whom the matter in variance is, have put themselves upon that jury.' This quia tarn clause in the Venire facias seems almost as old as the iurata; Bracton, f. 325.

1 The early submissions to a verdict vary slightly in their form. See e.g. Select Civil Pleas, pi. 27 : as to one question a litigant ' ponit se super legale visnetum ' ; as to another question ' simili modo ponit se inde super iuratam patriae.' Though our Latin uses patria, our French uses pays, which descends from Latin pagus. The ' country ' of this formula is not our father-land but 'the country-side.'

2 According to Glanvill, ii. 17, the recognitors of a Grand Assize may base their verdict upon what their fathers have told them. But jurors (in the narrower sense) should speak ' de proprio visu et auditu ' ; Bracton, f. 317 b.

* See e.g. Note Book, pi. 628 (a.d. 1231): 'Et Eicardu8...dicit quod omni tempore a conquestu Angliae ibi communam habuit...et inde ponit se super patriam.'

' See e.g. Note Book, pi. 798: 'luratores diount quod quaedam Margeria... praesentavit quemdam Bobertum Luvel xl. annis elapsis et eo amplius. ' Ibid, pi, 769: a strange tale of what happened before 1188 told in 1233, Flacit.

CH. IX. § 4.] Pleading and Proof. 625

duty of the jurors, so soon as they have been summoned, to make inquiries about the facts of which they will have to speak when they come before the court'. They must collect testi- mony ; they must weigh it and state the net result in a verdict. Bracton sees that this is so; he even, though in a loose, untechnical sense, speaks of the jurors as deliberating and 'judging,' and he speaks of the result of their deliberations, when it takes the form of a general verdict, as a 'judgment'.' [p. 623] It is to the presence of these three elements that we may Unanimity ascribe the ultimate victory of that principle of our law which jury, requires an unanimous verdict. We can not treat this as an aboriginal principle. In the old Frankish inquests the sworn neighbours sometimes gave a single verdict, while in other cases each man's evidence was taken separately and recorded separately'. We have here a plastic institution, which can assume divers shapes in Normandy and England and Scotland. A little inquisitory zeal on the part of the king's commissioners might turn it into a mere examination of witnesses, whose divergent testimonies would be 'weighed by the court. Or again, their voices might be counted without being weighed and ,'

the verdict of the majority accepted. For a long time we see in England various ideas at work''. If some of the recognitors

Abbrev. p. 155 : in 1264 jurors speak of Richard I.'s day. Select Civil Pleas, pi. 41 : in 1200 a litigant wants a verdict as to what happened before 1135 ; his adversary refuses to submit to a verdict ' de tarn antique tempore.'

^ This is made plain by the writ which tells the sheriff to summon jurors to appear before the court to ' recognize ' some matter, ' et se ita inde certifieent quod iustitiarios nostros inde reddant certiores ' ; Bracton, f. 325. Britton, ii. 87 : ' issint qe chesoun jurour distingtement soit garni en touz pointz, sur quel point il se deit aviser avaunt soen vener en nostre court.'

2 Bracton, f. 185 b : ' de veritate discutiant [iuratores] et iudicent.' Ibid, f. 289: 'Eodem modo potest iurator falsum facere iudicium et fatuum cum iudicare teneatur per verba in Sacramento conteuta... Et si iustitiarius secundum eorum [seil. iuratorum] iudicium pronunciaverit, falsum faciet pronuuoiationem.' Ibid. f. 290 b : 'Si autem iuratores factum narraverint siont rei Veritas se habuerit, et postea factum secundum narrationem suam iudioaverint, et in iudicio erraverint, iudicium potius erit fatuum quam falsum, cum credant tale iudicium sequi tale factum.' This makes it possible for men of a later age to see in the verdict of a jury the promised iudicium parium ; see above, vol. i. p. 173. This mistake is being made already in Edward I.'s day ; T. B. 80-1 Edw. I. p. 531. A knight's demand for a iudicium parium is- supposed to be satisfied by knights being put upon the jury.

» Brunner, Forschungen, 231-242 ; D. E. G. ii. 524.

« Brunner, i Schwurgericht, 363-871 ; Gierke, D. G. E. ii. 481 ; Thayery Evidence, p. 86. '

P. M. II. ^0

626 Procedure. [bk. ll.

profess themselves ignorant, they can be set aside and other men can be called to fill their places ^ If there is but one dissentient juror, his words can be disregarded and he can be fined: — Testis unus, testis nullus^. In the assize of novel dis- seisin, which in no wise touches 'the right,' we are content with the verdict of seven men, though the other five have not appeared or have appeared and dissented'. But gradually all these plans are abandoned and unanimity is required. The ■victory is not complete until the fourteenth century is no longer young* ; but, from the moment when our records begin, we seem to see a strong desire for unanimity. In a thousand cases the jury is put before us as speaking with a single voice, while any traces of dissent' or of a nescience confessed by some only of the jurors are very rare. 'You shall tell us,' says a judge in 1293, 'in other fashion how he is next heir, or you shall remain shut up without meat or drink until the morrow'.' Why is The arbitral and communal principles are triumphing, [p. 624]

desired? The parties to the litigation have 'put themselves' upon a certain test. That test is the voice of the country. Just as a corporation can have but one will, so a country can have but one voice: le pays vint e dyf. In a later age this communal principle might have led to the acceptance of the majority's verdict. But as yet men had not accepted the dogma that the voice of a majority binds the community. In com- munal affairs they demanded unanimity; but minorities were expected to give way. ■ Then at this point the ' quasi-judicial ' position of the jurors becomes important. No doubt it would be wrong for a man to acquiesce in a verdict that he knew to be false ; but in the common case — and it becomes com- moner daily — many of the jurors really have no first-hand knowledge of the facts about which they speak, and there is no harm in a juror's joining in a verdict which expresses the

1 Glanvill, ii. 17 ; Braoton, t 185 b. ^ Select Civil Pleas, pi. 241.

' Bracton, f. 179 b, 255 b. Britton, i. 31, speaking of criminal oases, says that if the majority of the jurors know the facts and the minority know nothing, judgment shall be given in accordance with the voice of the majority.

* Y. B. 41 Edw. III. f. 31 (Mich. pi. 36).

" Note Book, pi. 376, 524 ; Plaoit. Abbrev. 279, Kane. ; 286, Norf. See the important records in the note to Hale, P. 0. ii. 297.

6 Y. B. 21-2 Edw. I. p. 273.

' Y. B. 21-2 Edw. I. p. 225. This is a rare phrase ; but assisa venit and iurata venit are from the first the proper phrases, and they put before us the body of twelve men as a single entity.

CH. IX. § 4.] Pleading and Proof. 627

belief of those of his fellows who do know something. Thus a professed unanimity is, as our rolls show, very easily produced. Nor must it escape us that the justices are pursuing a course which puts the verdict of the country on a level with the older modes of proof. If a man came clean from the ordeal or successfully made his law, the due proof would have been given; no one could have questioned the dictum of Omniscience. The veredictum patriae is assimilated to the ivdicium Dei\ English judges find that a requirement of unanimity is the line of least resistance ; it spares them so much trouble. We shall hardly explain the shape that trial by jury very soon assumed unless we take to heart the words of an illustrious judge of our own day : — ' It. saves judges from the responsibility — which to many men would appear intolerably heavy and painful — of deciding simply on their own opinion upon the guilt or innocence of the prisoner".' It saved the judges of the middle [p.625] ages not only from this moral responsibility, but also from enmities and feuds. Likewise it saved them from that as yet unattempted task, a critical dissection of testimony. An age which accepts every miracle and takes for sober history any tale of Brutus or Arthur that anyone invents must shrink from that task. If our judges had attempted it, they would soon have been hearing the evidence in secret '-

As to the manner in which the jurors came to their verdict, Verdict we know that as a general rule they had ample notice of the e-ndence. question which was to be addressed to them. At the least a fortnight had been given them in which to ' certify themselves ' of the facts'- We know of no rule of law which prevented them from listening during this interval to the tale of the litigants ; indeed it was their duty to discover the truth. Then, when the day of trial had come, we take it that the parties to the cause had an opportunity of addressing the jurors

1 This comes out in the phrase ' to put oneself on God and the grand assize,' which is as old as 1293 (T. B. 21-2 Edw. I. p. 217) but not, so far as .we know, much older. Compare too the prisoner's statement that he will be • tried ' by God and his country,' of which, however, we can not give any early example. The idea persists that somehow or another an appeal to God must be allowed.

2 Stephen, Hist. Crim. Law, i. 573.

8 This happened in France. VioUet, 6tablis3ements, i. 274; 'les bailUs avaient fait triompher le systSme commode pour eux de la procedure oooulte.' < Britton, ii. 87.

iO— 2

628 Procedure. [bk. ii.

collectively'. In our very first Year Books we see that docu- ments can be put in ' to inform the jury,' and it is to documents thus used that, so far as we are aware, the term ' evidence ' was first applied^ Again, we know of no rule of law which would have prohibited the jurors from listening in court to persons whom the litigants produced and who were capable of giving information, though we do not think that as yet such persons were sworn^ It is difficult to discover the truth about this matter, because, even in the nineteenth century, the formal ' record ' will say no word of any witnesses and will speak as though the jurors had agreed on a verdict before they came into court. But certain it is that already under Henry III. a jury would often describe in detail events that took place long ago and acts that were not done in public. Separately or collectively, in court or out of court, they have listened to [p. 626] somebody's story and believed it. This renders possible that slow process which gives us the trial by jury of modem times. We may say, if we will, that the old jurors were witnesses ; but even in the early years of the thirteenth century they were not, and were hardly supposed to be, eye-witnesses. Jnrors frnd Great importance has been attributed by modern historians witnesses. ^^ ^j^g peculiar procedure that prevailed when the genuineness of a charter was denied*. The witnesses whose names stood at its foot were summoned along with a body of neighbours. These testes and these iuratores were to join in a verdict. The appropriateness of this procedure we shall understand if we observe that the question submitted to this composite body was in the oldest days very rarely the simple question whether a certain man had set his seal to a certain parchment ; it was generally the more complex question whether he had made a 'gift' of land, and the verdict spoke of seisin". A similar

^ Y. B. 20-1 £dw. I. p. 243 : ■ diteg ceo en evidence de lassise.' Placit. Abbrev. 145 (a.d. 1258) : jurors in an assize say that they know nothing about the alleged pedigree of Maud the plaintiff ' nisi tantum ex relatu attornati ipsins Matillidis.'

' Y. B. 20-1 Bdw. I. pp. 17, 21 ; 21-2 Bdw. I. p. 451 : ' la chartre put estre bot§ avant en evidence de ceo a la grant asayse.' This practice may perhaps go back as far as 1200 ; see Joceliu of Brakelond (Camd. Soc), p. 91.

" In old collections of oaths {e.g. Court Baron, p. 77) we find a witness's oath to tell truth in answer to questions.

* This is admirably described by Thayer, Evidence, p. 97.

<> See the early case, Select Civil Fleas, pi. 59 : ' And John puts himself upon the witnesses of the charters and upon the neighbourhood, as to whether

CH. IX. § 4.] - Pleading and Proof. 629

composite body was sometimes called in when the dispute was as to the manner in which a woman had been endowed at the church door'. We are yery far from denying that this practice of calling the testes of a deed to assist in the trial played a considerable part in the transformation of the jury. It brings oub in an emphatic manner the contrast between testes and iuratores. But this procedure was adapted only to a small class of disputes, and would have exercised no general influence if the jurors in other cases had been steadily regarded as first-hand witnesses^ [p.62T] The principle that the jurors are to speak only about Tact and matter of fact and are not concerned with matter of law is °'^* present from the first. They are not judges, not doomsmen; their function is not to 'find the doom' as the suitors do in the old courts, but to ' recognize,' to speak the truth (veritatem dicere). Still this principle long remains latent and tacit. A plain utterance of it would imply an analysis of concrete disputes that was foreign to the old procedure". That pro- cedure would, for example, have allowed a defendant to swear to the statement 'I do not owe you penny or penny's- worth,' a statement which, to our thinking, can not be of pure fact. The recognitors in a grand assize were called upon to say

Jollan had auy entry into that land, except through AUce, whom he had in ward.' Note Book, pi. 188, 205, 222, 250, 269, 332, etc. So clean an issue as N(m est factum was rare in the first days of special pleading,

' Note Book, pi, 91, 154, 631, 1603, 1707, Thayer, Evidence, p. 98, ^ The theory which saw an historical link between the modern witness who testifies before a jury and the plaintiff's secta has been sufficiently disproved. See Bmnner, Schwurgericht, p, 428, The secta and the jury never come into contact. The secta, if produced at all, is produced in court before any question for a jury is raised or any summons for a jury issued. Curia Regis Boll, No. 140 (Pasch. 34 Hen, III,), m, 10, gives an interesting case from Huntingdon- shire, Ten jurors and seven charter-witnesses appear; the jurors say that a feoffor, Simon by name, was non compos sui; the witnesses say compos. One litigant offers the king twenty marks that eight jurors of Northamptonshire and eight of Huntingdonshire ' qui habuernnt notitiam de praedicto Simone ' may be added. The other litigant offers ten marks for eight jurors from Bedfordshire and eight from Buckinghamshire, The four sheriffs are ordered to send eight jurors apiece,

* The famous maxim ' ad quaestionem iuris respondent indices, ad quaes- tionem facti iuratores,' seems to have been attributed by Coke to Bracton, It has not been traced beyond Coke, who, as Mr Thayer says, ' seems to have spawned Latin maxims freely,' See Thayer, Law and Fact, Harv, L, Eev, iv. 148-9.

Terdicts.

630 Procedure. [bk, ii.

whether the demandant had greater right than the tenant, and in so doing, they had an opportunity of giving effect to their own opinions as to many a nice point of law'. To all appear- ance they usually gave their answer in two or three words ; they declared that the mere dreit was with the one party or with the other, and they proffered no reason for their belief. We must not suppose that in such a case they followed the ruling of the justices. The justices were powerless to help them. The demandant, it is true, had set forth the' title on which he relied ; but the tenant had contented himself with a sweeping denial. The recognitors, being his neighbours, might know something about his case and were morally bound to investigate it ; the justices knew no more than he had told them, and he had told them nothing'. Special Perhaps when the Possessory Assizes were first instituted

the questions that were formulated in their writs were regarded as questions of pure fact, for example the question whether one [p-' man was the^ next heir of another. Heirship may at one time have seemed to be a simple physical fact, just as sonship may - appear as a simple physical fact, until we have perceived that the only sonship with which the law is, as a general rule, concerned involves a definition of marriage. Very soon, how- ever, the separation of matter of fact from matter of law had begun. Sometimes the jurors felt that, though they Imew all that had happened in the world , of sense, they yet could not answer the question that the writ put to them. They knew that Ralph had ejected Eoger, they knew what services Roger had been performing, and yet they would not take upon them- selves to say whether Ralph had 'disseised' Roger from his ' free tenement.' So, with the terrors of an attaint before their eyes, they asked the aid of the justices and, as we should say, returned a 'special verdict*.'

1 They might, however, state pure facts and these might be a sufficient foundation for a judgment. Glanyill, ii. 18,

' For verdicts of a Grand Assize with reasons, see Kote Book, pi. 769, 960, 1701.

» Braoton, f. 185 b, says that when a Petty Assize is taken without pleading the justices are to give no instruction to the jurors.

* Special verdicts in Petty Assizes are found at an early time. For an example from John's reign, see Select Civil Pleas, pi. 179: 'luratores dicnnt quod rei veritatem Inde dicent, et audita rei yeritate, iudioent iustitiarii.' See also Note Book, pi. 144, 339, 1032, 1033, 1193, 1258. In pi. 1792 [a.d. 1222] the jurors after stating facts ' dicnnt quod nesciunt quis eorum fuit in seisiua.'

CH. IX. § 4.] Pleading and Proof. 631

The once popular doctrine which represents the iustices as Justices

!.• .1 . , . , , , . ..and jurors.

encroaching on the province that belonged to the jurors will not commend itself to students of the thirteenth century. Neither jurors nor justices had any wish to decide dubious questions. The complaint is, not that the justices are un- willing to receive a monosyllabic verdict, but that special verdicts are rejected; — they force the jurors into statements which explicitly answer the words of the writ, and thereby in " effect reSquire an oath about matter of law. The statute of 1285 fqrbids them to do this, while at the same time it allows - the jurors to return general verdicts if they choose to risk their goods and their liberty^ When the jurors gave a special verdict they often had to answer a long string of questions Q).629] addressed to them by the justices. The questions and the answers are recorded". The justices desire to obtain all the relevant facts. On the other hand, they seem never to question the jurors as to their means of knowledge, though it is obvious enough that the twelve men can not have seen with their own eyes all the events that they relate.

We very much doubt whether in the thirteenth century Popularity Englishmen were proud of trial by jury, whether they would jury, have boasted of it in the faces of foreigners, whether they regarded it as a check upon the king. We must wait for Sir John Fortescue to sing the lauds of the trial by twelve men. Jury service was oppressive. The richer freeholders obtained • charters which exempted them from it, until in 1258 men said that in some counties there were not knights enough to make up a Grand Assize'. The poorer freeholders groaned under a duty which consumed their time and exposed them to the enmity of powerful neighbours. Edward I. relieved those

A common practice was that the jurors should state facts and add that therefore there was (or was not) a disseisin. See e.g. pi. 318: 'iuratores diount quod...et idee dicunt quod idem A. eum iniuste disseisivit sicut breve dnat^!- — 'Sfa, verdict in this form the jurors might escape the punishment ordained for perjury, though they would perhaps be amerced for a ' fatuous ' oath if they drew a wrong inference of law. See Bracton, f . 290 b. But general verdicts in Petty Assizes were still common in Edward I.'s day. Occasionally a special verdict was given even in a Grand Assize ; Note Book, pi. 251, 1865-6.

1 Stat. West. II. c. 30.

2 A good example of the way in which the jurors were catechized wUl be found in Northumberland Assize Eolls, p. 254.

» Oxford Petition, c. 28 ; Prov. West. c. 8 ; Stat. Marlb. c. 14.

632 Procedure. [bk. ii.

whose lauds were not worth twenty shillings a year'.' None the less, it was seen that Henry IL's Possessory Assizes had admirably done their appointed work, and the procedure which they had introduced was extended from case to case as men lost faith in the older kinds of proof. Much was at stake during those wakeful nights in which the Novel Disseisin was being fashioned^. Thenceforth the inquest, which might only have been known as an engine of fiscal tyranny, was associated with the protection of the weak against the strong, the main- tenance of peace and seisin'. We may say that it suited Englishmen well ; it became a cherished institution and was connected in their minds with all those liberties that they held dear; but what made it possible was the subjection of the England of the Angevin time to a strong central government, [p. the like of which was to be found in no other land^. Fate of We have been turning our faces towards the rising sun, and

proofs.^' must now glance back at the fate of those institutions which

trial by jury displaced^ Trial by Before the accession of Edward I. the judicial combat was

already confined to that sphere over which its ghost reigned until the year 1819°. The prosecutor in the Appeal. of Felony, the demandant in the Writ of Right', offered battle, the one by his own, the other by' his champion's body, and the defendant might accept the offer, though by this time he could, if he pleased, have recourse to a verdict of his neighbours instead of staking his cause on a combat. Even in the Norman days 'battle did not lie' if there was no charge of crime and less

1 Stat. "West. II. c. 38. Thfere waa further legislation in 1293 ; Statutes, vol. i. p. 113.

^ Bracton, f. 164 b : ' de beneficio principis sucourritur ei per reoognitionem assisae novae disseisinae multis vigiliis excogitatam et inventam.'

' In the Trfis auoien ooutumier, pp. 17-18, the person against whom the jury is demanded is represented as some ' comes vel baro vel aliquis potens homo ' who desires to grab land from his tenants or neighbours, while the plaintiff is an 'impotens homo.' 'Potens Tero...in misericordia remanebit et impotens suam habebit terram.'

* The inquest procedure of the Karolinglan times seems to have been exceedingly unpopular. Brunner, D. B. G. ii. 526.

0 Thayer, The Older Modes of Trial, Harv. L. Eev. v. 46.

« 59 Geo.- III. 0. 46.

' Writ of Eight must here be taken to include Customs and Services (Note Book, pi. 895), and De rationabiUbua divisU, but not Writ of Eight of Dower. See Bracton, f. 347.

battle.

CH. IX. § 4.] Pleading and Proof. 633

than ten shillingsworth of property was in dispute'. As a means of proving debts^ and ' levying ' would-be swearers from the oath' it disappeared soon after Glanvill's day. That the oath of the demandant's witness and champion was almost always false was notorious, though we have met with a man who at the last moment refused to take if. Does this induce our legislators to abolish the battle ? No, it induces them to abolish the material words in the oath that made the champion a witness^ We see one hireling losing his foot for entering into warranty in an actio furti^; but for civil causes pro- fessional pugilists were shamelessly employed. Apparently there were men who let out champions for hire. Richard of Newnham, whose services were highly valued about the year 1220, might be retained through his 'master' William of [p. 631] Cookham'. We doubt whether in Bracton's day the annual average of battles exceeded twenty. There was much talk of fighting, but it generally came to nothing. The commonest cause for a combat was the appeal of an ' approver ' (probator) : that is, of a convicted criminal who had obtained a pardon conditional on his ridding the world of some half-dozen of his associates by his appeals. Decent people, however, who were in frankpledge and would put themselves upon a jury were not compelled to answer his accusations ^

The rules of the duel have been so well described by others Euies of that we shall say little of them^ The combatants' arms of ^ "^ offence are described as baculi cornuti, bastons cornuz. It has

^ Leg. Henr. 59, § 16 ; compare Brunner, D. B, G. 418 ; Viollet, i^tabliase- ments, i. 184.

2 Glanvill, x. 12 ; above, vol. ii. pp. 204-206.

* See above, vol. ii. p. 162.

* Note Book, pi. 980.

' Stat. West. I. 0. 41 : ' pur ceo que rarement avient que le champion al demandaunt ne seit perjurs.'

8 Select Pleas of the Crown, pi. 192.

' Note Book, pi. 185, 400, 551. The names of Stephen the Englishman, Duncan the Scot and William Champneys occur from time to time as those of 'witnesses' who have seen a great deal. For contracts with champions, see Neilson, Trial by Combat, pp. 50-4; also Chron. de Melsa, ii, 100 ; Winchoombe, Landboc, i. 49-50. As to the champion's homage — for in theory he must be his employer's 'man' — see Braoton, f. 79b.

8 Bracton, f. 152-3; Select Pleas of the Crown, pi. 109, 140, 190, 198, 199; Note Book, pi. 1159, 1431, 1447, 1472, 1517.

9 In particular, see Neilson, Trial by Combat, where most of the English stories are collected.

of law.

634 Procedure. [bk. n.

been commonly assumed that this means staffs 'tipped with horn ' ; but Dr Brunner has lately argued that the weapon thus described was really the old national weapon of the Franks, the war-axe (francisca, hipennis) which in its day had conquered GauP. The burden of the proof was on the combatant who fought for an affirmative proposition* ; his adversary won if the stars appeared before the fight was over. Wager The oath with oath-helpers', though it had been driven out

of many fields, was by no means uncommon. The perdurance into modem times of this antique procedure as a special pecu- liarity of the two actions of Debt and Detinue has suggested rationalistic attempts to discover characteristics of those actions which make them unfit for submission to a jury. The simple truth is that they are old actions, older than trial by jurj'. In [p. 632] Bracton's day wager of law still appears as a normal mode of defence, and the charge that is thus denied is often one which in our eyes could easily be decided by ' the country.' In par- ticular it is the common method of proving that one has never been summoned to appear in court*, that one has not sued in court Christian after receipt of a royal prohibition", that one is not detaining a ward from his guardian', that one has not broken a final concord, or a covenant', that one has not de- tained beasts against gage and pledge'; we may even see it used in an action of trespass'. Nor is it always the defendant who wages his law; if the defendant pleads an affirmative plea, the plaintiff will deny it and prove the denial with oath- " helpers". However, the argument that you can not wage your law about facts that are manifest is beginning to prevail.

' Brunner, D. E. G. ii. 417. The evidence consists in part of the well-known sketch drawn on an English plea roll and reproduced, not for the first time, as a frontispiece for Select Pleas of the Crown, and a very similar picture found in the Berlin MS. of Beaumanoir. In u very late case the weapon had ' a horn of yryn i-made lyke unto a rammys home ', ; Neilson, oip. eit. 155.

^ Generally the plaintiff must prove, but Beits in exceptione actor est. See Select Pleas of the Crown, pi. 87, where an appellee is ready either to deny the charge or to prove an exception, and ofEers different champions for the two purposes. ' Thayer, Harv. L. Rev. v. 57.

* Kote Book, pi. 7, 1436 ; Braeton, f. 366.

» Note Book, pi. 143, 536, 629, 788, 799, 1467, etc. ; Braeton, f. 410.

6 Note Book, pi. 731, 742, 763, 1125, 1151.

' Note Book, pi. 396, 1097, 1101, 1457, 1579.

8 Note Book, pi. 477, 741 ; Braeton, f. 156.

' Somersetshire Pleas, pi. 572.

" Note Book, pi. 184, 1549, 1574.

CH. IX. § 4.] Pleading and Proof. 635

There has, for example, been doubt as to whether the com- mission of waste can be thus disproved. Bracton holds that it can not; otherwise the oath of the swearers would prevail against the evidence of our senses'. In the seignorial courts trespasses as well as debts are denied with wager of law"; indeed the lords have very little lawful power of compelling free men to serve as jurors.

In the city of London and in some other towns which enjoyed Oath- a chartered immunity from change, we find that even against orimtaal" accusations of felony the citizens still purge themselves with ' oath-helpers. They do this in the thirteenth, they talk about doing it in the fourteenth century. The London custom knew three 'laws': the great law for homicide, the middle law for mayhem, the third law for the smaller deeds of violence'. The great law required the accused to swear six times, each oath being supported by six helpers, so that in all thirty-seven persons swore. Three oaths, each backed by six compurgators, satisfied the middle law, while a single oath with six helpers fr.633] was all that the third law required. This third law was sufficient even in a case of homicide if there was no appeal and the accused was being, subjected to trial merely at the king's suit*. The accused did not choose his own helpers ; they were chosen for him in his absence by the mayor and aldermen, or the mayor and citizens in the folkmoot, but he had an opportunity of rejecting for reasonable cause any of the persons who were thus selected. If the chief swearer was to escape, then each of the helpers swore that to the best of his know- ledge and belief his principal's exculpatory oath was true. It is evident that ' the great law ' must have been a severe, though a capricious test. In course of time a mitigation seems to have been introduced, and the accused was allowed to give a single oath at the head of his six-and-thirty backers, instead of swearing six times at the head of six groups"; but still he would be hanged if any one of the six-and-thirty refused his testimony. The Londoners probably discovered that they

1 Braoton, f. 315 b ; Note Book, pi. 580.

2 Select Pleas in Manorial Courts, pp. 7, 8, 9, etc. ; The Court Baron, pp. 21, 26, 28, etc.

' Mun. Gild. i. 66-9, 90-2, 102-4-6-7, 110-1 : ii. 321. For Lincoln, see Select Pleas of the Crown, p. 39. ' Mun. Gild. i. 91. » Contrast Mun. Gild. i. 57 with Ibid. i. 111.

636 Procedure. [bk. ii.

had made a mistake in adhering to this ancient custom and that the despised foreigner, who was tried by a jury of forty- two citizens chosen from the three wards nearest to the scene of the suj)posed crime, had a better chance of escape than had the privileged burgher'. In the fourteenth century it was said that the citizen had his choice between ' the great law ' and a jury of twelve ^ Decay of We see in this instance that the old set task of making

by'oath. a law might be very diflScult. In the king's court and the seignorial courts the swearer was allowed to choose his own assistants — usually eleven or five — and the process fell into bad repute'. The concentration of justice at Westminster did much to debase the wager of law by giving employment for a [p-634:] race of professional swearers. In the village courts, on the other hand, it would not be easy for a man of bad repute to produce helpers ; his neighbours would be afraid or ashamed to back his negations. And so we seem to see that many defend- ants in these courts prefer to put themselves upon a jury rather than to wage a law. The compurgatory process was still the means by which guilt was disproved in our English ecclesi- astical courts; we have seen above that they allowed it to become a farce*. J''? The practice of ' deferring ' and ' referring ' a ' decisorv oath '

decisory ...

oath. was Widely received on the Continent as a part of the Roman procedure. Bracton had heard of it ; but it never struck root in our common law". However, at a later day we find that in

1 Mun. Gild. i. 102, 106-7. It is to be regretted that the learned editor of this book has confused wager of law and trial by jury. The text distinguishes them sharply. The foreigner ' ponit se super verediotum ' and the jurors swear 'de veritate dicenda.'

2 Mun. Gild. ii. 321. Apparently wager of law in Trespass was abolished in the civic courts by Edward I. during the time when the city waa in his hands. Ibid. i. 294. In 1270 the Earl of Warenne or his men slew Alan de la Zouche in Westminster Hall before the justices ; he was allowed to escape with wer and wite (to use the old terms) after swearing with twenty-five knights as compur- gators that the deed was not done of malice aforethought or in contempt of the king ; Ann. Wint. 109 ; Wykes, 234. Purgation with thirty-six oath-helpers in criminal causes was allowed at Winchelsea in the fifteenth century ; Palgrave, Engl. Commonwealth, p. oxvii. See also the custumals in Lyon's Dover, ii. 300, 815, etc.

^ Records of Leicester, ed. Bateson, p. 158. In Leicester so late as 1277 the defendant has to choose his helpers from among the plaintiff's nominees. This is abolished as too onerous a task.

■* See above, vol. i. pp. 443-4 ; vol. ii. pp. 395-6.

^ Bracton, f. 290 b. We have seen no instance on any plea rolL

• CH. IX. § 4.] Pleading and Proof. fi37

the London civic courts the defendant can call upon the plain- tiff to swear to his cause of action, or the plaintiff can call upon the defendant to swear to an affirmative plea that he has pleaded, and in either case the oath, if sworn, is ' peremptory,' that is, it gives victory to the swearer^. The oath de calumnia is another institution that we refuse to borrow, though to all seeming the fore-oath of the Anglo-Saxon dooms, which we allowed to perish, was a kindred institution".

One other mode of trial remains to be mentioned. For a Tiial by

.,..,,. witnesses.

moment it threatened to be a serious rival of trial by jury.

The common law of a later day admits in a few cases what it

calls a trial by witnesses ; we should now-a-days call it a trial by

judge without jury'. How did it arise and why did it become

very unimportant ?

We have seen that a plaintiff had to produce a suit of The

. , . excipient s

witnesses, and that a defendant might call for an examination suit.

of these suitors. Now when the ' exception ' was yet new, it seems to have been thought — and this was very natural — that, if the defendant pleaded an affirmative plea, he might offer to prove by a suit the facts on which he relied^. And so, again, [p. 635] the plaintiff will sometimes offer suitors for the support of a replication". In the parallel law of Normandy we see as a flourishing institution this production bj' the defendant of backers for the proof of an affirmative exception. If, for example, a plaintiff demands a debt, and the defendant pleads that he has paid it, the latter can prove his affirmative plea by a formal oath supported by four fellow-swearers ^ In England the defendant's offer of suit soon begins to give way to a vaguer offer of ' veri- fication,' which leads to a proof by jury. If his offer of suit had been accepted, there would, we take it, have been here, as in Normandy, a purely unilateral test : — the defendant would

' Munim. GUdh. i. 217-8.

2 See the oath in Schmid, Gesetze, App. x. o. 4 ; Brunner, D. E. G. ii. 344.

3 Thayer, Eyidenee, p. 17 ; Blackstone, Comment, iii. 336.

^ Braoton, f. 301.b ; Note Book, pi. 68, 79, 233, 613, 882, 1002, 1311, 1863. In pi. 233 [a.d. 1224] a defendant who produces no suit for his affirmative plea is allowed to purchase a jury, as the plaintiff does not object.

s Note Book, pi. 123.

0 Somma, p. 325 : Aneienne coutume, c. 125 (122), ed. de Gruohy, pp. 317-22. In Normandy an affirmative plea is proved by a lex probabilis, a negative plea by n. deraisnia equivalent to our wager of law. See Bigelow, Hist. Procedure, p. 304. It is curious that, whil» in Normandy disrationare or derationare is applied to disproof, in England it generally points to affirmative proof.

638 Procedure. [bk. ii.

have sworn, his suitors would have sworn and he would have gone quit. Kivai suits. But we see the English court occasionally adopting a more rational procedure. There is a bilateral production of witnesses. In 1234 a curious cause was evoked from the hundred of Sonning. A stray mare had been arrested; one William claimed it, and produced sufficient suit ; it was delivered to him on his finding security to produce it if any other claim was made within year and day. Then one Wakelin appeared, claimed the mare and produced suit. The hundred court did not know to whom the proof should be awarded; so the matter was removed into the king's court. That court heard both suits and examined the witnesses one by one. Wakelin's men told a consistent, William's an inconsistent story, and the case was remitted to the hundred with an intimation that William's suit proved nothing^. Again, in one very common kind of action, namely, the action for dower, we repeatedly find suit produced against suit, both when the defence is that the would-be widow's husband is still alive and when it is asserted that she was endowed in some mode other than that which she has described. In these cases the court seems to think that each party is urging an affirmative allegation, that the two sets of witnesses should be examined, and that the more convincing testimony should prevail". Fate of But, for some reason or another, this mode of trial did not [pj

Tritnesses. flourish in England. Very soon it seems to be confined to one small class of cases, namely, that in which a would-be widow is met by the plea that her husband is still alive'. Witnesses are produced on the one side to prove his death, on the other to prove his life, and the weightier or more numerous suit carries the day. A reason for the survival of this 'trial by witnesses ' within these narrow bounds we may find perhaps in the idea that widows are entitled to a specially speedy justice, or perhaps in the difficulty of submitting to any English 'country' the question whether a man, who might have gone beyond the seas, was still alive. But any such explanation will

' Note Book, pi. 1115 ; Thayer, Evideaoe, p. 21.

2 Braoton, f. 301b, 304; Note Book, pi. 266, 279, 345, 356, 457, 518, 545, 898, 1065, 1102, 1307, 1586, 1595, 1604, 1919. See also the procedure in Beplevin described by Bracton, f. 159. Becords of Leicester, ed. Batesou, p. 159 : in 1277 it is established that the plaintiff's suit is to be examined.

' Thayer, Evidence, p. 23. '

CH. IX. § 4.] Pleading and Proof. 639

leave us facing a serious problem, namely, why this rational procedure, this procedure which might easily have been con- verted into such an enquete of witnesses as Saint Louis ordained, soon fell out of the race. In Bracton's book it looks like a serious rival of trial by jury, while in later books and records we read of it only as of an anomaly. At this point some would say much of national character; we prefer to fall back once more on the antiquity and popularity of the Possessory Assizes. Henry II. lived before Saint Louis and before Innocent III. The reformation of procedure begins in England at a very early time, while the canon law is still trusting the old formal probations. The main institute of our new procedure is the * inquest of the country.' This has taken possession of England before people have thought of balancing the evidence given by two sets of witnesses. For a moment ' trial by witnesses ' gains a foot-hold in this country under the influence of men like Bracton, who have heard of the new canonical inquest and who would make something rational out of the ancient secta ; but the ground is already occupied. English judges have by this time fashioned a procedure which is far less troublesome to them, and which has already won a splendid success in the protec- tion of every freeholder's seisin. In a few years they will be regarding the plaintiff's production of a secta as a mere formality and one which may be safely neglected ; they will not allow the defendant to object that no secta has been tendered, and so the phrase "and thereof he produces suit,' though [p. 637] men will be writing it in the nineteenth century, becomes a mere falsehood \

A few miscellaneous ' proofs ' there were. Certain questions other were decided by the certificate of the bishop, such as the question whether a church was ' full,' that is, whether it had a properly constituted parson'', and the question whether two people were lawfully married, or whether a child was legitimate'. If it was asserted that a litigant was not of full age, the justices would sometimes trust their own eyes; if they doubted, he made his proof by a suit of twelve witnesses, some of whom

1 T. B. Edw. II. f. 242, 582 ; 17 Edw. Ill, f. 48 (Mich. pi. 14) ; Thayer, Evidence, p. 14.

2 Note Book, pi. Ill, 173, 296, 1428, etc. ; Bracton, f. 241 b. * See above, vol. ii. p. 367.

640 Procedure. [bk. h.

were his kinsmen and some his neighbours^ In the chancery when a youth, who has been in ward to the king, goes to sue for possession of his lands, the witnesses whom he adduces to prove his full age are examined : that is to say, they are asked how they come to remember the time of his birth, and they answer with talk of coincidences^. This rational examination of witnesses is of some interest to those who explore the early history of the chancery. Sometimes about a small and incidental question the justices also will hear witnesses one by one and contrast their testimony; but this is rare'. Lastly, one can only prove that a man is a villein by producing kinsmen of his who are self-confessed villeins*. This is a procedure favourable to freedom ; the man whose liberty is at stake should not be driven to put himself upon a verdict of the ' free and lawful.' Qnestions Of course in many cases there is no need for any proof In

the language of a somewhat later age the parties have 'de- murred*'; the relevant facts are admitted and there is between them only a question of law. Very often the defendant raises some 'dilatory exception' to the writ, or to the person of the plaintiff and craves a judgment {petit iudiciv/m) as to whether he need give any answer'. More rarely the defendant [p. 638] pleads facts which attack the core of the plaintiff's case, and the plaintiff, though unable to deny those facts, still asserts that he is entitled to a judgment. Here a judgment must be given 'on the count counted and the plea pleaded' (par counte counts et pie pledSy. The first class of cases which brings this procedure to the front seems to be that in which two kinsmen are disputing about an inheritance but have

' Braeton, f. 424 b; Note Book, pi. 46, 687, 1131, 1362; Northumberland Assize Bolls, p. 230. The oath of these witnesses is a formal assertory oath, Tery like that of a Norman lex probabilis.

" See e.g. Calend. Geneal. pp. 184, 197, 203.

8 Note Book, pi. 10 : Men yiho profess that they summoned a litigant are examined separately and contradict each other.

* See above, vol. i. p. 426.

^ For early occurrences of this word, see T. B. 20-1 Edw. I. p. 323 ; 21-2 Edw. I. p. 163.

^ Select Civil Pleas, pi. 24 [a.d. 1201]: 'petunt oonsiderationem curiae utrum debeant respondere.' For a long time, however, anything that could be called a regular 'joinder in demurrer,' which involves an express statement by both pleaders of their desire for a judgment, is, to say the least, very rare upon the rolls,

' Braeton, f. 279. Note Book, pi. 1B83 : ' ita quod per narrationem narrare et responsum dare recuperaTit...seisinam.'

CH. ix.§4.] Pleading and Proof. 641

admitted each other's pedigrees. Here there is a pure question of law for the courts But, as already said^ the contrast between matter of law and matter of fact is as yet by no means sharp. Between men who have not admitted each other's pedigrees or who do not trace descent from a common stock, the whole question of ' greater right ' will be left to a grand assize.

When Henry III. died, the verdicts of jurors were rapidly victory of expelling all the older proofs. We have analyzed the trials ^^^' of civil causes which took place before the justices in eyre at Newcastle in the years 1256, 1269 and 1279 with this result : —

Verdicts of Grand Assizes 1 Wagers of Battle 0

Verdicts of Petty Assizes 57 Wagers of Law 1

Verdicts of /wratae 22 Hii&ls per parentes^ 1

Verdicts of Attaint Juries 1

Very little remained to be done, and between 1272 and 1819 (when the battle was abolished)*, very little was done to remove the remaining archaisms. The justices ceased, as we have lately said, to pay any heed to the production of 'suit.' Wager of law was driven out of a few actions in Avhich it would [p. 639] still have been permitted in Bracton's time, while the two actions to which it clung until 1833^ namely, Debt and Detinue, were slowly supplanted for practical purposes by the progeny of Trespass. Meanwhile, as is well known, the whole nature of trial by jury was changed. There was real change, but there was formal permanence. If we read the enrolled words which describe a trial by jury of Blackstone's or of a much later day, we are reading a bald translation of a record of Edward I.'s time. When a legal formula serves fifteen or twenty generations it has not been unsuccessful.

It remains that we should, speak of a form of criminal The procedure which had the future before it, that, namely, which jury.

1 Glanvill, ii. 6 : '' per verba [ = counte counte] plaoitabitur et terminabitur iu curia ipsa.'

^ See above, vol. ii. p. 629.

" Northumterland Assize Bolls, p. 196. This trial took place in the county court.

* Stat. 59 Geo. III. c. 46.

« Stat. 3 & 4 Will. IV. c. 42, sec. 13 ; Thayer, Evidence, p. 25.

p. M. II. 41

642 Procedure. [bk. li.

is initiated by a presentment or indictment. We have seen above how the old Frankish inquest was put to this among other uses ; it could be employed for the collection of a faraa puhlica which would send those whom it tainted to the ordeal. We have seen that the Frankish church had adopted this process in its synodal courts^ We have said — but this must still be a matter of doubt — that it may have been occasionally used in England before the year 1166 when Henry .II. issued iiis Assize of Clarendon^. That ordinance must now be our starting point. Fama Let US first ask what it is that the king desires to collect

from the oaths of jurors. Does he Want accusations of crime ? Not exactly accusations. A man who has an accusation to bring can bring it ; it will be called an Appeal. Does he then want testimony against criminals ? Not exactly testimony. The jurors will not have to swear that A. B. has committed a theft, nor even that they believe him to be guilty. No, they are to give up the names of those who are defamed by common repute of theft or, of certain other crimes, of those who are publicati, diffamcuti, rettati, malecrediti of crimes. This is of some importance. The ancestors- of our ' grand jurors ' are from the first neither exactly accusers, nor exactly witnesses; they are to give voice to common repute'. Composi- The machinery that Henry II. set in motion for this purpose [p. 640]

presenting was not invented by him. It involved the oath of twelve knights, or, failing knights, twelve good and lawful men, of every hundred, and the oath of four lawful men of every vill. This is in the main the same machinery that the Conqueror employed when Domesday Book was to be made. About every matter there are to be two sets of swearers, certain men of higher rank who represent a hundred, certain men of lower

^ See above, vol. i. p. 142.

' See above, vol. i. pp. 151-3.

' The word retfatus is common on the early rolls as describing the position of one against whom the jurors make a presentment, while the charge against him seems to be a rettum. A little later rettatns degenerates into rectatus, the notion being that the person against whom the charge is made is ' brought to right,' made to ' stand to right.' Diez thinks that rettatus (Fr. retti) comes irom reputatus. Le tr^s anoien ooutumier (p. 43) gives reptatus, and also (pp. 53-4) uses the active reptare to describe the action of an accuser. In our English documents rettatus, publicatus, diffamatus, malecreditus seem to be approximately ec[uivalent.

]ury,

CH. IX. § 4.] Pleading and Proof. 643

rank who represent a vill or several vills^ Upon the working of this scheme some light is thrown by what we see the sheriff doing at a later time. Henry's ordinances, if they instituted the procedure which takes place before the justices in eyre, also instituted the accusatory procedure of the sheriff's turn^ Now in the thirteenth century we find in the sheriff's turn a pro- cedure by way of double presentment, and we may see it often, though not always, when a coroner is holding an inquest over the body of a dead man*. The fama. publica is twice distilled. The representatives of the vills make presentments to a jury of twelve freeholders which represents the hundred, and then such of these presentments as the twelve jurors are willing to ' avow,' or make their own, are presented by them to the sheriff*. This duplex process will, if we think it over, seem appropriate to the matter ia hand. The highly respectable knights or freeholders of the hundred are not likely to know at first hand much about the crimes that have been committed among the peasantry or of the good or ill repute of this or that villein. On the other hand, it is not to be tolerated that free men should be sent to the ordeal merely by the oaths of the unfree, and undoubtedly in the thirteenth century many or most of the representatives of the vills were men whom the lawyers called serfs. This is of some importance when we trace the pedigree of the indictment. From the very first the legal forefathers of our grand jurors are not in the majority of cases supposed to be reporting crimes that they have witnessed, or even to be the originators of the fama publica. We should be [p. 641] guilty of an anachronism if we spoke of them as ' endorsing a bill ' that is ' preferred ' to them ; but still they are handing on and ' avowing ' as their own a rumour that has been reported to them by others^

Then early in the thirteenth century, if not before the end The

■' "... , coroner a

of the twelfth, we have the coroners also makmg mquests by inquest.

1 D, B. iv. 497 (Liber Eliensis) ; Ass. Clarend. o. 1 ; Ass. Northampt. o. 1. ^ Ass. Clarend. e. 1 : ' Et hoc inquirant iustitiae coram se et vioeoomitea coram se.'

3 Gross, Coroners' EoUs, pp. xxx ff., and cases there cited.

4 Britton, i. 178-182.

^ See in Beg. Brev. Orig. f. 99 a writ whence we learn that in cent. xiv. or XV. the reeve and four men of the vill were still charged with the duty of 'informing the jurors.'

41—2

644 Procedure. [bk. ii.

means of some four or six vills or townships. This they do whenever there is a sudden death, and, if the sworn represen- tatives of the vills declare that some one is guilty of homicide, he is arrested and put in gaol. The results of these inquests are recorded on the coroner's roll, and that roll will be before the justices when next they make their eyre. Also we must notice that it is the coroner's duty to secure by ' attachment ' the presence before the justices in eyre of the persons who found the dead body and of those who were in any house where a violent death occurred ^-

Present- But we must turn to the doings of the justices in eyre.

ordeal. When we first see them at their work they have before them a jury of twelve hundredors, and if this jury presents a crime, or rather a reputation of crime, then the justices turn to the representatives of the four vills that are nearest to the scene of the misdeed and take their oath. Why reference should be made to just four vills we can not say. Perhaps the underlying notion is. that they are the four quarters, east, west, north and south of the neighbourhood''. Almost always the townships agree with the hundredors, probably because the hundredors have derived their information from the townships. The result of such agreement is that the defamed man goes to the ordeaP.

Practice of If we are to understand the working of this procedure when [p. 642] the ordeal is no more, we must draw some exacter picture of a session of the justices in eyre. In the first half of the thirteenth century almost all the high criminal justice that was being done was being done at such sessions. True that an appeal of felony was sometimes begun before or evoked to the Bench^ ;

1 The apocryphal statute De officio coronatoris ascribed to i Edw. I. (Statutes, i. p. 40) seems to be an extract from Bracton's treatise, f. 121, slightly altered ; it is very possible, however, that Bracton made use of some ordinance or set of official instructions. See Gross, Coroners' Bolls (Selden Soc), -where the duties of the coroner are fully and learnedly discussed and illustrated.

2 Leg. Edw. 24 (22) § 1 ; Leg. Will. I. 6, 21 § 2 ; Gross, Coroners' Bolls, p. xl.

5 One entry from the roll of the Cornish eyre of 1201 (Select Pleas of the Crown, pi. 5) will suffice as an example. ' Hundredus de Estwivelisira. luratores dicunt quod malecredunt W. F. de morte A. de C. ita quod die praecedente minatus fuit ei de corpore et catallis suis. Bt iiij. villatae iuratae proximae malecredunt eum inde. Consideratum est quod purget se per aqnam per assisam.'

* Bracton, f. 149 ; Select Pleas of the Crown,-pp. 38-81, 120-140.

CH. IX. § 4.] Pleading and Proof. 645

but the central court had little to do with indictments. True also that, as time went on, justices were sent with ever in- creasing regularity to deliver the gaols ; but the work of gaol- delivery seems to have been light — for few mea were kept in prison — and it was regarded as easy work which might be entrusted to knights of the shire \ Bracton's treatise Be Corona is a treatise on the proceedings of justices in eyre.

When the justices begin their session^ they have before The jury them the sheriff, the coroners, and the bailiffs of the hundreds articles, and liberties. They have before them what is in theory ' the whole county,' that is to say, all the suitors of the county court who have neither sent excuse nor failed in their duty'. They have before them a jury of twelve men representing each hundred ; the boroughs, and some privileged manors, also send juries. The process whereby these juries were selected was this : the bailiff of the hundred chose two or four knights who chose the twelve*. There are also present the reeve and four roen from every township. Thereupon the juries of the various hundreds are sworn. The oath that they take obliges them to say the truth in answer to such questions as shall be [p. 643] addressed to them on the king's behalf and to obey orders. Then the articles of the eyre° are delivered to them in writing and days are given them for bringing in their verdicts". The justices are opening what will be a prolonged session ; it may

1 See above, vol. i. p. 200. For modern doctrine as to the powers given by a commission of gaol delivery, see Hale, P. C. ii. 34-5. We suspect that those powers were gradually enlarged by interpretation. At any rate it is plain that in Henry III.'s reign, despite gaol deliveries, the main part of the criminal work fell on the justices in eyre. See Munim. Gildh. i. 296-7. The iriferior position of the justices of gaol delivery is vividly illustrated by a writ of 1292 ; Bot. Pari. i. 86.

2 Writs of summons will be found in Rot. CI. i. 880, 476 (a.d. 1218-21) ; Select Charters (a.d. 1231) ; Bracton, f. 109 ; Y. B. 30-1 Edw. I. p. Iv.

3 For the defaulters at the Northumbrian eyre of 1279 {Edmundus frater Regis is among them) see Northumberland Assize Eolls, 326, 356.

* In the eyre of 1194 four knights elected by the county elect two knights of the hundred who choose ten others to serve with them ; see the writ in Select Charters. In later days the electors are named by tjie bailiffs ; Bracton, f. 116 ; Fleta, p. 23 ; Britton, i. 22 ; Statutes Of the Eeahn, i. 232 ; Northumberland Assize BoUs, 128, 395 ; Y. B. 30-1 Edw. I. p. Iviii.

5 See above, vol. ii. p. 520.

« Bracton, f. 116; Brittpn, i. 22. We are right in saying 'verdicts.' The answers to the articles are often called veredicta.

646 Procedure. [bk. n.

well last for a month and more^ Some of these juries will not be wanted again for many days^ They have also been told in private that they are to hand in to the justices a schedule of the suspects, the malecrediti, in order that the justices may order their arrest. We have some evidence that such a schedule, a rotulus de privatis', was delivered to the justices at once, so that the malecrediti might be captured before the jurors returned to answer the articles. Present- We will now suppose that a iury is ready to answer. Unless

the eyre, we are mistaken, it will have put its answer into writing and will deliver this writing to the justices ; but none the less it will have to make an oral reply to every article, and any variance between what it has written and what it says will bring down an amercement upon it*! The justices already know a great deal touching the matters about which the jurors should speak, for they have in their possession the sheriff's rolls and the coroners' rolls, which tell of appeals begun in the local courts and of inquests held on the bodies of dead men. The catechi- zation of the jurors is a curious process. We are reminded of a schoolmaster before whom stands a class of boys saying their lesson. He knows when they go wrong, for he has the book. Every slip is cause for an imposition unless his pupils have purchased a favourable audience. In the fourteenth century, when eyres were becoming rare, this practice had degenerated into an extortionate absurdity. In 1321 a ward-jury of the city of London was expected to recite all the crimes that had been committed during the last forty-four years and to know [p. 644] the value of every homicide's chattels. If it disagreed with the coroners' rolls, it was amerced, and yet it had given the justices and clerks five marks, more or less, for a breakfast".

1 Braoton, f. 116. In 1321 the eyre in the city of London dragged on its Blow length for twenty-four weeks and then was brought to a premature end; Munim. Gildh. ii, p. c.

' Gloucestershire Pleas, p. xxvi.

' Gloucestershire Pleas, p. 60. In the Kentish eyre of 1278 the jurors had one day in which to deliver their privetez and a longer time for providing an answer to the articles ; Y. B. 30-1 Edw. I. p. Ix. In the sheriff's turn the presentments of felony are made privily, other presentments openly; Britton, i. 182.

* Select Pleas of the Crown, pi. 62, 71 ; Somersetshire Pleas, pi. 950 ; Britton, i. 23, gloss from the Cambridge ms. ; Munim. Gildh. ii. 370,

» Munim. Gildh. ii. 370.

CH. IX. § 4.J Pleading and Proof. 647

But, even in earlier times, when the eyres were more frequent, the jurors often had to speak of misdeeds and misadventures that were seven years old.

Among the miscellaneous mass of presentments that they inflict- make about the doings of unknown or fugitive malefactors, felony. about accidental deaths which give rise to a deodand, about purprestures, about the usurpation of franchises and so forth, there will usually be a few, but only a few, which we can call indictments for felony of persons who can be brought before the court. What happens in these cases ? Before the abolition of the ordeal in 1215 the justices, having received the state- ment of the hundred-jurors, turn to the representatives of the four neighbouring vills, who at this point are sworn to make true answer. If these villani agree with the hundredors in declaring that the person in question is suspected of a felony, then he goes to the water^. We can not be quite so certain as to what happens in Henry III.'s time, for about this point there has been in our own day some difference of opinion. The man against whom the presentment is directed will be asked how he will acquit himself of the charge. By this time there is but one mode of trial or proof open to him, namely, a verdict of the country. His choice lies between consenting and refusing to put himself for good and ill upon the oath of his neighbours. This is a test to which in 1215 appellees and defendants are frequently submitting their exceptiones. We will suppose then that our suspect thinks that a trial is the least of two evils and puts himself upon his country. Now as we read the rolls'* and Bracton's text^ what normally happens is this : — The hundred jury without being again sworn, — it has already taken a general oath to answer questions truly — is asked to say in so many words whether this man is guilty or [p 645] no. If it finds him guilty, then ' the four townships ' are sworn and answer the same question, If they agree with the hundredors, sentence is passed. This we believe to have been

1 Select Pleas of the Crown, pi. 5, 6, 10 etc.

2 Besides the Gloucestershire Pleas (1221), the Northumberland Assize EoUs (1256, 1279) and the Somersetshire Pleas which are in print, we have looked through various unprinted rolls, in particular Assize Bolls, Nos. 82 (Cambridge- shire eyre of 45 Hen. in.), 912 (Sussex eyre of 47 Hen. III.), 569 (iTorfolk eyre of 53 Hen. III.).

3 The critical passages are on f. 116, 143, 143 b.

648 Procedure. [bk. ii.

the normal trial. But there were many juries about, for every hundred had sent one, and upon occasion the justices would turn from one to another and take its opinion about the guilt of the accused. By the end of Henry III.'s reign it is common that the question of guilt or innocence should be submitted to the presenting jury, to the jury of another hundred and to the four vills. They are put before us as forming a single body which delivers an unanimous verdict'. Tte It may seem unfair that a man should be expected to put

second i • i/. i i i

jury. himself upon the oath of those who have already sworn to his

guilt. But this is not exactly what the jurors have done. They have not sworn that he is guilty, they have not even sworn that they suspect him, they have only sworn that he is suspected {rettatus, malecreditus). They would have exposed themselves to an amercement had they said nothing of his ill fame, for this would very possibly have come to the ears of the justices through other channels; and yet, when asked to say [p.(

1 Thus e.g. Northumberland Assize Kolls, 106, 115. The county is divided into two wards, viz. North of Coquet and South of Coquet. 'Balliva de

Northekoket venit per duodecim Bicardus de C. captus pro morte G. P....

ponit se super patriam. Et iuratores ex parte australi de Koket et similiter iuratores ex parte boriali de Koket simul cum villatia propinquioribus diount... quod oulpabilis est ; ideo eto.' Select Pleas of the Crown, pi. 179. Gloucester- shire Pleas, pi. 52 : the juries of three hundreds find a man not guilty. We could give numerous examples of this from unprinted roUs ; a few must suffice. Assize EoU, No. 82 (45 Hen. III.), m. 23. ' Hundredum de Chileford veait per duodecim... J. 0. rettatus de morte W.... ponit se super patriam. ..Et xii. iuratores istius hundredi et de huudredis de E. et W. una cum villatis de eisdem hundredis diount super sacramentum suum quod.. .in nullo est culpabilis.' Ibid. m. 28 d: 'Et duodecim iuratores de hundredo de E. in quo praedicta transgressio fieri debuit, et similiter xii. iuratores de hundredo de C. ex habundanti de officio justitiariorum super hoc requisiti, diount....' Ibid, m. 33d : 'Et xii. iuratores istius hundredi [de P.] simul cum iuratoribus de C. «t S. et quatuor villatis propinquioribus dicunt...' Assize EoU, No. 912 (47 Hen. III.) m. 36 : ' P. de K. captus fuit per indictamentum xii. iuratorum hundredi de S. et modo venit et... ponit se super xii. istiug hundredi de S. Et xii. iuratores simul cum xii. de H. et quatuor villatae propinquiores dicunt super sacramentum suum...' Ibid. m. 43d: 'Et offerunt dom. Eegi i. marcam pro habenda inquisicione hundredi propinquioris simul cum isto hundredo.' Assize EoU, No. 569 : ' Et per sic quod hundreda de C. et S. adiciantur isti hundredo oflert dom. Eegi x. libras, et recipiuntur. ' See also Somersetshire Pleas, p. 27. It seems to us that at the end of the reign when the jury of a second hundred is oaUed up, this is stUl regarded as a favour granted to the accused. But it ia often granted and is not always purchased with money. See Gross, Coroners? EoUs, p. xxxi.

OH. IX. § 4.] Pleading and Proof. 649

directly (praecise dicere) whether he is guilty or no, they may acquit him. However, the notion is growing that a man's ' indictors ' will not be impartial when they try him. Britton allows the accused, in case of felony, to challenge jurors who are his indictors^ As a complement to this, we find jurors, in case of misdemeanour, amerced for denying in what we should call their verdict a statement of the guilt of the accused con- tained in what we should call their indictment of him^ In 1352 a statute was necessary to establish the general principle that a man's indictors are not to be put upon the inquest which tries him, be it for felony or for trespass^ Another change was going on. Just at the time when the accused was acquiring a right to challenge his indictors, 'the four town- ships' were ceasing to perform their old function. We see them in full activity on some of the latest eyre rolls of Henry III.'s reign, while on some of the rolls of his son's time they are no longer mentioned as part of that patria which says that men are guilty or not guilty*. A great deal yet remained to be done before that process of indictment by a 'grand jury' and trial by a 'petty jury' with which we are all familiar would have been, established. The details of this process will never be known until large piles of records have been systematically perused. This task we must leave for [p. 647] the historian of the fourteenth century. Apparently the

^ Britton, i. 30. The challenge is only allowed where there is 'peril de mort.'

2 Assize EoU, No. 915 (Sussex eyre of 7 Edw. I.) m. 13 d : 'Hundredum de E. venit per xii...Iuratores praesentant quod W.' committed an assault and battery. 'Postea venit-W. et...ponit se super patriam. Bt xii. iuratores dicunt super sacramentum suum quod...nou est oulpabilis... Ideo inde quietus. Et quia xii. iuratores mode dedicunt id quod prius dixerunt, in miserioordia. ' A similar case stands on m. 29. Another will be found in Palgrave, Common- wealth, p. olxxxviii. None of these are oases of felony, and we beheve that, while the hundredors were expected to present all public suspicions of felonies, they were deemed to pledge their oaths to the truth of any charges of ' trespass ' to which they gave utterance.

' Stat. 25 Edw. III. stat. 5, c. 3 ; EoUs of Parliament, ii. 239.

* We have looked at Assize EoUs, Nos. 621 (Northampton, 13 Edw. I.) and 915 (Sussex, 7 Edw. I.) without discovering cases in which the villatae proccimae were spoken of as an element in the body that tries the accused. At present we do not think that ' the four townships ' can be said to become the petty jury of later days. See Gross, Coroners' EoUs, p. xxxii. The practice of swearing in these . villagers seems to be abandoned as the accused acquires his right to a second jury of free and lawful men.

650 Procedure. [bk. ii.

change was intimately connected with the discontinuance of those cumbrous old eyres which brought 'the whole county' and every hundred and vill in it before the eyes of the justices'. Befnsal But what if the suspect would not put himself upon the

country? It is clear that for a long time after 1215 the law did not know what to do with him. The abolition of the ordeal had disturbed all its arrangements. We take it that under the old procedure a man who refused to go to the ordeal to which he had been sent might have been put to death, though rather perhaps as an outlaw than as a convict: — he had renounced the 'law' declared by the court. It was a different thing to sentence a man who had been allowed no chance of proving his innocence by any of the world-old sacral processes. ' No one is to be convicted of a capital crime by testimony/ said the author of the Leges Henrici". These words represent a strong feeling: mere human testimony is not enough to send a man to the gallows. In 1219, when the first eyre of Henry III.'s reign was in progress, the king's council was compelled to meet the needs of the moment by instructions sent to the justices*. A man charged with one of the gravest crimes is to be kept in prison for safe custody, but the imprisonment is not to endanger life or member. If the crime is of a middle sort and the accused would under the old law have gone to th^ ordeal, then he may abjure the realm. If the crime is light, then he may find pledge to keep the peace. Not one word is said about compelling people to abide a trial, or of trying by jury men who have not put themselves upon the country. All details are expressly left to the dis- cretion of the justices*.

^ The practice of putting men upon their trial to answer indictments preferred in the sheriff's turn and inquisitions taken by the coroners seems to play a part in the transforming process. In the old eyres the hundred-juiies were expected to 're-present' all these presentments of felony.

^ Leg. Henr. 31 § 5 : ' Et nemo de capitalibus placitis testimonio conyin- catur. '

3 Foedera, i. 154, from the Patent Eoll,

* As to this important document, see Falgrave, Commonwealth, p. 207 and Thayer, Harv. L. Bev., v. 265. Palgrave thinks that ' the royal advisers may even have meditated the introduction of proceedings analogous to those of the Civil and Canon Law.' Happily in 1219 the canonical inquiiitio was yet in its infancy.

CH. IX. § 4.] Pleading and Proof. 651

[p. 648] One expedient -which occurred to some of the justices was Peine forte that of taking the verdict of an exceptionally strong jury and * ^^^' condemning the prisoner, if found guilty, even though he had refused to stand the test. Martin PateshuU twice took this course in the Warwickshire eyve of 1221. The prisoner refused trial, but the twelve hundredors and twenty-four other knights having sworn to his guilt, he was hanged^ This procedure seems to have been in advance of the age. In the next year the court at Westminster merely committed to prison a man accused of receiving felons, though the townships and the knights of the shire had declared him guilty'''. Bracton does not like to speak out plainly about this matter. He talks of compelling a man to put himself upon the country and of deeming him undefended and quasi-convict if he refuses^ The parallel Norman custumal betrays the same difficulty. In Normandy, if a man is defamed of murder, he is kept in fast prison for year and day with little enough to eat or drink, unless in the meanwhile he will submit to an inquest of the country^ A similar expedient was adopted in England, but probably there was for many years much doubt as to the exact nature of the means that were to be employed in order to extort the requisite submission. On such of the rolls of Henry IIL's last years as we have searched we see all the suspects putting themselves upon the country with an exemplary regularity which can only be the result of some powerful motive. In 1275 Edward I. found it necessary to declare that notorious felons who were openly of ill fame and would not put them- selves upon inquests should be kept in strong and hard prison as refusing to stand to the common law of the land". Soon

1 Select Pleas of the Crown, pi. 153, 157, See the note to Hale, P. C. ii. 322.

2 Note Book, pi. 136. At the same time it sent another man to the gallows ; but he had been taken with the mainour, seisitus de latrocinio. See also pi. 67, 918, 1724, and Gloucestershire Pleas, p. xxxix.

3 Bracton, f. 142 b, 143 b.

* Ancieune eoutume, c. 68 (ed. de Gruchy, p. 167) : ' per iustitiarium debet arrestari et finno oaroere debet observari usque ad diem et annum cum penuria victus et potus (d peu de menger et de boire) nisi interim super hoc patriae inquisitionem se offerat sustinere.' Somma, p. 172. At a later time torture was used ; Brunner, Schwurgericht, p. 474.

' Stat. West. I. 0. 12 : 'seient remis en la prison forte et dure.' Compare the flrmo carcere of the Norman custom. But in England we do not see the limit of year and day. Ann. Dunstapl. 377 (a.p. 1293) : ' Et aliqui milites et

652 Procedure. [bk. ii.

afterwards we learn that their imprisonmeiit is to be of the [p.i most rigorous kind; they are ironed, they lie on the ground in the prison's worst place, they have a little bread one day, a little water the next'. A few years later we hear that the prisoner is to be laden with as much iron as he can bear^, and thus in course of time the hideous peine forte et dure was developed". men\To'f ^® haYB been speaking of indictments or presentments of

minor felony^ So far as we can see, if the justices in eyre receive a presentment of any of the minor offences, they give the in- criminated person no chance of denying his guilt, but at once declare him to be 'in mercy.' If, for example, the jurors present that J. S. has broken the assize of wine, then J. S. is put in mercy ; and so if he is said to have ' fled for ' a crime of which he was not guilty, a forfeiture of his chattels is decreed. It is thus that the justices raise hundreds of pounds by thousands of amercements^ This also is the procedure of the local courts, the turns and leets. In them, for example, the jurors will often begin with the stereotyped presentment that ' all the ale-wives have broken the assize ' ; the women are not suffered to deny this charge. So it is if the village jury presents that a man has drawn blood or used ' villein words.' In all these cases when the punishment will be only an amercement, the presentment is treated, not as an accusation, but as testimony and conclusive testimony. We believe that in Henry III.'s day anything that we could call the trial of a

nobiles sunt suspensi; quidam autem, eligentes poenitentiam secundum statutum, miserabiliter defecerun't.'

1 Britton, i. 26 ; Fleta, p. 51, does not mention the irons.

2 Y. B. 30-1 Bdw. I. p. 511 (Coruisli eyre of 1302). See also Ibid. pp. 499, 508, 531.

5 Palgrave, Commonwealth, pp. 268, olxxxix; Thayer, Evidence, 70-81; Stephen, Hist. Crim. Law, i. 299-800 ; Pike, Hist, of Crime, i. 468. We do not think it proved that under Henry III. the man who refused trial suffered worse than a rigorous imprisonment. In 1293 a prisoner is spoken of as under- going poena statuti because of his refusal to put himself upon the country; Staffordshire Collections, vol. vi. pt. i. p. 260.

* Hale, P. C. ii. 152 : ' Presentment is a more comprehensive term than indictment.' All the answers given by jurors to the articles of the eyre or of the turn are presentments. The usage of Braoton's day seems to restrict the term indictati to those who are presented as malecrediti of some felonia. It will be remembered that at the present day every indictment is a presentment. The grand jurors 'upon their oaths present that etc'

° See above, vol.ii. p. 557.

CH. IX. § 4.] Pleading and Proof. 653

[p. 650] man upon an indictment for misdemeanour was exceedingly rare^ Slowly, when the procedure in cases of felony was well established, the doctrine gained ground that the person charged with an offence punishable by imprisonment might traverse the presentment of the jurors and ' put himself upon the country^ ; but, so. long as many of the minor misdeeds were punished by amercement in the old local courts, there were many pre- sentments that were not traversable ^

We must return for a moment to indictments of felony. The nature We would fain describe what happened when the accused tria?.* had put himself upon the country. The curt brevity of our records allows us to say but little. An appellee might make his answer by the mouth of a professional pleader; but no counsel was allowed to one who was arraigned at the king's suit*. A man who confessed a felony in court or before a coroner was condemned upon his confession, and the coroner's record of his confession was indisputable. We have found upon the rolls a good many recorded confessions of crime, and it may have been considered the justices' duty to urge the accused to tell the truth*; but when a prisoner had acknow- ledged his guilt before a coroner, and afterwards protested that his self-accusation was won from him by duress, we may see

1 See above, vol. ii. p. 522.

2 Au example from 1279 will be found in Northumberland Assize Bolls, p. 340. A presentment has been made that a coroner took money for not doing his duty. He puts himself on a jury and is acquitted. Some other oases are referred to above, vol. ii. p. 649, note 2.

3 The later doctrine of presentments will be found in Hale, P. C. pt. 2, ch. 19 : 'Regularly. all presentments or indictments before justices of the peace, oyer and terminer, gaol-delivery, etc. are traversable... If a presentment be made super visum corporis that A killed B and fled, this presentment of the flight is held not traversable... If before justices in eyre. ..an escape be presented upon -^ vill.,.this is held to be not traversable... A presentment in a leet of bloodshed or the like ' [is not traversable, unless it] ' concerns the freehold, as presentments of nuisances, or such matters as charge the freehold.' Hale's ' or the like' would in cent. xiii. cover a wide field of petty misdemeanours. Palgrave, Commonwealth, 268 : ' The presentment or declaration of those offences which fell within the cognizance of the Hundred Jury or the Leet Jury... was final and conclusive; no traverse or trial by a second Jury, in the nature of a Petty Jury, being allowed.'

' Britton, i. 102 ; Y.B. 30-1 Edw. I. p. 530 ; of. Leg. Henr. 46-9 ; 61 § 18, 19.

5 The Court Baron (Seld. Soc.) p. 64. This appears also in a manual describing the practice of the king's justices: Camb. Univ. Lib. Mm. 1. 27, f. 128.

654 Procedure. [bk. n.

the justices sending for his gaoler and some of his fellow [p. 651] prisoners and taking their evidence as to the alleged extortion'. Probably no fixed principle prevented the justices from ques- tioning the accused; but there are no signs of their having done this habitually ". We may take it that he could address the jurors collectively. Sometimes, before putting himself upon their oath, he will have urged an alibi and have prayed that his submission to a verdict may be subject to this plea *. It is by no means impossible that if there were at hand men who could speak of facts telling in his favour, they would have been permitted to say their say before the jury, though they would not have been sworn *. . A special verdict in a criminal case, unless it deals with homicide by misadventure or in self-defence, is a great rarity ; but we have before now given an instance in which the jurors found the bare facts and left the justices to decide whether there had been larceny '. Another great rarity is a case in which any difference of opinion among the jurors is recorded. In entry after entry they are reported to say unani- mously that the man is guilty or is not guilty, and this although the trying body often consists of no less than forty-four men, that is to say, of two hundred-juries and of the five representa- tives of each of four vills. This unanimity is no doubt somewhat fictitious. If some of the jurors have a clear opinion and others know nothing about the matter, probably the latter give way and an unanimous verdict is recorded. The justices would some- times lecture the jurors about the gravity of their duties', but were not in a position to give them much advice or assistance ;

1 T. B. 30-1 Edw. I. p. 543. This is u, notable instance of the justices hearing evidence. See Thayer, Harv. L. Eev. iv. 148.

2 Sometimes (e.g. Select Pleas of the Crown, pi. 197) an appellee is questioned, in order to see whether the case is one which should be tried by- battle. Cole, Documents, p. 312 : a Jew charged with forgery is questioned. For this case see above, vol. ii. p. 540.

8 The form is this : ' Petit sibi allocari quod fuit apud B et, hoc allocato,

ponit se super patriam.' We have given one example above, vol. ii. p. 498, note 7, and have seen others.

* See above, vol. ii. p. 627. We agree with Mr Thayer (Evidence, p. 13) in thinking that the case (Gloucestershire Pleas, pi. 394) on which Sir James Stephen relied (Hist. Grim. Law, i. 259) to show that witnesses were called in criminal trials is not a case of trial at all. It is an example of the procedure against a hand-having malefactor who refuses trial.

" See above, vol. ii. p. 498, note 7.

0 y. B. 80-1 Edw. I. p. 528.

CH. IX. § 4.] Pleading and Proof. 655

[p. 652] nor, despite what Bracton says^, do the justices seem to have been at pains to interrogate the jurors as to their knowledge and means of knowledge. The prisoner had put himself upon the oath of the jurors ; a professedly unanimous verdict would satisfy the justices; it was the test that the prisoner had chosen. On the whole, trial by jury must have been in the main a trial by general repute. That in quiet times it pressed hardly on the accused, we do not believe ; acquittals seem to have been much commoner than convictions in the last days of Henry III.

Now and again there would be scandal, panic, hasty hang- Difficnltiea ing. Matthew Paris tells how in 1249 the parts of Winchester by jury. had become a den of thieves, who robbed the merchants of Brabant, attacked the king's own baggage train and made themselves drunk with the king's own wine. A royal justice could get no indictments ; the jurors were in league with the criminals. The king came to Winchester, assembled the free- holders of the county in the castle, raged and stormed against them : he would try the whole county for treason by all the other counties of England. William Raleigh, once a justice but now a bishop, thundered the anathema. The gates of the castle were suddenly closed. A jury of twelve was sworn in and deliberated long. The jurors made a most inadequate presentment. They were forthwith committed to prison under sentence of death as manifest perjurers. Another jury was sworn in. After a lengthy and secret confabulation, the string of their tongues was loosened and in mortal terror they de- nounced many rich and theretofore respected folk and even some members of the king's household. From thirty to a hundred men were hanged. One William Pope turned approver and by six successful battles ridded the world of six of his associates. An indelible mark of infamy was set upon the county, says Paris ^.

Such events as these must at times have tempted the king Thecol- and his advisers to think that the inquest of twelve was a evidence, clumsy machine and to look abroad and see what was being done in France. Was not an inquest of a quite other kind possible? Our king was a frequent, if unwilling, litigant in

I Braoton, f. 143.

a Mat. Par. Chron. Maj. v. 56-60 ; Historia Anglorum, iii. 46-7.

656 Procedure. [bk. ii.

the court of his sovereign lord'. Certainly upon a grand [p. 653] occasion some endeavour would be made to collect the evidence of individual witnesses touching a crime. This we learn from a valuable document that has come down to us among the rolls of the king's court. In 1235 one Henry Clement, who had come over to England as an envoy to the king sent by some of the Irish nobles, was slain in the neighbourhood of the palace at Westminster. He had bragged, so it was said, of having brought about the death of Richard Marshall, and suspicion fell on the Marshalls and their adherents. On the roll in question we find the evidence given — in at least some cases it was given upon oath — by a large number of witnesses. They tell what they saw ; they tell how Clement had said that his life was threatened ; they know very little, but there is some vague testimony against William de Marisco. Then twenty-four jurors from the parts of Westminster, Charing and Tothill say that they know nothing and have heard nothing. The imme- diate effect of this proceeding seems to have been a decree of outlawry against William de Marisco and others. He took to open piracy, held Lundy Island against all comers and in the end was hanged, drawn and quartered as a traitor, for among other charges against him was that of having sent an assassin to kill the king ''- Now had inquests of this kind become common, inquests in which witnesses were separately examined, indict- ment and trial by jury would have had to struggle for existence and would very possibly have been worsted in the conflict. Happily the jury was by this time firmly rooted in our civil procedure. The It is not a little remarkable that a criminal procedure which

inquisition, makes use of two' inquests' or 'inquisitions,' one for the pur- pose of indictment, another for the purpose of trial, appears in the end as the most emphatic contrast that Europe can show to all that publicists mean when' they speak of an ' inquisitory ' procedure. Let us glance for a moment at its one great rival. The normal criminal procedure of the classical Roman law was accusatory, and for a long time the normal criminal procedure of the canon law was accusatory. It was not unduly favourable

> Olim, i. p. 521 : in 1269 our king has got the worst of an inquesta about a disseisin, and is condemned to pay 830 pounds. See also ibid. p. 559. 2 Curia Regis EoU, No. 115 (18-9 Henry HI.) m. 33 d ; E. H. E. x. 294.

CH. IX. § 4.] Pleading and Proof. 657

[p. 654] to accusers; on the contrary, the accuser bound himself to undergo the poena talionis in the event of his failing to furnish a complete proof of the guilt of the accused, and the law's conception of a complete proof was narrow and rigorous^ In course of time other modes of procedure were placed beside the accusatio. The ecclesiastical judge might proceed eoo officio against those who were defamed by general report and compel them to submit to the purgatio canonica, that is to say, to swear away the charge with oath-helpers. Again, he might send to the ordeal (purgatio vulgaris) persons who were charged with offences' by the synodal jurors ^ Here for a moment, as we have already seen', the history of the canon law comes into close contact with the history of our English temporal procedure. But in the twelfth century all these methods were breaking down. Innocent III. introduced a new procedure, the inquisition. The judge proceeds ex officio either of his own mere motion, or on the suggestion of a promoter (ivquisitio cum promovente) ; he collects testimony against the suspect, testimony which the suspect does not hear; it is put in writing*. But even this weapon was too feeble for that warfare against heresy in which the church was by this time engaged. The work of suppressing this crime was committed to the friars, more especially to the Dominicans, and the proce- dure by way of inquisition soon assumed in their hands all its worst characteristics. Every safeguard of innocence was abo- lished or disregarded; torture was freely used. Everything seems to be done that can possibly be done to secure a con- viction. This procedure, inquisitory and secret, gradually forced its way into the temporal courts ; we may almost say that the common law of Western Europe adopted it^ When in the eighteenth century French philosophers and jurists rebelled against it and looked about them for an accusatory, contra- dictory, public procedure, a procedure which knew no torture,

1 Tanon, Histoire des tribunaux de I'inquisition, 255-263; Foumier, Les officialitSs au moyen dge, 233-251.

2 Tanon, op. cit. 264-281 ; Fournier, op. cit. 262. s See above, vol. i. pp. 141, 151.

■» Tanon, op. cit. 281-290 ; Fournier, op. cit. 266 ff. ; Biener, Beitrage zn der Gesohlohte des Inquisitions-Processes, 38 ff. The two decretals which organize the new procedure come from the years 1199 and 1206. The latter was reissued as Concil. Lat. IV. c. 8.

' Esmein, Histoire de la procedure crimiaelle en France, 284, 315.

P. M. II. \ 42

658 Procedure. [bk. ir.

they looked to ancient Rome and modern England '. Fortunate [p- 655] in her unblemished orthodoxy, England at the critical moment had escaped the taint of the inquisitio haereticae pravitatis '- Bngiish The escape was narrow. In England, as elsewhere, a

jnqulsi- System which left the prosecution of offences to ' the party lODB. grieved ' was showing its insufficiency. A new procedure was placed by the side of the old, and the new was in name an inquisitory procedure. It is to 'inquire of,' as well as to 'hear and determine' criminal causes that the king's justices are sent through the shires. They ' make ' or they ' take ' inquests or inquisitions (inquisitiones). We may even represent them as collecting testimony behind the backs of those whe are defamed. Happily, however, the reforms of Henry II. were effected before the days of Innocent III. Our new procedure seems to hesitate for a while at the meeting of two roads. A small external impulse might have sent it down that too easy path which the church chose and which led to the everlasting bonfire'. All thati was necessary was that the sworn declarations of the hundredors should be treated as testimony. As regards some matters of small importance this was done. There were, as we have lately seen, some ' presentments ' that were not ' travers- able ' : in other words, a man was convicted upon the testimony of jurors taken behind his back and was allowed no opportunity of denying the charge. But where the imputation is grave, the words of the jurors are treated not as testimony but as a mere accusation *. The new procedure becomes as accusatory as the old ; the Appeal and the Indictment are regarded as institutions of the same order. The English judge who is instructed to ' inquire of felonies discharges himself of this duty by collecting accusations, not testimony. Then when, having ' inquired,' he proceeds to ' hear and determine,' he treats the jury as a whole

^ Esmein, op. cit. 359.

° Tanon, op. cit, p. ii. : ' Lea traits g£n4iaux que nons relevons dans la justice inquisitoriale sont ceux que revM la procedure criminelle commune, non seulement en Fiance, mais dans les principaux groupes des nations eiirop£ennes au moyen ^e, I'ltalie, I'Espagne, I'Allemagne, les Pa;s-Bas. Uu seul pays fait exception: c'est I'Angleterre... Or I'Angleterre est prfecisSment le seul da cea pays dans lequel I'inquisition ne se soit pas stabile, et qui ait ainsi ^chappS i, la contagion de ses tribunaux.'

' Fortescue de Laudibus, c. 22 : ' Semita ipsa est ad gehenuam.'

* Bot. Pari. i. 79 : ' inquisitio talis eat inquisitio ex officio et quasi quoddam accusamentum,'

CH. IX. § 4.] Pleading and Proof. 659

[p. 656] that can not be broken up. Even now he is not going to weigh testimony ; he is going to take a verdict.

How narrow the escape was we may see from that Norman The custnmal which is the next of kin to our English law books'. Normandy. There, when the man defamed of murder has been induced to submit himself to an inquest, the judge causes twenty-four men who may be supposed to know the facts to come before him. He does this suddenly, without telling them why they are wanted, lest the kinsmen of the suspect should tamper with them. Then he takes each of them apart before four impartial knights, examines him as to what he knows and his answer is put in writing. Then the suspect is given his chance of challenging these men and striking them off the 'jury.' Then in public session the evidence that was taken in secret is read aloud; each witness is asked whether he abides by his testimony, and, if there are twenty who say that the suspect is guilty, he is condemned. This, it will be seen, is by no means a stringent procedure ; it would have been far from satisfying a Dominican inquisitor ; still the suddenness of the inquest, the separate and secret examination of the jurors, we do not find in England, and we may learn how the iurea patriae was at one time a plastic institution which might take different forms in two sister lands.

We escaped secrecy and torture ; but we were not very Torture far from torture in the days when the peine forte et dure was faw of invented. Prominent enough in the late Eoman law books, it ^"'*«'"*- had made its way into those of the Germanic folk-laws that were most deeply tinged by Romanism, though in general they only applied it to slaves. After this, little is heard of it for a very long time until the renewed study of the classical juris- prudence unearthed and sanctioned it I Then it stole into the courts both temporal and ecclesiastical. The appearance of heresy, a crime committed, not by deed nor by word, but by thoughf^ provided for it an all too ample field. It came to the relief of a law of evidence which made conviction well-nigh impossible. The canonists were evolving a law, and a rigorous law, pi evidence. ' Full proof consists of the accordant testi- mony of two unexceptionable witnesses who have themselves

ifSomma, p. 174 ; Anoienne coutume, o. 68 (ed. de Gruohy, p. 167). 2; Lea, Superstition and Force, pt. iv. Esmein, Histoire de la procedure cxiuiineUe en France, 93-100.

42—2

660 Procedure. [bk. ii.

seen the crime committed. At all events in the case of serious [p. 657] crimes, full proof, proof clearer than the noon-day sun, is requisite. Such proof was rarely to be had, more especially as large classes of mankind were incapable of testifying. One must eke out a 'half proof by the confession of the accused, and to obtain this torture is used^ Luckily for England neither the stringent rules of legal proof nor the cruel and stupid subterfuge became endemic here. Whether we may ascribe to our ancestors any unusual degree of humanity or en- lightenment is very doubtful. During the anarchy of Stephen's reign the 'devils' who lived in the castles had shown an in- genuity in the invention of torments which would have won praise from the inquisitors of a later age ; but those ' devils ' were extorting money, not evidence^. The peine forte et dure was barbarous enough and clumsy enough. But our ancestors had not been corrupted by the persecution of heretics. Foreign criminalists in the middle ages and in later times are for ever dwelling on the weakness of the law, on the difficulty of obtaining convictions unless the state takes to itself every advantage in its struggle with the prisoner. Of this we hear little in England, though we can see that an enormous quantity of crime went unpunished'. Our law seems to think itself quite strong enough. This difference was in a great measure due to the absence of any ' theory of legal proofs ' such as that which hampered our neighbours. Our criminal procedure took permanent shape at an early time and had hardly any place for a law of evidence. It had emancipated itself from the old formulated oaths, and it trusted for a while to the . rough verdict of the countryside, without caring to investigate the

1 Tanon, HiBtoire des tribunaux de I'inqnisition, 362-384.

^ A.-S. Chron. ann. 1137. Pike, Hist, of Crime, i. 427, cites frcW the Pipe Eoll of 34 Hen. H. : ' Petrus filius Ade reddit compotum de xxxv. Liarcis, quia cepit quandam mulierem et earn tormentavit sine lioentia Begis.' This certainly seems to hint that torture could be used if the king pleased. Edward II. tried to throw upon the law of the church all responsibility for the torture of the Templars ; Lea, Hist, of the Inquisition, iii. 300. /t is of course well known that at a later time torture was used in England as an engine of state; but it never became a part of the ordinary machinery of the law, and its legality could be denied; Lea, Superstition and Force, 567-70; Spedding, Evenings with a Eeviewer, ii. 100 ff.; Gardiner, Hist. Engl. 1603-42, ii. p. 275.

' See above, vol. ii. p. 657.

CH. IX. § 4.] Pleading and Proof. 661

logical processes, if logical they were, of which that verdict was the outcome*, [p. 658] A few miscellaneous matters we have yet to notice. Omitted

Of the king as a litigant we must add but little to what

points, , , - - The

has been said above 2. His exchequer' collected his debts for|^i°ga8»

1 • , . litigant.

iiim, attacking his debtors and (if need were) their debtors; but for lands and advowsons he often brought in his own court actions of the ordinary kind^ He had, however, an objection- able habit of using a Qmo Waranto for land' — objectionable, we say, because this compelled a defendant to disclose his title as against a plaintiff who had disclosed none=. On the other hand, the Quo Waranto for franchises was defensible, for there is a sound presumption that all royal powers should be in the king's hands. Under Edward I. this prerogative writ was being taught to know its proper place'.

' Braoton sometimes alludes to the canonical theory of proof, e.g. on f. 302, where he speaks of 'praesumptio ex semiplena probatione'; but that theory would not fit into our system, which handed over everything to the verdict of a jury, and was even beginning to treat vrith contempt the secta of eye- witnesses which the plaintiff was supposed to produce. In much later days our law can work out for itself a doctrine of evidence, which ia all its own and is fashioned to suit trial by jury; it can do this just because in its days of adolescence it knew little of witnesses and therefore did not take over that theory of legal proof which lay ready to its hand in the works of the canonists. As to this ' th^orie des preuves l^gales,' as French writers call it, see Esmein, op. cit. p. 260 fol. It attempted far more than is attempted by our modern English rules which merely ' admit ' or ' exclude ' evidence ; it tried to assign a relative, and almost numerical, value to the various kinds of testimony. See the passage which M. Esmein, p. 369, quotes from Voltaire : 'Le parlement de Toulouse a un usage bien singuher dans les preuves par t6moins. On admit aiUeurs des demiprenves...mais k Toulouse on admet des quarts et des huitidmes de preuves.'

2 See above, Book ii. ch. 2 § 18.

3 See above, vol. i. pp. 190, 193.

* Note Book, pi. 199 (Eight of Advowson), 187 (Darrein Presentment), 785 (Quare Impedit), 628 (Quo lure), 1124 (Entry), 1220 (Escheat), 908 (Wardship).

^ There are numerous eases in the Note Book. Sometimes when a subject brings a writ which contains the words quo waranto, this is really a writ of intrusion (see Bracton, f. 160 b) and the plaintiff's title is stated.

'^ Bracton, f. 372 b, quoting Cod. 3. 31. 11, would allow a quo waranto merely for the purpose of discovering whether the defendant holds pro herede or pro possessore, so that the plaintiff may know what other action he must bring. We have seen above (vol. i. p. 217, note 5) how the maxim Cogi possessorem etc, was current in the court of Edward I.

? Placit. Abbrev. p. 199 Norf.; Plac. de Quo War. 681, 686.

662

Procedure,

[bk. n.

Oriminal infoiiua- tions.

Voucher to warranty.

Coimter- pleading.

Could the king put a man on his trial for a crime though no indictment had been found against him ? There seems to us to be clear evidence that this was done by Edward I., but not very frequently. Though there has been no indictment and no appeal, a man is called before the court and accused by the king's serjeant of treason or of felony. This evidence, however, comes to us from a somewhat later time than that [p. 659] which we are endeavouring to describe, and as the origin of 'criminal informations' has been the theme of hot debate, we will say no more of it in this place'.

One of the commonest episodes in litigation about land is the voucher (vocatio) of a warrantor'. When the demandant (D) has counted against the tenant (T). the latter, instead of defending the action, will call in some third person (F) to defend it. If V admits that he is bound to warrant T, or if the court decides that he is thus bound, then T retires from the contest and D proceeds to count against V, If D succeeds in his contest with V, the judgment will be that D is to have the land in dispute and that T is to recover from V an exchange in value {excambium ad valentiam), that is to say, other land of equal value to that which he (T) has lost'.

When V first comes before the court, instead of admitting, he will perhaps deny the duty of warranting T. In that case he is said to ' counterplead the warranty ' and there will then be a debate, trial , and decision of this preliminary question before D can go on with his action. As a general rule our common law gave D no right to protest against the voucher of

1 Oxford City Documents (Oxf. ffist. Soo.), p. 204; roll of Oxford eyre oJ 1285 : ' Bobertus le Eyr eerviens dom. Begis pro dom. Bege iusticiariis dom. Begis hie monstravit quod Mag. Nicholans de Wautham contra fidelitatem suam,..[a charge of treason follows], .,et petit iustitiam de eo ut de seductore ao proditore dom. Begis.' The famous case of Nicholas Segrave, Bot. Pari. i. 172, Memoranda de Pari. 1305 (ed. Maitland), p. 255, can only be read as an information for treason. An instance of an information for felony which sends B man to the gallows occurs in Mem. de Pari. p. 280. For later history see Stephen, Hist. Grim. Law, i. 295.

2 Glanvill, iii. 1-5; Braoton, f. 257b-261b, 380-399 b. In the Novel Disseisin there can be no voucher of a person not named in the writ ; Glanvill,

' xiii. 88. In Olanvill's day there seems to have been doubt as to whether there could be a voucher in any of the new possessory actions: Ibid. xiii. 30. But a voucher in the Mort d'Ancestot soon became very common.

' For instances illustrating the exchange, see Note Book, pi. 196, 284, 600, 633, 945, 1717, 1803.

CH. IX. § 4.] Pleading and Proof. 663

a warrantor, and as the first warrantor could vouch a second, and the second a third, the hearing of the original claim might be long delayed. A statute of Edward I.^ gave D in numerous [p. 660] cases the right to 'counterplead the voucher,' that is, to insist that "Ps appearance should, not be awaited, and that T must himself defend the action.

This process of voucher may seem very curious to us ; for Expiana- we may well think that the question whether D has greater voucher.''" right than T should take precedence of the question whether in that case T should receive compensation from a third person. A clue to the original meaning of the voucher we shall perhaps obtain if we observe that even in Bracton's day it was a feature which the actions for land had in common with the antique actio furti^. When the defendant in such an action alleged that he had purchased the goods which the plaintiff was de- manding, he was bound to name the seller in order that the provenience of the goods might be traced backwards to a thief. Now it is said that in remote times the only action for land was, like the old actio furti, a punitive action ; it aimed at a wite as well as at restoration. The plaintiff desired, not merely to recover his land, but to attack the original wrong-doer who took his land away from him. Thus the process of voucher was at first a process which in the interest of plaintiffs strove to bring before the court the real offender in order that he might pay for his offence'. Howbeit, very long ago warranty had be- come one of the most powerful of those forces which had given society its feudal form. The gift of land implied protection, defence, warranty for the donee. If he was impleaded, his battle would be fought for him by a high and mighty lord. To gain the right to vouch such a lord as their warrantor many men would be content to give up their land and take it back acain as rent-paying tenants^ In Bracton's day a tenant had as a general rule a right to call upon his feoffor, who would also

1 Stat. West. I. 0. 40 ; Second Instit. 239.

2 See above, vol. ii. p. 164.

3 Brunner D. R. G. ii. 516. This seems to be tlie origin of the rule (Britton, ii. 108) that if an action is successfully brought by D against T, in which T has vouched V, who has vouched W, the only person to be amerced is W-- 'le dreyn garraunt remeigne en nostre meroi.' Here ' le dreyn garraunt ' is the original vfrong-doer, and he owes the wite.

* See above, vol. i. p. 306.

kind.

664 Procedure. [bk. ii.

be his lord, for warranty. He had this right if he had done homage to his feoffor, or if he had a charter of feoffment con- taining the usual formula Sciatis me dedisse ; but the recipient of homage would sometimes expressly stipulate that there was to be no warranty S and, on the other hand, promises of warranty [p. 661] were often inserted in charters in order either to make assurance doubly sure or to bind the feoffor's 'assigns' and benefit the ' assigns ' of the feoffee''. The duties of a lord who was bound ' to warrant, acquit and defend ' his tenant were brought home to him, sometimes by voucher, sometimes by the action of Warantia Gartae". Proceed- Nothing that was, or could properly be, called an appeal

appeUate from court to court was known to our common law. This was so until the ' fusion ' of common law with equity in the year 1875. Long ago both in France and in England the verb appellare had been used to describe the action of one who brings a criminal charge against another ; such an action is an appellum, ' an appeal of felony*.' In the twelfth century, under the influence of the canon law, Englishmen became familiar with appeals.(appeWafo'ones) of a quite other kind ; they appealed from the archdeacon to the bishop, from the bishop to the archbishop, from the archbishop to the pope*. The graduated hierarchy of ecclesiastical courts became an attractive model. The king's court profited by this new idea; the king's court ought to stand to the local courts in somewhat the same relation as that in which the Roman curia stands to the courts of the bishops". It is long indeed before this new idea bears all its fruit, long before there is in England any appeal from

» Braoton, f. 390 b ; Note Book, pi. 196.

' Braoton, f. 37 ; Note Book, pi. 804; Y. B. 20-1 Edw. I. p. 233. The Statute De Bigamis (4 Edw. I.), o. 6, laid down rules about this matter which became the basis of the later law. See Second lustit. 274.

^ Eor this action see Bracton, f. 899. It is common in the Note Book. In after days it is often used by one who has been turned out of possession by an Assize of Novel Disseisin. In that Assize he had no chance of vouching his feoffor.

'' See for France, Esmein, Histoire de la procMure, 24.

° Const. Clarend. c. 8: 'De appellationibus si emerseriut, ab archidiacono debent procedere ad episcopum...'

' Bracton, f. 412 : * Sicut dominus Papa in spiritualibus super omnibus habeat ordinariam iurisdictionem, ita habet Bex in regno suo ordinariam in temporalibus.'

CH. IX. § 4.] Pleading and Proof. 665

court to court; but we must here notice the various pro- cesses which have about them more or less of an appellate character.

First we may once more mention the reversal of a verdict Attaint. by the process of Attaint (convictio). The twelve jurors are accused before twenty-four jurors. If convicted of a false oath, [p. 662] they are severely punished; if their oath- was but 'fatuous/ some mercy is shown them ; but in either case the verdict of the twenty-four is substituted for the verdict of the twelve. In Bracton's day, however, this procedure was, at least as a general rule, confined to cases in which the recognitors of a Petty Assize had answered the question specified in the original writ, for if both litigants had put themselves upon a verdict, neither could dispute it'.

A process known as a Certification is employed when jurors Cert^fic^^ have given an obscure or an incomplete verdict. They are """' summoned to Westminster 'to certify the justices' as to the oath that they have made. In this way a verdict given before justices of assize is sometimes brought before the central court. If the jurors admit that they have blundered, they may be punished, but recourse to an Attaint is necessary if they are to be charged with perjury ^ '

The king's court was not superior to the ecclesiastical courts ; ProhiW- it could not reverse their judgments. It could, however,- and would prohibit them from meddling with a temporal dispute', and the ecclesiastical judge who infringed a royal prohibition could be haled before the justices and punished. Archdeacon Bracton speaks of this offence as laesa maiestas*. We have seen that the king's court would send certain questions to be tried by the bishop. This gave it an interest in the proceedings which took place before him, and it seems to have claimed some power of directing his conduct of the cause"; it could at all events maintain the principle that, if the bishop was acting on

1 See above, vol. ii. pp. 541, 623. We are at one with Brunner (Schwur- gerioht, 372) and Thayer (Evidence, 143) in thinking that the attaint-procedure is from the first a royal favour which has to be purchased.

2 For instances, see Note Book, pi. 63, 382, 431, 771, 856, 1209, 1265, 1281, 1928; Somersetshire Pleas, pi. 1491, 1514.

■* See above, vol. ii. p. 199.

•• Bracton, f. 410.

« See the writs in Bracton, f. 302 b, 307.

666 Frodedure. [bk. il.

the authority of a royal writ, there could be no appeal from his to any higher tribunal',

Eemoval From the inferior courts, communal and seignorial, no

appeal lay to the king's court. But there were various pro- cesses by which actions begun in those courts could be removed before judgment ; also, when a decision had been given, a com- [p. 663] plaint of ' false judgment ' could be "made. The action for freehold, which in theory should be begun in a feudal court, was from Henry II.'s time onwards subordinate to royal con- trols The 'original' writ threatened the lord with the sheriflfs interference. The demandant by a formal oath, which the royal justices were reducing to an absurdity, could prove that his lord had made ' default in justice,' and then the action was removed to the county court ; the lord could seldom procure a restoration of the action when once it had been removed ^ The tenant could stay all proceedings in the inferior courts by putting himself upon the king's grand assize and obtaining a 'writ of peace*.' From the county court an action could be removed into the royal court by a writ known from its cardinal word as a Pone'. The plaintiff could obtain such a writ as a matter of course, the defendant only for some good cause such as the sheriff's partiality, the theory being that plaintiffs have nothing, while defendants have much, to gain by mere delay.

False If a judgment had been given by an inferior court, the

method by which it could be questioned was the complaint of ' false judgment.' This takes us back to very old days when a litigant who is dissatisfied with a proposed doom will at once charge the doomsman who utters it with falsehood". But in course of time the rule had been established that the complaint of false judgment was a royal plea and could only be urged in the king's court'. In England this principle was upheld, and

' Note Book, vol. i. p. 112; Bot. Pari, i, 16, Sometimes the king's conit ^ould order the absolution of an ezcommunioate. Note Book, pi. 1143.

2 See above, vol. i. pp. 146, 147.

8 Glanvill. xii. 7 ; Braoton, f. 329, 330 ; Britton, il. 326-332 ; and see also the story abont Becket and John the Marshal, Materials for the Life of Becket, i. 30 ; iii. 50.

■• Glanvill, ii. 7-9; Braoton, f. 331; Britton, ii. 385.

'' Bracton, f . 330 b ; Britton, ii. 336 ; Eengham Magna, c. 4.

" Brunner, D. E. G. ii. 356-365. The A.-S. phrase for this process seems to have been to forsake the doom; Edgar, i. 3; Cnut, n. 15, § 2.

' Leg. Henr. 10, § 1.

judgment.

CH. IX. § 4.] Pleading and Proof. 667

it delivered us from some of the worst results of feudalism; the great lords had no control over the courts held by their tenants. But in the thirteenth century the complaint of false judgment still retained many an archaic trait. The unsuc- cessful litigant obtained a, writ (breve de /also iudicio) which commanded the sherifif or the other president of the incrimi- [p.664] nated court to cause a 'record' to be made (recordari facias loquelam) of the proceedings and to send four suitors of the court to bear this record before the king's justices^ Then a debate takes place, not between the two litigants, but between the complainant and the four suitors who represent the court. Very commonly he denies the truth of their record ; he oifers battle and they offer battle, the champions being, at least in theory, two suitors of the court who were 'within its four benches ' when the judgment was given ; but we suspect that a county keeps some doughty pugilist in its pay for these emergencies''. Generally the justices manage to find some reason for declaring that there shall be no battle. They are beginning to treat the complaint of false judgment as a means of correcting the errors of the lower courts, and they give ear to the successful party as well as to the complainant'. But still the procedure is directed against the lower court ; the county, the hundred or the manor is amerced if its judgment is annulled, and in appropriate cases it has to pay damages*. By a false judgment a lord may lose for ever the right to hold a court'. If the truth of the record is admitted, the question as to the falsehood of the judgment appears as a matter of law which the justices decide. In most cases the question turns

1 Sometimes they will put their record into -writing and bring the parchment ■with them ; Note Book, pi. 243.

2 Glanvill, viii. 9, thinks that the man who pronounced the impugned doom should do the fighting. The procedure is well illustrated by Note Book, pi. 40, 592, 824, 834, 955, 1019, 1412, 1436, 1672. For 'the four benches' see Northumberland Assize Eolls, 196. In 1219 the Surrey champion was Stephen EngUsh, who in the next year was waging another battle; Note Book, pi. 40, 1360.

"* Note Book, pi. 1436, a long and instructive record.

* Note Book, pi. 1412: 'Willelmus... dixit quod per recordum illud et per falsum indicium deterioratus fuit et damnum . habuit ad valenciam x. marcarum....Consideratum est. ..quod W. reouperavit damnum suum i. irar- oarum versus comitatum [Sussexiae].'

' Glanvill, viii. 9; comp. Edgar, iii. 3; Cnut, ii. 15, § 1; Leg. Will. 1. 39, § 1.

668 Procedure. [bk, n.

on a point of procedure ; the judgment ,that is impugned is a ' medial ' or ' interlocutory ' judgment, and the king's court will sometimes take the case in hand and direct its future course^. Error. The king's court can not be charged with a false judgment ;

but gradually as it breaks into segments and throws off wandering satellites, something like an appeal from one seg- ment to another or from the satellite to the central nucleus [p. 665] becomes possible ^ In the early years of the thirteenth century the possessory assizes are often ' taken ' by four knights of the shire'. These justices of assize, while acting under their commission, are royal justices ; but they are not professional lawyers. The central court seems to hesitate in its dealings with them. On the one hand, they can not be accused of false judgment ; on the other, they can be directed to bear record of their doings before the central court ; they can be amerced for their errors and their errors can be corrected*. Even justices in eyre, among whom there will generally be some members of the permanent tribunal^, can be thus dealt with'. But the central court itself is throwing out branches'. Above 'the Bench' rises the court held coram ipso Bege. In 1235 the Abbot of St Augustine's at Bristol brought ' before the king himself a case in which the justices of the Bench had in his opinion been guilty of a mistake. They were summoned before the king and pleaded ignorance. Their proceedings were set aside^ The idea of a complaint against a judgment which is not an accusation against a judge is not easily formed. But gradually in Edward I.'s day as the king's court assumed a triple form — Common Bench, King's Bench, King in Council', —

1 See e.g. Note Book, pi. 824, 1436.

2 Compare Esinein, HiBtoire de la procedure, 27. ' See above, vol. i. p. 200.

" For this procedure, see Note Book, pi. 281, 512, 871, 917, 976, 1285, 580 (' ad indicium de iustitiariis '), 564 (' at ideo iustitiarii in misericordia ').

" See above, vol. i. p. 201.

" Note Book, pi. 67 (a.d. 1219): the justices in eyre are brought before the Bench and thri Council to answer for having unlawfully oondemned a man to death; they are amerced and the disherison is annulled. See also pi. 1069.

' See above, vol. i. pp. 190—192.

* Note Book, pi. 1166: 'Et quia fuit ostensum domino Eegi...quod ipsi iustitiarii ita male processerunt, vocati fuerunt coram Bege et ibi coguoverunt quod ita processerunt, sed nesciverunt in dicto negotio melius procedere.'

' Maitland, Memoranda de Parliamento (1305), pp. Ixxix-lxxxvii. Pike, History of the House of Lords, oh. iv.

CH. IX. §4.] Pleading and Proof. 669

and as the work of taking assizes and delivering gaols fell more and more into the hands of the permanent justices, men became familiar with the notion of a 'procedure in error' which does not call for a defence from the judges who are said to have made the mistake^, [p. 666] The distinction that we still draw between 'courts of Records record ' and courts that are ' not of record ' takes us back to of record, early times when the king asserts that his own word as to all that has taken place in his presence is incontestable'^. This privilege he communicates to his own special court ; its testi- mony as to all that is done before it is conclusive °. If any question arises as to what happened on a previous occasion the justices decide this by recording or bearing record (recordantur, portant recordum). Other courts, as we have lately seen, may, and, upon occasion, must bear record ; but their records are not irrefragable ; the assertions made by the representative dooms- men of the shire-moot may be contested by a witness who is ready to fight*. We easily slip into saying that a court whose record is incontrovertible is a court which has record (habet recordum) or is a court of record, while a court whose record may be disputed has no record (non habet recordum) and is no court of record ^ In England only the king's court — in course of time it becomes several courts — is a court of record for all purposes, though some of the lower courts ' have record ' of some particulars *, and sherififs and coroners ' have record ' of certain transactions, such as confessions of felony'. In the old

' Even in Edward I.'s time, however, the justices sometimes come before the king in council almost in the character of defendants ; e.g. Eot. Pari. i. 41. The old idea that an appeal is a complaint against the judge seems to have endured in northern France until very late days; Viollet, fetablissements, i. 279.

2 Note Book, pi. 239 [a.d. 1224] : ' quia testificatio domini Eegis per oartam vel viva voce omuem aliam probationem excedit.' A strong statement of this doctrine that the king's word exceeds every other record was made by Edward I.'s council in 1292 ; Eot. Pari. i. 74.

3 Bruuner, D. E. G. ii. 523. Leg. Henr. 31, § 4 ; 49, § 4 ; Glanvill, viii. 9. In Leg. Will. i. 24 the privilege is confined to the court in which the king sits in person, ' la u le oors le rei seit.'

* See above, vol. ii. p. 667.

' Glanvill, viii. 9 : ' nulla curia recordum habet generaliter praeter curiam domini Eegis.' Compare for French law Viollet, 6tablissements, i. 221.

8 Glanvill, viii. 11 : ' recordum habet comitatus de plegiis, vel plagis datis et receptis in ipso comitatu.'

' See e.g. Braoton, f. 140 b; Select Pleas of the Crown, pi. 194, 195, 201.

670 Procedure. [bk. n.

days, when as yet there were no plea rolls, the justices when they bore record relied upon their memories'. From Normandy we obtain some elaborate rules as to the manner in which record is to be borne or made; for example, a record of the exchequer is made by seven men, and, if six of them agree, the voice of the seventh may be neglected^ In England at [p. 667] an early time the proceedings of the royal court were com- mitted to writing'. Thenceforward the appeal to its record tended to become a reference to a roll *, but it was long before the theory was forgotten that the rolls of the court were mere aids for the memories of the justices"; and, as duplicate and triplicate rolls were kept, there was always a chance of dis- agreement among them". A line is drawn between ' matter of record' and 'matter in pays' or matter which lies in the cognizance of the country and can therefore be established by a verdict of jurors', rfttfe'"" '^^^ behaviour which is expected of a judge in different

judges. ages and by different systems of law seems to fluctuate between two poles. At one of these the model is the conduct of the man of science who is making researches in his laboratory and will use all appropriate methods for the solution of problems and the discovery of truth. At the other stands the umpire of our English games, who is there, not in order that he may invent

^ Glanvill, viii. 8. If the justices could not remember the levying of a fine, the court -would act as though none had been levied. As to the recording of fines, see above, vol. ii. p. 100.

" Somma, pp. 310 ff. Anoienne coutume, co. 103-7 (ed. de Gruchy), pp. 251-6.

* See above, vol. i. p. 169.

* Note Book, pi. 307 : ' et inde ponit se super iustitiarios.' Ibid. pi. 583 : 'et inde ponit se super rotulos.' Ibid. pi. 1411: 'et ponit se super reoordum curiae et super rotulos.' Ibid. pi. 1285 : one out of four justices of assize has no record (recordum habere non potest) without his fellows. We are not at all sure that the justices of assize of the first half of cent. xiii. usually kept rolls. See in T. B. 32-3 Edw. I. pp. 361-7 a curious story about the unwritten record of a court baron.

6 Bracton, f. 352 b. Y. B. 7 Hen. VI. f. 29 (Pasoh. pL 22). In 1292 the bare word of Beekingham, J. is preferred to the roll of Weyland, J. who has been guilty of forging records; Bot. Pari. i. 84-5.

' Note Book, vol. i. p. 65 ; Select Pleas of the Crown, p. ix.

' In some old cases the appeal to the court's memory is spoken of as a voucher to warranty. Note Book, pi. 88 : ' vocavit curiam domini, Eegis ad warantum.' Ibid. pi. 829: 'et inde vooat ad warantum rotulos ipsorum iustitiariorum.'

CH. IX. § 4.] Pleading and Proof. 671

tests for the powers of the two sides, but merely to see that the rules of the game are observed. It is towards the second of these ideals that our English medieval procedure is strongly inclined. We are often reminded of the cricket-match. The judges sit in court, not in order that they may discover the truth, but in order that they may answer the question, ' How's that V This passive habit seems to grow upon them as time goes on and the rules of pleading are developed. In Bracton's day they not unfrequently addressed questions to the parties in the hope of obtaining admissions and abbreviating the [p. 668] suit. The answers given to these questions were em-olled, and judgments were expressly based upon them'. In some other respects, unless we are misled, they wielded discretionary powers which were not exercised by their successors. Third parties are allowed to intervene ^ or are summoned in the course of the action', in a manner which would have seemed strange to the practitioners of a later age. The judges con- ceived themselves to be endowed with certain 'equitable' powers^ and as yet the rules for the intricate game of special pleading had not been formulated. But even in a criminal cause, even when the king is prosecuting, the English judge will, if he can, play the umpire rather than the inquisitor. No rule of law prevented him from questioning the prisoner, and probably he did this from time to time ; but in general he was inclined to throw as much responsibility as he could upon the jurors or upon the God of battles.

Often the judgment that is enrolled is motivd, or, to use Comidir- another French term, it is preceded by considerants ; it has a preamble which states the ratio decidendi. Usually this does but sum up the concrete facts on which the court relies. Thus, for example : — ' And whereas the plaintiff has not pro- duced sufficient suit, therefore it is considered that he take nothing by his writ.' But occasionally a major premiss, a rule

1 Note Book, pi. 296, 303, 350, 477, 550, 797, etc.

2 Note Book, pi. 483, 525, 642, 750, 815, 821, etc.

8 Note Book, pi. 253, 256, 273, 381, 586, 687, 713, 748, etc.

4 See above, vol. i. p. 189. In Note Book, pi. 273, third parties are sum- moned ' per consilium curiae,' a phrase which, as we have noted above, points to judicial discretion. See Braoton, f. 12 b : ' de equitate tamen per officium iustitiariorum.' Ibid. f. 247 b: 'et hoc provenit non per indicium sed per oonsilium curiae.'

672 Procedure. [bk. ii.

of law, is stated in abstract terms. We have above set forth the notable judgment in which Edward I.'s court inferred that adultery had been committed and gave its reasons for refusing to send the question to a jury'. One other example must suffice : ' And for that Ealph [the would-be lord who is claiming Thomas as his villein] has avowed his writ and his count and has produced as suit but one male and two women, and for that the said women are not to be admitted to proof because of their frailty, and also because a male, who is a worthier person than females, is being claimed, therefore it is considered that the said Thomas and his heirs do go hence quit and free of the said [p. 669] Ralph and his heirs for ever, and that Ralph be in mercy''.' We may regret that such recitals are not found upon the rolls of a later day : the Year Books hardly supply their place'. Cantion of The justices of Edward I.'s time seem to have been cautious ' men ; they were exceedingly unwilling to decide nice points of law. When in turning over their records we come upon a case which raises a pretty question, our hopes are too often dashed by a Goncordati sunt, which tells us that the parties after all their pleadings have made a compromise. Bracton advises the justices of assize to induce the litigants to make peace if the jurors can not give a clear and decisive verdict ^ The king's court knew that to lay down a new rule was no light matter, though it could not know that it was fashioning law for many centuries and for many lands.

Last That we have written at wearisome length of one short

^°''^^" period of legal history, this is an accusation that we could not ' defend' with a thwert-ut-nay, while an attempt to confess and avoid it might aggravate our guilt. But whatever this book may deserve, the law of the age that lies between 1154 and 1272 deserves patient study. For one thing, it is a luminous age

^ See above, vol. ii. p. 395.

' Northumberland Assize Bolls, p. 275 (a.s. 1279). See also Note Book, pi. 564, 1273.

° Coke, Fourth Instit. i, says that this practice was abandoned under Edward III., when 'the great casuists and reporters of cases (certain grave and sad men) published the cases.' But we now know that cases were being reported under Edward I. at a time when considirants were frequent on the rolls.

* Bracton, f. 186 : ' tutius erit ciuod partes inducantur ad coucordiam.'

CH. IX. § 4.] Plead'ng and Proof. 673

throwing light on both past and future. It is an age of good books, the time of Glanvill and Richard FitzNeal, of Bracton and Matthew Paris, an age whose wealth of cartularies, manorial surveys and plea rolls has of recent years been in part, though only in part, laid open before us in print. Its law is more easily studied than the law of a later time when no lawyer wrote a treatise and when the judicial records had grown to so unwieldy a bulk that we can hardly hope that much will ever be known about them. The Year Books— more especially in their present disgraceful plight — must be very dark to us if we can not go behind them and learn something about the growth of those ' forms of action ' which the fourteenth century inherited as the framework of its law. And if the age of Glanvill and Bracton throws light forward, it throws light backward also, [p. 670] Our one hope of interpreting the Leges Henrioi, that almost unique memorial of the really feudal stage of legal history, our one hope of coercing Domesday Book to deliver up its hoarded secrets, our one hope of making an Anglo-Saxon land-book mean something definite, seem to lie in an eifort to understand the law of the Angevin time, to understand it thoroughly as though we ourselves lived under it.

But we wrong this age if we speak of it only as of one that throws light on other ages. It deserves study for its own sake. It was the critical moment in English legal history and there- fore in the innermost history of our land and our race. It was the moment when old custom was brought into contact with new science. Much in our national life and character depended on the result of that contact. It was a perilous moment. There was the danger of an unintelligent ' reception ' of misunderstood and alien institutions. There was the danger of a premature and formless equity. On the other hand, there was the danger of a stubborn Nolumus, a refusal to learn from foreigners and from the classical past. If that had not been avoided, the crash would have come in the sixteenth century and Englishmeui would have been forced to receive without criticism what they once despised. Again, we have stood at the parting of the ways of the two most vigorous systems of law that the modem world has seen, the French and the English. Not about what may seem the weightier matters of jurisprudence do these sisters quarrel, but about ' mere matters of procedure,' as some would call them, the one adopting the canonical inquest of witnesses.

674 Promhi.1 ". [bk. II.

the other retaining, developing, -i/raus muting the old enquite du pays. But the fate of two national laws lies here. Which country made the wiser choice no Frenchman and no English- man can impartially say : no one should be judge in his own cause. But of this there can be no doubt, that it was for the good of the whole world that one race stood apart from its neighbours, turned away its eyes at an early time from the feiscinating pages of the Corpus luris, and, more Roman than the Romanists, made the grand experiment of a new formulary system. Nor can we part with this age without thinking once more of the permanence of its work. Those few men who wer6 gathered at Westminster round Pateshull and Raleigh and Bracton were penning writs that would run in the name of kingless commonwealths on the other shore of the Atlantic Ocean ; they were making right and wrong for us and for our children.

675

INDEX.

Abatement and intrusion, ii. 61

Abatement of legacies, ii. 340

Abatement of nuisance, ii. 520

Abatement, Fleas in, ii. 614

Abator, ii. 60, 61

Abbatial churches, i. S04

Abbot and Monk, i. 433-438

Abduction, ii. 365, 490

Abeyance, ii. 27d

Abjudication, ii. 63

Abjuration, ii. S18, 590

Absolute ownership, ii. 6, 153, 182

Absolution, i. 479

Accessories, ii. 509-511

Accident, Besponsibility for, i. 53-55 ;

ii. 470-480 Account, Action of, i. 322 ; ii. 221,

347 Accruer, ii. 245, 246 Accursii, Franciscus, i. 122 Achieving, ii. 276 Act and deed, ii, 223 Actio furti, ii. 157, 159, 161, 164-170,

177, 494, 633 Actio spolii, 135, 146 ; ii. 48 Actions, Bei^uest of, ii. 346 Actions, by and against infants, ii.

440-443 Actions, for recovery of land, i. 587 Actions, Forms of, i. 151, 225 ; ii.

558-573 Actions, Law of, i. 229 Actions, personal, i. 587 Adiratum, ii. 161 Adjective law, i. 230 Administration, Letters of, ii. 362 Administrator, ii. 361 Adoption, ii. 399

Adulterer emasculated, ii. 484, 544 Adulterine gilds, i. 670 Adultery, ii. 367, 393, 395, 544 Advancement of children, ii. 349, 358 Advocates, i. 215 Advowson, i. 125, 498,. 508 n.; ii.

99, 136-139, 148, 275 Aegidii Epitome, i. 100 Afteerers, i. 560 ; ii. 514

Affiance, i. 803

Affidavit, ii. 190, 203

Affinity, ii. 388

Afforcement of jury, ii. 626

Age, FuU, ii. 438

Age, Proof of, ii. 639

Agency, i. 436 ; ii. 228, 581

Agency of wife, ii. 405, 485

Agnation, ii. 240, 800, 305

Agriculture, i. 362-868, 562

Aid prayer, ii. 10

Aids, i. 318, 349-351

Aiel, ii. 57

Alamannic Law, i. 12, 13

Alaric, Breviary of, i. 8, 100, 117

Alderman, i. 557, 639, 646, 665

Alihi, ii. 614, 654

AUen, i. 458-467

Alienation of land, i. 829-349, 382 ,

ii. 13, 18, 25, 26, 251-255, 308, 313 Alienation of seignory, i. 346, 849;

ii. 128 Alienation of wife's land, ii. 409, 410 AUegiance, i. 298-800, 459, 525 ; ii. 504 Alluvion, ii. 82 Alms, i. 126, 145, 241 Alodium, i. 60, 68-72 Ambrose, Master, i. 214 Amercement, i. 410, 493, 583 ; ii. 513-

515, 652 Amobyr, i. 373 Ancient demesne, i. 292, 378, 388-406,

518, 649 Anglo-French language, ii. 446 Anglo-Norman Documents, i. 29 Anglo-Saxon Courts, i. 37, 40 Anglo-Saxon dooms, i. 11, 19-21, 26 Anglo-Saxon land-books, i. 15, 28 ; ii.

12, 87, 89, 111, 251-253, 673 Anglo-Saxon law, i. 25-68, ii. 87, 207,

323, 450, 452 Anglo-Saxon wills, ii. 92, 814-822, 349 Animus furandi, ii. 499 Animus possidendi, ii. 34, 50, 54 Annuity, ii. 138, 143 Antecessores of Norman tenants, i. 92,

108.

43—2

676

Index.

Anthropomorphism, i. 489, 491

Apostacy, i. 437

Appeal, ii. 466, 467, 482, 572, 614, 664

Appeal from court to court, i. 590, ii, 664

Appeal of Felony, ii. 605, 606

Appeals to Borne, i. 114, 125 ; ii. 373

Apportionment of burdens, i. 257, 610- 617

Apprentices at law, i. 216

Apprenticeship, i. 672

Approvement of common, i. 622, 623, 653, 685

Approvers, ii. 633

Appurtenances, i. 621 ; ii. 144

Aquitaine, Law in, i. 124

Ar'oor consanguinitatis, ii. 396, 299 .

Arms, Assize of, i. 138, 421, 565

Arrentation of serjeanties, i. 334

Arrest, ii. 582-584

Arson, ii. 492

Articles, of the eyre, i. 16, 153, 337 ; ii. 620 ,

Articles of the view of frankpledge, i. 152, 580; ii. 519, 549

Ascendants excluded from inheritance, ii. 285-294

AscHpticii, i. 389

Assault, ii. 455, 468

Assets, ii. 347

Assignment of debts, ii. 226

Assigns, ii. 14, 26, 226

Assize, see Arms, Beer, Bread, Claren- don, Darrein Presentment, Grand, Measures, Mqrt d'Ancestor, North- ampton, Novel Disseisin

Assize and Jury, i. 149 ; ii. 49, 617

Assize, Grand, i. 147; ii. 63, 604, 621, 629, 681

Assize, Justices of, i. 200 ; ii. 567, 668

Assize, Petty, i. 149 ; ii. 569

Assizes of Henry II., i. 137, 176, 604, 612, 614, 617

Assumpsit, ii. 196, 214, 220, 348

Astrmriiis, ii. 285

Astre, ii. 271, 285

Athona, John de, i. 115, 123

Atonement, for injuries, i. 46

Attachment, ii. 592, 644

Attaint, ii. 541, 623, 665

Attorney, i. 212-217 ; ii. 226, 406

Attorney, Power of, ii. 226-228

Attorney, Suit by, i. 547

Attornment, i. 347, 348 ; ii. 93, 128, 132

Aunger of Eipon, i. 395, 400

Autre vie. Tenant pur, ii. 81

Auxilium, exercitus, i. 267

Averagium, i. 368

Azo, i. 122, 207

Bacon, Francis, i. 517 Bail, ii. 589

Bailee, Liability of, ii. 170 Bailee, Theft by, ii. 177, 498

Bailiff, ii. 221

Bailiff of borough, i. 647, 656, 658

BaiUfi of hundred, i. 557

Bailment, ii. 151-183, 227

Bairns' part, ii. 314, 348-356

Bane, ii. 473

Banlieu, i. 583

Banns of marriage, ii. 370, 385

Bannus Regis, ii. 459

Bar and Bench, i. 205

Baron, i. 279-282, 408-413

Baron et feme, ii. 406

Barones maiores, i. 281

Barony, i. 280

Barony, Tenure by, i. 240, 260, 279

Barrister, see Counsel

Bastard, i. 422 ; ii. 396-398

Bastcurd eigne, ii. 382

Bastardy, Special, i 127 ; ii. 378

Battle, Trial by, i. 39, 50, 74, 89, 147;

ii. 63, 112, 125, 466, 205, 214, 600,

610, 611, 632-634, 667 Bearer, Payable to, ii. 227 Beasts, Liability for acts of, ii. 472 Beasts, Punishment of, ii. 472 Beaumanoir, ii. 446 Bee, School of, i. 78 Becket, i. 118, 124, 447-457 ; ii. 198 Beer, Assize of, i. 381 Bench, i. 155 Bench, Common, i. 153, 170, 198 ; ii.

668 Bench, King's, i. 15b, 170, 190, 198.

199 ; ii. 668 Benches, The four, i. 556 ; ii. 667 Beneficial leases, ii. Ill, 121, 122 Beneficium, i. 67, 315, 327; ii. 15, 111,

262, 265, 266, 426 Beneficium, Ecclesiastical, i. 498 Benefit of Clergy, i. 441-457 Betrothal, ii. 365, 366, 391 Bigami, i. 445 Birth and rearing, ii. 163 Birth-rights, ii. 248-255 Birth, servile, i. 422, 424 Bis in idipsum, i. 448-456 Bishop, Legal position of, i. 441, 497,

505, 518 Bishops as justices, i. 132, 202, 205 Blois, Peter of, i. 120 Blood-feud, i. 31, 46, 221 ; ii. 241=244.

448,450,482 Blood-wite, i. 580 n. Bologna, Englishmen at, i. 121 Bologna, John of, i. 219 Bologna, School of, i. 23, 111, 112 Bojia notabilia, ii. 342 Bond, i. 225 ; ii. 225, 227 Boniface, Archbishop, Constitutions ot

i. 445, 447 Book-land, i. 41, 60 ; ii. 87, 253, 254.

318 Boon-works, i. 367

Borh, i. 564, 568, 569 ; u. 185, 192, 193 Borhsholder, i. 669

Index.

677

Borough, i. 493, 510, 634-688

Borough Council, i. 659

Borough English, i. 647 ; ii. 279

Borough expenditure, i. 663

Borough lands, i. 652, 653

B6t, i. 48, 74 ; ii. 365 n., 866, 449-453,

458-460, 462, 476, 489, 494, 495,

525, 526 n. Bracton, i. 206-210 Bread, Assize of, 138, 581, 582, 668 Breviarium, i. 8 Brevi manu, Traditio, ii. 90 Bride-sale, ii. 364 British India, law of, i. 15 Britton, i. 176-210 Bruce, Eobert, i. 204, 222 BuUs, Papal, i. 123 Burgage, i. 240, 295, 640, 645, 673 ; ii.

279, 330 Burgages, devise of, i. 645 Burgess, i. 633, 641, 671, 672, 676 Burgh, Hubert de, i. 183, 204, 215,

523 ; ii. 581 Burgherhdod, Title to, i. 671 Burghmoot, i. 538, 539, 637 Burglary, ii. 492 Burh, i. 636 Burhgrith, i. 637 Burning, Punishment by, ii. 492, 504,

511, 544, 550, 556 Bnrwaremote, i. 658 Buzones, i. 553 Bylaws, i. 555, 590, 624-627, 660-662

Calumnia, Oath de, ii. 637

Cambridge, University of, i. 123, 669

Camera! rent, ii. 133, 149

Canon Law, i. 2, 16, 24, 112-135

Canon Law, Allusions to, i, 100, 176, 422, 429, 443, 434-457, 477, 502, 509; ii. 48, 52, 66, 136, 195, 336, 387, 368-399, 429, 476, 548-357, 604, 639, 656

Canonical computation, ii. 886

Capacities, i. 506, 518, 523

Cape, ii. 592

Capias, ii. 593

Capital punishment, i. 89, 91; ii. 453, 461

Capite, Tenure in, i. 233, 234, 258, 281

Gapitula, see Articles

Capitularies, i. 16, 17

Capture, marriage by, ii. 365

Caput baroniae, i. 280

Caput gerat lupinam, ii..449

Carta Magna, i. 171-173, 178

Carta Mercatoria, i..465 ; ii. 209

Case law, i. 115, 162, 208

Castle, i. 315

Castle-guard, i. 278, 639

Casus Regis, i. 514; ii. 285

Catalla felonum, ii. 6

Catharan heresy, ii. 545, 551

Cathedral Towns, i. 634

Cattle and chattel, ii. 32, 151

Cattle, pepuniary nature of, ii. 151,

152 Cattle, sale of, i. 59, 88, 368 Cattle, theft of, i. 55, 56 Caursini, i. 466 Causa debendi, ii. 212 Csiusadiion, ii. 470 Celibacy of clergy, i. 97 Censuarii, i. 366 Census, ii. 129 Centralization of justice, i. 84, 110,

138 Ceorl, i. 32; ii. 460 Certification, ii. 665 Cessavit per biennium, i. 358 Challenge of jurors, ii. 621, 649 Chamber Bents, ii. 138 Champion, ii. 607, 632 Chancellor, i. 193, 194 Chancery, i. 151, 170, 193-197; ii.

204, 232, 640 Chapter, i. 506, 509 Charters, i. 28, 219, 340-348; ii. 88,>

86, 128, 132, 213, 223-225, 251 Charters and laws, i. 523, 533, 674 Charters of liberties, i. 95-97, 171, 674 Chartres, Ivo of, i. 18, 117 Chastisement of wife, ii. 436 Chattel real, ii. 115-117, 148, 831, 404,

427 Chattels, ii. 2, 82, 149-183, 229, 362,

404, 405, 427 Chattels, borough, i. 656 Chattels, disseisin of, ii. 168 n. Chattels of felons, i. 583 Cheating, ii. 500 n. . Chester, Palatinate of, i. 582 ; ii. 128 Chevage, i. 418 Chief Lord, i. 239 ; ii. 4 Chief, Tenure in, i. 288, 281 Children, see Infancy Chirograph, ii. 97, 100 Choses in action, ii. 427 Christianity, Pledges of, ii. 190 Church ales, i. 615 Church and State, i. 2-4, 11, 18, 21,

40, 75, 88, 97, 124-131, 246, 439^37;

ii. 197-202 Church, Jurisdiction of the, see Ec- clesiastical jurisdiction Church lands, i. 497-506 Church, Personality of a, i. 497-506,

614, 686 Church rate, i. 612 Church, The EngUsh, i. 115, 121; ii.

366, 873 Churchwardens, i. 614 Circuits, i. 155, 201 Circumspecte agatis, ii. 200 Cities, i. 634 Civil and Criminal, i. 163; ii. 475,

572 CivU death, i. 433-438; ii. 436 Civil liability of borough, i. 679 Civilians, i. 120-124

678

Index.

Civil law, see Bomau law

Civil procedure, ii. 591

Clandestine marriage, ii. 385

Clans, ii. 241-244

Clarendon, Assize of, i. 137, 138, 145,

152, 155, 559, 570; ii. 547, 642 Clarendon, Constitutions of, i. 124,

131, 137, 138, 145, 152 ra., 246,

447-457, 478; ii. 198 Clergy, Benefit of, i. 441-457; ii. 501 Clergy, Status and Privileges of, i. 18,

34, 130, 439-457 Clerical justices, i. 132, 169, 205 Clerks, Criminous, i. 441-455 Clerks, Murderers of, i. 456 Clerks of court, i. 205 Onut, i. 21, 97, 99, 104; ii. 453 Codex Gregorianus, i. 3 Codex Hermogenianus, i. 3 Codicil, ii. 338, 340 Cognizance, i. 584, 676 Coining, ii. 504, 505 Collaterals, Descent to, ii. 295-302 CoUectio Dionysiana, i. 9 Collective liability, i. 678-683 Collegia illicita, i. 669 Collegia tenuiorum, i. 2 Collusion, ii. 535

Collusive recovery, ii. 10, 109, 409 Ooloni, i. 103, 412, 431 Combat, Trial by, see Battle, Trial by Comes, i. 33

Commodatum, ii. 170, 171, 179, 206 Common law, i. 115, 176 ; ii, 403 Common fields, i. 364 '' Common pleas, i. 190, 198, 199, 410;

ii. 573 Common, Eights of, i. 620-622, 685;

ii. 140, 146 Common seal, i. 508, 535, 683 Common, Tenants in, i. 673 ; ii. 245 Commons, Borough, i. 637, 653 Commons, Bepresentation of the, i.181 Oommuna, The French, i. 671 Communalism, i. 616, 624, 627-634,

687, 688; ii. 624 Communal liability, i. 627, 678, 683 Communal litigation, i. 680-682 Communal property, i. 631, 632, 652,

653, 685 Communem legem. Writs ad, ii. 69 Communitas, i. 494, 528, 534, 535,

564-567, 624^634, 657, 669, 678-685 Community, Marital, ii. 400-436 Commutation of labour service, i. 366,

374, 375 Commutation of military service, i.

269, 273, 274 Compositions, for crime, ii. 451 Compurgation, i. 116, 443; ii. 214,

600, 601, 610, 633-637 Condition, i. 408 Conditional fee, ii. 17-23, 28 Conditional gift, ii. 17-25, 232 Confession of crime, ii. 653

Confession of villeinage, i. 424 Confirmations, Seignorial, i. 340-343 Conquest, see Norman Conquest Conquest and heritage, ii. 308 Consanguinity, ii. 386-388 Considirants of judgment, ii. 671 Consideration, ii, 213, 214 Gonsiliatio Cnuti, i. 101 Consilium curiae, i. 190 Conspiracy, ii. 539 Contempt, ii. 515 Contenement, ii. 515 Contract, i. 57-59, 128, 129 ; ii, 184-239 Contract of wife, ii. 405, 435 Contribtition, i. 617 Conusance, claim of, i. 643, 676 Convent, see Beligious houses Conventio, ii. 217-220, 222 re. Conventioners, i, 390, 391, 405, 406;

u, 217 Conveyance, i, 329-349; u. 80-106,

128, 180, 181, 410, 434 Conveyancing, i. 216, 691 Co-ownership, i. 630, 673; ii, 245, 246 Co-parcenry, ii. 274^278, 306 Copyhold, i. 369, 375, 403 Coram Rege, i. 198-200 Corody, ii. 134r-135 Coroner, i, 534, 583, 658; ii. 590, 643,

644 Corporations, i. 438, 486-511, 630-

634, 669-687; u. 244 Corruption of blood, i. 477 Corspresent, ii. 338 Cosinage, ii. 57, 569 Costs,, ii. 597

Council, The King's, i. 199; ii. 608 Councils, Ecumenical, i, 4 Counsel, i. 211-217 Count and Earl, i. 315 Count countant, ii. 62, 640 Count, The plaintiff's, ii. 604 Counterfeiting money, ii. 504, 505 Counterfeiting seals, ii. 504 Counterplea, ii. 662 Counters, i. 215, 216 Country, The, ii. 623 County, i. 532-556, 674 County court, i. 42, 88, 529, 532-556 County, indictment of, i. 679 County seal, i. 535, 683 Court, The King's, i. 40-42, 83, 84,

107-110, 153-160, 169, 184, 190-

204, 532 Court baron, i. 48, 531, 592, 593, 646 Court, Borough, i, 638, 643, 648 Court Christian, i. 125 Court fees, i. 195

Court leet, i. 532, 580, 692, 646, 658 Court, manorial, i. 361, 585, 602 Court, outdoor, i. 565 Court Bolls, i. 369, 376, 392 Courts, Anglo-Saxon, i. 37, 40 Courts in general, i. 527-^632 Courts in Normandy, i. 73-74

Index.

679

Courts of Eeoord, ii. 669

Covenant, ii. 216-222

Covenant, Action of, ii. 106, 216

Coverture, ii. 407, 434

Crafts, Regulation of, i. 661

Credit, Letters of, ii. 228

Crime, ii. 573

Crime, Frequency of, ii. 557

Criminal information, ii. 662

Criminal jurisdiction in boroughs, i.

644 Criminal law, i. 74 ; ii. 448-557 Criminal liability of borough, i. 678 Criminal procedure, ii. 578 Cross as signature, ii. 223 Crown debts, ii. 845 Crown lands, i. 518 Crown, Pleas of the, i. 109, 576; ii.

453-457, 573 Crown, The, i. 511-526 Cui in vita, ii. 70 Culpa, ii. 477 Curators, ii. 440, 445 Curia Regis, i. 109, 153-156 Cnrsitors, i. 195 Curtesy, ii. 414-420 Custodia, ii. 148, 172 n., 235 Custom and law, i. 106, 107, 175,

183-188, 623, 624; ii. 353 Customary court, i. 631, 593 Customary freehold, i. 393-406 Cnstomaiy rules of descent, ii. 280 Customary tenure, i. 361-406 Customs and services, Writ of, i. 352 ;

ii. 126 Customs, Borough, i. 186, 295, 647,

660; ii. 313, 330 Customs, Manorial, i. 185, 361-383,

583, 589, 623, 624 ; ii. 280

Damage and injury, ii. 534

Damage feasant, ii. 575

Damages, ii. 44, 60, 215, 458, 522-526,

537, 594, 595, 597 Damages, Doable, ii. 519 Damages, Eemote, ii. 470-473 Damnatory clauses, i. 244; ii. 329 Danegeld, i. 92

Danelaw, 1. 103, 106, 142; ii. 272 Darrein presentment, Assize of, i. 148,

149; ii. 137 Dead's part, ii. 314, 348-356 Dean and chapter, i. 491 Death-bed gifts, ii. 316-329 Death-bed marriages, ii. 375 Death, Civil, i. 433-438; ii. 436 Death, of Sovereign, i. 521, 522 Death, penalty of, ii. 453, 461, 488,

491,492,496,510,511,581 Debet and detinet, ii. 173, 206 Debt, ii. 204, 216, 258 Debt, Action of, ii. 127, 173, 203-216,

346, 347, 605 Debt of wife, ii. 405, 434, 435 Debt, recovery of, i. 195

Deceit, ii. 534-536

Decretal on marriage, ii. 371

Decretales, i. 4, 17

Decretales Gregorii, i. 24, 113

Decretales Pseudo-Isidorianae, i. 17, 21, 113

Decretum Gratiani, i. 24, 113, 117, 118

De donis, statute, ii. 19, 23, 24

Deed, ii, 132, 220, see also Charters

Deed-bane, ii. 509, 528

Deed poll, ii. 94

Defamation, i. 130; ii. 636-538

Default, Judgment by, ii. 592, 594

Defence, ii. 607

Defences to action of theft, ii. 162-164

Defend, ii. 607

Defiance, i. 303; ii. 505

Degrees, Prohibited, ii. 386-389

Degrees, Writs within the, ii. 65, 70

Delivery of deeds, ii. 87

Delivery of possession, ii. 83-90, 181

Demesne, i. 211, 363, 364, 585, 599; ii. 3, 38, 125-129

Demesne, Ancient, see Ancient De- mesne

Demise, ii. 114

Demi-vill, i. 562 m.

Demurrer, ii. 640

Demurrer of parol, ii. 443

Denizen, i. 464 n.

Deodand, ii. 473

Deraign, ii. 687

Descent, Rules of, ii. 260-308

Desperation, ii. 359

Detinue, ii. 171, 172, 174, 175, 180, 206

Devil-worship, ii. 554, 555

Devise, ii. 319, 326

Devise and bequeath, ii. 838

Dialogus de Scaccario, i. 161'

Diem elausit extremum, i. 311 n.

Digest, i. 11, 23, 113, 117, 119

Dilemmatic method, i. 165

DinglicKkeit, ii. 125 n.

Dionysius Exiguus, i. 9

Diplomatic age. The, i. 19

Disavowal of lord, i. 304

Disavowal of pleader, i. 212

Discreteness of vills, i. 561

Discretion of the Court, ii. 461, 671

Disgavelling, ii. 272, 278

Disparagement, i. 319

Dispensation, ii. 389

Disseisin, ii. 44

Disseisin, Entry sur, ii. 64

Disseisin, Novel, i. 185, 137, 138, 145, 146, 149, 150, 248, 622, 628, 644; ii. 9, 47-66, 60, 68, 72, 80»., 126, 128, 131, 185, 187, 138, 140, 148, 523, 524, 569-571, 613, 632

Disseisin of chattels, ii. 168 n.

Disseisin of incorporeals, ii. 126-129, 181, 140

DistafE right, ii. 307

Distress, j. 858-355, 589; ii. 117, 125, 130, 575-578, 593

680

Index.

Divine service, Tenure by, i. 240

Divorce, ii. 366, 392-396

Bolus, ii. 171, 477

Domesday Book, i. 29, 69, 92, 143,

288, 289, 383; ii. 454-457, 642 Domesday Book, Eeferenoes to, i. 82,

187, 241, 286, 294, 378, 388, 392,

399, 434, 450, 498-500, 576, 595,

603, 604, 609, 617, 634, 650, 673;

ii. Ill, 151, 233, 261, 263, 264, 270,

272, 576 Dominium, i. 230; ii. 4, 33, 114 Dominium directum, ii. 6 n. Dominws, i. 412, 545, 546; ii. 4 Donner et retenir, ii. 89 Dooms, Anglo-Saxon, i. 27, 29, 97-101,

105 Doomsmen, i. 85, 139, 144, 548-553,

592-594 Dower, ii. 147, 374, 375, 390, 394, 395,

404, 42P-428 Dower of church, i. 250 Drawing and hanging, ii. 500, 501 Drengage, i. 240, 279, 334, 402 Drogheda, William of, i. 121 Drowning, Punishment by, ii. 496 Ducal power, Limits to, i. 73 Duel, see Battle, Trial by Duress, ii. 536 Durham, Palatinate of, i. 524, 582

Earls, i. 408-411, 620, 533

Earmarks, ii. 151, 152

Earnest, ii. 208

Ears, Loss of, ii. 497

Easements, ii. 145

Ecclesiastical jurisdiction, i. 4, 18, 40,

58, 75, 125-131, 246-251, 439^57,

479; ii. 134, 189-192, 197-203, 231,

331-333, 340-347,352, 353, 364-398,

431, 432, 542-557, 657 Mdictum Theodorici, i. 9 Edward I., i. 199, 522; ii. 661 Edward in., i. 521; ii. 505 Jldward, St, Tenants of, i. 399 Jidward the Confessor, i. 97, 103 Ejectment, Action of, ii. 109, 570 n.,

571 n. Election of borough oiEoers, i. 656 Election of coroners, i. 534 Election of jurors, ii. 621, 645 ^Elegit,!. 475; ii. 596 Memosim, i. 240-242, 250 Elopement, ii. 395 Emancipation, ii. 437, 438 Emendation, ii. 452, 459 Eminent domain, ii. 3 Empire, Continuity of the, i. 112 Employer's liability, ii. 528-533 Enfranchisement, i. 427-429 English language, i. 80-87 English law and the Conquest, i. 88,

92 English law, Characteristics of| i. 224-

225; iL 445,558

English law-terms, i. 80, 81, 84 Engliehry, i. 91 ; ii. 487 Entireties, Tenancy by, ii. 434 Entry, Writs of, ii. 54 m., 56, 62-75,

80 n., 565 Eorl, i. 32 Equal hand, ii. 165 Equitable jurisdiction, ii. 232 Equity, i. 189, 197; ii. 671 Eric fine, i. 222 Error, ii. 668 Escheat, i. 351, 355, 385, 477, 646,

651; ii. 22, 82, 465, 500 Esc}ieated honours, i. 281 Escheators, i. 311 Esplees, ii. 34, 605 Esquires, i. 286, 288 Essoins, i. 151, 544; ii. 562, 563 Estate, i. 595, 596, 604 Estates in land, i. 408; ii. 10-13, 80 Estates of men, i. 408 Estates of the realm, i. 181, 196, 408 Euric, Laws of, i. 5 Evidence, ii. 627, 656, 659, 660 Evidence, Anglo-Saxon, i. 38, 39 Exaction, i. 539, 554; ii. 581 Examination of jurors, ii. 631, 655 Examination of secta, ii. 609, 610, 637 Examination of witnesses, ii. 656 Bxceptio, ii. 138, 587, 611-620 Exceptio doli, ii. 535 Exceptio non numeratae pecuniae, ii.

214 n., 225 Exceptio spolii, ii. 17, 47 n., 117, 118 Exchequer, i. 109, 155, 190-193 Exchequer, Barons of, i. 191, 411 Exchequer, Chancellor of, i. 191 Exchequer, Dialogue on the, i. 161 Exchequer, Hereditary chamberlains

of, i. 283, 284 Exchequer of the Jews, i. 470 Excommunication, i. 478-480 Execution, ii. 596 Execution of deeds, ii. 223 Executor, ii. 319, 321, 334-337, 340-

348 Exeter, Law-school at, i. 120 Ex gravi querela, ii. 331 Exigend, i. 539, 554; ii. 581 Exile, ii. 518 Ex officio, Inquest, i. 442 Expectant heirs, ii. 308-313, 328 Extents, Manorial, i. 211, 362, 377, 383 Extra-parochial place, i. 562 Eyre, i. 201, 544; ii. 520, 644 Eyre, Articles of the, i. 201; ii. 520,

645 ■

Fact and law, ii. 629, 640

Faith, Pledge of, i. 128, 129 ; ii. 187-

192, 197-200 False claim, ii. 519 False imprisonment, ii. 488 False judgment, i. 536, 590, 591; ii.

666

Index.

681

Falsitas, ii. S19 Fama publica, ii. 642, 643 Family law, i. 31; ii. 240-260 family ownership, ii. 245-255, SOS- SIS Farm, i. 293, 640, 650, 651 ; ii. US Farmer, Tlie Township as, i. 628, 629 Father to the bough, i. 187 n.; ii.

272 b. Fealty, i. 296-307 Fee, i. 234-235; ii. 6, 7, 14, ^8, 268 Fee conditional, ii. 17, 22 Fee farm, i. 240, 293, 384, 628 Fee simple, ii. 13, 19 Fee taU, ii. 19 Felo de se, ii. 488 Felony, i. 303-305, 351, 477; ii. 126,

464^470, 478-480, 500-502, 511, 605,

647, 653 Females, Place of, in inheritance, ii.

260-262, 298-302 Feme coverte, see Husband and wife Feme sole, i. 482 Feodum, i. 67-72, 234, 235, 328, 340;

ii. 15, 82, 113, 265, 266, 268, 446 Feodum antiquum, ii. 287, 288 Feodum novum, ii. 287, 288 Feoffment, ii. 82-91, 132, 138, 217,

224, 232, 269, 293 Festuea, ii. 85, 86, 186 Feud, i. 46

Feudalism, i. 66-73, 296-307; ii. 419 Feudal tenure, i. 234, 235; ii. 182 Fictitious persons, i. 486-511, 630,

669-688 Fidei laesio, i. 128, 129; ii. 197-202 Fides, ii. 188, 189 Fides facta, ii. 186, 187, 189 Fief, i. 236 n.

Field system, i. 364, 597, 604 Fienri facias, ii. 596 Fifteenths, i. 615 Final process, ii. 596 Fine (conveyance), i. 169; ii. 94^-105,

411, 424 Fine (pecmiiary mulct), i. 566, 611 ;

ii. 459, 517 Fine, of borough, i. 678-680 Fines, Feet of, i. 169, 219, 475; ii. 97 Firma iurgi, i. 650-652, 676, 688 Firmarii, ii. 114

Fiscus, Eoman Procedure of, i. 141 Fitz Alwyne's Assize, i. 660 Fitz Neal, Bichard, i. 154, 161, 170 Fitz Peter, Geoffrey, i. 169, 204 Flambard, Eanulf, i. 107 n., 316 Fleta, i. 210

Flight, Forfeiture for, ii. 481 Flight from battle, ii. 503 Flpnena-fyrntS, ii. 510 Folk-land, i. 61, 62 Folk-moot, i. 554, 658 Folk wanderings, i. 6 Force and arms, ii. 526 Foreign merchants, i. 173

Fore-oath, i. 40

Forest, Assize of, i. 138

Forest, Charter of the, i. 179, 523

Forest, Law of the, i. 177

Forest of Dean, Customs of, ii. 187

Forestal rights, i. 578

Forestalling, i. 662

Foresters, i. 284

Forfeiture, i. 281, 351, 477; ii. 82, 165,

453, 454, 466, 500 Forfeiture of liberties, i. 668, 678 Forgery, ii. 504, 540 Forinsec service, i. 238, 239, 244, 245,

277 Forisfamiliation, ii. 284, 438 n. Fork and flail, i. 372 Forma doni, ii. 11-14, 25-28, 79, 253,

318, 330 Formalism, ii. 558, 563 Formedon, ii. 23, 28 Forms of action, i. 151, 225; ii. 558-

573 Fornication, i. 130; ii. 394, 543 Forsteal, ii. 453^55, 457, 468, 469 Forty days. Service for, i. 254 Four days for ejectment, ii. 50, 147 Four doctors, i. Ill Four vills, ii. 160, 161, 644, 647 Four walls, ii. 418 Franchise, i. 384, 531, 571-584, 642-

645, 667, 668, 686; ii. 144, 455, 456 Franciscans, ii. 231, 238, 550 Frankahnoin, i. 126, 240-251 ; ii. 148 Frank fee, i. 403 Frankish influence, i, 20, 66, see also

French influence Frank-marriage, ii. 15-17, 291 Frankpledge, i. 564, 568-571, 580-582;

ii. 529 Frankpledge, View of, i. 559, 570, 578,

580,657; ii. 519 Fraud, ii. 535, 536 Frauds, Statute of, u. 207, 208 Frederick II., ii. 546 Free bench, ii. 418, 419, 422, 426 Free Sokemen, ii. 268, 269 Free Tenement, ii. 613 Freedom, i. 412, 427-430 Freehold, i. 356-358, 374, 394-397 ; ii.

9, 36-37, 40, 113 Freeholders in the manor, i. 600, 622,

623, 626, 627 French influence, i. 66, 79-87, 92-94,

108, 140-143, 189 French language, i. 66, 80-87 French law, illusions to, i. 79, 87,

167, 188, 224, 225, 254, 309, 327,

390, 430 n., 453 ; ii. 56 n., 150, 155,

305 n., 309, 335, 397, 399, 402, 426 n.,

445, 459, 483, 484, 604, 657, 658,

673 Fresh force, i. 644 Fresh suit, ii. 160, 165 Funeral expenses, ii. 340 Fungibility, ii. 151

682

Index.

Furti actio, ii. 159, 165, 494

Gage, i. 469, 473; ii. 25, 117-124, 185-

187, 202, 203 Gdlanas, i. 221 Gallows, i. 577, 682 Gaol, ii. 616-519 Gaol delivery, i. 200 ; ii. 645

Gavelet, i. 355 n., 648 «. ; ii. 271

Gavelkind, i. 186, 402; ii. 261, 271- 273, 402, 418-420

Gavelmanni, i. 366

Geldable, i. 566

GerruSt, i. 40

General isBue, ii. 619

General words, ii. 144

Gerefa, i. 21 n.

German law, Allusions to, i. 12, 15, 25, 32, 33, 39, 46, 47, 55, 57, 58, 79, 87, 167, 188, 224, 225, 254, 287 »., 327, 407; ii. 84, 95, 102, 118m., 119 n., 125 n., 150, 155, 185, 205 n., 207, 208, 213, 219, 226, 248, 250, 257, 259, 261, 282, 283 «., 295, 306 «., 307, 364, 366, 370, 397, 399, 426, 480, 437, 450, 452, 453, 544 n., 671

GesiV, i. 32

Gift, ii. 12, 13, 82, 83, 213

Gift, Conditional, ii. 17-25

Gift, Words of, ii. 338

Gift to God, i. 243, 244, 499

Gild, i. 639, 641, 648, 664-668, 684

Glanvill, i. 104 m., 105, 134, 154, 160, 162-166, 204, 214, 280, 297 ; ii. 327, 491

Gloucester, Statute of, i. 553, 554; ii. 110, 481

Glove as symbol, ii. 85 .

God, Gifts to, i. 243, 244, 499

God, Truce of, i. 75; ii. 463

Godborh, i. 58; ii. 192 m., 193

Godsib, il. 389

God's penny, ii. 208, 209

Graeco-Boman law, i. 11

Grand assize, i. 147, 148 ; ii. 63, 112, 604, 621, 629

Grand distress, ii. 593

Grand jury, ii. 642, 649

Grand serjeanty, i. 283, 290, 323

Grant, ii. 93

Gratian, i. 112, 113

Great Charter, i. 171-178, 178, 523

Great counties, i. 540

Gregory the Great, i. 11

GrilS, i. 45 ; ii. 453, 458, 463, 464 n.

Gross, Bights in, ii. 136, 145, 148

Gross, Villein in, i. 413

Grosseteste, Eobert, i. 152 n. , 189 n. , 251

Guardianship, ii. 37, 414, 419, 436-447

Guet-apens, ii. 455, 468, 469 n., 483

Habeas Corpus, ii. 586', 593 Half-blood, ii. 802-805 Halimote, i. 38, 421, 586, 590

Hall, i. 698

Hdmfare, ii. 454, 465, 457, 493

Hamlet, i. 662

Hamsoken, ii. 463, 454, 457, 493

Hand muss Hand wahren, ii. 155, 172 n,

Handgrasp, ii. 188

Hand-having thieves, ii. 160, 496

Hanse, i. 666

Haw-gavel, i. 637, 655

Haws, Borough, i, 636

Healsfang, ii. 244

Hearsay, u. 622, 624

Hebrew Language, i. 474

Heir, ii. 256, 309-311

Heii and executor, ii. 336, 344-348

Heirlooms, ii. 368

Heirs and successors, i. 677

'Heirs' in gifts, etc., i. 308; ii. 13, 257,

258 Hengham, Balph, i. 210 Henley, Walter of, i. 210, 211 Henry I., i. 95, 96, 109, 325; ii. 614 Henry U., i. 82-84," 93, 94, 124, 125,

131, 132, 136-167, 172, 198, 212,

447-457; ii. 519, 597, 599, 604, 639,

642, 658 Henry III., i. 174, 198, 616, 521, 522 Hereditament, ii. 149, 181 Hereditary /eoda, i. 72, 307, 314 Heres, i. 807; ii. 254, 308, 316, 886,

337 Heresy, ii. 644-652 Heriot, i. 312-314, 316, 317; ii. 259,

322, 338 Heritable rights, in villein tenements,

i. 379-382 Heritage, see Conquest Hibemiae, Statutum, ii. 277 Hide, i. 33, 61 n. High-way, The king's, i. 44; ii. 455,

464 Hispana, Oollectio, i. 16 Hofrecht, i. 361 Homage, i. 71, 296-307, 348, 849; ii.

291 Homicide, i. 52, 53; ii. 452, 455-459,

477-488 Bomine replegiando, Writ de, ii. 585 Honorius III., i. 122, 123 Honour, Pledges of, ii. 192 Honours, i. 72, 259, 281, 322, 387 Honours, Courts of, i. 685 Hostage, ii. 186, 187 EoatiensiB, i. 122, 214; ii. 195 n. Hot iron. Ordeal of, ii. 599 Hoveden, Boger, i. 161, 163 Hue and cry, ii. 578, 606 Hundred, i. 529, 686, 656-560, 611,

616, 617; u. 642-648 Hundred court, i. 42, 88, 96, 629, 630,

533-540, 547, 656-560 Hundred Bolls, i. 388, 392, 432, 540,

566, 572, 695, 601, 603, 609, 617,

661 Husband and wife, i. 485 ; ii, 399-486

Index.

683

Husbandry Leases, ii. Ill, 113 Husbrice, ii. 493 HuBting, i. 658 Hypothec, ii. 117

Identification, ii. 531, 532

Idiocy, i. 481

nohester, Biohard of, i. 154, 155, 157,

160 Immunity, Grants of, i. 72, 384, 574 Immuration, i. 444; ii. 548 Impartible inheritance, ii. 262, 278,

281 Impediments to marriage, ii. 385-

392 Imperial claims, i. 112 Imperii renovatio, i. 14 Implied agency, ii. 405 Imprisonment, i. 49; ii. 616-519 Imprisonment, False, ii, 488 Imprisonment of clergy, i. 444, 445 Incest, ii. 386, 543 Inclosure, Of common, i. 623 Incorporation, i. 669, 686 Incorporeal things, ii. 124, 149, 226 Indictment, ii. 647-653 Indictment, Of county, i. 679 IndiTidualism, i. 688 Infancy, ii. 436-447 Infangthief, i. 576, 577, 579, 582, 644,

646; ii. 495 Infant's marriage, ii. 389-392 Injidelita^, ii. 513-515 n. Informations, Criminal, ii. 662 Ingulf (Pseudo), i. 82 m. Inheritance, i. 677; ii. 249-313 Injunction, ii. 596 Inlawry, i. 477 Innocent in., ii. 66, 370, 371 n., 387,

639 Innocently., i. 123, 494; ii. 859 Inquest ex officio, i. 140 Inquest (FrankiBh), i. 93, 140-143; ii.

604 Inquest of Sheriffs, i. 138 Inquisitio (Canonical), i. 443 ; ii. 604,

639, 656-670 Instituta Cnuti, i. 101 Intercommoning of vills, i. 619 Interest, ii. 216, 225 Interregnum, i. 521, 522 Interrogatories, i. 201 Intestacy, ii. 322, 356-863, 430, 431 Intrinsec service, i. 288 Inventory, ii. 843 Investiture, ii. 88, 85 Ireland, Law in, i. 221 Irnerius, i. 23, 111, 117 . Isidore (Pseudo), i. 17, 21, 113, 117 Itinerant justices, i. 109, 155, 156, 161, 170, 200

Jewry, i. 471, 472, 475 Jews, i. 468-475 ; ii. 118, 119, 123, 124, 394, 548, 649

Jews, Exchequer of the, i. 470 John, Eeign of, i. 169, 170 Joint tenants, i. 673 ; ii. 20, 245 Judges, i. 153-166, 198, 203, 204, 206;

ii. 670, 672 Judgment, ii. 103

Judgment against absent party, ii. 594 Judgment by default, ii. 592, 594 Judgment, False, ii. 666 Judgment, Medial, ii. 602 Judicatores, i. 548 Judicium parium, i. 173 «., 409, 552,

594; ii. 625 b. Jurisdiction, i. 527-532, 571-594 Jurisdiction, Equitable, i. 197 Juris utrwm, i. 247-252 Jury, i. 138-149, 548, 593; ii. 608, 604,

616-682, 641-659 Jus, i. 175; ii. 88 Jus accrescendi, ii. 20 Jus commune, i. 176 Jus poll, i. 112 Jus tertii, ii. 74, 76 Justices, i. 109, 132, 188, 154, 155, 169,

170, 200-206, 220; u. 627, 631, 645 Justiciables, i. 627 Justiciar, Chief, i. 156-157, 163, 170,

193, 204 Justicies, i. 564; ii, 205 Justinian, i. 6, 9, 116, 117

Kemble, John Mitchell, i. 28 Kenilworth, Dictum of, i. 180; ii. 506 Kent, Customs of, i. 186, 424, 432;

ii. 271-273, 418, 419 Kindred, Eights of, ii. 240-248 Kingdom as property, i. 618, 521, 526 King, Legal position of the, i. 181-183,

331, 611-526, 688; ii. 661 King's ban, ii. 459 King's Bench, i. 158 King's court, i. 40, 41, 107-110, 153-

160, 190-203, 352, 632; u. 668 King's widows, i. 320 Kinship, Computation of, ii. 307, 386 Knife as symbol, ii. 85 Knighten-gilds, i. 689 Knights, i. 411, 412, 636 Knight's fee, i. 263-278; ii. 268, 311,

812, 412 Knight's service, i. 262-282; ii. 148 Knights, Wages of, i. 255, 276

Labour services, i. 365-872

Leen-land, i. 61

Laesa maiestas, i. 166; ii. 603, 604

LsBt, i. 37

Laga Eadwardi, i. 96, 97-108, 166

Lamb and wolf, ii. 277

Land, Actions for recovery of, i. 687

Land-books, i. 15, 28, 584; ii. 12, 87,

89, 223, 261, 318, 437 Land communities, i. 628 Land-gavel, i. 637 Land, Post obit gift of, ii. 325, 326

684

■ Index.

Landrechi, i. 235

Landsitting men, ii. 30

Lanfrano, i. 22, 77, 78, liO n., 117, 450, 451

Language, Influence of, i. 87

Language, Legal, i. 86-87

Lapse of presentation, i. 148

Larceny, ii. 494-500

Larceny, Appeal of, ii. 159

Last presentation, i..l48; ii. 137

Lateran Council, III, i. 148; ii. 545

Lateran Council, IV, ii. 370, 387, 545, 599

Latin language, i. 82, 83, 86, 87

Launichild, ii. 213 n.

Law and fact, i. 550

Law books, i. 87, 97-107, 161-168, 206-211

Law men, i. 638

Law merchant, i. 467; ii. 208, 209, 215

Law, Philosophy of, i. 174

Law schools, i. 122, 123

Lay fee, i. 145, 249, 250; ii. 115, 199

Leap Year, Statute of, i. 180

Leases for years, see Term

Leech's fee, ii. 526 n.

Leet, i. S32, 580, 592, 646, 657; ii. 519

Legacy, i. 338-841

Legal Education, i. 217

Leger-wite, i. 130; ii. 543

Leges Anglicanae, i. 163, 175

Leges Edwardi Confessoris, i. 103, 104, 163 n.

Leges et canones, i. 122, 123, 188, 209

Leges Henrici, i. 29, 99-101, 117, 134, 165, 211, 220, 221, 300; ii. 47, 48, 267, 367, 448, 457, 471, 476, 545, 547, 673

Leges Willelmi, i. 101-103, 117

Legislation, i. 88-90, 94-98, 137, 138, 170, 178-180

Legislative power, i. 181

Legitim, ii. 349-356

Legitimacy, ii. 367, 375-384, 396-399

Legitimation, i. 189, 209 ; ii. 397

Lehnrecht, i. 235

Leicester, Earl of, chief justiciar, i. 156,

157 Leis Williame, see Leges Willelmi Leprosy, i. 480 Lessee, see Termor Levari facias, ii. 596 Levatio cartae, ii. 86, 98 Levying fines, ii. 98 Levying from oath, ii. 162 n. Lex, i. 175, 177 ; ii. 602 n. LexBurgundionum, i. 7 Lex Christiana, ii. 394 Lex Judaica, ii. 394 LexKantiae, i. 187, 188; ii. 271 Lex Mercatoria, i. 467 Lex Eibuaria, i. 100 Lex Romana Burgundionum, i. 7, 8 Lex Romana Visigothmum, i. 8, 100 re.

Lex Salica, i. 6, 13, 66, 100, 105.; ii.

230, 241 re., 250, 251, 259, 261 Lex Terrae, i. 175 Leyrwite, i. 590 Liability, Principles of, i. 58-55; ii,

470-479, 528 Libel, i. 130; ii. 536-538 LibSllary system, ii. 560 Liberi, i. 539 Liberty, see Franchise Liberty, Seisin of, i. 417; ii. 146 Libri Feudorum, i. 167 ; ii. 260 «.,

262 «., 289 re. Liege, i. 298 Liege homage, i. 298 Liege poustie, i. 298 n.; ii. 407 Life, Estate for, ii. 6-10, 38 Limitation of actions, ii. 61, 81, 141 Limited ownership, u. 10 Literature and law, i. 160 Litigation, Statistics of, ii. 565, 641 Livery of seisin, ii. 88-90, 318 Loan, ii. 112, 169, 170, 178, 185, 206,

225-227 Loan, Jewish, i. 469, 470 Loan of land, ii. 12, 283 Lombard bankers, i. 7, 219; IL 214,

22l, 225 Lombard law, i. 12, 13, 14, 21, 77 London, Law School in, i. 122 Longchamp, William, i. 121, 134 Lord and heir, ii. 289-295 Lord and serf, i. 418 Lord and tenant, i. 237, 300, 301, 588 ;

ii. 38, 126, 127, 576 Lordship, i. 29-31 ; ii. 3 Lowy, i. 583

Lucy, Richard de, i. 155-158; ii. 223 Lunacy, i. 481

McegV, ii. 243, 244

Magna Carta, i. 171-178, 178, 523

Maiestas, Laesa, i. 51, 165; ii. 503

Mainour, ii. 495 n., 579

Mainpast, i. 419, 568, 672; ii. 530-582

Mainprise, ii. 584-590

Majorities, Powers of, i. 509, 552, 684;

ii. 626 Majority, Age of, ii. 438 Malice, ii. 468, 588 Malicious prosecution, ii. 589 Manbdt, ii. 458 Manerium, i. 594-600, 605 Manicheanism, ii. 545 Manor, i. 362-365, 376, 585, 594-634;

ii. 39, 127, 144, 150, 368, 427 Manorial Courts, i. 361, 585, 602 Manorial rolls, i. 211, 369, 375, 691 Matnsio, i. 597 Manslaughter, ii. 485 Mantle children, ii. 397 Manumission, i. 86, 427-429 Map, Walter, i. 160, 161 Maritagium, ii. 15, 16, 292, 415, 420 ». Mark moot, i. 42

Index.

685

Market overt, ii. 154, 164 Marlborough, Thomas of, i. 120, 121 Marlborough, Statute of, i. 179, 180,

334, 585 ; ii. 481 Marriage, ii. 9, 66, 70, 71, 364-399 Marriage, Lord's right of, i. 318-329 ;

ii. 276-278 Marriage, Possessory, ii. 147, 380-384 Marriage, Putative, ii. 375, 376 Marriage, Tenure in, ii. 15-17, 291 Marriages, Mixed, i. 423 Married woman, fine by, ii. 102, 411-

413 ; and see Husband and mfe Master and servant, i. 287; ii. 528-

534 Masters of Chancery, i, 193 Matrimonial causes, i. 127 ; ii. 367,

372 Maxims, Legal, i. 217, 218 Mayhem, ii. 490 Mayor, i. 657 Measures, Assize of, i. 170 Memory, Legal, i. 168 Menial service, i. 283, 287 Mem rea, ii. 476 Mercantile documents, ii. 226 Mercatoria, Carta, ii. 209 Merchant gUd, i. 641, 648, 664-668 Merchant, Law, i. 467 ; ii. 208, 209, 215

Merchants, i. 464, 466

Merchet, i. 368, 372, 373, 427 n.; ii. 543

Mercian law, i. 106

Mere right, ii. 78

Merton, Statute of, i; 179, 180, 622

Merton, Walter of, ii. 108«.

Mesne process, ii. 591

Mesne tenure, i. 233-239, 261-271, 285, 385, 397, 645

Mesne, Writ of, i. 238

Mickletom, i. 657

MiUtary system, i. 252-282, 285, 288 ; ii. 265-269

MUitary tenure, i. 252-282 ; ii. 265- 269

MiU, Suit to, i. 368

Ministeriales, i. 287 n.

Ministerium, i. 288 n.

Minor, see Infancy

Minority, of King, i. 622

Minority, Boyal, i. 522

Mirror of Justices, i. 28 ; ii. 177, 478 n.

Misadventure, i. 53 ; u. 471, 475, 479- 484

Misdemeanour, ii. 611, 521, 653

Miserahiles personae, i. 131

Miskenning, ii- 519

Misprision of treason, ii. 507 n,

Missibilia, ii. 227 n.

Mixed actions, ii. 72, 572

Mixed marriages, i. 423

Mobilia non habent sequelam, ii. 155, 172

Money and goods, ii. 151, 178, 179

Money lending, i. 475 ; ii. 203, 204

Honks, i. 433-438

Momtraverunt, i. 385, 388, 389, 393,

394 Moot, I 142, 143 Moot-stow, i. 636, 637 Morning-gift, ii. 365, 425 Morning-speech, i. 667, 668 Mart, Le, saisit le vif, ii. 61 Mortain fees, i. 257 Mort d' Ancestor, Assize of, i. 138, 147-

149; U. 28, 66-62, 74, 75, 330, 398,

569, 670, 613 Mortgage, ii. 119 Mors, ii. 458, 486 Mortmain, i. 333, 334 Mortuary, ii. 338, 431 n. Mother-right, ii. 240-243 Movable and immovable, ii. 2 Movable goods, see Chattels Movables, Taxation of, i. 615 Mund, i. 438, 460, 481, 485 ; ii. 364,

365 n., 437, 453 Municipal corporations, i. 495, 496,

610, 634-687 Murage, i. 662 Murder, ii. 485 Murder, of clerk, i. 456 Murdrum, i. 89, 558, 577, 678 ; ii. 482,

486, 487 Mute, Standing, ii. 661 Mutilation, ii. 453, 461 Mutuum, ii. 170, 171, 179

Naam, i. 354 ; ii. 575

Naifty, Action of, i. 426 ; ii. 640

Nail-cousins, ii. 307

Narrator, i. 215

Nationality, i. 460

Nativtis, i. 413, 422

Naturalization, i. 460, 463, 464

Natural persons, i. 486

Nature, Law of, i. 466, 514 n.

Negligence, ii. 475, 484, 527

Negotiable instmmeuts, early forms of,

ii. 227 Negro slavery, i. 430 n. Next friend, ii..441 Next of kin, ii. 361 Nient mon fet, ii. 224 Nisi prills, i. 202 n. Nobility, i. 409 Nolumits leges Angliae mutare, i. 122,

131, 132, 188, 189 No Man's land, i. 662 Nominal consideration, ii. 213 Nominal services, i. 291 Uon compos mentis, i. 481 Non est factum, ii. 221m., 629 Norman Age, i. 79-110 Norman Conquest, i. 43, 79 Norman Conquest, Legal theory of, i.

573; u. 142 Normandy, Allusions to law of, i. 88,

90-92, 141, 189, 247, 254, 264, 267,

686

Index.

309, 318, 326-328, 340-344, 349 ; ii. 51, 96, 116, 264-266, 288, 297, 305, 307, 313, 323, 326, 359, 402, 415, 446, 455, 459, 514, 525, 537, 589, 637, 651, 659

Normandy, History of law in, i. 64-78, 168

Normandy, Lobs of, i. 351, 352, 461

Normans, Lands of the, i. 351, 352, 461; ii. 501

Northampton, Assize of, i. 138, 147, 152, 155 ; ii. 57, 643

Northumbrian tenures, i. 279, 373 n.

Notaries, i. 193, 218 ; ii. 337

Note Book, Braeton's, i. 207

Novel Disseisin, Assize of, i. 135, 137, 138, 145, 146, 149, 150, 248, 622, 623, 644 ; u. 9, 47-56, 60, 68, 72, 80 n., 126, 128, 131, 135, 137, 138, 140, 148, 523, 524, 569-571, 613, 632

Noxal surrender, ii. 472

Nude parole, ii. 606, 609

Nudum pactum, ii. 194, 196, 197

Nuisance, ii. 53, 520, 534

Nullum tempus occurrit Begi, i. 572 ; ii. 144

Nullus clericus nisi causidicus, i. 107

Nuncupative will, ii. 337

Nuns, 1. 445

Oath, i. 39, 40; ii. 541-543, 600, 601 Oath, broken, i. 90 n. Oath, Decisory, ii. 636 Oath-helpers, i. 140, 150, 224, 485;

ii. 214, 542, 600, 634^636 Oath of burgesses, i. 671 Oath of Fealty, i. 298 Oath of jurors, ii. 645 Oath of justices, i. 154 Oaths, Promissory, ii. 189, 541 Obedientiaries, i. 434, 436 ; ii. 228 n. Obligation, ii. 174, 207 Odium et alia, ii. 587, 614 Occupancy, ii, 80 Occupation, ii. 80 Oferhpmes, ii. 515 n. OfSce as property, ii. 135 Officers, County, i. 633 Offices, Hereditary, i. 283 Officina justiciae, i. 151 C^u8, Ad, ii. 228, 233 Ordeal, i. 39, 152, 224, 450 ; u. 598,

599, 619, 644, 650 Orderic, Chronicle of, i. 340 Orders, Clerks in, i. 439-457 Ordinance, i. 181 Ordinary and delegate, i. 515, 528,

529 Otho, Constitutions of, i. 215 Outdoor courts, i. 555 Outlawry, i. 43, 47, 49, 476-478, 539,

554; ii. 449-451, 459, 461, 557, 572,

578-584, 693, 694 Outlaws, Beceipts of, ii. 510

Ownership of chattels, ii. 149, 153,

176-183 Ownership of land, ii. 2-8 Oxford, Law at, i. 118, 120, 122, 123 Oxford parliament, i. 86, 333

Pactum geminatum, ii. 196 Pactum serva, ii. 197, 219 Palatinate, i. 682 Palatine earl, i. 182 Papal delegates, i. 114, 115 Parage, ii. 264, 274, 276, 291 Paraphernalia, ii. 406, 427, 430 Parceners, ii. 274-278, 306 Pardon, ii. 479-483 PaienteUc descent, ii 296-302, 305 Parish, i. 660, 561, 613 Parliament, i. 199 Parliament rolls, i. 83, 180 Parliamentary representation, i. 640-

642 Parol agreements, ii. 219, 222 Parole, Nude, ii. 606, 609 Parsons, i. 248, 501 Partible inheritance, ii. 270-273 Partition, ii. 246-248, 253, 276, 306 Partnership, ii. 221, 222 Fart payment, ii. 208 Pasture, i. 620-623 Patema patemis, 299-300 Paternity, ii. 398 PateshnU, Martin, i. 133, 169, 183,

205-207 ; ii. 661 Pateshull, Simon, i. 169 Patria, ii. 624 n. Patria potettas, ii. 437, 438 Fatriarchalism, ii. 243, 250 Pavage, i. 662 Pavia, Bernard of, ii. 477 Pavia, School of, 1. 22, 77 Payment, i. 58 Pays, Matter in, ii. 670 Peace, The king's, i. 44 ; ii. 453, 463 Pecunia, ii. 161, 324, 325, 332, 333 Pecuniae rum numeratae, Bxceptio, ii.

214 n. Peers, i. 410

Peine forte et dure, ii. 651, 652, 660 Pel^ ii. 496 n.

Penal servitude, i. 424 ; iL 516 Penalty, Contractual, ii, 224 Penalty, pecuniary, ii. 458 Penance, i. 129 ; ii. 644 Penitential system, ii. 452 Per and cui, ii. 65 n. Perjury, i. 130 ; ii. 162, 541, 542 Per guae servitia, i. 349 ; ii. 103 n. Person, Exceptions to the, ii. 612 Personal and real, ii. 181, 670-572 Personal laws. System of, i. 13-15, 21,

90,91 Personification, i. 486-511 Persons, Law of, i. 229, 230, 407-526 Peterborough, Black book of, i. 402 Peterborough, Law-books at, i. 120

Index.

687

Petitions of Eight, i. 197

Petty asBizes, i. 149; ii. 569, 604, 612,

614, 617 Petty jury, ii. 649 Petty larceny, ii. 494-498 Petty serjeauty, i. 290, 335 Petty treason, i. 300 ; ii. 504 Pilloiy, i. 582 ; ii. 497, 518, 540 Pipe Eolls, i. 95, 325 Plea, ii. 614 m., 620 n. Pleaders, i. 211-217 Pleading, ii. 604-620, 637 Pledge, ii. 185 n. Ploughing service, i. 294 Plough, Peace of the, ii. 455 Pone, ii. 666

Pontage, i. 662

Pope, i. 113-115

Pope, England held of the, i. 521

Port, i. 636

Portman-moot, i. 658

Portmen, Chief, i. 658

Possessio fratris, ii. 303

Possession, ii. 29-80, 110, 114, 115, 152-183

Possession, Theories of, ii. 40-47

Possessory actions, i. 146-149, 172 ; ii. 46, 72, 168

Possessory and proprietary, ii. 74, 153 n., 572

Post obit gifts, ii. 92, 317-329

Post, Writs in the, ii. 66

Power of Attorney, ii. 226, 227

Praecarium, i. 61, 67, 6871., 316; ii. Ill

Praecipe Henrico Begi, i. 516, 517

Praecipe, Writ of, i. 173; u. 62, 68, 65, 69, 173

Praedial serfage, i. 413, 414

Praerogativa Regis, i. 336, 338, 339, 463 »., 481

Prayers as services, i. 243

Precarious inheritance, i. 314, 315, 381

Precarious tenure, i. 71

Precedent, i. 183, 209

Precedents, Books of, i. 211

Preemption, ii. 26

Premium for grant of lease, ii. 112

Prerogative, i. 512

Prerogative probate, ii. 342

Prerogative procedure, i. 141

Prerogative wardship, i. 321

Prerogatives, i. 311, 463, 512, 515

Prescription, ii. 81, 140, 141, 143

Prescription, corporations by, i. 669, 670

Prescription for franchises, i. 584

Prescription, serfdom by, i. 425

Presenting jury, i. 151, 152, 559, 570 ; ii. 642-648

Presentment, i. 571, 589 ; ii. 519, 520, 642-644; 646, 652, 653

Primogeniture, ii. 262-278, 292-294, 309

Principalia, ii. 363 n.

Priority, Wardship by, i. 320 Prison, ii. 516-519 Prison, Breach of, ii. 510 Private war, i. 266, 301 Privilegium Paulinum, ii. 394 Privy Councillors, i. 193 Probate, ii. 341-343 procedure, i. 38, 74; ii. 558-573 Prochein amy, see Kext friend Proctors, i. 215 Procuration, ii. 228 Profession, Legal, i. 211-218 Profession, EeUgious, i. 433 Prohibition, Writ of, i. 129, 251, 479 ;

ii. 199-202, 596, 665 Proof, ii. 598-661 Property, i. 56, 57 ; ii. 153 Property in stolen goods, ii. 157 Prostitutes, ii. 543 Provender Eents, ii. 272 Prum, Eegino of, i. 18, 142, 152 Psychical element in crime, ii. 165, 474 Public law, i. 230 Punishment of clergy, i. 444, 445 Punishments, ii. 451-453, 458^62,

496, 500, 501, 513-519 Purchase, defence of, ii. 164 Pure alms, i. 245

Qtiadripartitus, i. 98, 99 Quarantine, widow's right of, ii. 422 Quare eiecit de custodia, ii. 37, 116 Qxtare eiecit infra terminum, ii. 37, 107,

116 Quare impedit, ii. 139 Qaeens, i. 483, 514 Questions addressed to jurors, ii. 631 Questions addressed to litigants, ii. 671 Quia emptores, i. 337, 355, 608 n.; ii.

293 Quia tarn, ii. 624 n. Quid juris, ii. 103 n. Quid pro quo, ii. 211-214, 310 Quit-claim, ii. 91, 187 Quo jure, ii. 142 Quo waranto, i. 836, 572 ; ii, 621, 578,

661 Quod non omittas, i. 583

Badchenistres, i. 286, 289, 323 Ealeigh, WilUam, i. 133, 183, 189, 196,

205-207 ; ii. 107 Banks, Anglo-Saxon, i. 32 Banks, Norman, i. 545, 546 Bape, ii. 490 Bates, Borough, i. 662 Bates, Church, i. 612, 613 Eatification, ii. 531 Eeal and personal actions, ii. 172-183,

570-572, 592 Eeal and personal property, ii. 181 Beal burdens, i. 541, 543, 544, 613,

616, 617 Eebutter by warranty, ii. 312 Eecapture, ii. 163

688

Index.

Becognizance, ii. 203

' Becognize,' ii. 622 n.

Eeoord, Bearing, i. 536

Becord, Contact of, ii. 204

Becord, Court of, ii. 669

Becord, Trial by, ii. 669

Becords, i. 169, see also Bolls

Rectitudines singularum perionarum, i.

27 Bede and deed, ii. 509 Bede-bane, ii. 509, 528 Bedemptiou, ii. 120 Bedintegranda, ii. 67 n. Bedisseisin, ii. 44

Be-entry, Proviso for, i. 352 ; ii. 26 Eeeve, i. 874, 567, 610 Begardant, Yillein, i. 413 Bege inconsulto, i. 342, 517 Begency, i. 522

Begiam Maiestatem, i. 167, 223, 373 Belativity of ownership, ii. 77 Eelativity of seisin, ii. 60 Belativity of serfage, i. 415, 468 Belease, ii. 90

Belief, i. 71, 281, 290, 308-318 Beligion, Profession in, i. 433-438 Eeligious bouses, i. 249, 438, 504-509;

ii. 236 Bemainder, ii. 8, 21-25

Bent, i. 291 ; ii. 129-134, 576

Benunciation of exceptions, ii. 200, 225

Beplevin, ii. 524, 525, 577, 584

Beplication, ii. 615

Bepresentation, Doctrine of, 1. 211, 212; ii. 445

Bepresentation in inheritance, ii. 283- 286

Bepresentation in litigation, i. 211- 217

Bepresentation of the dead, ii. 256-259, 347

Beprisals, Intermunicipal, i. 666

Besort, ii. 286

Bespandeat superior, ii. 533

Besponsalis, i. 213

Bestitution, Writ of, ii. 154, 165, 183

Betaliation, ii. 488, 489 n.

Betrait fiodal, i. 344, 648

Betrait lignager, i. 344, 647; ii. 249, 311, 330, 446

Rettati, ii. 642

Eeversion, ii. 7, 8, 21, 39, 82, 103

Bicardus Anglicus, i. 121

Eicbard I., i. 168-170

Eight and remedy, i. 360, 430

Bight and seisin, ii. 33

Bight, Little Writ of, i. 385-389, 393- 397

Bight, Writ of, i. 385-389, 587 ; ii. 62, 73, 75-78

Bights, Possession of, ii. 142

Bobbery, ii. 493

Bodknight, i. 285, 289, 323

Bod, Symbolic, ii. 88, 91, 187

Bolls of chancery, 1. 169, 195

Bolls of court, i. 156, 169, 183, 190, 199, 211, 375, 392

Eoman law, i. 2-5, 9, 14, 22-24, 111, 112, 116-120, 122, 165, 188, 207, 208, 218, 223-225

Boman law, Allusions to, i. 27, 35, 37, 47, 51, 102, 135, 218, 353, 418, 431, 477 ra., 494, 497, 669; ii. 6, 31, 32, 40, 47, 61, 83, 89, 111, 114, 171, 185, 186, 192-198, 207, 218, 219, 226, 238, 239, 297, 316, 329, 333, 336- 337, 366, 361, 399, 400, 477, 510, 645, 668-661, 664, 670, 571, 611, 666, 674

Borne, Appeals to, i. 114-116, 117

Eoyal justice, i. 40, 41, 107-110, 138, 202, 203, 528, 587

Sack and buckle men, i. 286 Sacrilege, i. 126

Saints as persons, i. 243, 244, 499, 659 Sake and soke, i. 92, 93, 106, 576-579,

637, 646 Sakeher, ii. 160, 496 Saladin Tithe, i. 138 Sale, ii. 180, 207-210 Sale of goods, i. 57-60 Sale of wards, i. 324 Sale-marriage, ii. 364 Salic law, i. 32 Salisbury, John of, i. 120 Salisbury, Boger of, i. 118 Salmann, ii. 336 n. Sanctuary, i. 565, 566 ; ii. 590 Savigny, ii. 42 Scandinavian Law, Allusions to, i. 89,

143 ; ii. 460 Scot and lot, i. 663, 682 Scotland, i. 222-224, 462 Scottish kingship, i. 223, 614 ; ii. 286,

298, 300 Scottish law, i. 144, 222-224 Scottish law, Allusions to, i. 373 ; ii. 295, 297, 298, 300, 305 k., 306 n., 335, 400, 417, 430, 431 Scutage, i. 171, 253, 266-277, 356 ; ii. 269

Scutages, List of, i. 253

Scutagio hahendo. Writ de, i. 270, 274

Seal, i. 94, 167, 508 ; ii. 223, 636

Seal, Common, i. 508

Seal, Great, i. 194

Seal, of borough, i. 683, 684

Seal, Privy, i. 194

Secretary of State, i. 193

Secta, see Suit

Sedition, ii. 503

Segrave, Stephen, i. 204

Seignorial court, i. 346, 354, 530, 631, 646

Seignorial justice, i. 72, 364, 357, 671- 594; u. 38

Seignory, ii. 3, 38, 125-129, 292

Seignory, alienation of, i. ^346-349

Seisin, ii. 29-80, 103-106, 110, 115,

Index.

689

120, 128, 132, 143-145, 152-183,

435, 448, 574, 578 Seisin of liberty, i. 417 ; ii. 146 Seisin, Primer, i. 311 Seisin, Simple, i. 311 Self-defence, ii. 478-484, 527 Self-help, i. 417, 418 ; ii. 41, 49-52,

55, 61, 147, 148, 168, 527, 574^-578 Senior, ii. 264

Separate examination, ii. 412 Sequela, 1. 381 Serfage, i. 76, 372, 373, 412-432, 472,

648, 649; ii. 146 Serjeants, i. 282-290 Serjeants at law, i. 204; ii. 620 Serjeaaty, i. 282-290, 323, 334, 355,

520; u. 268, 275 Servant, see Master and servant Servantship, i. 287, 288 Service, Tenure in, i. 233, 283 ; ii. 38,

125 Services, i. 233 Servitude, ii. 145

Sessions, Frequency of, i. 538, 539 Settlement, family, i. 219 Settlements, ii. 20, 100, 103 Sext, The, i. 114, 218 Shame and damage, ii. 537, 538 Sherifl, i. 137, 138, 152, 386, 520, 533,

534, 549, 550, 558, 559; ii. 519, 552,

591 SherifE's-Boot, i. 575 Shetaroth, i. 474 Shire, i. 536, 636 Shiremoot, i. 538, 539, 545, 553, 654,

558 Sib-ship, ii. 307 Simony, i. 130 Simple seisin, i. 311 Sin, i. 129 Single bond, ii. 225 Sixrhynd, i. 34 Slander, i. 130 ; ii. 536-538 Slavery, i. 35-37, 412, 424, 432; ii.

472, 529 Smallmen, i. 546 Socage, i. 291-296, 309, 355, 356, 391-

397 ; ii. 113, 268-270, 279, 422 Socage, Guardianship in, i. 321 ; ii,

444 Soke, i. 294, 579, 646 Sokeman, i. 292, 294, 391-397, 402;

ii. 269 Sokemanry, i. 394, 403 ; ii. 270 Sorcery, ii. 549, 552-556 Soalscot, ii. 322

Sovereign of monastery, i. 437, 438 Sovereignty, Theory of, i. 182 Spear and spindle, ii. 242 Spear, carrying, i. 53, 54 Special pleas, ii. 611 Specialty, i. 177; ii. 220, 416 Specific performance, ii. 106, 595 Specific relief, ii. 523, 595 Spiritual, see Ecclesiastical

P. M. II.

Spiritual service, i. 242

Spolii, Actio, ii. 48, 66, 135, 381

Spolii, Exceptio, i. 17, 117, 118; ii.

47 m. Spolii, Jus, i. 519 n. Squatters, ii. 30 Starrum, i. 474 Statu liber, i. 417 n. Status, i. 407-526 ; ii. 11 Statute and Ordinance, i. 181 Statute merchant, ii. 597 Statute roll, i. S3 Statutes, i. 179, 180 Statutes, Void, i. 509 Stephen, King, i. 96, 117, 118, 449,

451-454, 519 Steward of manor, i. 592 Stipulatio, ii. 186, 192-194, 218, 219 Stirpes, Distribution per, ii. 306 Stolen goods, i. 58, 59 ; ii. 157-170 Subdivision of knights' fees, i. 273 Subinfeudation, i. 273, 330, 345, 602;

ii. 22, 23 Snb-lease, ii. 112 Sub-manor, i. 609 Substitutes in the army, i. 262, 271,

272 Sub-tenant, military, i. 263, 271 Successors and heirs, i. 677 Suicide, ii. 488 Suit of court, i. 484, 537-550, 557,

592; ii. 143 Suit of witnesses, ii. 214, 215, 599,

606-610, 616, 637-640 Suit real, i. 542, 543 Suit, Subtraction of, i. 537, 542, 611 Summary justice, ii. 578-580 Summons, ii. 592 Summons, to attend county court, form

of, i. 545 n. Supposititious chUd, ii. 398, 399 Suretyship, ii. 185, 191, 211, 224 Surrender, ii. 92 Surrender and admittance, i. 369, 375,

591 Survival of actions, ii. 258, 259, 346-

348, 360 Survivorship, ii. 246 Sword, Pleas of the, ii. 455 Symbolic livery, ii. 85-88, 91, 192

Tail Estate, ii. 17, 19

Tallage, i. 368, 374, 638, 663

Tally, ii. 188, 215

Tancred, i. 207; ii. 376

Task-work, i. 367, 368

Taxation, Immunity from, i. 574

Taxation, Powers of, i. 575, 662

Taxes, i. 615, 662

Team, i. 59, 578; ii. 159 w., 184

Technical terms, ii. 30

Templars, ii. 550

Tenancy by the Curtesy, ii. 414-420

Tenancy in Common, ii. 245

Tenement, i. 236 j U. 117, 148, 181

44:

690

Index.

Tenure, i. 232-240 Tenure, Dependent, i. 69, 232, 233 Tenure, Doctrine of, i. 238, 289 Tenures, Classification of, i. 239, 240,

257, 389-392 Term of years, ii. 36, 106-117, 120,

122, 217, 831, 404 Termor, ii. 86, 68, lOC-117 Terra, ii. 148 Terre tenant, ii. 130 Testament, see Will Testament, Boman, ii. 816 Testamentary causes, i. 128; ii. 26,

331-333, 341-848 Testis unus, testis mdlus, ii. 607, 626 Theft, i. 55 ; ii. 157-170, 493-499 Thegn, i. 38, 142 Thegnage, i. 240, 279, 384 Theodosian Code, i. 5, 100, 117 Theology and law, i. 24, 122, 123 Third hand. Actions against, ii. 55, CG,

167 Third heir, ii. 15, 16, 276, 291 Third parties, ii. 671 Third penny, i. 583 Thornton, Gilbert, i. 210 Thurkelby, Eoger, i. 2U5; ii. 488 Thwertutnay, ii. 608, 609 n,, Gil,

615 Tithes, i. 127 Tithing, i. 568-571 Tithingman, i. 658 Tithing penny, i. 366 Toll, i. 578, 650, 664, 685 Tort, ii. 41, 44, 218 «., 511, 584 Torture, ii. 550, 659 Tourn, see Turn Town, i. 563 Township, i. 542, 560-567, 568, 569,

581, 605-634 ; ii. 160, 643-649 Township and Manor, i. 596, 605-634 Traditio, ii. 84, 89 Trail of stolen cattle, ii. 157 Traverse, ii. 608, 653 Treason, i. 50, 51, 165, 351, 410; ii.

461, 500-508 Treasure, Issue of, i. 191 Treasure trove, ii. 500 Treasurer, i. 191 ^

Trespass, i. 196 ; ii. 53, 107, 109, 166-

169, 218/1., 512, 525-527, 564, 572,

620 Trial, ii. 598, 650, 653 Trial per parentea, i. 426 ; ii. 640 Triplication, ii. 615 Trover, ii. 176 Truce of God, i. 75; ii. 463 Trust, i. 520; ii. 228-239 Turf and twig, ii. 85 Turn, Sheriff's, i. 152, 530, 539, 540,

558, 559, 570; ii. 519 Tutela usufructuaria, i. 323 Tutelage of women, ii. 437 Twelf-hynd, i. 34 Twy-hynd, i. 34

Ultimogeniture, ii. 279-283

Vltimus heres, i. 351

Unanimity of jurors, ii. 625, 654

Unde Di, ii. 48, 52, 66

Unity of person, ii. 406

Universitas, i. 486, 487, 489, 498-49G,

502, 654, 670 n., 686 University, i. 495, 510 Universum itis defuncti, ii. 256-259 Unlaw, i. 69,107; ii. 584n. Unnatural crime, ii. 556 Urgent necessity, ii. 412 Uses, ii. 228-239 Usucapio, ii. 141 Usufruct, ii. 8, 114, 238 ' Usury, i. 180, 471 n.; ii. 119, 216 Vsus, ii. 228, 287, 238 Utfangenethef, i. 576, 577, 579, 644 Vtrum, Assize, i. 144, 145, 149, 246-250

Vacarius, i. 118-119 ; ii. 869

Variance, ii. 605

Vassalism, i. 67, 68, 296-307

Vassallus, i. 297

Vassus, i. 68

Vavassor, i. 546

Vre de Naam, i. 587 ; ii. 524, 577

Verba de praesenti, ii. 368

Verba novissima, ii. 318

Verdict, ii. 625, 627-631

Verification, ii. 687

Vested contracts, ii. 194

Vesting, ii. 32, 85

Vestita manns, ii. 86

Vestments, ii. 213

Vestry, i. 613, 614

Vicar of God, i. 182

Vicinage, i. 622 n.

Vidam, i. 545

View of frankpledge, i. 564, 568-571,

580-582 ; ii. 519 Vifgage, ii. 119 Yiguier, i. 545 n. Vill, see Township Village, i. 562, 563 Village Communities, i. 633 Villeinage (Status), i. 382, 883, 412-

432,589; ii.-648, 649 Villeinage (Tenure), i. 356-383, 588,

601, 624-628; ii. 35, 278, 279, 427 ViUs, The four, ii. 160, 161, 644, 647 Virgate, i. 364, 365

Void and voidable, i. 504, 505: ii. 890,

891, 445 Voluntas repytabitur pro facto, ii.

476 n. Voucher, ii. 71 b., 158, 163, 209, 662,

663 Vulgarrecht, Roman, i. 15

Wager of law, i. 140, 149, 150; ii. 600,

602, 634-637, 642 Waif, i. 482 Wainage, i. 416

Waiver of tenement, i. 303

Index.

691

Wales, Law in, i. 90, 220, 221 Wales, Statute of, ii. 217—219 Walter, Hubert, i. 133, 154, 164, 169,

204; ii. 272 Wapentake, i. 549, 550, 556 War, Levying, ii. 505 War, Private, i. 264, 301, 302, 349 Warantia cartae, ii. 664 Wardpenny, i. 366 Wards, of borough, i. 638 Wardship, i. 71 n., 318-329; ii. 5, 116, 148, 228 n., 276-278, 331, 437- 445 Warranty, i. 58, 59, 301, 306 ; ii. 70, 158, 163, 209, 219 n., 224, 226, 312, 813, 662 Waste, ii. 9, 441, 620 Waste, intramural, i. 653, 654 Watch and ward, i. 565 Wed, ii. 117, 185-187, 190, 202, 211,

219 Week-work, i. 367, 371 ; ii. 272 Welsh law, i. 90, 220, 221; ii. 457 Wergild, i. 33, 34, 47, 48, 74, 106, 221; ii. 187, 241-245, 271 n., 365, 437, 449-451, 458, 459, 460, 471, 483, 503 «. Wessei law, i. 101, 106 Westminster, Provisions of, i. 179,

180 Westminster, Statute of, ii. 491 Whipping, ii. 518, 544 Widow, Eights of, ii. 348, 418-428 Wife, tee Husband and wife Wife's part, ii. 314, 348-356 Wild animals, ii. 498 Will, Last, ii. 26, 115, 314-356 Will, Last, of serf, i. 416 Will, Last, of Sovereign, i. 521 WiU, Last, of wife, ii. 428, 429 Will of the lord, i. 370-372, 377 Will, Tenancy at, i. 357, 370 William L, i. 88-93, 97, 449, 450, 521

William n.,i. 94,521

Witan, i. 40, 41

Witchcraft, ii. 552-556

Wite, i. 48, 74 ; ii. 448, 449, 451, 458-

460, 462, 463, 469, 471, 476, 483, 495 Witepenny, i. 366 Wites, Eight to, i. 576-578; ii. 453 Witnesses, i. 140; ii. 601, 622, 628,

636, 638, 656 Witnesses of wills, ii. 337 Witnesses, Preappointed, ii. 184, 207,

214 Wolfs-head, i. 476; ii. 449 Women, i. 482-485 ; ii. 437 Worms, Burchard of, i. 18, 100, 117 Wounding, ii. 488 Writ de odio et atia, ii. 587, 588 Writ of Covenant, ii. 216 Writ of Entry, ii. 54n., 56, 62-75,

80m.,565, 570, 572, 620 Writ of Novel Disseisin, ii. 48, 72, 565 Writ of Bight, i. 385-389, 587; ii. 62,

75-78, 384, 565, 569, 570, 572, 605,

607 Writs, Judicial, i. 193; ii. 591, 621 Writs of course, i. 150, 196, 389 n. ;

ii. 64, 585 Writs, Original, i. 138, 150, 170, 171,

194-196, 389 n.; ii. 564, 591, 621 Writs, Begister of, i. 171, 195, 210,

221 Writs, Eeturn of, i. 583, 640, 644 Writs, Sale of, i. 195; ii. 205 • Written contract, ii. 192, 214, 219,

224 Written instruments, ii. 222-227 Wrongdoer, Action against, ii. 170

Tear and day, i. 648, 649; u. 76, 102,

156, 157, 563 Tear Books, i. 87, 210, 216 ; ii. 673 Tear, day and waste, ii. 449 Tears, Term of, see Term

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